Citation Nr: 21008314 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 18-48 023 DATE: February 16, 2021 ORDER The claim to reopen service connection for obstructive sleep apnea is granted. The claim to reopen service connection for a left shoulder disability is granted. Service connection for obstructive sleep apnea is granted. Service connection for a left shoulder disability is granted. Service connection for a neck disability is granted. Service connection for an acquired psychiatric disability is granted. REMANDED Service connection for a foot disability, to include the toes, is remanded. Service connection for arthritis not of the shoulders, back, neck, knees, feet, or toes is remanded. A compensable rating for pseudofolliculitis barbae is remanded. Higher ratings for low back disability, currently rated 10 percent prior to June 6, 2014 and 20 percent thereafter, are remanded. More than a 10 percent rating for right lower extremity lumbar radiculopathy is remanded. More than a 10 percent rating for left lower extremity lumbar radiculopathy is remanded. Higher ratings for right shoulder disability, currently rated 10 percent prior to June 6, 2014 and 20 percent thereafter, are remanded. A compensable rating for right shoulder surgical scars is remanded. A compensable rating for hypertension is remanded. Higher ratings for gastroesophageal reflux disease (GERD), currently rated 0 percent prior to June 6, 2014 and 10 percent thereafter, are remanded. A compensable rating for tinea versicolor is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REFERRED The issue of service connection for a right knee disability was raised in a June 2006 claim and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. Evidence received since the prior final April 2007 denial of service connection for sleep apnea (because there was no evidence of complaints, treatment, or diagnoses for sleep apnea in service or of any other relationship to service) includes updated treatment records suggesting a new diagnosis (e.g., October 2011 VA records noting sleep disordered breathing with a history of previous sleep apnea) and new allegations that sleep apnea is aggravated by a separately claimed psychiatric disability. 2. Such evidence certainly relates to previously unestablished elements of service connection (i.e., medical nexus and new theories of entitlement) and, considering the low threshold for reopening under Shade v. Shinseki, 24 Vet. App. 110 (2010), raises a reasonable possibility of substantiating the claim. 3. Evidence received since the prior final (pre-discharge) August 2001 denial of service connection for left shoulder disability (because there was no evidence of a chronic left shoulder disability) includes updated VA and private treatment records suggesting new diagnoses (e.g., left shoulder impingement syndrome, glenohumeral osteoarthritis, and acromioclavicular osteoarthritis). 4. Such evidence certainly relates to previously unestablished elements of service connection (i.e., current diagnosis) and, considering the low threshold for reopening under Shade v. Shinseki, 24 Vet. App. 110 (2010), raises a reasonable possibility of substantiating the claim. 5. The Veteran has a current diagnosis for sleep apnea confirmed by polysomnogram. 6. The evidence of record includes competent, consistent statements from himself, his ex-wife (who served on active duty with him), and a former active duty roommate indicating symptoms of sleep apnea (e.g., snoring, breathing difficulties, fatigue, etc.) began during service and has continued ever since. 7. Absent any notable medical or other evidence to the contrary, the Board finds the evidence is at least in relative equipoise as to whether sleep apnea began in service and persisted. 8. The evidence of record shows several left shoulder diagnoses, including acromioclavicular hypertrophy, impingement syndrome, and glenohumeral and acromioclavicular osteoarthritis (based on a privately completed September 2017 disability benefits questionnaire which indicates confirmation by imaging studies). 9. The Veteran is service-connected for right shoulder disability and alleges that his right shoulder problems require compensation with the left shoulder, thereby worsening its condition. Thus, what remains for consideration is whether such a relationship does exist. 10. The only pertinent medical opinions of record are an inadequate negative December 2017 VA opinion (because, by the examiner’s own admission, it was not based on a full examination) and a positive August 2018 private opinion indicating that “his left shoulder has been overused due to the service injury to his right shoulder,” that “his left shoulder has advanced for age degenerative changes,” and that “his records do not contain another more likely cause of the left [shoulder] advanced for age [degenerative joint disease].” Consequently, the Board finds the evidence is at least in relative equipoise as to whether the Veteran’s left shoulder arthritis is secondary to his service-connected right shoulder disability. 11. The Veteran has documented diagnoses of multilevel cervical spine degenerative disc disease (DDD) confirmed by imaging studies with additional notations of cervical radiculopathy in the arms and hands. 12. He is service-connected for a low back disability and alleges that his neck disability is secondary to back disability. Therefore, what remains for consideration is whether such a relationship exists. 13. The only pertinent medical opinions for secondary service connection are a negative December 2017 VA opinion indicating “[t]here is neither a consensus of evidence in medical literature or in the medical community that supports a causal relationship between these conditions” (but is inadequate because, by the examiner’s own admission, it was not based on a full examination) and an August 2018 private opinion indicating the Veteran “has advanced for age degenerative changes with left and right arm radiculopathy,” and explained that “lumbar spine abnormalities lead to abnormal [sagittal] curves which leads to abnormal compensatory curves in the cervical spine which leads to advanced degeneration in the cervical spine over time.” 14. Considering the private opinion’s more thorough and substantive supporting rationale, the Board finds the evidence is certainly at least in relative equipoise as to whether the Veteran’s cervical spine arthritis with radiculopathy is secondary to his service-connected low back disability. 15. The Veteran has several documented psychiatric diagnoses of record, including depressive disorder with anxious distress, insomnia, and sleep disturbance found on November 2017 VA examination and a September 2018 private diagnosis of depressive disorder related to “service-connected physical and emotional trauma.” 16. The Veteran is service-connected for several other conditions, including low back disability, and alleges that his psychiatric distress is aggravated by his service-connected comorbidities. What remains to be shown is whether such a relationship exists. 17. The only medical opinions of record that appear to address a secondary relationship are a positive April 2015 private opinion (with little to no explanation) and a positive November 2017 VA opinion (which found that, while there was no evidence that back disability caused onset of depression, it is “likely that his back pain contributes to the depression”). Under the circumstances, the Board finds the evidence is at least in relative equipoise as to whether the Veteran’s psychiatric disability is related to his service-connected low back disability. CONCLUSIONS OF LAW 1. The criteria for reopening service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 5108, 7105 (2018); 38 C.F.R. § 3.156 (2020). 2. The criteria for reopening service connection for a left shoulder disability are met. 38 U.S.C. §§ 5108, 7105 (2018); 38 C.F.R. § 3.156 (2020). 3. The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1113, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(b) (2020). 4. The criteria for service connection for a left shoulder disability are met. 38 U.S.C. §§ 1110, 1113, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(b), 3.310 (2020). 5. The criteria for service connection for a neck disability are met. 38 U.S.C. §§ 1110, 1113, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(b), 3.310 (2020). 6. The criteria for service connection for an acquired psychiatric disability are met. 38 U.S.C. §§ 1110, 1113, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(b), 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from April 1982 to August 2001. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision appealed in a timely November 2015 notice of disagreement (NOD) and perfected by a timely September 2018 substantive appeal in response to an August 2018 statement of the case (SOC). In November 2018, a hearing was held before the undersigned; a transcript is of record. As the Veteran claimed a variety of psychiatric conditions (including insomnia, depression, and anxiety), that issue is recharacterized pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (holding that the Board must consider the nature of the Veteran’s claimed condition when assessing the breadth of any particular claim, particularly when he or she is not competent to specify what disability they may have). The Veteran’s allegations supporting the nonspecific arthritis claim has identified the back, neck, knees, shoulders, and feet as relevant areas. However, arthritis of the back, neck, shoulders, and feet are currently separately on appeal. In June 2006, the Veteran filed a claim for both knees and a December 2017 rating decision adjudicated the left knee only. The Board has referred the right knee for initial adjudication pursuant to the original claim (as noted above) and the Veteran did not appeal the December 2017 left knee decision. Therefore, arthritis of the knees would be part and parcel of separate claims that the Board has no jurisdiction over at this time. Consequently, the Board has recharacterized the nonspecific arthritis appeal to encompass any arthritic conditions affecting areas other than those described above. For the detailed reasons outlined above, the Board grants the claims seeking to reopen and establish service connection for sleep apnea and left shoulder, neck, and psychiatric disabilities, obviating any need for further detailed discussion thereof at this time. REASONS FOR REMAND 1. Service connection for a foot disability, to include the toes is remanded. First, the Board notes that the Veteran has made repeated mentions of seeking treatment, going to sick call, and receiving care for complaints (not all limited to his feet and toes) during service that do not appear to be documented in the record. Therefore, efforts should be made to ensure that there are no outstanding service treatment records pertinent to the claims remaining on appeal. Second, while an August 2018 private opinion indicates the Veteran has plantar fasciitis related to service, the rationale is not altogether clear as to why, noting only that “aggravated [flat feet] secondary complications are medically known to worsen over time.” It is unclear whether the provider is saying that asymptomatic pes planus noted at enlistment worsened during service and produced the current plantar fasciitis, as he does not address pes planus substantively in the opinion at all. Moreover, the Veteran has a number of other foot diagnoses and the medical evidence of record leaves unclear whether several of them have any relationship to service or his reported complaints therein. Notably, the only VA examination of record was conducted in December 2017 and, by the examiner’s own admission, did not include a full examination because “the claim does not involve an in-service event,” even though the Veteran has provided several competent reports of foot pain in service. The associated opinion is also confusing, as it addresses whether lower extremity radiculopathy caused the Veteran’s flat feet even though the evidence clearly establishes the Veteran has had pes planus since before service. Consequently, a new examination is needed to provide medical clarification. 2. Service connection for arthritis not of the shoulders, back, neck, knees, feet, or toes is remanded. Although the Veteran has alleged symptoms of a nonspecific arthritis as a result of several musculoskeletal injuries, no examination has been conducted to address this issue specifically. Rather, the orthopedic examinations thus far have, understandably, focused on specific joints that are the subjects of more targeted claims, but leave unclear whether he has other arthritic involvement (including systemic arthritis). Therefore, a full examination that specifically addresses his claim should be ordered. 3. A compensable rating for pseudofolliculitis barbae is remanded. 4. Higher ratings for low back disability, currently assigned "staged ratings" of 10 percent prior to June 6, 2014 and 20 percent from that date is remanded. 5. More than a 10 percent rating for right lower extremity lumbar radiculopathy is remanded. 6. More than a 10 percent rating for left lower extremity lumbar radiculopathy is remanded. 7. Higher ratings for right shoulder disability, currently rated 10 percent prior to June 6, 2014 and 20 percent thereafter is remanded. 8. A compensable rating for right shoulder surgical scars is remanded. 9. A compensable rating for hypertension is remanded. 10. Higher ratings for gastroesophageal reflux disease (GERD), currently rated 0 percent prior to June 6, 2014 and 10 percent thereafter is remanded. 11. A compensable rating for tinea versicolor is remanded. The Veteran has not been examined in conjunction with these appeals since 2016 or 2017, and even the most recent privately completed disability benefits questionnaires only address some of these conditions and are still over two years old. Moreover, those questionnaires contain relatively little detail describing the presentation of the disabilities evaluated. Finally, the medical and lay evidence received since (including in sworn testimony before the undersigned) suggests these conditions have worsened since their most recent VA examinations. As a current disability picture is crucial to an accurate adjudication in these matters, contemporaneous examinations are needed. 12. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. This matter is inextricably intertwined with those being remanded and must also be deferred pending the AOJ’s implementation of the service connection awards in this decision and assignment of initial ratings. The matters are REMANDED for the following action: 1. Conduct an exhaustive search to ensure that the Veteran’s service treatment records are complete, as the Veteran seems to repeatedly refer to treatment and sick call complaints that do not currently appear in the record. 2. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment (either in the past or more recently) the Veteran has received for the disabilities remaining on appeal. 3. Schedule the Veteran for an in-person or telehealth (whichever is appropriate) examination by a podiatrist to determine the nature and cause of any foot or toe disabilities found. Based on a review of the record, examination of the Veteran (INCLUDING A COMPLETE SUBJECTIVE HISTORY AND REPORT DESCRIBING ONSET, COURSE, AND PROGRESSION OF HIS SYMPTOMS), and any tests or studies deemed necessary, the examiner must respond to the following: (a.) Please diagnose all foot or toe disability entities found. All diagnostic findings (or lack thereof) must be reconciled with conflicting evidence in the record, including but not limited to diagnoses of metatarsalgia, plantar fasciitis, flat feet, equinus deformity, and sesamoiditis. If any previously documented diagnoses are no longer or otherwise not felt to apply, the examiner must explain why, citing to the pertinent diagnostic criteria. The examiner SHOULD SPECIFICALLY ADDRESS whether the Veteran has signs, symptoms, or other findings (including on imaging studies or other clinical testing) consistent with great toe arthritis or prior hairline fracture residuals as alleged. (b.) For each disability diagnosed, please opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is related to the Veteran’s military service, to include his competent reports of recurrent foot complaints (e.g., pain, toe fractures, etc.) therein OR the aggregate effects of physical activity and training over the course of twenty years. The examiner should specifically consider whether any current findings, symptoms, or pathology are consistent with residuals of alleged great toe hairline fractures in service based on the nature, severity, or other characteristics of any current great toe findings, timing since initial alleged injury, or other relevant factors. All opinions must include a detailed rationale. Providing an opinion or conclusion without enough explanation will delay processing of the claim and require further clarification. 4. Schedule the Veteran for an in-person or telehealth (whichever is appropriate) examination by any appropriate clinician(s) to determine the nature and cause of any arthritic disability other than of the back, neck, shoulders, knees, feet, or toes. Based on a review of the record, examination of the Veteran (INCLUDING A COMPLETE SUBJECTIVE HISTORY AND REPORT DESCRIBING ONSET, COURSE, AND PROGRESSION OF HIS SYMPTOMS), and any tests or studies deemed necessary, the examiner must respond to the following: (a.) Please diagnose all arthritic disability entities found OTHER THAN those affecting the back, neck, shoulders, knees, feet, or toes, INCLUDING BUT NOT LIMITED TO any systemic arthritic conditions. (b.) For each disability diagnosed, please opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is related to the Veteran’s military service, to include the documented back and shoulder complaints therein, the reports of recurrent foot complaints therein, or the aggregate effect of 20 years of physical training and military activities. (c.) For each disability diagnosed, please also opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such is CAUSED BY OR PROXIMATELY DUE TO his service-connected musculoskeletal disabilities (e.g., back, neck, shoulders, etc.) or their symptoms, either independently or together in any combination. (d.) For each disability diagnosed, please also opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such is AGGRAVATED (WORSENED BEYOND ITS NATURAL PROGRESSION, REGARDLESS OF PERMANENCE) BY his service-connected musculoskeletal disabilities (e.g., back, neck, shoulders, radiculopathies, etc.) or their symptoms, either independently or together in any combination. All opinions must include a detailed rationale. Providing an opinion or conclusion without enough explanation will delay processing of the claim and require further clarification. 5. Schedule the Veteran for in-person or telehealth examination(s) (whichever is more appropriate) by a dermatologist or other appropriate clinician to determine the current severity of his service-connected pseudofolliculitis barbae, tinea versicolor, and right shoulder surgical scars. Based on an examination (INCLUDING A COMPLETE SUBJECTIVE HISTORY AND REPORT DESCRIBING ONSET, COURSE, AND PROGRESSION OF HIS SYMPTOMS AND HOW THEY VARY WITH ANY FLARE-UPS), review of the record, and any tests or studies deemed necessary, the examiner should describe all pathology, symptoms (frequency and severity), and functional impairment associated with such disabilities in enough detail to allow for application of the pertinent rating criteria. The examiner should also comment on the expected impact of pseudofolliculitis barbae, tinea versicolor, and right shoulder surgical scars on the Veteran’s occupational functioning, to include (but not limited to) identifying the kinds of work they would preclude and those they would not. All opinions must include a detailed rationale. Providing an opinion without one will delay processing of the claim and may require clarification. 6. Schedule the Veteran for in-person or telehealth examination(s) (whichever is more appropriate) by an orthopedist or other appropriate clinician to determine the current severity of his service-connected low back and right shoulder disabilities. Based on an examination (INCLUDING A COMPLETE SUBJECTIVE HISTORY AND REPORT DESCRIBING ONSET, COURSE, AND PROGRESSION OF HIS SYMPTOMS AND HOW FUNCTIONING AND LIMITATION OF MOTION VARY WITH FLARE-UPS, REPEATED USE OVER A PERIOD OF TIME, OR OTHER SUCH CIRCUMSTANCES), review of the record, and any tests or studies deemed necessary, the examiner should describe all pathology, symptoms (frequency and severity), and functional impairment associated with such disabilities in enough detail to allow for application of the pertinent rating criteria. Range of motion test results must be recorded in ACTIVE MOTION, PASSIVE MOTION, WEIGHT-BEARING, and NON-WEIGHT-BEARING, including in the opposite, undamaged joint. If it is not feasible to perform range of motion testing in any of these circumstances, the examiner MUST EXPLAIN WHY. The examiner should also note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors. The examiner MUST ALSO comment on or describe, to the extent possible, the impact the Veteran’s service-connected low back and right shoulder disabilities have on his functioning during flare-ups or with repeated use over a period of time. In doing so, the examiner MUST elicit from the Veteran subjective reports of his functioning under such conditions and consider such reports along with all other pertinent evidence. If the examiner is still unable to provide such an opinion, he or she MUST explain why that is so in specificity. The examiner should note that the inability to directly observe functioning under such conditions IS NOT a valid reason to avoid providing an opinion in this matter per se. The examiner should also comment on the expected impact of low back and right shoulder disabilities on the Veteran’s occupational functioning, to include (but not limited to) identifying the kinds of work they would preclude and those they would not. All opinions must include a detailed rationale. Providing an opinion without one will delay processing of the claim and may require clarification. 7. Schedule the Veteran for an in-person or telehealth examination (whichever is more appropriate) by a neurologist or other appropriate physician to determine the current severity of his service-connected right and left lower extremity lumbar radiculopathy. Based on an examination (INCLUDING A COMPLETE SUBJECTIVE HISTORY AND REPORT DESCRIBING ONSET, COURSE, AND PROGRESSION OF HIS SYMPTOMS AND HOW FUNCTIONING VARIES WITH FLARE-UPS, REPEATED USE OVER A PERIOD OF TIME, OR OTHER SUCH CIRCUMSTANCES), review of the record, and any tests or studies deemed necessary, the examiner should describe all pathology, symptoms (frequency and severity), and functional impairment associated with such disabilities in enough detail to allow for application of the pertinent rating criteria. Specifically, the examiner should identify all nerves involved and estimate the overall severity of each involvement. The examiner should also comment on the expected impact of lumbar radiculopathy on the Veteran’s occupational functioning, to include (but not limited to) identifying the kinds of work it would preclude and those it would not. All opinions must include a detailed rationale. Providing an opinion without one will delay processing of the claim and may require clarification. 8. Schedule the Veteran for in-person or telehealth examination (whichever is more appropriate) by a cardiologist or other appropriate clinician(s) to determine the current severity of his service-connected hypertension. Based on an examination (INCLUDING A COMPLETE SUBJECTIVE HISTORY AND REPORT DESCRIBING ONSET, COURSE, AND PROGRESSION OF HIS SYMPTOMS, review of the record, and any tests or studies deemed necessary, the examiner should describe all pathology, symptoms (frequency and severity), and functional impairment associated with such disabilities in enough detail to allow for application of the pertinent rating criteria. The examiner should specifically review and determine the predominant range of recorded blood pressures for the Veteran based on the private and VA medical evidence of record, as well as any personal records the Veteran keeps. The examiner should also comment on the expected impact of hypertension on the Veteran’s occupational functioning, to include (but not limited to) identifying the kinds of work it would preclude and those it would not. All opinions must include a detailed rationale. Providing an opinion without one will delay processing of the claim and may require clarification. 9. Schedule the Veteran for an in-person or telehealth examination (whichever is more appropriate) by a gastroenterologist or other appropriate clinician(s) to determine the current severity of his service-connected GERD. Based on an examination (INCLUDING A COMPLETE SUBJECTIVE HISTORY AND REPORT DESCRIBING ONSET, COURSE, AND PROGRESSION OF HIS SYMPTOMS AND HOW THEY VARY WITH ANY REPORTED FLARE-UPS), review of the record, and any tests or studies deemed necessary, the examiner should describe all pathology, symptoms (frequency and severity), and functional impairment associated with such disabilities in enough detail to allow for application of the pertinent rating criteria. The examiner should also comment on the expected impact of GERD on the Veteran’s occupational functioning, to include (but not limited to) identifying the kinds of work it would preclude and those it would not. All opinions must include a detailed rationale. Providing an opinion without one will delay processing of the claim and may require clarification. 10. Conduct any additional development indicated (e.g., additional examinations to assess the severity or occupational impact of service-connected disabilities, etc.) before readjudicating the matters on appeal, including TDIU. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yuan, 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.