Citation Nr: 21005271 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-06 429 DATE: February 1, 2021 REMANDED Service connection for bilateral shoulder tendonitis is remanded. Service connection for lumbosacral strain is remanded. Service connection for bilateral patellofemoral pain syndrome (claimed as bilateral knee pain) is remanded. Service connection for residuals of stress fractures, bilateral feet is remanded. Service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran had active duty in the U.S. Army from September 2009 to December 2013. The issues are on appeal from a September 2015 rating decision. The Veteran testified in a hearing before the undersigned in November 2020. A copy of the transcript is associated with his claims file. 1. Service connection for bilateral shoulder tendonitis is remanded. 2. Service connection for lumbosacral strain is remanded. 3. Service connection for bilateral patellofemoral pain syndrome (claimed as bilateral knee pain) is remanded. 4. Service connection for residuals of stress fractures, bilateral feet is remanded. The Veteran seeks service connection for bilateral shoulder tendonitis, lumbosacral strain, bilateral patellofemoral pain syndrome, and stress fractures of the bilateral feet. He contends these disabilities began due to the duties of his military occupational specialty (MOS) as an Abrams tank crewmember and during a short period of time where he attended special forces selection training. The Veteran’s Certificate of Release or Discharge from Active Duty confirms his MOS as an armor crewman for three years and 10 months and includes a leadership development course in 2012 under his military education. Initially, the Board notes that a portion of the Veteran’s service treatment records from his period of active duty are unfortunately unavailable. The regional office (RO) has concluded that all avenues to obtain the missing records have been exhausted. The Veteran was kept notified of the RO’s actions in attempts to locate his service treatment records and these actions are associated with his claims file. When a Veteran’s service treatment records are unavailable through no fault of his own, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board’s analysis of the Veteran’s claims has been undertaken with this heightened duty in mind. Of the service treatment records found, a consult note from February 2012 shows no abnormalities with shoulders, thoracolumbar spine, knees, nor foot. The Veteran was afforded VA examinations for his shoulders, low back, knees, and feet in August 2015. He was diagnosed with bilateral shoulder tendonitis, lumbar strain, bilateral patellofemoral pain syndrome, and residuals of bilateral feet stress fractures. An etiology opinion as to whether any of the diagnosed disabilities is due to or was incurred in active duty was not provided. VA medical records show continued complaints of and treatment for these disabilities. Notably, in May 2020, the Veteran was diagnosed with bilateral plantar fasciitis, right foot calcaneal spur, and likely equinus. During his November 2020 hearing, the Veteran testified that his MOS duties required him to carry heavy rucksacks weighing 80 to 110-pounds, while running or going on rough marches for 12 to 15 miles, jumping on and off the tank, and going in and out of the tank. Additionally, he dealt with heavy ammunition rounds and would need to lift the rounds in and out of the tank or break track in the tank. The entrance hatch to the tanks were around two feet wide so this caused him to awkwardly bend his back while loading things in and out and the heavy weight of dealing with this tight and uncomfortable maneuver caused extreme strain on his shoulders. Further, the Veteran stated that he was elected to participate in a special forces selection training in March 2012. He would wear an 80-pound rucksack which did not leave his back unless he was sleeping, and he could sleep only four to five hours a night. Physically, he ran daily, consecutively did physical training, and participated in ruck marches twice per day. The Veteran was also given scenarios where he had to carry a “downed solider” which translated to him carrying a 120 to 200-pound bag for five miles at a time. Specifically, regarding his feet, the Veteran testified that it was hard to see at night and there were holes everywhere. He fell repeatedly into the holes which were around six to 10 inches deep, while he was running with heavy weight on his back. By the end of his special forces selection training, the Veteran stated that he could not really stand but he pushed through. During his separation evaluation from the training, he could only wear sneakers with their laces untied due to the swelling. The evaluator took imaging of his feet and diagnosed him with foot fractures. The Veteran was given ibuprofen and a light duty profile for a certain period. Although the Veteran has been afforded VA examinations for his shoulders, back, knees, and feet, in light of the absent etiology opinions, missing service treatment records, and because the Board cannot make a fully informed decisions on the issues of shoulders, back, knees, and feet disabilities without such pertinent information from a medical professional, the Board concludes that new VA examinations are warranted to assess any current diagnoses related to the shoulder, back, knees, or feet, and obtain the necessary etiology opinions for any disabilities found. Finally, the Board reminds the examiner that he/she/they should view the Veteran as a reliable and credible historian as to his service and his report of his activities in furtherance of his perceived disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 5. Service connection for sleep apnea is remanded. The Veteran seeks service connection for sleep apnea. He contends that sleep apnea is due to his active duty. The Veteran testified that controlled burns were contemporaneously occurring during his trainings. As a result, the Veteran was exposed to dust and residual from the burns while doing field exercises and sleeping outdoors. Additionally, the trucks, lights, heaters, and generators were constantly running, and thus, expelling diesel fumes. The Veteran stated he trained several times a year for 30 days at a time, with exposure occurring 24 hours a day. During active duty, the Veteran’s wife told him that he would stop breathing at night and he noticed he was tired during the day. Available service treatment records reveal a February 2010 consult where the Veteran denied sleep complaints, a February 2010 diagnosis of allergic rhinitis, and a March 2013 chronic problems list where allergic rhinitis is included. The Veteran was afforded a VA examination in August 2015. A diagnosis of sleep apnea was not found. However, the examiner noted that the Veteran had never undergone a sleep study and after doing so, the results would be added as an addendum to the VA examination. The examiner also conducted an examination for other conditions of the nose, throat, larynx, and pharynx, and diagnosed the Veteran with non-allergic (vasomotor rhinitis) in August 2015. An etiology opinion for sleep apnea or non-allergic (vasomotor rhinitis) were not provided. VA medical records demonstrate complaints of constant snoring, apnea, gasping arousals from sleep, and daytime sleepiness. A sleep study was conducted in September 2015 which showed the Veteran did not have sleep apnea. After continued symptom manifestations, the Veteran was suspected of having sleep apnea in February 2017 and was to undergo another sleep study. There is no sleep study or results from a second sleep study in the Veteran’s medical records. Although the Veteran was afforded a VA examination for his claimed sleep apnea, in light of the absent etiology opinions, missing service treatment records, and because the Board cannot make a fully informed decisions on the issues of sleep apnea without such pertinent information from a medical professional, the Board concludes that a new VA examination is warranted to assess whether the Veteran has a current diagnosis of sleep apnea, and if so, whether it is due to or was incurred in active duty. Finally, during his hearing, the Veteran testified that he was currently receiving exclusive medical care from the Plymouth VA Clinic. As the last VA treatment record is from June 2020, the RO should obtain the Veteran’s most recent medical records from Plymouth VA Center. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from June 2020 to the Present from the Plymouth VA Center. Associate the VA treatment records with the Veteran’s claims file. 2. After the above development has occurred, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s shoulder disorders. Access to the claims file must be made available to the examiner for review in connection with the examination. The examiner should note that the Veteran’s service treatment records are largely missing from the claims file. After examining the Veteran and reviewing the record, the examiner should assess the nature and etiology of any shoulder disabilities found. The examiner is asked to opine as to whether it is at least as likely as not (i.e. 50 percent or greater) that the Veteran’s shoulder disabilities are causally related to his active duty or any incident therein, to include injuries sustained during active duty. In providing the rationale, the examiner should discuss the relevant evidence of record to include the Veteran’s lay statements regarding his MOS duties and special forces selection training. Specifically, that he carried 80-200-pound rucksacks while doing strenuous physical activities and maneuvered himself into/out of small hatch openings while also dealing with rucksacks and heavy ammunition. The examiner is reminded to view the Veteran as a credible historian as to his service and his report of his activities in furtherance of his perceived disability. The examiner is also reminded that the lack of documented treatment in service cannot serve as the sole basis for a negative finding. Sufficient rationale should be provided for all expressed opinions. 3. Schedule the Veteran for a VA examination determine the nature and etiology of the Veteran’s back. Access to the claims file must be made available to the examiner for review in connection with the examination. The examiner should note that the Veteran’s service treatment records are largely missing from the claims file. After examining the Veteran and reviewing the record, the examiner should assess the nature and etiology of any back disabilities found. The examiner is asked to opine as to whether it is at least as likely as not (i.e. 50 percent or greater) that the Veteran’s back disabilities are causally related to his active duty or any incident therein, to include injuries sustained during active duty. In providing the rationale, the examiner should discuss the relevant evidence of record to include the Veteran’s lay statements regarding his MOS duties and special forces selection training. Specifically, that he carried 80-200-pound rucksacks while doing long physical activities and maneuvered himself into/out of small hatch openings while also dealing with rucksacks and heavy ammunition. The examiner is reminded to view the Veteran as a credible historian as to his service and his report of his activities in furtherance of his perceived disability. The examiner is also reminded that the lack of documented treatment in service cannot serve as the sole basis for a negative finding. Sufficient rationale should be provided for all expressed opinions. 4. Schedule the Veteran for a VA examination determine the nature and etiology of the Veteran’s knees. Access to the claims file must be made available to the examiner for review in connection with the examination. The examiner should note that the Veteran’s service treatment records are largely missing from the claims file. After examining the Veteran and reviewing the record, the examiner should assess the nature and etiology of any knee disabilities found. The examiner is asked to opine as to whether it is at least as likely as not (i.e. 50 percent or greater) that the Veteran’s knee disabilities are causally related to his active duty or any incident therein, to include injuries sustained during active duty. In providing the rationale, the examiner should discuss the relevant evidence of record to include the Veteran’s lay statements regarding his MOS duties and special forces selection training. Specifically, that he carried 80-200-pound rucksacks while doing long physical activities, jumped in/out/on/off the tank while carrying heavy rucksacks and ammunition, and maneuvered himself into/out of small hatch openings while also dealing with rucksacks and heavy ammunition. The examiner is reminded to view the Veteran as a credible historian as to his service and his report of his activities in furtherance of his perceived disability. The examiner is also reminded that the lack of documented treatment in service cannot serve as the sole basis for a negative finding. Sufficient rationale should be provided for all expressed opinions. 5. Schedule the Veteran for a VA examination determine the nature and etiology of the Veteran’s feet. Access to the claims file must be made available to the examiner for review in connection with the examination. The examiner should note that the Veteran’s service treatment records are largely missing from the claims file. After examining the Veteran and reviewing the record, the examiner should assess the nature and etiology of any feet disabilities found. The examiner is asked to opine as to whether it is at least as likely as not (i.e. 50 percent or greater) that the Veteran’s feet disabilities are causally related to his active duty or any incident therein, to include injuries sustained during active duty. The Board notes that the Veteran’s VA treatment records demonstrate a current diagnosis of bilateral plantar fasciitis, right foot calcaneal spur, and likely equinus. In providing the rationale, the examiner should discuss the relevant evidence of record to include the Veteran’s lay statements regarding his MOS duties and special forces selection training. Specifically, that he carried 80-200-pound rucksacks while doing long physical activities, jumped in/out/on/off the tank while carrying heavy rucksacks and ammunition, and that he often fell into holes in the ground which caused his feet to swell – to the point where he could not wear tied sneakers at the end of his special forces selection training. The separation evaluator from the special forces selection training diagnosed the Veteran with bilateral foot fractures after imaging was conducted. The examiner is reminded to view the Veteran as a credible historian as to his service and his report of his activities in furtherance of his perceived disability. The examiner is also reminded that the lack of documented treatment in service cannot serve as the sole basis for a negative finding. Sufficient rationale should be provided for all expression opinions. 6. Schedule the Veteran for a VA examination determine the nature and etiology of the Veteran’s sleep apnea. Access to the claims file must be made available to the examiner for review in connection with the examination. The examiner should note that the Veteran’s service treatment records are largely missing from the claims file. After examining the Veteran and reviewing the record, the examiner should assess the nature and etiology of any sleep apnea disabilities found. The examiner is asked to opine as to whether it is at least as likely as not (i.e. 50 percent or greater) that the Veteran’s sleep apnea disabilities are causally related to his active duty or any incident therein, to include injuries sustained during active duty. In providing the rationale, the examiner should discuss the relevant evidence of record to include the Veteran’s testimony that he was exposed to residuals from controlled burns while spending large periods of time outside as well as diesel fumes from trucks, generators, lights, and heaters. The Board notes that the Veteran was diagnosed with allergic rhinitis during active duty and in his August 2015 VA examination, and he underwent a sleep study in September 2015 with negative results. However, the Veteran has had consistent complaints of persistent daytime somnolence and his wife has reported his gasping for breath while sleeping since active duty. The examiner is reminded to view the Veteran as a credible historian as to his service and his report of his activities in furtherance of his perceived disability. The examiner is also reminded that the lack of documented treatment in service cannot serve as the sole basis for a negative finding. Sufficient rationale should be provided for all opinions expressed. 6. Readjudicate the appeals. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee 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.