Citation Nr: 21009389 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-31 769 DATE: February 22, 2021 ORDER New and material evidence having been submitted, reopening of the claim of entitlement to service connection for ulcerative colitis is granted. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. REMANDED Entitlement to service connection for ulcerative colitis is remanded. Entitlement to an effective date earlier than April 20, 2009, for the grant of entitlement to service connection for anxiety disorder, not otherwise specified, is remanded. Entitlement to an effective date earlier than April 20, 2009, for the grant of entitlement to service connection for right shoulder, status post arthroscopy, is remanded. Entitlement to an effective date earlier than May 2, 2018, for the grant of entitlement to service connection for radiculopathy, right upper extremity, is remanded. Entitlement to an effective date earlier than May 2, 2018, for the grant of entitlement to service connection for radiculopathy, left upper extremity, is remanded. Entitlement to an effective date earlier than March 14, 2016, for the grant of entitlement to service connection for scars of the abdomen is remanded. Entitlement to an effective date earlier than March 14, 2016, for the grant of entitlement to service connection for back scar is remanded. Entitlement to an initial rating in excess of 10 percent prior to December 21, 2015, for anxiety disorder, not otherwise specified, is remanded. Entitlement to an initial rating in excess of 10 percent prior to May 2, 2018, and in excess of 20 percent thereafter, for right shoulder, status post arthroscopy, is remanded. Entitlement to a rating in excess of 40 percent for lumbosacral back strain is remanded. Entitlement to a rating in excess of 20 percent for radiculopathy, right lower extremity, is remanded. Entitlement to a rating in excess of 20 percent for radiculopathy, left lower extremity, is remanded. Entitlement to an initial rating in excess of 20 percent for radiculopathy, right upper extremity, is remanded. Entitlement to an initial rating in excess of 20 percent for radiculopathy, left upper extremity, is remanded. Entitlement to an initial compensable rating for scars of the abdomen is remanded. Entitlement to an initial compensable rating for back scar is remanded. Entitlement to an effective date earlier than May 2, 2018, for the grant of a 40 percent rating for lumbosacral back strain, is remanded. Entitlement to an effective date earlier than May 2, 2018, for the grant of a 20 percent rating for radiculopathy, right lower extremity, is remanded. Entitlement to an effective date earlier than May 2, 2018, for the grant of a 20 percent rating for radiculopathy, left lower extremity, is remanded. Entitlement to a temporary total rating based on a period of convalescence for service-connected lumbosacral back strain is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed March 2013 rating decision, the Veteran was denied entitlement to service connection for ulcerative colitis. 2. The evidence received since the March 2013 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial and relates to an unestablished fact necessary to establish the claim. 3. OSA had its onset during the Veteran’s active service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of entitlement to service connection for ulcerative colitis is reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2019). 2. The criteria for service connection for OSA have been met. 38 U.S.C. § 1110 (2018); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 2003 to July 2003, October 2004 to January 2006, and March 2008 to April 2009, including service in Southwest Asia. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2015, August 2016, and June 2018 rating decisions issued by the VA Regional Office (RO). Claim to Reopen – Ulcerative Colitis In a March 2013 rating decision, the RO denied entitlement to service connection for ulcerative colitis. The Veteran did not appeal. The evidence that has been received since the March 2013 rating decision includes a March 2016 VA examination report, an August 2016 VA medical opinion, post-service medical records, and the Veteran’s lay statements. Specifically, the Veteran asserted that he reported gastrointestinal issues during service, and that his colitis may be secondary to his service-connected anxiety. The Board finds that the additional evidence is new and material as it has not been previously considered by VA and raises a reasonable possibility of substantiating the claim of entitlement to service connection for ulcerative colitis. Therefore, reopening of the claim is warranted. Service Connection – OSA The Veteran has contended that his OSA is related to his service in Southwest Asia. Alternatively, he claimed that his OSA is secondary to his service-connected anxiety disorder. Service treatment records (STRs) revealed that the Veteran complained of still feeling tired after sleeping following his deployment to Southwest Asia in 2005. Additionally, the Veteran is competent to report the onset and continuity of symptoms associated with sleep apnea. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board deems the Veteran credible in that respect. Within one year following service, a VA mental health examiner noted that the Veteran had a sleep impairment, to include insomnia, in July 2009. Additionally, the Veteran reported problems with poor sleep, an inability to sleep, feeling tired, and frequent snoring at his February 2013 VA examination for chronic fatigue syndrome. He participated in a home sleep study and was diagnosed with mild OSA in July 2015. In March 2016, the Veteran was afforded a VA examination, and an addendum medical opinion was obtained in August 2016. The examiner was unable to provide a nexus opinion on a direct basis without resorting to mere speculation. He noted several complicating factors, to include the Veteran’s disrupted sleep from stress and mobility, shift work, and noise of deployment. He stated that sleep apnea tended to “creep up” on a person with fatigue and questions about sleep quality leading to a diagnosis over time. He added that it was reasonable to suggest that the Veteran’s OSA dated back to his active service. However, he found no STR documentation of sleep symptoms while the Veteran was deployed. He pointed out that the Veteran had breaks in his active service and it would be speculative to determine a date of onset. Further, he opined that the Veteran’s OSA was not caused or worsened by his anxiety. He stated that anxiety was not a risk factor for the Veteran’s OSA. The Board finds that the VA medical opinion is inadequate for adjudication purposes. Specifically, the examiner did not consider that the Veteran reported tiredness after his deployment to Southwest Asia in 2005. Further, the examiner did not address the Veteran’s his sleep impairment within a year of his separation from service. While an examiner may find that a conclusion cannot be reached without resorting to speculation, it must be clear that the examiner has considered all procurable and assembled data prior to reaching such a conclusion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). As the opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. Nonetheless, the Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted above, the Veteran is competent to identify symptoms related to OSA and report on the chronicity of symptomatology since active service. Moreover, his statements have been found credible. In sum, the Veteran has competently and credibly reported that his OSA had its onset during his active service and has continued since that time. Although the Veteran was not formally diagnosed with OSA within one year following service, there is competent medical and lay evidence that the Veteran had sleep apnea within one year of his active service. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise on a direct basis. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for OSA is warranted. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Manlincon Issues In October 2009, the Veteran submitted a timely NOD with a September 2009 rating decision that granted entitlement to service connection for anxiety disorder, not otherwise specified, and right shoulder, status post arthroscopy, both effective, April 20, 2009. A review of the record shows that the Veteran has not been issued a SOC addressing these issues. Where a NOD has been filed with regard to an issue, and a SOC has not been issued, the appropriate Board action is to remand the issue for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). The Board acknowledges that the Veteran filed a motion to revise based on clear and unmistakable error (CUE) in March 2016. However, the CUE motion is deemed improper as the September 2009 rating decision is not yet considered final. Additionally, in July 2009, the Veteran submitted a timely NOD with a June 2018 rating decision. The Veteran specifically disagreed with the ratings and effective dates assigned for his service-connected lumbosacral back strain, right and left upper and lower radiculopathy, status post arthroscopy of the right shoulder, and scars of the back and abdomen. A review of the record shows that the Veteran has not been issued a SOC addressing these issues. Therefore, the matters are remanded for issuance of a SOC. Service Connection – Ulcerative Colitis The Veteran has contended that his colitis is related to his service in Southwest Asia. Specifically, he reported that he had “gut issues and stools” during service. Alternatively, he claimed that his colitis is secondary to his service-connected anxiety disorder. STRs showed that the Veteran complained of diarrhea during his deployment to Southwest Asia in 2005. He underwent private operative treatment for severe ulcerative colitis in May 2010. The Veteran was last afforded a VA examination on a direct basis in March 2016. The examiner opined that the Veteran’s ulcerative colitis was less likely than not due to his service in Southwest Asia. After reviewing a “second-hand” medical report, he noted that the Veteran had an acute episode of pain and surgery for ulcerative colitis in May 2010. He found that the lack of any mention of diarrhea or gastrointestinal symptoms in the Veteran’s STRs and post-service medical records from 2009 made it unlikely that the condition arose in Southwest Asia. He commented that while it was possible that it did arise during service, and that the Veteran had more important things to worry about, it was certainly unlikely. He explained that frequent diarrhea is remarkable and usually mentioned. However, he found several notes documenting “no change in bowel habits” during the appeal period. He concluded that the Veteran’s colitis did not become symptomatic until a much later time. The Board finds that the VA medical opinion is inadequate for adjudication purposes. In this regard, the examiner did not address the Veteran’s complaint of diarrhea during his deployment to Southwest Asia in 2005. Further, there is evidence that the examiner did not review the Veteran’s post-service private medical records. Therefore, the Board finds that the Veteran should be provided an additional VA examination to determine the nature and etiology of any currently present ulcerative colitis. Temporary Total Rating and TDIU The Board notes that the issues of entitlement to a temporary total rating for service-connected lumbosacral back strain and a TDIU are inextricably intertwined with the claims remanded herein. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Hence, a determination on the claims are deferred. The matters are REMANDED for the following action: 1. Issue a statement of the case on the issues of entitlement to increased ratings and effective dates assigned for the Veteran’s service-connected anxiety disorder, right shoulder, lumbosacral back strain, bilateral upper and lower radiculopathy, status post arthroscopy of the right shoulder, and scars of the back and abdomen. Inform the Veteran of the requirements to perfect an appeal of those issues. If the Veteran perfects an appeal, return the matters to the Board. 2. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present ulcerative colitis. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should determine whether it is at least as likely as not (50 percent or better probability) that the Veteran’s ulcerative colitis is etiologically related to his active service. Additionally, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present ulcerative colitis was caused or aggravated (chronically worsened) by the Veteran’s service-connected anxiety disorder. The rationale for all opinions expressed must be provided. 4. Confirm that VA examination reports and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 5. Then, readjudicate the remaining claims on appeal. If the decision remains 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. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ware, 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.