Citation Nr: 21006988 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 11-28 823 DATE: February 8, 2021 REMANDED Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a sleep disability, to include sleep apnea, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), major depressive disorder, depression, and an anxiety disorder, is remanded. Entitlement to a rating in excess of 10 percent for a right knee disability, manifested by limitation of extension, is remanded. Entitlement to a rating in excess of 0 percent for a right knee disability, manifested by limitation of flexion, is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability, manifested by limitation of extension, is remanded. Entitlement to a rating in excess of 0 percent for a left knee disability, manifested by limitation of flexion, is remanded. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability, is remanded. 2. Entitlement to service connection for a sleep disability, to include sleep apnea, to include as secondary to a service-connected disability, is remanded. The Board notes that the service medical records are largely missing from the claims file. Currently, the service medical records associated with the claims file consist largely of the Veteran's March 1987 service entrance examination report and an October 1990 knee examination report. The record indicates that VA followed the correct procedures in seeking to obtain the missing documents, but were unable to locate any additional records. In April 2011, VA issued a Formal Finding, indicating that the Veteran's outstanding service medical records were to be considered unavailable. In July 2017, the Board remanded the claims for service connection for cervical spine and sleep disabilities to schedule VA medical examinations to determine the etiology of the claimed disabilities. In August 2020 VA medical examination reports, both written by the same VA examiner, the Veteran reported experiencing onset of disability symptomatology during service. In August 2020 VA medical opinions, the VA examiner opined that both of the claimed disabilities were not at least as likely as not related to service, because the service medical records did not contain any notations indicating disability symptomatology during service. The VA examiner did not note that the service medical records were largely missing from the file and did not reference the statements made by the Veteran regarding symptomatology during and since service. Remand is necessary for an additional examination. 3. Entitlement to service connection for a psychiatric disability, to include PTSD, major depressive disorder, depression, and an anxiety disorder, is remanded. The Veteran claims that he experiences PTSD symptoms related to experiences he encountered while serving in Panama. The Board notes that the Veteran's service personnel records contain no notations indicating that the Veteran served overseas during active service. However, in the October 1990 service knee examination report, written soon before the Veteran's discharge from service, the Veteran reported serving in Panama from June 1989 to September 1989. Remand is necessary to attempt to corroborate the Veteran's report of overseas service, to include by requesting information as to whether the Veteran’s unit was noted to have been stationed in Panama during the period noted in the October 1990 service medical record. 4. Entitlement to a rating in excess of 10 percent for a right knee disability, manifested by limitation of extension, is remanded. 5. Entitlement to a rating in excess of 0 percent for a right knee disability, manifested by limitation of flexion, is remanded. 6. Entitlement to a rating in excess of 10 percent for a left knee disability, manifested by limitation of extension, is remanded. 7. Entitlement to a rating in excess of 0 percent for a left knee disability, manifested by limitation of flexion, is remanded. 8. Entitlement to TDIU is remanded. The Veteran contends, in part, that a claimed cervical spine disability was either caused or permanently aggravated beyond the normal progression by the service-connected disabilities, to include right and left knee disabilities. Therefore, an examination should be provided to determine the current severity of the knee disabilities. Regarding all issues, the VA treatment records currently in evidence contain notations indicating that VA employees scanned medical records into a VA hospital's imaging system, but do not contain any copies of the scanned records. Any treatment records scanned into a VA hospital's imaging system are within VA's constructive possession and are considered potentially relevant to the issues on appeal. Remand is required to allow VA to obtain those records. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. Specifically, obtain the most recent VA treatment records not included in the record of evidence and the records noted as having been scanned into the Vista imaging system by VA Medical Center personnel, as noted in the VA treatment records in evidence, dated September 22, 2020; September 1, 2020; December 19, 2016; June 6, 2015; February 4, 2015; June 14, 2014; April 15, 2014; April 12, 2014; March 29, 2014; March 26, 2014; March 19, 2014; October 4, 2013; March 26, 2013; February 8, 2013; November 30, 2012; October 7, 2012; September 29, 2012; June 2, 2012; May 17, 2012; May 2, 2012; April 24, 2012; February 3, 2012; January 6, 2012; November 30, 2011; July 14, 2011; April 27, 2010; January 25, 2010; May 25, 2008; December 26, 2007; December 20, 2007; and December 7, 2007. 2. Attempt to verify the Veteran's service in Panama, to include by checking unit records with any appropriate repository to determine if the Veteran's unit was stationed Panama in 1989 or 1990. 3. Schedule the Veteran for a VA sleep apnea examination by a VA somnologist or other qualified VA medical examiner doctor. The examiner must review the claims file, to include the service medical records currently included in the file; the post-service treatment records; and the Veteran's lay statements. The examiner is advised that most of the Veteran's service medical records are missing. Therefore, lay statements from the Veteran and any other relevant evidence should be included in the discussion on the opinion of service connection. After a review of the claims file, an examination, and an interview with the Veteran, the examiner should offer the following opinions: (a.) Is it at least as likely as not (50 percent probability or greater) that any identified sleep apnea disability had its onset during active service or is related to any incident of service? The examiner should discuss the lay evidence of the Veteran's symptoms during and since service and the previous diagnoses of sleep apnea. (b.) Is it at least as likely as not (50 percent probability or greater) that any identified sleep apnea disability is due to or the result of the service-connected disabilities? (c.) Is it at least as likely as not (50 percent probability or greater) that any identified sleep apnea disability has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities? 4. Schedule the Veteran for a VA orthopedic examination by an orthopedist to determine the severity of right and left knee disabilities, and the etiology of a claimed cervical spine disability. The examiner must review the record and should note that review in the report. In reviewing the record, the examiner should note the service medical records, the post-service treatment records, and the Veteran's lay statements. The examiner is advised that most of the Veteran's service medical records are missing. Therefore, lay statements from the Veteran and any other relevant evidence should be included in the discussion on the opinion of service connection. A complete rationale should be stated for all opinions and conclusions expressed. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. Regarding the knees, the examiner must report the range of motion of each knee, expressed in degrees, to include measurements for weight-bearing, nonweight-bearing, passive motion, and active motion. The examiner must make specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination associated with each knee. If pain on motion is observed, the examiner should indicate the point at which pain begins. The examiner should also indicate whether, and to what extent, the Veteran experiences functional loss of the knee or any other symptoms during flare-ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. The examiner should also state whether there is any recurrent subluxation or instability of either knee and, if so, opine as to the severity. After an examination of the cervical spine, a review of the claims file, and an interview with the Veteran, the examiner is asked to also provide the following opinions: (a.) Is it at least as likely as not (50 percent probability or greater) that any identified cervical spine disability had its onset during active service or is related to any incident of service, to an in-service 1987 Airborne parachute training accident? (b.) Is it at least as likely as not (50 percent probability or greater) that any identified cervical spine disability has been caused by the service-connected disabilities, to include lumbosacral spine, left lower extremity radiculopathy, right knee, and left knee disabilities? (c.) Is it at least as likely as not (50 percent probability or greater) that any identified any identified cervical spine disability has been aggravated (increased in severity beyond the natural progress of the disability) due to the service-connected disabilities, to include lumbosacral spine, left lower extremity radiculopathy, right knee, and left knee disabilities? (d.) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities, to include lumbosacral spine, left lower extremity radiculopathy, right knee, and left knee disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, state what type of work and what accommodations would be necessary due to the service-connected disabilities. 5. Then, readjudicate the issues on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.M. Gillett 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.