Citation Nr: 21005954 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 18-31 163 DATE: February 3, 2021 REMANDED Entitlement to service connection for a back disorder, to include a lumbar spine disorder, is remanded. Entitlement to service connection for a shoulder disorder is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1979 to April 1982, from October 1988 to August 1989, and from December 1990 to May 1991, with additional service in the reserves. This appeal comes before the Board of Veterans’ Appeals (Board) from February 2016 and September 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In the February 2016 rating decision, the RO denied entitlement to service connection for a lumbar spine disorder and shoulder disorder and denied entitlement to a total rating based on individual unemployability (TDIU). The Veteran filed a Notice of Disagreement and a Statement of the Case was issued. On substantive appeal, the Veteran indicated that he only wanted to appeal the service connection claims. The TDIU matter was not perfected for appellate review and will not be discussed herein. In August 2019, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge on the issues of service connection for a shoulder disorder and for a back disorder, to include a lumbar spine disorder. A transcript of the hearing is of record. The matters of entitlement to service connection for a shoulder disorder and for a back disorder were previously remanded by the Board in October 2019 for further development. Specifically, the Board remanded these claims for VA examinations. In the September 2018 rating decision, the RO granted service connection for peripheral vestibular disorder and assigned a 10 percent disability rating, granted service connection for tinnitus and assigned a 10 percent disability rating, granted service connection for left-ear hearing loss and assigned a noncompensable, or 0 percent, disability rating and denied service connection for right-ear hearing loss and sleep apnea. The Veteran filed a Notice of Disagreement as to the disability evaluation for left-ear hearing loss and service connection for right-ear hearing loss and sleep apnea, and a Statement of the Case was issued. On substantive appeal, the Veteran indicated that he only wanted to appeal the claim for service connection for sleep apnea. The issues of the disability evaluation for left-ear hearing loss and service connection for right-ear hearing loss were not perfected for appellate review and will not be discussed herein. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for a back disorder, to include a lumbar spine disorder The Veteran contends that his degenerative arthritis of the spine, claimed as a back disorder, is related to his active service. Specifically, the Veteran contends that his duties as a combat medic and then a licensed practical nurse, necessitated that he carried a ruck sack over 65 pounds, with additional special medical equipment which added another 35 pounds and that he helped remove deceased soldiers whom he would pick up over his shoulder, carry to stretchers, and on stretchers, would carry two or three bodies at a time. See June 2018 VA Form 9 and August 2019 Board Hearing Transcript. Pursuant to the October 2019 Board remand, the Veteran underwent a VA back examination in January 2020. The examiner opined that it was less likely as not that the Veteran’s lumbar disc disease with spondylosis was incurred in service or caused by the claimed in-service injury, stating that the disability does not develop in short periods of service, but rather is chronic and tends to worsen over time as a result of the natural aging process and/or due to repetitive trauma. The examiner opined that the Veteran’s lumbar disability was more likely than not caused by age, obesity and occupational history as a nurse, all of which predispose the Veteran to develop lumbar spine degenerative disc disease. The examiner further stating that there is significant evidence in medical literature that supports the fact that this disability is considered part of the normal aging process in patients older than 40 years old. The Board finds that the January 2020 VA examination is inadequate because the examiner did not adequately consider the Veteran’s competent and credible lay statements regarding the responsibilities required to be performed as part of his duties as a combat medic, even though the examiner specifically noted that “repetitive trauma” is a risk factor for this type of disability. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding an examination inadequate where the examiner “impermissibly ignored the appellant’s lay assertions that he had sustained a back injury during service”). In particular, the Veteran contends that his unit picked up thousands of corpses and he aided with wounded soldiers and carrying dead bodies for pick up. See September 2018 Statement and June 2018 VA Form 9. The examiner did not consider the repetitive motions of bending or stooping down, picking up and carrying a corpse, as well as carrying stretchers with two or three bodies at a time, as “repetitive trauma,” particularly considering the volume of corpses the Veteran reported and his reports of working more than 14 hours a day. See December 2020 Statement and August 2019 Hearing Testimony. Similarly, the examiner did not address Veteran’s in-service occupational history as a practical nurse, particularly as the Veteran reported that his post-service occupation was the same as his military occupational specialty. See November 2014 VA Form 21-8940. Providing the Veteran with an inadequate examination is a duty to assist error; and therefore, the matter must be remanded. See Barr v. Nicholson, 21 Vet. App. 303 (2007). VA’s “duty to assist “includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (internal quotation omitted). A remand is necessary for an addendum opinion to address the nature and etiology of the Veteran’s back disorder. 2. Entitlement to service connection for a shoulder disorder The Veteran contends that his shoulder disorder is related to his active service. His assertion is based on the same contentions noted above regarding his back disorder. A remand is also warranted for his shoulder disorder. VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay testimony as to continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Id. at 83. Additionally, as noted, the Veteran has a medical background. The Veteran’s VA treatment records reveal complaints of bilateral shoulder pain. In addition, the Veteran stated that not only did he carry corpses on his shoulders, but also that as a licensed practical nurse during active duty, he used his shoulders to help patients, for example, get to the showers and to bathe. See November 2014 VA Form 21-8940. The Veteran has not been afforded an examination to determine the etiology of his shoulder disorder. A medical examination and opinion are necessary to decide this claim. See 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. Pursuant to the October 2019 Board remand, the Veteran was scheduled for a VA shoulder examination but he cancelled the examination. Based on his correspondence received by VA in March 2020, the Board finds that the Veteran had good cause as to why he did not report for his VA examination and, in light of the foregoing, finds it appropriate to schedule another VA examination that fully addresses the nature and etiology of his claimed shoulder disorder. 3. Entitlement to service connection for obstructive sleep apnea The Veteran contends that his obstructive sleep apnea is a result of his active military service. He also contends that he suffered obstructive sleep apnea symptoms during active duty. See February 2020 VA Form 9. A current diagnosis of obstructive sleep apnea is of record. See March 2017 Poly-Night Polysomnogram Report. In a letter dated in February 2017, the Veteran reported working as a litter bearer while an Iraqi petroleum factory burned. An Open Burn Pit Registry received by VA in July 2018 shows that the Veteran reported in-service exposure to soot, ash, smoke or fumes from oil fires, and that he was near enough to a burn pit to see smoke during his deployment to Southwest Asia. He again reported in-service exposure to air pollution by hydrocarbons from burning oil in his February 2020 VA Form 9 and reported that he got complaints from fellow soldiers during his deployment to Southwest Asia about his extreme snoring and jumping while sleeping. The Veteran stated that prior to this deployment, he slept very well without problems and without snoring. The Veteran additionally reported that his wife told him that while he sleeps, he has trouble breathing, jumps a lot and snores very loudly. The Board cannot make a fully-informed decision on the issue of service connection for obstructive sleep apnea because no VA examiner has opined whether the Veteran’s obstructive sleep apnea is caused by or related to his reports of in-service exposure to air pollutants from burning oil. As a result, remand for a VA examination is necessary. The matters are REMANDED for the following action: 1. Forward the record to the appropriate VA examiner (if possible, an orthopedic surgeon or examiner different from the January 2020 examiner) for an addendum opinion as to the etiology of the Veteran’s back disorder. The examiner must review the entire claims file, to include a copy of this Remand, in conjunction with authoring the opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician. The examiner is asked to address whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s back disorder had its onset in, or is otherwise related to, the Veteran’s military service, to include the nature of his duties as a practical nurse and also as a litter-bearer. The examiner is advised that the Veteran has medical training, as he served as a combat medic and is a licensed nurse. He is competent and his reports must be considered in formulating the requested opinion. If there is a medical basis to support or doubt the Veteran’s statements, the examiner must state this with a fully reasoned explanation. A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate. If it is not possible to provide a specific measurement, or an opinion without report to speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for a VA examination with an appropriate clinician (if possible, an orthopedic surgeon) to obtain a medical opinion which addresses the nature and etiology of the Veteran’s shoulder disorder. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner must review the entire claims file, to include a copy of this Remand, in conjunction with authoring the opinion. For every distinct shoulder disorder found, the examiner is asked to address whether it is at least as likely as not (a 50 percent or greater probability) the shoulder disorder had its onset in, or is otherwise related to, the Veteran’s military service, to include the nature of his duties as a practical nurse and also as a litter-bearer. The examiner is advised that the Veteran has medical training, as he served as a combat medic and is a licensed nurse. He is competent and his reports must be considered in formulating the requested opinion. If there is a medical basis to support or doubt the Veteran’s statements, the examiner must state this with a fully reasoned explanation. A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate. If it is not possible to provide a specific measurement, or an opinion without report to speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Forward the record to an appropriate clinician to determine the nature and etiology of the Veteran’s obstructive sleep apnea. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner must review the entire claims file, to include a copy of this Remand, in conjunction with authoring the opinion. The need for an examination of the Veteran is left to the discretion of the clinician. The examiner is asked to address whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s obstructive sleep apnea had its onset in, was caused by, or is otherwise related to, active service, to include his exposure to air pollutants from burning oil while deployed during the Gulf War. The examiner should address the Veteran’s lay statements received by VA in March 2017 and on his February 2020 VA Form 9, as well as the Open Burn Pit Registry received by VA in April 2017. The examiner is advised that the Veteran has medical training, as he served as a combat medic and is a licensed nurse. He is competent and his reports must be considered in formulating the requested opinion. If there is a medical basis to support or doubt the Veteran’s statements, the examiner must state this with a fully reasoned explanation. A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate. If it is not possible to provide a specific measurement, or an opinion without report to speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Battaile 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.