Citation Nr: 21010836 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 11-31 715A DATE: February 25, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected sarcoidosis, is remanded. Entitlement to service connection for a left foot disability other than plantar fasciitis and pes planus, to include arthritis, to include as secondary to service-connected sarcoidosis, is remanded. Entitlement to service connection for a right foot disability other than plantar fasciitis and pes planus, to include arthritis, to include as secondary to service-connected sarcoidosis, is remanded. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. Entitlement to service connection for headaches, to include as secondary to an acquired psychiatric disability or sarcoidosis, or as residual to a TBI, is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an increased rating for sarcoidosis, evaluated as 10 percent disabling prior to September 27, 2019, and as 30 percent disabling on and after that date, is remanded. Entitlement to an increased rating for a low back disability, currently evaluated as 20 percent disabling, is remanded. Entitlement to an increased rating for radiculopathy of the left lower extremity, currently evaluated as 10 percent disabling, is remanded. Entitlement to an increased rating for radiculopathy of the right lower extremity, evaluated as 0 percent disabling prior to September 27, 2019, and as 10 percent disabling on and after that date, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1980 to August 1984. This matter comes before the Board on appeal from June 2010 and August 2013 Regional Office (RO) rating decisions. In August 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A March 2018 Board decision, in relevant part, denied the claims of entitlement to service connection for a bilateral foot disability other than pes planus, to include arthritis, and entitlement to service connection for sleep apnea. The Veteran subsequently appealed these denials to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the parties submitted a Joint Motion for Partial Remand requesting that the issues be vacated and remanded for compliance with the terms of the Joint Motion. The Court granted this motion in an August 2019 Order, and the case was returned to the Board for further adjudication. The Board remanded this case in February 2020, and it has been returned to the Board for additional adjudication. The remaining issues were remanded in the March 2018 Board decision and have been returned to the Board for further adjudication. 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected sarcoidosis, is remanded. As noted in the February 2020 Board remand, the Joint Motion directs the Board to address whether the Veteran’s sleep apnea is secondary to his service-connected sarcoidosis. Post-service medical records note that the Veteran underwent a sleep study in May 2012 for possible obstructive sleep apnea by history. With respect to this claim, the Joint Motion notes that the Veteran expressly asserted during his August 2017 Travel Board hearing that his sleep apnea is secondary to his service-connected sarcoidosis. (See Board hearing transcript, page 17.) VA remanded this claim in February 2020 to obtain the requested opinion. The resulting August 2020 VA examination report opined that the Veteran’s obstructive sleep apnea was less likely than not aggravated by his service-connected sarcoidosis. As a rationale, the examiner noted that the Veteran’s service treatment records and medical records did not sufficiently demonstrate that obstructive sleep apnea was aggravated by his service connected sarcoidosis. The examiner noted that a July 2019 rheumatology outpatient note reflects that the Veteran was being seen for sarcoidosis, was doing better overall, and that his “breathing has been fine.” The examiner also noted that “Medical records did not demonstrate that Sarcoidosis caused obstruction of airways resulting [in] loud snoring and apneic episodes.” The examiner then provided some general information on sarcoidosis. The Board finds that the August 2020 VA examination report does not provide an adequate rationale. The Board also notes that the Veteran reported at his August 2020 VA examination that his sleep apnea started in 1980, which would coincide with his military service. On remand, the examiner should address whether it is at least as likely as not that the Veteran’s sleep apnea originated during service or is otherwise directly related to service. 2. Entitlement to service connection for a left foot disability other than plantar fasciitis and pes planus, to include arthritis, to include as secondary to service-connected sarcoidosis, is remanded. 3. Entitlement to service connection for a right foot disability other than plantar fasciitis and pes planus, to include arthritis, to include as secondary to service-connected sarcoidosis, is remanded. An August 2012 VA radiology report notes an impression of mild degenerative change without acute bony pathology. An April 2014 private x-ray report notes mild degenerative changes of the metatarsophalangeal (MTP) joints of the big toes. A July 2016 VA examination report found that imaging studies document the presence of bilateral degenerative or traumatic arthritis. It cites the findings of mild bilateral degenerative joint disease from a December 2015 radiology report. No etiology opinion was provided for this diagnosis. An August 2020 VA examination report notes that x-rays were performed in August 2020. The left foot radiology report notes an impression of “[s]mall retrocalcaneal spur” and “[o]therwise negative.” The right foot radiology report notes an impression of “[n]egative right foot.” The VA examiner noted that there was no evidence of arthritis. Thus, the VA examiner did not offer an etiology opinion. The first element of a service connection claim, the presence of a current disability, is satisfied if a disability is diagnosed at any point since the filing of the claim or prior but proximate to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the case at hand, there is radiology evidence of arthritis during the pendency of this appeal. A remand is required to obtain an etiology opinion with respect to this diagnosis or to explain the conflicting evidence of the August 2012, April 2014, and December 2015 radiology reports indicating arthritis of both feet versus the August 2020 x-ray report indicating no arthritis of either foot. 4. Entitlement to service connection for residuals of a TBI is remanded. The Veteran has described having suffered two separate head injuries during service. First, he reported that someone knocked heads with him in September 1980. Second, he reported that he fell off of a truck in March 1984. The Veteran underwent a VA examination in connection with this claim in October 2019. In terms of relevant medical history, the Veteran reported that “in 1980 walking to chow hall a fellow soldier tackled him onto the concrete[.] He was seen in sick immediately afterward with a HA, dazed for 1-2 mins, with knot on left forehead. He was prescribed Motrin.” The examiner noted that the “Second incident occurred during a field training exercise while a canopy onto poll, he [fell] backward 15 ft landing on bed of rocks.” He reported that he lost consciousness for an unknown time. The examiner noted that the Veteran “had complaints of … shortness of breath, blurry vision, neck and center and lower back pains. He was seen in sick call and cleared to return[] to exercise.” He reported that his condition has progressively worsened. Based on review of the record and interview and examination of the Veteran, the October 2019 VA examiner determined that the Veteran does not now have and has never had a TBI or any residuals of a TBI. In her rationale, the VA examiner noted that “No objective evidence [was] found of the reported events or TBI in record, therefore no TBI can be diagnosed.” The Board notes, however, that a September 1980 service treatment record reflects that the Veteran sought treatment after hitting heads with another soldier. There was no loss of consciousness. The Veteran was found to have “superficial lac[eration] under L eyebrow not bleeding or gaping.” No further treatment was noted. The Board finds that a remand is warranted to obtain a new opinion that takes into consideration the evidence of in-service head injury. 5. Entitlement to service connection for headaches, to include as secondary to an acquired psychiatric disability or sarcoidosis, or as residual to a TBI, is remanded. The Veteran contends that he suffers a headache disability as a result of the two head injuries that he has described having suffered in service. The record contains an October 2019 VA examination report in which the examiner opined that the Veteran’s headaches were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In her rationale, the examiner noted that “The Veteran’s medical records are silent to any complaint or, diagnosis of, or treatment for TBI. As no TBI event was substantiated by objective record, a diagnosis could not be made and a nexus could not be established.” However, as described above, the Board must remand the TBI residuals claim to obtain an etiology opinion that takes into consideration the September 1980 service treatment record reflecting that the Veteran’s head collided with that of another servicemember. Thus, the claim of entitlement to service connection for headaches is inextricably intertwined with the claim of entitlement to service connection for residuals of a TBI. On remand, if a TBI is found to be related to service, an opinion should be obtained with respect to whether the Veteran has a current headache disability that is a residual of his TBI. 6. Entitlement to service connection for PTSD is remanded. 7. Entitlement to an increased rating for sarcoidosis, evaluated as 10 percent disabling prior to September 27, 2019, and as 30 percent disabling on and after that date, is remanded. 8. Entitlement to an increased rating for a low back disability, currently evaluated as 20 percent disabling, is remanded. 9. Entitlement to an increased rating for radiculopathy of the left lower extremity, currently evaluated as 10 percent disabling, is remanded. 10. Entitlement to an increased rating for radiculopathy of the right lower extremity, evaluated as 0 percent disabling prior to September 27, 2019, and as 10 percent disabling on and after that date, is remanded. The Board notes that these claims were remanded for development in March 2018, and it appears that these issues have been returned to the Board for adjudication. The Board notes, however, that the requested development has not been completed, and the RO has not readjudicated these issues. Therefore, it is necessary to remand these claims so that the previously-requested development may be completed and a supplemental statement of the case may be issued for any claim that is not granted in full. The matters are REMANDED for the following action: 1. Obtain all relevant VA and private treatment records not currently associated with the claims file, to include any VA medical records that were created since the Veteran’s records were last obtained. 2. Send the claims file to a qualified examiner to obtain an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s obstructive sleep apnea is (a) related to service or (b) was caused or aggravated by his service-connected sarcoidosis. While the examiner noted that “Medical records did not demonstrate that Sarcoidosis caused obstruction of airways resulting [in] loud snoring and apneic episodes,” please explain why the evidence does not otherwise show that sarcoidosis aggravated the obstructive sleep apnea. Also, in light of the Veteran’s lay contention at his August 2020 VA examination that his sleep apnea started in 1980, please discuss whether there is any medical reason to accept or reject the proposition that the Veteran had sleep apnea in service, whether the Veteran's assertions are generally inconsistent with medical knowledge or implausible, and whether the Veteran's reports about in-service sleep apnea aligns with how the disease is known to develop. A complete rationale for all opinions should be provided, including discussion of the facts of the Veteran’s case and pertinent medical principles. 3. Send the claims file to a qualified examiner to obtain an opinion as to whether the Veteran has had arthritis of the left and right feet at any point during the pendency of this claim. In determining whether an arthritis diagnosis is warranted, the examiner should reconcile the conflicting indications from the August 2012, April 2014, and December 2015 radiology reports indicating arthritis of both feet versus the August 2020 x-ray report indicating no arthritis of either foot. If arthritis of either foot is diagnosed, the examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s arthritis of the left and right foot was (a) related to service or (b) caused or aggravated by his service-connected sarcoidosis. A complete rationale for all opinions should be provided, including discussion of the facts of the Veteran’s case and pertinent medical principles. 4. Send the claims file to a qualified examiner to obtain an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran has residuals of a TBI suffered during service. The examiner should determine whether the Veteran did, in fact, suffer a TBI in September 1980 and, if he did, whether he has any current residuals of this TBI. The examiner should expressly opine as to whether it is at least as likely as not the Veteran has a headache disability that was caused or aggravated by any TBI. In providing this opinion, the examiner should discuss a September 1980 service treatment record reflecting that the Veteran sought treatment after hitting heads with another soldier. There was no loss of consciousness. The Veteran was found to have “superficial lac[eration] under L eyebrow not bleeding or gaping.” No further treatment was noted. A complete rationale for all opinions should be provided, including discussion of the facts of the Veteran’s case and pertinent medical principles. 5. Complete the development that was requested by the Board in its March 2018 remand, as well as any additional development deemed appropriate, for the following issues: (a.) Entitlement to service connection for PTSD; (b.) Entitlement to an increased rating for sarcoidosis, evaluated as 10 percent disabling prior to September 27, 2019, and as 30 percent disabling on and after that date; (c.) Entitlement to an increased rating for a low back disability, currently evaluated as 20 percent disabling; (d.) Entitlement to an increased rating for radiculopathy of the left lower extremity, currently evaluated as 10 percent disabling; and (e.) Entitlement to an increased rating for radiculopathy of the right lower extremity, evaluated as 0 percent disabling prior to September 27, 2019, and as 10 percent disabling on and after that date. Following the completion of any development, readjudicate the above claims. If any of these claims is not granted in full, issue a supplemental statement of the case and return the case to the Board. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Elizabeth Jalley, 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.