Citation Nr: 21005970 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-45 117 DATE: February 3, 2021 REMANDED Entitlement to an increased rating in excess of 50 percent disabling for service-connected PTSD is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD is remanded. REASONS FOR REMAND The Veteran had active service with the U.S. Army from July 1974 to June 1979, and with the Reserves from January 2003 to January 2004, January 2004 to June 2004, and from June 2007 to December 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2017 and August 2017 rating decisions from the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania (RO). 1. Entitlement to an increased rating in excess of 50 percent disabling for service-connected PTSD is remanded. Within a May 2017 rating decision, the RO granted service connection for PTSD, and assigned a 50 percent disability rating, effective July 21, 2016, the date of his claim, based on the findings within a February 2017 VA examination. Within an August 2020 videoconference hearing, the Veteran testified that he received treatment for service-connected PTSD for the past four years at the Evers Psychological Service, a facility funded by the State of New Jersey, Department of Military and Veterans Affairs. He indicated that he went to his counselor for individual therapy about once every three weeks. The Veteran discussed his symptoms, which included disciplinary issues at work, anger issues in romantic relationships, and a strained relationship with his children. Prior to rendering a decision on the appeal, the Board finds that the RO should request the Veteran’s private treatment records that cover his PTSD treatment for the past four years. While on remand, the Board finds that after obtaining his private treatment records, a VA examination should be ordered to determine the current severity of service-connected PTSD. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 2. Service connection for a lumbar spine disability and a cervical spine disability are remanded. Pursuant to VA’s duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159 (c)(4)(i) (2019). A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service. See Id; McLendon, 20 Vet App. at 83. Here, private treatment records from April 2018 show the Veteran has diagnosed degeneration of cervical intervertebral disc with acute cervical radiculopathy, and degeneration of lumbosacral intervertebral disc, degenerative disc disease of the lumbar spine, and spondylosis of lumbar region. Within August 2020 videoconference hearing testimony, the Veteran reported that he injured his lower back while he was stationed at Dover Air Force Base in 1991. He indicated that his back began to bother him in the 1980’s while he was in the Army Reserves. The Veteran testified that he had continuous pain in his lower back since service separation, which has gotten worse. Also, within the August 2020 videoconference hearing, the Veteran testified that he injured his neck in service at Dover Air Force Base in 1991 or 1992, and had continuous cervical spine issues ever since. The Veteran provided all of his reserves treatment records in his possession, which show that in July 1992, he started experiencing neck and back pain. The Veteran noticed upper back pain two days prior, which intensified, and he reported for sick call. He was then sent to and treated at the Dover Air Force Base hospital. The medical report shows that the Veteran was on active duty for training when he experienced his neck and back symptoms. Because the Veteran has presented evidence of current cervical spine and lumbar spine disabilities, with evidence of an injury while on active duty for training, along with testimony indicating he had experienced cervical spine and lumbar spine pain since service separation, the Board finds that the Veteran should be afforded a VA examination prior to rendering a decision on the claims. McLendon, 20 Vet App. at 83. 3. Service connection for sleep apnea, to include as secondary to service-connected PTSD is remanded. Within April 2020 videoconference hearing testimony, the Veteran testified that he had not yet been diagnosed with sleep apnea, however, he was in the process of scheduling an appointment to undergo a sleep study. To date, the Veteran has not submitted a sleep study or any further evidence in support of his claim for service-connection for sleep apnea. However, given the current state of affairs, the Board finds that while his additional claims are on remand, the Veteran should be afforded an opportunity to submit evidence of currently diagnosed sleep apnea. The Board notes that while VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). If any such disability is shown within private treatment records, the RO should then afford the Veteran a VA examination to determine the nature and etiology of diagnosed sleep apnea. The matters are REMANDED for the following action: 1. Request all treatment records from the Evers Psychological Service pertaining to the Veteran’s claim for an increased rating for service-connected PTSD, and associate such records with the Veteran’s claims file. Any necessary authorization should be obtained, to include any release that is required from the Veteran. All attempts to obtain these records should be documented in the claims file. If any of the requested records are unavailable and it is determined that further attempts to obtain those records would be futile, such should be noted in a formal finding of unavailability that is associated with the electronic record and the Veteran and his representative should be so notified. 2. Request all private treatment records from the Veteran pertaining to the Veteran’s claim for service connection for sleep apnea, to include any private sleep study conducted after his August 2020 videoconference hearing. All attempts to obtain these records should be documented in the claims file. If any of the requested records are unavailable and it is determined that further attempts to obtain those records would be futile, such should be noted in a formal finding of unavailability that is associated with the electronic record and the Veteran and his representative should be so notified. 3. After the competition of development in Request 1, the Veteran should be afforded an updated VA psychiatric examination to address the current severity of service-connected PTSD. All indicated studies or testing should be conducted. The VA examiner should specifically address the extent of functional impairment caused by the Veteran’s service-connected PTSD. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his diagnosed cervical spine and lumbar spine disabilities. The electronic claims file must be made available to, and be reviewed by, the examiner. The examiner must note such review in the examination report. All indicated tests should be accomplished, and all clinical findings should be reported in detail. The examiner is requested to determine whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed lumbar spine disability and cervical spine disability were incurred in or caused by active service, to include as due to: (i) a July 1992 injury while on active duty for training, or (ii) heavy gear worn while deployed. The term “at least as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner must provide a complete explanation for his/her opinion(s), based on his/ her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 5. After the completion of development in Request 2, if private treatment records are obtained, and it is found that the Veteran has currently diagnosed sleep apnea, the RO should Schedule the Veteran for a VA examination to determine the nature and etiology of his diagnosed sleep apnea. The electronic claims file must be made available to, and be reviewed by, the examiner. The examiner must note such review in the examination report. All indicated tests should be accomplished, and all clinical findings should be reported in detail. The examiner is requested to determine: (a) whether it is at least as likely as not (50 percent probability or greater) that currently diagnosed sleep apnea was incurred in or caused by active service, to include as due to exposure to burn pits while deployed; and, (b) whether it is at least as likely as not (50 percent probability or greater) that currently diagnosed sleep apnea was (i) caused by, or (ii) aggravated by service-connected PTSD. The term “at least as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The term “aggravated” as used herein refers to a permanent worsening of the underlying condition beyond the natural progression of the disease, as contrasted with temporary or intermittent flare-ups of symptomatology which resolve with return to baseline level of disability. (Continued on the next page)   The examiner must provide a complete explanation for his/her opinion(s), based on his/ her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 6. After all the above development has been completed, the AOJ should review the appeal again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and his representative with a supplemental statement of the case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. R. Woodarek 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.