Citation Nr: 21010657 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-45 243 DATE: February 25, 2021 REMANDED Entitlement to service connection for a left shoulder disability, to include secondary to a service-connected lumbar spine disability, is remanded. Entitlement to service connection for a left knee disability, to include secondary to a service-connected lumbar spine disability, is remanded. Entitlement to service connection for a sleep disorder, to include secondary to a service-connected lumbar spine disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1971 to April 1975. This matter comes before the Board of Veteran’s Appeals (Board) from a February 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in January 2020 when the claims were remanded for VA examinations. The Board finds the January 2020 remand directives have not been substantially complied with, and the matters must be remanded again. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a left shoulder disability, to include secondary to a service-connected lumbar spine disability, is remanded. The Veteran asserts that his current left shoulder disability is related to his service, to include as secondary to his service-connected back disability. In favor of his claim the Veteran testified that while in service he had to move heavy equipment. He asserts that his left shoulder was injured at the same time his back was injured. He also stated that at the time he was injured he went to sick call but only his back injury was addressed. The Veteran is already service connected for a lumbar spine disability. See Form 9 of September 2016 and hearing transcript pages 7 – 11. In February 2020, pursuant to the Board remand directives of January 2020, the Veteran was administered a Shoulder and Arm Conditions Disability Benefits Questionnaire (Shoulder DBQ). The examiner noted diagnoses of shoulder strain, rotator cuff tendonitis, and acromioclavicular joint osteoarthritis. See Shoulder DBQ of February 2020. Following the examination, the examiner opined the claimed condition was less likely than not incurred in or caused by the claimed in service injury, event or illness as there is no medical record evidence in the attached/reviewed medical records indicative of a shoulder injury or treatment for shoulder pain for the claimant while he was in the military that was significant enough to result in a chronic condition nor is there any documentation in the claimant’s ETS examination to support the claim. See medical opinion for direct service connection for February 2020. The examiner also opined that the claimed condition was less likely than not proximately due to ore the result of the Veteran’s service-connected condition as there is no medical record evidence in the attached/reviewed medical records indicative of a shoulder injury or treatment for shoulder pain for the claimant while he was in the miliary that was significant enough to result in the chronic condition; nor is there any documentation in the claimant’s ETS examination to support the claim. Further the examiner opined that there is no direct pathophysiology between the two isolated conditions to support a connection for the left shoulder directly resulting from a service-connected disability. See medical opinion for secondary service connection dated February 2020. The examiner also opined that he could not determine a baseline level of severity of the claimed condition based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by the Veteran’s service connected disability as no shoulder pain was noted upon ETS or documented to be chronic or recurrent during military service to support a diagnosis of a shoulder condition thus no progression. See medical opinion for aggravation of a nonservice connected condition by a service-connected condition dated February 2020. Where VA provides the Veteran with an examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). A medical opinion based solely on the absence of documentation in the service treatment records or that fails to take into account lay statements is inadequate. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner’s opinion inadequate that relied on the absence of contemporaneous medical evidence); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran’s report of in-service injury but relied on the service medical records to provide a negative opinion). The Board finds these medical opinions inadequate for adjudication purposes as the examiner did not provide a complete rationale for the opinions expressed, did not consider the Veteran’s lay statements and heavily relied on the absence of contemporaneous medical evidence to support a negative nexus opinion. Accordingly, the Board finds the claim must be remanded so that the RO can obtain a new medical opinion that addresses whether the Veteran’s disability is directly related to his service or otherwise proximately due to or aggravated by his service-connected disability. 2. Entitlement to service connection for a left knee disability, to include secondary to a service-connected lumbar spine disability, is remanded. The Veteran asserts that his current left knee disability is related to his service, to include as secondary to his service-connected back disability. In favor of his claim, the Veteran testified that while in service he had to move heavy equipment. He asserts that his left knee was injured at the same time his back was injured. He stated that at the time he was injured he went to sick call but only his back injury was addressed. He further asserted that ever since the late 70s his knee swells following physical activity. The Veteran is already service connected for a back disability. See hearing transcript pages 3 – 6. Pursuant to the Board’s January 2020 directives, the Veteran was administered a Knee and Lower Leg Conditions Disability Benefits Questionnaire (Knee DBQ) in February 2020. See Knee DBQ of February 2020. Following the examination, the examiner subscribed a medical opinion where he opined that the claimed condition was less likely than not incurred in or caused by the claimed in service injury, event or illness as there is no medical record evidence in the attached/reviewed medical records indicative of a knee injury or treatment for knee pain for the claimant while he was in the military that was significant enough to result in a chronic condition; nor is there any documentation in the claimants ETS examination to support the claim. See medical opinion for direct service connection for February 2020. The examiner also opined that the claimed condition was less likely than not proximately due to or the result of the Veteran’s service connected condition as there is no direct pathophysiology between the two isolated conditions to support a connection for the knee directly resulting in the onset or aggravation of the claimed service connected disability. See medical opinion for secondary service connection dated February 2020. The examiner further noted that he could determine a baseline level of severity of the claimed condition based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by the service connected disability as there was no knee pain documented to be chronic or recurrent while in the military service and that the current severity of the claimed condition was not greater than the baseline. See medical opinion for aggravation of a nonservice connected condition by a service-connected condition dated February 2020. As previously noted, where VA provides the Veteran with an examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds these medical opinions inadequate for adjudication purposes as the examiner did not provide a complete rationale for the opinions expressed, did not consider the Veteran’s lay statements and heavily relied on the absence of the contemporaneous medical evidence to support a negative nexus opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Furthermore, the Board notes the medical opinion on aggravation seems to suggest that there is no evidence that the Veteran’s knee disability has affected his back disability which is already service connected and not in controversy. Accordingly, the Board finds the claim must be remanded so that the RO can obtain a new medical opinion that addresses whether the Veteran’s disability is directly related to his service or otherwise proximately due to or aggravated by his service-connected disability. 3. Entitlement to service connection for a sleep disorder, to include secondary to a service-connected lumbar spine disability, is remanded. The Veteran seeks service connection for a sleep disorder. In favor of his claim the Veteran asserts that his sleep disorder is secondary to his service connected back disability as his back pain and the medication he takes for it keep him from falling asleep. See hearing transcript page 11. Alternatively, the Veteran asserts that while in service he worked the graveyard shift which affected his sleeping habits. See Form 9 of September 2016. Pursuant to the Board January 2020 directives, the Veteran was administered a Mental Disorders Disability Benefits Questionnaire (Mental Disorders DBQ) in February 2020 as well as a Sleep Apnea Disability Benefits Questionnaire (Sleep Apnea DBQ) in September 2020. In the Mental Disorders DBQ, the examiner determined that the Veteran has diagnoses of adjustment disorder with depressed mood, stimulant use disorder in full sustained remission and an alcohol use disorder in sustained remission. However, the examiner noted that the Veteran does not have a diagnosis of a sleep disorder because there were no findings, signs or symptoms to support a diagnosis. The examiner also noted that the Veteran does not meet the DSM-5 diagnostic criteria for insomnia as other causes of the occasional sleep disturbance could not be ruled out including sleep apnea and that furthermore, there is no evidence of impairment due to problems with sleep which is required for a diagnosis of insomnia. See Mental Disorders DBQ of February 2020. In the Sleep Apnea DBQ, the examiner diagnosed the Veteran with obstructive sleep apnea. See Sleep Apnea DBQ of September 2020. Following the Sleep Apnea DBQ examination of September 2020, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In favor of this opinion, the examiner noted that the Veteran has been diagnosed with obstructive sleep apnea and chronic insomnia. However, although the Veteran has a current diagnosis of obstructive sleep apnea, his service treatment record is silent for sleep apnea symptoms such as snoring or other related symptoms and that his separation examination dated 1975 was silent for sleep apnea or related symptoms. Additionally, the examiner noted that there is no evidence of complaint of symptoms associated with sleep apnea within a year of separation from service and that the Veteran’s diagnosis of sleep apnea occurred 45 years after his separation from service. The examiner did not provide an opinion regarding the Veteran’s chronic insomnia diagnosis as the opinion required the expertise of a mental health provider and was outside of her scope. See medical opinion associated with the claims file in September 2020. The examiner also opined that the claimed condition of sleep apnea was less likely than not proximately due to or the result of the Veteran’s service-connected condition. In favor of this opinion the examiner noted that there is no evidence to show that the Veteran’s sleep apnea is due to his service connected condition of adjustment disorder with mixed anxiety and depression, lumbar spine disability, urinary incontinence, bilateral lower extremity radiculopathy, GERD and erectile dysfunction. The examiner also noted that the Veteran’s body mass index (BMI) is consistent with obesity and that according to medical literature physical characteristics such as obesity, among other condition, may contribute to obstructive sleep apnea. The examiner reasoned that as the Veteran’s service-connected disabilities are not in the list of conditions that can cause sleep apnea, but that obesity is; the Veteran’s sleep apnea is secondary to obesity. See medical opinion associated with the claims file in September 2020. The examiner also noted that she could not determine a baseline level of severity of the claimed condition because there is no complaint of symptoms on the c-file over the years and the fact that there was no complaint over the years indicated that was no evidence of aggravation. See medical opinion associated with the claims file in September 2020. As previously noted, where VA provides the Veteran with an examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds these medical opinions inadequate for adjudication purposes as the examiners did not provide a complete rationale for the opinions expressed, did not consider the Veteran’s lay statements and heavily relied on the absence of the contemporaneous medical evidence to support a negative nexus opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Accordingly, the Board finds the claim must be remanded so that the RO can obtain a new medical opinion that addresses whether the Veteran’s disability is directly related to his service or otherwise proximately due to or aggravated by his service-connected disability. The matters are REMANDED for the following action: 1. Update existing medical records. Any response, including negative ones, must be associated with the claims file. 2. Obtain a new medical opinion regarding the Veteran’s claimed left knee disability. The examiner is asked to opine whether: a) Is it as least as likely as not (50 percent probability or greater) that the Veteran’s left knee disability had its onset in or is otherwise etiologically related to active duty service? b) Is it as least as likely as not (50 percent probability or greater) that the Veteran’s left knee disability is (1) proximately due to his service-connected back disability, or (2) aggravated beyond its natural progression by the service-connected back disability? A new examination may be performed at the examiner's discretion. 3. Obtain a new medical opinion regarding the Veteran’s claimed left shoulder disability. The examiner is asked to opine whether: a) Is it as least as likely as not (50 percent probability or greater) that the Veteran’s left shoulder disability had its onset in or is otherwise etiologically related to active duty service? b) Is it as least as likely as not (50 percent probability or greater) that the Veteran’s left shoulder disability is (1) proximately due to his service-connected back disability, or (2) aggravated beyond its natural progression by his service-connected back disability? A new examination may be performed at the examiner’s discretion. 4. Obtain a new medical opinion regarding the Veteran’s claimed sleep disorder. The examiner is asked to opine whether: a) The Veteran has a diagnosis of insomnia and/or obstructive sleep apnea or any other sleep disorder. b) Is it as least as likely as not (50 percent probability or greater) that the Veteran’s sleep disorder had its onset in or is otherwise etiologically related to active duty service? c) Is it as least as likely as not (50 percent probability or greater) that the Veteran’s sleep disorder is(1) proximately due to his service-connected back disability, to include related treatment medications or (2) aggravated beyond its natural progression by his service-connected back disability, to include related treatment medications? A new examination may be performed at the examiner's discretion. All of the requested opinions must reflect consideration of the Veteran’s reports of symptoms and the opinions provided cannot be based solely on the absence of in-service or post-service treatment records. The examiner is asked to provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. If the inability to provide an opinion is the result of a need for additional information, the physician must identify the additional information needed. 5. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.