Citation Nr: 21007408 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-14 228 DATE: February 9, 2021 REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right upper extremity neurological disability, to include radiculopathy and neuropathy, is remanded. Entitlement to service connection for a left upper extremity neurological disability, to include radiculopathy and neuropathy, is remanded. Entitlement to service connection for a right lower extremity neurological disability, to include radiculopathy and neuropathy, is remanded. Entitlement to service connection for a left lower extremity neurological disability, to include radiculopathy and neuropathy, is remanded. Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, anxiety, and posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea and as secondary to service-connected disabilities, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty for training from November 1995 to May 1996 and on active duty from October 2003 to June 2004, to include service in Southwest Asia. The Veteran also served in the Puerto Rico National Guard. This matter is before the Board of Veterans’ Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board denied these claims in September 2018, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court granted a Joint Motion for Partial Remand (JMR) in which the parties agreed to vacate the September 2018 decision as it pertained to the matters above and remand those matters to the Board. 1. Neck and back disabilities. The Veteran states he began experiencing chronic neck and back pain while deployed. He also complained of low back pain in July 2006 VA treatment records. The records establish that the Veteran was in a May 2010 motor vehicle accident. He asserts that accident resulted in chronic pain. He states the accident occurred as he was traveling to a weekend drill for the National Guard. In July 2012, while on active duty training (ADT), he complained about his right shoulder and his back. Finally, the Veteran states constant carrying/moving/loading and unloading heavy boxes of ammunition caused disability. While the July 2012 injury is documented as occurring during ADT, the records do not establish whether the 2010 motor vehicle accident occurred while the Veteran was travelling to a weekend drill. Development is necessary to determine the Veteran’s duty status at the time of the accident. See 38 C.F.R. § 3.6(e). An additional medical opinion is also necessary. While the Veteran was afforded a VA examination in October 2014, the examiner did not discuss the Veteran’s report of onset of pain during deployment, the significance of the 2010 motor vehicle accident, or whether the repetitive nature of the Veteran’s duties may have caused the disability. The Board is aware that Dr. S.M. concluded that the Veteran handling heavy ammunition boxes while working in artillery resulted in disabilities and noted a medical article addressing disability in people who had been in the active military. Importantly, the Veteran asserts that during his active duty period he was engaged in guard duties rather than artillery duties. See June 4, 2019 VA Social Worker Note. It is unclear if Dr. S.M.’s opinion would change if considering the artillery duties were performed in the Guard where the frequency and duration would be much different. 2. Neurological complaints in the extremities. There is some conflict in the evidence as to whether the Veteran has a diagnosable neurological disability affecting the upper or lower extremities. Additional examination is necessary to clear up this conflict. 3. Left shoulder disability. The Veteran claims a left shoulder disability resulted from service. He is already service connected for right shoulder impingement syndrome and asserts his left shoulder impingement syndrome arose from the same circumstances. The service treatment records specifically mention a right shoulder injury in a July 2012 training accident but not left shoulder complaint. There also is no mention of a left shoulder injury in the May 2010 motor vehicle accident. However, the Veteran states as a result of his right shoulder disability, he used his left shoulder more and now it is hard from him to use his left shoulder and arm as well. This raises the issue of whether the left shoulder disability has been caused or aggravated by the Veteran’s right shoulder disability. Remand is necessary for an additional medical opinion. 4. Psychiatric disorder. The Veteran asserts he has an acquired psychiatric disorder resulting from his service. The Veteran reports that after his service in Southwest Asia from December 2003 to May 2004, he returned to Puerto Rico. In 2005, his National Guard unit was sent to New Orleans, Louisiana to assist in the Hurricane Katrina aftermath. The Veteran has asserted his experiences in New Orleans played a role in the onset of his mental health symptoms. In the post deployment assessment in May 2004 after he returned from Southwest Asia, the Veteran did not report any psychological symptoms. However, after his Hurricane Katrina duty, a September 2005 post deployment assessment indicated the Veteran was experiencing some depression. While there is evidence in the file that the Veteran served in New Orleans for Hurricane Katrina relief efforts, the file does not contain the orders sending him there. There also is no Department of Defense Form 214 for that period. It is unclear to the Board if the Veteran was activated for Federal service or whether the Governor of Puerto Rico activated the unit and sent it to New Orleans as a courtesy or good will to assist Louisiana when it needed extra help. Accordingly, the Board has determined that a remand is necessary to determine under what authority the Veteran deployed to New Orleans, Louisiana. After that development and ongoing medical records are obtained, the Board has also determined that the Veteran should be provided a VA examination to address what role deployment to New Orleans versus the Veteran’s previous active duty service played in the development of any acquired psychiatric disorder. 5. Sleep disorder. The Veteran states he exhibited symptoms of obstructive sleep apnea starting during his deployment in Southwest Asia, including snoring, trouble sleeping, and waking up tired. A December 2013 sleep study diagnosed obstructive sleep apnea. Based upon this study, Dr. S.M. has attributed obstructive sleep apnea to service as well as weight gain due to a psychiatric disorder. The October 2014 VA examiner attributed the obstructive sleep apnea to an occlusion in the upper airway. Neither report, however, discuss June 2014 home sleep testing which was negative for sleep apnea. See June 2014 VA Pulmonary Note. As such, additional examination is necessary. 6. Erectile dysfunction. The Veteran asserts his erectile dysfunction is related to his acquired psychiatric disorder. As such, the claim for service connection for erectile dysfunction must be remanded as it is intertwined with the psychiatric disorder claim being remanded. The matters are REMANDED for the following action: 1. With the Veteran’s assistance as necessary, obtain any outstanding treatment records relevant to his claims. 2. Obtain the Veteran’s complete service personnel records, to include for his service in the Puerto Rico National Guard. His duty status on May 2, 2010 should be verified through pay records or other records specific to that day. 3. Verify whether the Veteran was sent to assist in Hurricane Katrina relief efforts under Federal orders or by direction of the governor of Puerto Rico. 4. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability of the neck, back, or left shoulder had its onset during service or is otherwise related to an in-service injury, event, or disease, to include his deployment to Southwest Asia where he primarily functioned as a guard, a September 2005 post-deployment assessment noting a history of back pain while responding for Hurricane Katrina, a May 2010 motor vehicle accident (assuming his duty status is verified for this event), a July 2012 training accident where he reported discomfort of his right shoulder and back, and his duties in the artillery which included moving heavy ammunition. The examiner should also address whether any current disability of the left shoulder is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) the service-connected right shoulder disability, to include as a result of overuse of the left shoulder to protect the right shoulder. A rationale for all opinions is requested as adjudicators are precluded from making any medical findings. 5. After records development is completed, schedule the Veteran for a VA neurological examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current neurological disability of the upper or lower extremities, to include symptoms resulting in functional impairment even absent a formal diagnosis, onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should also address whether any current upper or lower extremity neurological disability, to include symptoms resulting in functional impairment even absent a formal diagnosis, is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) his neck or back disabilities. A rationale for all opinions is requested as adjudicators are precluded from making any medical findings. 6. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current acquired psychiatric disorder had its onset during service or is otherwise related to an in-service injury, event, or disease, to include deployment to Southwest Asia or to New Orleans, Louisiana after Hurricane Katrina (assuming his duty status is verified for this event). The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions is requested as adjudicators are precluded from making any medical findings. 7. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current sleep disorder had its onset during service or is otherwise related to an in-service injury, event, or disease, to include the Veteran’s statements regarding snoring and fatigue while deployed. The examiner is asked to comment on the June 2014 VA Pulmonary Note indicating a normal home sleep study. The examiner should also address (a) whether a service-connected disability or disabilities caused the Veteran to become obese or aggravated the Veteran’s obesity, and if so, (b) whether the obesity or aggravation of obesity resulting from service-connected disability was a substantial factor in causing sleep apnea such that the sleep apnea would not have occurred but for the obesity caused or aggravated by service-connected disability. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions is requested as adjudicators are precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell P. Veldenz, Counsel 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.