Citation Nr: 21076632 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-18 098 DATE: December 27, 2021 REMANDED Entitlement to service connection for left ankle disability is remanded. Entitlement to service connection for back disability is remanded. Entitlement to service connection for acquired psychiatric disability, to include depression, is remanded. Entitlement to service connection for sleep disability other than obstructive sleep apnea, to include insomnia is remanded. Entitlement to a rating in excess of 10 percent for left knee patellofemoral pain syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1999 to April 2002. These matters initially came before the Board of Veterans' Appeals (Board) on appeal of an April 2015 rating decision of a Department of Veterans Affairs (VA) regional office (RO). In March 2017, the agency of original jurisdiction (AOJ) awarded an increased (10 percent) disability rating for left knee patellofemoral pain syndrome, from March 10, 2014. In November 2019 the Board remanded the issues on appeal for further development. The issues have now been returned to the Board. As for characterization of the issues on appeal, in December 2020, the Veteran submitted a Decision Review Request: Supplemental Claim with regard to the issue of entitlement to service connection for sleep apnea. Entitlement to service connection for sleep apnea was denied in an April 2021 rating decision, and in May 2021 the Veteran submitted a VA Form 10182 (Notice of Disagreement) with regard to that issue, as well as the issues of entitlement to service connection for hypertension and gastroesophageal reflux disease (GERD). The Board finds that the issue of entitlement to service connection for a sleep disorder, to include insomnia, is distinct from the issue of entitlement to service connection for sleep apnea. Therefore, the sleep issue which is currently before the Board in the legacy appeal system has been characterized as set forth above. The appeal with respect to the issue of entitlement to service connection for obstructive sleep apnea will be processed under the modernized review system, also known as the Appeals Modernization Act (AMA), together with the claims of service connection for hypertension and GERD. These issues will be adjudicated in a future Board decision under the AMA. Entitlement to service connection for left ankle disability, back disability, acquired psychiatric disability (to include depression), and sleep disability other than obstructive sleep apnea (to include insomnia) and entitlement to an increased rating for left knee patellofemoral pain syndrome are remanded. Relevant to all the claims on appeal, in its November 2019 remand, the Board directed that the AOJ undertake appropriate actions to secure outstanding private treatment records from Gadsen Regional Medical Center and any physicians who may have evaluated the Veteran and referred him for lumbar spine surgery in 2007. The Veteran was also to be provided VA examinations to consider the current severity of his service-connected left knee disability and to evaluate the nature and etiology of his claimed left ankle disability. However, the claims folder indicates that the Veteran failed to complete the requested VA Form 21-4142 (Authorization to Disclose Information to the Department of Veterans Affairs) and VA Form 21-4142a (General Release for Medical Provider Information to the Department of Veterans Affairs) and failed to appear for the scheduled VA examinations. A supplemental statement of the case was issued, denying the claims in March 2020. In April 2020, the Veteran stated that he was willing to provide additional evidence and to report to examinations in connection with his claims. He explained that it was "difficult to get things currently because of the Covid-19 crisis." As the Veteran has expressed willingness to assist in obtaining the outstanding private treatment records and to participate in VA examinations, a remand is required to afford him another opportunity to do so. In this case, the Board finds that complications associated with Covid-19 constitute good cause for his failure to assist in the development of his claims. Recent VA treatment records note that the Veteran continues to receive private treatment for his low back from Dr. Morris. Records of treatment by Dr. Morris were last obtained in March 2016. On remand, appropriate development to obtain these potentially relevant records must also be undertaken. Moreover, the Veteran should be provided VA examinations to ascertain the nature and etiology of his claimed back disability, acquired psychiatric disability, and sleep disability other than obstructive sleep apnea. In this regard, the Veteran stated in February 2015 that he believed his acquired psychiatric disability and insomnia were related to being awoken by his drill sergeant with a megaphone during service, and that his acquired psychiatric disability was related to in-service ankle or knee injuries, or to being stationed in Korea during the September 11, 2001 attacks. VA treatment records dated in July 2014 note treatment for depression and insomnia. In an August 2015 statement, the Veteran asserted that he had a congenital low back disorder which was aggravated during his active-duty service as a result of carrying heavy weapons and packs as well as the demanding physical training. A February 2007 private treatment record notes both congenital and acquired stenosis, and an October 2020 VA treatment record notes diagnoses which include lumbar degenerative disc disease and lumbar disc displacement disorder. On remand, examinations should be obtained to address these contentions. Also, there is no indication that the Veteran's complete service personnel records have been requested. As they are potentially relevant to his claim for entitlement to service connection for an acquired psychiatric disability, remand is also required to obtain those records. Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Birmingham Vista electronic records system and are dated to September 2021. Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service personnel records. 2. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for left ankle disability, back disability, psychiatric disability, sleep disability, and left knee disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for any relevant records of treatment for left ankle disability, back disability, psychiatric disability, sleep disability, and left knee disability from Gadsen Regional Medical Center and any physicians who may have evaluated him and referred him for lumbar spine surgery in 2007, any records from Dr. Morris dated since March 2016, and from any other sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records unless it is clear after the first request that a second request would be futile. Document attempts and results in the claims file. 3. Obtain the Veteran's outstanding VA treatment records from the Birmingham Vista electronic records system for the period since September 2021; and all such relevant records from any other sufficiently identified VA facility. 4. After steps 1 through 3 are completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature of any current left ankle disability and whether any such disability is related to service. The examiner should state: a. What left ankle disabilities have been present at any time since approximately March 2014? b. For each such left ankle disability: is it at least as likely as not that the disability (1) began during active service; (2) manifested within one year after discharge from service (in the case of any currently diagnosed arthritis); OR (3) is related to an in-service injury or disease, to include the March, April and May 2001 treatment for a left ankle and foot condition? The examiner must provide reasons for each opinion given. 5. After steps 1 through 3 are completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature of any current back disability and whether any such disability is related to service. The examiner should state: a. What back disabilities have been present at any time since approximately March 2014? b. For each such back disability: is it at least as likely as not that the disability (1) began during active service; (2) manifested within one year after discharge from service (in the case of any currently diagnosed arthritis); OR (3) is related to an in-service injury or disease, to include carrying heavy weapons and packs and undergoing demanding physical training? c. For any such back condition, is such condition a congenital defect or a congenital disease? For VA purposes, a defect is a structural or inherent abnormality or condition that is more or less stationary in nature and is generally incapable of improvement or deterioration. In contrast, a disease is capable of improvement or deterioration. d. If any current back disorder is a CONGENITAL DEFECT, is it at least as likely as not (i.e., 50 percent or greater probability) subject to a superimposed disease or injury (to include due to carrying heavy weapons and packs and undergoing demanding physical training) during military service that resulted in additional disability apart from the congenital or developmental defect? e. If any current back disorder is a CONGENITAL DISEASE, does the evidence show it was aggravated (worsened) by the Veteran's military service, to include due to carrying heavy weapons and packs and undergoing demanding physical training? If there was worsening, was this due to the natural progress of the disease? The examiner must provide reasons for each opinion given. 6. After steps 1 through 3 are completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature of any current acquired psychiatric disability and whether any such disability is related to service. The examiner should state: a. What acquired psychiatric disorders have been present at any time since approximately March 2014? b. For each such acquired psychiatric disability: is it at least as likely as not that the disability (1) began during active service; OR (2) is related to an in-service injury or disease, to include being awoken by his drill sergeant with a megaphone during service, in-service ankle or knee injuries, or being stationed in Korea during the September 11, 2001 attacks? The examiner must provide reasons for each opinion given. 7. After steps 1 through 3 are completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature of any current sleep disability other than obstructive sleep apnea (to include insomnia) and whether any such disability is related to service. The examiner should state: a. What sleep disorders other than obstructive sleep apnea, to include insomnia, have been present at any time since approximately March 2014? b. For each such sleep disorder other than obstructive sleep apnea, to include insomnia: is it at least as likely as not that the disability (1) began during active service; OR (2) is related to an in-service injury or disease, to include being awoken by his drill sergeant with a megaphone during service? The examiner must provide reasons for each opinion given. 8. After steps 1 through 3 are completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee patellofemoral pain syndrome. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. a. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing of both the left and right knee. If any requested testing cannot be completed, the examiner should state why that is the case. b. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and provide, to the extent possible, an estimate of the additional degrees of limited motion of the left knee during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran's statements. If the examiner cannot provide the above-requested opinion regarding flare-ups and with repeated use over time without resorting to speculation, he or she should state whether all procurable medical evidence has been considered, to specifically include the Veteran's description as to the severity, frequency, and duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. (CONTINUED ON NEXT PAGE) The examiner must provide reasons for each opinion given. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bametzreider, Paul J. The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.