Citation Nr: 21007798 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-01 775 DATE: February 10, 2021 REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a sleep disorder is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from June 1972 to May 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. By way of procedural background, this matter was previously before the Board in March 2020, at which time the Board remanded the issues of service connection for a left shoulder disability and a sleep disorder for additional development. The Veteran’s claims for service connection for bilateral hearing loss, tinnitus, and an acquired psychiatric disability were granted in an August 2020 rating decision. As this is considered a full grant of the benefits on appeal for those claims, they are no longer before the Board for appellate consideration. AB v. Brown, 6 Vet. App. 35 (1993). The Board observes that additional VA and private treatment records were added to the claims file since the RO’s adjudication in the August 2020 Supplemental Statement of the Case (SSOC), without a waiver of initial RO consideration. See VA treatment records, private podiatry and dermatology treatment records, and service treatment records (STRs) received September 2020; see also Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). However, review of this evidence reveals that the records are either duplicates of evidence already associated with the claims file (in the case of the VA treatment records and STRs) or irrelevant to the instant claims on appeal (in the case of the private podiatry and dermatology treatment records). As such, a waiver of initial RO consideration is not required. 1. Entitlement to service connection for a left shoulder disability is remanded. The Veteran asserts he is entitled to service connection for a left shoulder disability. The Board finds that additional development is necessary prior to appellate review of this claim. In May 2014, the Veteran was provided a VA examination to determine the nature and likely etiology of his claimed left shoulder disability, which was documented in a June 2014 VA examination report. After an in-person examination of the Veteran and review of his claims file, the VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, reasoning, “Review of c-file via VBMS indicates ‘shoulder strain’ 1974. Review of CPRS is silent for documentation until 2013. A strain involves muscle. xrays indicate degenerative changes. Degenerative changes involve bone. Unfortunately, examiner is unable to formulate a Nexus to support claim for shoulder.” On review, the Board finds the June 2014 VA medical opinion inadequate, as the VA examiner did not address the Veteran’s lay reports of continuing left shoulder symptoms since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Specifically, in the June 2014 VA examination report, the Veteran stated that since service, the pain in his shoulder has gotten progressively worse. Additionally, during the January 2020 Board hearing, the Veteran testified that he injured his left shoulder “from picking up heavy ammo boxes” and that he continued to have problems with his left shoulder during his military career and afterwards, “but being a young fellow, you know, I pushed through it and thought I could, could make it.” On remand, the VA examiner should address this lay evidence when providing an etiology opinion. Furthermore, the Board notes that the Veteran had a motor vehicle accident in November 2009, and in the June 2014 VA examination report, the Veteran indicated that the “jolting incident made the shoulder even worse.” See also December 2009 private treatment record. Thus, on remand, the VA examiner should also assess for any intercurrent causes of the Veteran’s current left shoulder disability. Lastly, the Board observes that a March 2020 “SSA Profile and Benefit Data” document seems to indicate that the Veteran may have a disability claim pending before the Social Security Administration (SSA). As the Veteran’s SSA records may reasonably contain information relating to the disabilities on appeal, remand is required to obtain his SSA records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). 2. Entitlement to service connection for a sleep disorder is remanded. The Veteran asserts he is entitled to service connection for a sleep disorder, to include sleep apnea and narcolepsy. The Board finds that additional development is necessary prior to appellate review of this claim. In May 2020, the Veteran was provided a VA examination to determine the nature and likely etiology of his claimed sleep disorder. Two separate Disability Benefits Questionnaires (DBQs) were completed – a “Narcolepsy” DBQ and “Sleep Apnea” DBQ. In the “Remarks” section of the May 2020 “Narcolepsy” DBQ, the VA examiner noted that although the Veteran’s VA treatment records reflect a diagnosis of narcolepsy, “this is just in mentioning without any basis for the diagnosis indicated. In addition, the diagnosis is not mentioned in the three sleep study results, including the MSLT [Multiple Sleep Latency Test]. Therefore, there is insufficient objective evidence to render a diagnosis of narcolepsy at this time.” However, the May 2020 VA examiner did note a current diagnosis of obstructive sleep apnea, as confirmed by multiple sleep studies. After an in-person examination of the Veteran and review of his claims file, the May 2020 VA examiner opined that the Veteran’s obstructive sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, reasoning, “[n]o records were found documenting the sleep disorder during service.” On review, the Board finds the May 2020 VA medical opinion inadequate, as the VA examiner impermissibly relied solely on the absence of evidence in the Veteran’s STRs to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Notably, in the May 2020 VA “Sleep Apnea” DBQ, the Veteran reported that symptoms of excessive daytime sleepiness, fatigue, loud snoring, apneic spells while sleeping, and frequent falling to sleep while at rest during the day onset during his first year in the military in 1972, and that his neck size increased during his three years in the military. Additionally, during the January 2020 Board hearing, the Veteran testified that other soldiers in his barracks would talk about how he kept everybody up because he snored so loud, and he experienced headaches and daytime sleepiness when he first separated from service. On remand, the VA examiner should address this lay evidence when providing an etiology opinion. Moreover, as noted previously, a March 2020 “SSA Profile and Benefit Data” document seems to indicate that the Veteran may have a disability claim pending before the SSA. As the Veteran’s SSA records may reasonably contain information relating to the disabilities on appeal, remand is required to obtain his SSA records. See Golz, 590 F.3d at 1323. Accordingly, the matters are REMANDED for the following action: 1. Obtain from SSA all records pertaining to the Veteran’s claim for disability benefits, if any, including copies of all medical records considered in deciding any claim. If a search for these records is negative, that should be noted in the record. 2. Obtain an addendum VA medical opinion regarding the nature and likely etiology of the Veteran’s left shoulder disability. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a review of the entire claims file, the examiner is asked to provide an opinion as to whether the Veteran’s left shoulder disability at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to it. In providing the etiology opinion, please address whether there were any intercurrent causes, such as the Veteran’s November 2009 motor vehicle accident. * The examiner’s attention is directed to the following evidence: ** October 1974 STR (Veteran complained of intermittent sharp pain in his left shoulder following an injury playing football, and service medical personnel noted an impression of left shoulder sprain). ** December 2009 private treatment record (Veteran endorsed a left shoulder injury related to an automobile accident on November 3, 2009 and the provider noted magnetic resonance imaging of the left shoulder revealed a full thickness rotator cuff tear). ** June 2014 VA examination report (Veteran reported, “[w]hile in the military, I strained my shoulder playing ball. I always had a cramp. It has always been stiff. States went to sick call, states was given a sling for a couple of weeks and pain medication with limited results. Had physical therapy for a couple of days. Since the military, pain has gotten progressively worse. States had a MVA and had jolting incident made the shoulder even worse. States had surgery to left shoulder, admits to physical therapy with minimal results. Continues to have stiffness. Continues to have numbness with scarring.”) ** January 2020 Board hearing transcript (Veteran testified that he injured his left shoulder “from picking up heavy ammo boxes” and that he continued to have problems with his left shoulder during his military career and afterwards, “but being a young fellow, you know, I pushed through it and thought I could, could make it.”). 3. Obtain an addendum VA medical opinion regarding the nature and likely etiology of the Veteran’s claimed sleep disorder. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a review of the entire claims file, the examiner is asked to provide an opinion as to whether the Veteran’s sleep disorder at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to it. (Continued on the next page) * The examiner’s attention is directed to the following evidence: ** May 2020 VA “Sleep Apnea” DBQ (Veteran reported that symptoms of excessive daytime sleepiness, fatigue, loud snoring, apneic spells while sleeping, and frequent falling to sleep while at rest during the day onset during his first year in the military in 1972, and that his neck size increased during his three years in the military). ** January 2020 Board hearing (Veteran testified that fellow soldiers in his barracks would talk about how he kept everybody up because he snored so loud, and he experienced headaches and daytime sleepiness when he first separated from service). 4. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, Associate 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.