Citation Nr: 21009997 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-42 221 DATE: February 23, 2021 REMANDED Service connection for a right knee disability is remanded. Service connection for a left knee disability is remanded. Service connection for a left shoulder disability is remanded. Service connection for a right shoulder disability is remanded. Service connection for left upper extremity carpal tunnel syndrome is remanded. Service connection for right upper extremity carpal tunnel syndrome is remanded. Service connection for a right ankle disability, to include osteoarthritis, is remanded. Service connection for a left ankle disability, to include osteoarthritis, is remanded. Service connection for chronic migraine headaches is remanded. Service connection for sleep apnea, to include as secondary to service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from April 1986 to January 1993, and in the U.S. Army from November 2006 to March 2008 and from September 2010 to October 2011, with additional service in the National Guard. He was awarded the Southwest Asia Service Medal with Bronze Service Star, the Kuwait Liberation Medal, the Army Achievement Medal, the Army Commendation Medal, and the Navy Unit Commendation, among other decorations. The Board thanks the Veteran for his honorable service to the United States. The Veteran testified before the undersigned during a November 2019 hearing. A transcript of the hearing is associated with the Veteran's eFolder. The Board remanded the claims for additional development in March 2020. The Board finds that there has not been substantial compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, each issue must be remanded for additional development. 1. Service connection for a right knee disability is remanded. 2. Service connection for a left knee disability is remanded. 3. Service connection for a left shoulder disability is remanded. 4. Service connection for a right shoulder disability is remanded. 5. Service connection for left upper extremity carpal tunnel syndrome is remanded. 6. Service connection for right upper extremity carpal tunnel syndrome is remanded. 7. Service connection for a right ankle disability, to include osteoarthritis, is remanded. 8. Service connection for a left ankle disability, to include osteoarthritis, is remanded. 9. Service connection for chronic migraine headaches is remanded. 10. Service connection for sleep apnea, to include as secondary to service-connected disability, is remanded. Each issue on appeal is remanded to obtain outstanding records of VA and VA-authorized treatment. First, the agency of original jurisdiction (AOJ) failed to obtain all VA treatment records from the Detroit VA Medical Center (VAMC) from 1993 onward, as requested by the Board's remand. In this regard, May 2020 VA correspondence to the Veteran informed him that in 2005 VA transitioned to electronic tracking of records of treatment administered at VAMCs. VA had requested his pre-2005 records from the Detroit VAMC, which responded that his treatment records began in 2005. The earliest VA treatment record in the Veteran’s eFolder, dated in November 2004, is a Detroit VAMC Nursing Periop (sic) (1) Care Plan addressing an already planned surgery. The Board finds that the existence of this record suggests that earlier VA treatment records exist. While the Veteran’s eFolder appears to have all electronic treatment records from the Detroit VAMC, it does not include copies of the paper treatment records dated before November 2004, which may now be retired or archived. Similarly, the Veteran’s eFolder includes no evidence of any attempt to obtain any such retired or archived paper treatment records. All pre-November 2004 VA paper treatment records are constructively of record and may be pertinent to the Veteran’s claims. Thus, they must be secured and associated with the eFolder. 38 C.F.R. § 3.159(2018); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Efforts to secure these records must include a search of archived or retired paper records. Second, VA CAPRI records reflect that the Veteran has been authorized non-VA community care through the VHA Choice program, for example for sleep medicine and treatment for unspecified conditions in 2015 and 2017. The Veteran’s eFolder does not contain any corresponding records. A remand is required to allow VA to obtain them. See 38 C.F.R. § 3.159 (c)(3) (in a claim for disability compensation, VA will make efforts to obtain records of examination or treatment at non-VA facilities authorized by VA). VA CAPRI records also reflect that VA and non-VA medical records have been scanned into VistA imaging, for example in 2011 and 2013. Many of these scanned documents are not part of the Veteran’s VA eFolder. On remand, VA should obtain all scanned/VistA imaging records. Turning to the Veteran's claim for service connection for sleep apnea, a May 2020 VA negative medical opinion regarding direct service connection fails to address the Veteran's hearing testimony attributing his sleep apnea to his schedule during military service and the Veteran's VA treatment records, as requested by the Board's remand. The Board points out that a December 2016 VA TBI screening relates that the Veteran stated that his sleep problems began during or got worse after a vehicle accident/crash or other injury to the head during service. The Board finds that this history is in essence a report by the Veteran that sleep problems began during active duty and presumably have existed since that time, supporting entitlement to direct service connection. Notably, during the hearing the Veteran denied having had sleep problems prior to military service and thus this history does not raise the issue of service connection based on aggravation of a preexisting disability. A May 2020 VA negative medical opinion regarding secondary service connection indicates that the Veteran's sleep apnea was not at least as likely as not aggravated beyond its natural progression by his service-connected disability of unspecified trauma and stressor-related disorder. This is the incorrect standard for aggravation of beyond the natural progression, as noted on the examination form itself. The correct standard is any increase in disability. Since these claims are being remanded, the eFolder should be updated to include all outstanding VA treatment records dated after June 25, 2020. The matters are REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA and non-VA treatment records, including: (a.) VA paper medical records from the Detroit VAMC dated prior to November 2004, and all other outstanding VA treatment records dated from June 2020 to the present; and (b.) Records of non-VA community care through the VHA Choice program, for example for sleep medicine and treatment for unspecified conditions in 2015 and 2017; and (c.) VA and non-VA medical records in VistA imaging, for example in 2011 and 2013. Please print and upload into VBMS all VistA imaging records. All development pursuant to this directive must be documented in the eFolder. If any records are found to be unavailable, a formal finding reflecting this fact must be issued. 2. After the foregoing records development is completed, obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran’s diagnosed sleep apnea. The eFolder should be made available to the clinician, and the examination report must reflect that review was completed. If the clinician believes that a further examination (or telehealth interview, etc., if an in-person examination is not feasible) is necessary to answer the questions below, one should be scheduled. The clinician is asked to opine on the following: (a) Is it at least as likely as not that the Veteran’s obstructive sleep apnea, confirmed by a sleep study in September 2017, had its onset during or is otherwise etiologically related to military service? The clinician is asked to discuss all relevant evidence, to specifically include the Veteran’s hearing testimony in which he attributed his current sleep apnea to his schedule in military service, service medical records, and VA treatment records (which include a December 2016 VA TBI screening relating that the Veteran stated that his sleep problems began during service), when rendering his or her report. (b) Is it at least as likely as not that the Veteran’s sleep apnea is aggravated (defined as any increase in disability) by his service-connected unspecified trauma and stressor-related disorder? If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of sleep apnea disability (i.e., a baseline) before the onset of the aggravation. The clinician is asked to discuss all relevant evidence, to specifically include the Veteran’s hearing testimony in which he attributed his current sleep apnea to his schedule in military service, service medical records, and VA treatment records, when rendering his or her report. The examiner is reminded that the term “at least as likely as not,” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against. A complete rationale should be provided for all opinions. 3. Confirm that the VA medical opinions provided comport with this remand, specifically that the standard in the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, obtain an addendum medical opinion using the correct standard. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Davitian, 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.