Citation Nr: 21013882 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-10 393 DATE: March 10, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1989 to March 1990 and August 1991 to March 1993, with follow on service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in October 2015. A transcript of the hearing has been associated with the file. These claims were previously before the Board in August 2018, at which time they were remanded for additional development. These claims are once again before the Board. 1. Back It is noted that the Veteran has claimed that he suffered a back injury in military service, for which he received surgery at a military hospital (Lyster Army Health Clinic, Fort Rucker, Alabama) sometime in 1991 to 1992. As the Veteran’s service treatment records have previously been noted by the RO to be incomplete, (specifically with no records of any treatment during the Veteran’s duty assignment at Fort Rucker, Alabama, which duty is confirmed on his DD-214), the RO has made several attempts thus far to obtain outstanding records. Initially, the record indicates that the Veteran’s last name during his military service was different than his current name. However, in a November 2013 correspondence, the Veteran indicated that he officially changed his name to what it is currently in 1997. When the Veteran first filed his claim, it appears that the RO, in a June 2013 Defense Personnel Records Information Retrieval System (DPRIS) search, requested information for the Veteran using a hyphenated version of his last name, which it also misspelled. However, in June 2013, the RO also submitted a request to the records keeper for the Reserves and National Guard using the name using the hyphenated version (i.e., “current last name – prior last name”) correctly spelled. A response later that month indicated that all the available records for the Veteran had been retrieved on May 2013 and there were no other Reserve records. In November 2013, the RO sent a request to the Utah National Guard for all records associated with the hyphenated last name. In a January 2014 correspondence, a May 2008 letter was provided indicating that the National Guard records associated with the Veteran were permanently withdrawn by the Veteran or his next of kin. Available personnel records and treatment records apparently from a prior request of the Veteran’s active service were also associated with the claim file in January 2014, but did not include any Reserve service records. In March 2014 a search for the prior last name in Veterans Information Solution showed that the Veteran had National Guard service from July 1989 to September 1992, where he served as an enlisted member, and Army Reserve service from October 1992 to July 1997, where he served as a warrant office and is presumably the period he served as a pilot with included service at Fort Rucker for pilot training when his claimed surgery took place. Without any further attempts to retrieve the Veteran’s Reserve service records, which are arguably the most relevant to the instant case, the RO provided a rating decision in June 2014, which is the source of the current appeal. In August 2018, when this claim was last before the Board, it was remanded for, among other things, to attempt to retrieve the Veteran’s outstanding Reserve service records, to particularly include his reported back surgery that occurred at Fort Rucker sometime in the early 1990s. The RO attempted to locate and retrieve these records in May 2019. However, the RO only used the Veteran’s current last name, and not the original last name, which would have been the correct name for that time period. In a May 2019 response from Lyster Army Health Clinic, Fort Rucker, Alabama, it was indicated that the Veteran is “not a patient” at that clinic. There was no further explanation detailing whether the Veteran may have previously been a patient and that his records were no longer available or if he had never been seen at the facility. As discussed above, it appears that the RO also noted that the Veteran had follow-on National Guard service, including during 1992 to 1997 when the Veteran thinks that his surgery occurred. However, in a July 2020 Deferred Rating Decision, the RO indicated that the Veteran’s subsequent reserve service treatment records had not been previously sought and that this should be accomplished. It does not appear that the RO has completed this inquiry into the Veteran’s potential outstanding records. The Veteran’s reserve records may potentially contain evidence of treatment at Lyster Army Health Clinic, Fort Rucker, Alabama, particularly as the Veteran’s DD-214 shows that he left active duty in 1992 at that duty station and it appears that the Veteran’s follow-on service may have commenced during that time period and at that same location, which is also the time period and location previously asserted by the Veteran when his back surgery occurred. Additionally, lay statements from the Veteran’s spouse and a fellow service member are to the effect they also believed he had surgery around that time. Given the obvious relevance of any records of back surgery at this time, the RO should complete its development for the Veteran’s reserve service treatment records as previously discussed above following all established protocol, and if no records are found, prepare a memorandum of unavailability detailing the steps taken and any negative responses received. In particular, this should include diligent searches for the Veteran’s records for the period of Reserve service from 1992 to 1997, as well as a follow up to Lyster Army Health Clinic, Fort Rucker, Alabama with the correct last name used at that time, and an inquiry into the final repository for such records when they are no longer maintained locally. Last, there appears to be a document, VA 21-8359 “Information re: Veterans in Uniformed Service Hospital or Dispensary”, in the Veteran’s claims file that is unable to be opened. It only redirects to an advertisement for Adobe Reader that does not respond to any attempts to access. The underlying document should be located and uploaded to the claims file so that it is readable. If, and only if, any missing service treatment records are recovered and associated with the claims file, the RO should return the Veteran’s claims file to the VA examiner who conducted the December 2019 VA examination for an addendum opinion in order to review any new evidence. 2. Knee and Sleep Apnea Additionally, because the Veteran’s right knee and sleep apnea claims have been claimed as secondary to his back disability, they are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). In particular, the December 2019 VA examiner did not render an opine regarding a relationship between sleep apnea and the Veteran’s back disability due to a finding that the latter was not service-connected, stating that such inquiry was “not applicable.” Additionally, the December 2019 VA examiner provided a negative nexus between the Veteran’s back disability and his right knee disability, but failed to provide a sufficient rationale, instead indicating that there was no nexus because there was no indication of a right knee injury in service. Such rationale appears to show that the examiner did not understand that he was asked about secondary service connection. Again, if and only if the Veteran’s back disability is determined to have a positive nexus with military service, the Veteran’s claims file should be returned to the December 2019 VA examiner for additional addendum opinions regarding whether the right knee disability and sleep apnea are secondary to the Veteran’s back disability. The matters are REMANDED for the following action: 1. Attempt to obtain any outstanding records needed to ascertain and verify all periods of the Veteran’s active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Army Reserve/National Guard beginning in 1992. In particular, this should include diligent searches for the Veteran’s records for the period of Reserve service from 1992 to 1997, as well as a follow up to Lyster Army Health Clinic, Fort Rucker, Alabama using the last name the Veteran used at the time any treatment would have been provided, for the records of any treatment/surgery the Veteran had at that location between August 1991 and September 1992; and an inquiry into the final repository for such records when they are no longer maintained locally. All records and/or responses received should be associated with the claims file. If it is determined that such records do not exist, render a formal finding of unavailability. 2. Attempts should be made to render as a readable document, the VA 21-8359 Information re: Veterans in Uniformed Services Hospital, located in the Veteran’s electronic claims file with a VBMS date of receipt of May 6, 2019, that when attempted to be opened appears only as a request for an update to Adobe Reader. If the underlying document is found elsewhere in the claims file, that should clearly identified. 3. Thereafter, if and only if any missing service treatment records are recovered and associated with the claims file, the RO should return the Veteran’s claims file to the VA examiner who conducted the December 2019 VA back examination for an addendum opinion in order to review any newly discovered evidence. If that examiner is no longer available, the claims file should be forwarded to an examiner of like skill and qualification. This person should respond to the following: Is at least as likely as not (50 percent or greater probability) that the Veteran’s current back disability is related to an in-service injury, including his reported 1991/1992 injury? All opinions should be supported with a thorough explanation. 4. If and only if the Veteran’s back disability is determined to have a positive nexus with military service, the Veteran’s claims file should be returned to the December 2019 VA knee and sleep apnea examiner for additional addendum opinions regarding secondary service connection of the right knee disability and sleep apnea to the Veteran’s back disability. If that examiner is no longer available, the claims file should be forwarded to an examiner of like skill and qualification. This person should respond to the following: (a.) Is at least as likely as not (50 percent or greater probability) that the Veteran’s right knee disability is proximately due to the Veteran’s lumbar spine disability. (b.) If a lumber spine disability is medically linked with service, the appropriate clinician should address whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea disability was caused by his lumbar spine disability, due to lack of exercise and weight gain as an intermediate step. In answering this question, the examiner is asked to answer each of the following: i. Is it at least as likely as not that the Veteran’s lumbar spine disability caused the Veteran to become obese? ii. If so, is it at least as likely as not that the obesity was a substantial factor in causing the Veteran’s sleep apnea? iii. Is it at least as likely as not that sleep apnea would not have occurred but for obesity caused by the Veteran’s lumbar spine disability? (Continued on the next page)   All opinions should be supported with a thorough explanation. 5. Re-adjudicate the claims M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dodd, Ryan 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.