Citation Nr: 21077561 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 17-21 806 DATE: December 30, 2021 REMANDED Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to February 27, 2017, is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a traumatic brain injury (TBI) and any residuals thereof is remanded. REASONS FOR REMAND The Veteran had active duty service from January to June 1999, from March to September 2001, from September 2001 to February 2002, and from January to September 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, continued the 30 percent disability rating for posttraumatic stress disorder (PTSD) and denied service connection for a traumatic brain injury (TBI), sleep apnea, and left chondromalacia and patellofemoral syndrome (left knee disability). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in October 2019. A copy of the transcript has been reviewed and associated with the claims file. These matters were before the Board in January 2020, at which time they were remanded for additional evidentiary development. 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to February 27, 2017, is remanded. In the January 2020 remand, the Board instructed the RO to obtain and associate with the claims file the Veteran's counseling records from the Vet Center from September 2014 to February 2017. The Supplemental Statement of the Case (SSOC) issued in November 2021 listed the records from the E. LA Vet center from September 2006 to October 2021. However, to date, these records have not been associated with the claims file. Accordingly, on remand, the RO should obtain and associate with the claims file the Veteran's records from the E. LA Vet center from September 2014 to February 2017. 2. Entitlement to service connection for a left knee disability is remanded. Throughout the rating period on appeal, the Veteran has been assessed with a left knee strain, meniscal tear, and instability (left knee disability). He asserts that his left knee disability was incurred during service and continued to the present day. During the hearing in October 2019, the Veteran indicated that he injured his left knee during a trip and fall accident on a Humvee in 2003. He did not request treatment at that time because they were in the middle of a combat zone. His DD Form 214 confirmed that he was in an imminent danger zone in 2003. On remand, the RO verified the Veteran's combat service. See 02/21/2020, Correspondence; 11/03/2021 SSOC. Pursuant to the Board's remand instructions, a VA examination was performed in October 2021. After a review of the evidence, the Board finds that this medical opinion is insufficient to determine the present claim. In this regard, the examiner indicated that a positive opinion could not be given without resorting to speculation because there was a lack of medical documentation to support a left knee injury from a fall in 2003. However, as verified, on remand, the Veteran's combat service was verified and, accordingly, his testimony regarding his left knee injury is consistent with the circumstances of his service and sufficient to establish that he injured his left knee in service. See 38 C.F.R. § 3.304(d); Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Moreover, the examiner relied solely on the lack of documentation while rendering his opinion indicating that there was no chronicity of his left knee pain following service. Accordingly, the Board finds that an addendum medical opinion is warranted on remand in order for the examiner to discuss the Veteran's in-service left knee injury and statements regarding his continuity of symptomatology. 3. Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. The Veteran has been assessed with obstructive sleep apnea (OSA) and asserts it was incurred in service and/or secondary to his service-connected PTSD. Pursuant to the Board's remand instructions, a VA examination was performed in October 2021. However, after a review of the evidence, the Board finds that this medical opinion is insufficient to determine the present claim. In this regard, the examiner concluded that the Veteran's OSA was not incurred in service given that there was no objective evidence of signs or symptoms consistent with OSA. However, the examiner failed to acknowledge or discuss the Veteran's hearing testimony in October 2019 where he indicated that he choked and snored during his sleep and was always tired in service. Accordingly, the Board finds that an addendum opinion is warranted on remand in order for the examiner to consider the Veteran's lay statements of record. 4. Entitlement to service connection for a traumatic brain injury (TBI) and any residuals thereof is remanded. The Veteran testified at the hearing in October 2019 and indicated that he suffered a head injury during a trip and fall accident on a Humvee in 2003. As relayed above, he did not request treatment because he was in a combat zone and his combat service has been verified. Following the accident, he reports that he vomited for a week and continued to have dizziness and headaches. The dizziness and headaches, along with sharp pains in the backside of his eye and problems with balance, have continued to the present day. He sought treatment a few years after service. The Veteran underwent a TBI consultation in October 2011. He described the 2003 accident and indicated that he felt dizzy and nauseated after the accident and subsequently suffered from headaches. He also described two subsequent head injuries in 2006 and 2009. The examiner assessed him with late effect of intracranial injury without skull fracture, mild cognitive impairment, and chronic post traumatic headaches. The examiner indicted that the injury and course of clinical symptoms were consistent with a diagnosis of a TBI sustained during deployment. His current clinical symptoms were consistent with a combination of TBI and behavioral health conditions. Pursuant to the Board's remand instructions, a VA examination was performed in October 2021. After a review of the evidence, the Board finds that this medical opinion is insufficient to determine the present claim. In this regard, the examiner indicated that the Veteran did not have a diagnosis of a TBI, in part, due to the fact that there was no objective medical evidence of a head injury in 2003 and the October 2011 TBI evaluation reflects the Veteran's own account of the events leading up to his 2003 accident. However, as verified, on remand, the Veteran's combat service was verified and, accordingly, his testimony regarding his head injury is consistent with the circumstances of his service and sufficient to establish that he injured his head in service. See 38 C.F.R. § 3.304(d); Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Moreover, the examiner relied solely on the lack of documentation while rendering his opinion indicating there were no subsequent TBI symptoms. Accordingly, the Board finds that an addendum medical opinion is warranted on remand in order for the examiner to discuss the Veteran's in-service head injury and statements regarding his post-accident symptoms. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records from October 2021 to the present. 2. Obtain and associate with the claims file the Veteran's records from the E. LA Vet center from September 2014 to February 2017. 3. After completion of #1, forward the claims file, including a copy of this remand, to the October 2021 VA examiner for an addendum opinion regarding the nature and etiology of the Veteran's left knee disability. If the October 2021 examiner is not available, forward to an appropriate clinician. A VA examination is only necessary if deemed so by the examiner. The examiner should conduct a review of the record, including this remand, and respond to the following: Is it at least as likely as not (probability of at least 50 percent) that the Veteran's left knee disability was incurred in and/or etiologically related to his period(s) of active service, including the 2003 Humvee accident? The examiner is advised that combat service has been verified and the Veteran's accounts of his left knee injury in service are found to be sufficient to conclude that his injured his left knee in service. The examiner should consider the Veteran's statements of record indicating the he continued to experience post-service left knee pain and should not rely solely on the lack of documentation of left knee pain before rendering an opinion. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 4. After completion of #1, forward the claims file, including a copy of this remand, to the October 2021 VA examiner for an addendum opinion regarding the etiology of the Veteran's OSA. If the October 2021 examiner is not available, forward to an appropriate clinician. A VA examination is only necessary if deemed so by the examiner. The examiner should conduct a review of the record, including this remand, and respond to the following: Is it at least as likely as not (probability of at least 50 percent) that the Veteran's OSA was incurred in and/or etiologically related to his period(s) of active service? The examiner should consider the Veteran's statements of record indicating that he experienced in-service symptoms such as snoring and choking in his sleep and fatigue in service and should not rely solely on the lack of documentation of OSA in service before rendering an opinion. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 5. After completion of #1, forward the claims file, including a copy of this remand, to the October 2021 VA examiner for an addendum opinion regarding the Veteran's head injury. If the October 2021 examiner is not available, forward to an appropriate clinician. A VA examination is only necessary if deemed so by the examiner. The examiner should conduct a review of the record, including this remand, and respond to the following: A. Does the Veteran have a current head injury, TBI, or residuals thereof? If so, please list the residuals. Please note that a current disability is determined from the date of the claim, or from March 2013, to the present. B. For any diagnosed head injury, TBI, or residuals thereof, is it at least as likely as not (probability of at least 50 percent) that the Veteran's head disability was incurred in and/or etiologically related to his period(s) of active service, including the 2003 Humvee accident? The examiner is advised that combat service has been verified and the Veteran's accounts of his head injury in service are found to be sufficient to conclude that he injured his head in service. The examiner should consider the Veteran's statements of record indicating that he continued to experience post-service headaches, dizziness, loss of balance, and sharp pains in the back of his head and should not rely solely on the lack of documentation of a head injury or residuals thereof before rendering an opinion. Attention is called to the Veteran's post-service head injuries in 2006 and 2009. The examiner should understand that as long as some level of disability existed prior to the intercurrent incidents, then a positive nexus to service should be made. Solely for the purposes of future rating, if a nexus to service is made, the examiner should then attempt to estimate the percentage of symptoms attributable solely to the in-service injuries The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.