Citation Nr: 21010356 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-35 424 DATE: February 24, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a right wrist disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for erectile dysfunction (ED), including as secondary to service-connected status-post circumcision for balanitis, is remanded. REASONS FOR REMAND The Veteran served in the Marine Corps from February 2002 to September 2003. In June 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. 1. Entitlement to a rating in excess of 10 percent for a right wrist disability is remanded. The Veteran contends that the severity of his service-connected right wrist disability warrants a rating in excess of 10 percent. At the June 2020 hearing, the Veteran testified that his service-connected right wrist disability has increased in severity since the Veteran was last examined by VA in June 2016. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his right wrist extensor tendonitis. 2. Entitlement to service connection for a low back disability is remanded. The Veteran contends that he suffers from a low back disability incurred during an injury while carrying heavy mortars in Iraq. At the June 2020 hearing, the Veteran testified that he carried heavy mortars during his service in Iraq, and that he suffered a back injury while quickly unloading mortar off of a Humvee. In a January 2016 buddy statement, a fellow service member wrote that he observed that the Veteran had to carry over 60 pounds of gear, and that the Veteran injured his back while setting up an 81 mm mortar for a fire mission. Due to hostile enemy fire, the Veteran was unable to report for medical attention. VA medical records show that the Veteran has sought treatment for chronic low back pain. Although the claims file does not contain any in-service treatment for a back condition, a March 2017 memorandum from the VA Records Management Center stated that the Veteran’s service treatment records cannot be located. There are four elements necessary in determining the need for a medical examination: (1) a current disability; (2) an in-service event, injury, or disease; (3) an indication that the claimed disability may be associated with the established event; and (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McClendon v. Nicholson, 20 Vet. App. 79, 81-85 (2006). The third prong, which requires the evidence of record “indicate” the claimed disability or symptoms “may be” associated with the established event, disease, or injury, is a low threshold. McLendon, 20 Vet. App. at 83. As to this claim, the Board finds the criteria set forth in McClendon have been met and that a VA examination and etiological opinion should be obtained. 3. Entitlement to service connection for sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. The Veteran contends that his sleep apnea was caused by or aggravated by his service-connected PTSD. Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) (2019); Allen v. Brown, 7 Vet. App. 439 (1995). Causation and aggravation are independent concepts and should have separate findings and rationales. Atencio v. O’Rourke, 30 Vet. App. 74 (2018). An opinion to the effect that one disability “is not caused by or a result of” another disability does not answer the question of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). In June 2016, a VA examiner opined that the Veteran’s sleep apnea is less likely than not proximately due to or the result of the Veteran’s service-connected PTSD. However, the VA examiner did not provide any opinion as to whether sleep apnea was aggravated beyond its natural progression by PTSD. The Board finds that a new VA medical opinion is necessary to determine whether the Veteran’s sleep apnea was caused by or aggravated by the Veteran’s service-connected PTSD. 4. Entitlement to service connection for erectile dysfunction (ED), including as secondary to service-connected status-post circumcision for balanitis, is remanded. The Veteran contends that he suffers from erectile dysfunction as a result of his service-connected status-post circumcision for balanitis. An August 2016 VA examiner found no evidence to support a current diagnosis of balanitis or any other penile infection. However, the question before the Board is not whether there is a current penile infection, but whether any residuals of the Veteran’s status-post circumcision have caused erectile dysfunction. The Board finds that a new VA medical examination and opinion is necessary to determine whether the Veteran’s suffers from erectile dysfunction that is caused by or aggravated by the Veteran’s service-connected status-post circumcision for balanitis. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right wrist disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for a VA examination for his low back disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: Is the low back disability at least as likely as not related to service, including an injury sustained while carrying heavy mortars in Iraq? Is it at least as likely as not that the low back disability (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s sleep apnea is at least as likely as not proximately due to his service-connected PTSD, or was aggravated beyond its natural progression by service-connected PTSD. The VA examiner must provide separate findings and rationales relating to causation and aggravation. 4. Schedule the Veteran for a VA examination for his claimed erectile dysfunction (ED). The examiner must review the claims file. The examiner is asked to provide a response to the following: Is ED at least as likely as not proximately due to service-connected status-post circumcision for balanitis? Is ED at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service3-connected status-post circumcision for balanitis? Provide a rationale to support the opinions. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Casey, 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.