Citation Nr: 21023272 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-32 247 DATE: April 20, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder with depressed mood, is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to a compensable disability rating prior to January 25, 2016 and in excess of 30 percent thereafter for gastroesophageal reflux disease (GERD) is remanded. Entitlement to a disability rating in excess of 30 percent for bronchial asthma is remanded. Entitlement to a disability rating in excess of 20 percent for service-connected left lower extremity lumbar radiculopathy associated with lumbar degenerative disc disease and small disc herniation is remanded. Entitlement to a disability rating in excess of 20 percent for service-connected right lower extremity lumbar radiculopathy associated with lumbar degenerative disc disease and small disc herniation is remanded. Entitlement to a compensable disability rating for left eye peripheral chorioretinal scar with vitreous floaters is remanded. REASONS FOR REMAND The Veteran served honorably on active duty with the United States Army from September 1977 to September 1992; from January 2003 to April 2004; and from July 2004 to April 2005. He served in the Southwest Asia theater of operations during the Persian Gulf War and is a recipient of the Combat Infantryman Badge. The Veteran also had service in the Puerto Rico Army National Guard. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2012, July 2012, February 2013, July 2014, and November 2014 decisions of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The matters were most recently before the Board in October 2019, at which time the Board denied the Veteran’s claims of entitlement to service connection for a bilateral hearing loss disability and tinnitus, as well as claims for increased disability ratings for gastroesophageal reflux disease (GERD), lumbar degenerative disc disease, and left and right lower extremity radiculopathy. The Board remanded the Veteran’s claims of entitlement to service connection for erectile dysfunction, obstructive sleep apnea, and for an acquired psychiatric disorder, as well as his claims for increased ratings for bronchial asthma and a left eye chorioretinal scar with vitreous floaters. In a June 2020 rating decision, the RO granted the Veteran’s claim of entitlement to service connection for erectile dysfunction. As this represents a full grant of the benefit sought on appeal, that issue is no longer on appeal. The Veteran appealed the Board’s October 2019 decision to the United States Court of Appeals for Veterans Claims (Court). Subsequently, pursuant to a November 2020 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded that portion of the Board’s decision that denied the claims of entitlement to service connection for a bilateral hearing loss disability and tinnitus, as well as claims for increased disability ratings for GERD, lumbar degenerative disc disease, and left and right lower extremity radiculopathy. Those issues have returned to the Board for action consistent with the JMPR. The issues remanded by the Board in its October 2019 decision have also returned to the Board for appellate consideration. Therefore, the two appeal streams have been merged as they are both pending before the Board. At the outset, the Board notes that remand is warranted to obtain potentially outstanding service treatment records (STRs). The parties to the November 2020 JMPR agreed that the Board erred by not ensuring VA complied with its duty to assist in obtaining relevant treatment records from the Veteran’s service with the Puerto Rico Army National Guard (PRARNG), with whom he served through 2016. The parties noted that VA made an unsuccessful attempt to obtain the records in 2005 but had not made another attempt since. The Board notes that a substantial number of PRARNG treatment records were associated with the claims file in 2015 and 2016. However, since it is possible the records may be incomplete, remand is warranted to attempt to obtain any outstanding PRARNG treatment records, consistent with the JMPR. The Board finds that even further development is warranted for the following issues: 1. Entitlement to service connection for obstructive sleep apnea The Board finds that remand is warranted to provide the Veteran a Supplemental Statement of the Case (SSOC) that addresses his claim of entitlement to service connection for obstructive sleep apnea. Consistent with the Board’s October 2019 remand instructions, the AOJ obtained an addendum opinion concerning the etiology of the Veteran’s currently diagnosed sleep apnea. However, the June 2020 SSOC did not address the claim for sleep apnea, to include the newly obtained addendum opinion. Therefore, remand is necessary for the issuance of a new SSOC that considers this additional evidence. 38 C.F.R. §§ 19.31, 19.37. The Board further finds that remand is necessary because the October 2019 addendum opinion is inadequate for the purpose of adjudicating the Veteran’s claim for service connection. The examiner determined that the Veteran’s currently diagnosed sleep apnea was not related to service on a direct basis because “[t]here is no evidence of sleep apnea on service treatment record neither complains of symptoms associated to the condition.” The examiner further determined that the Veteran’s sleep apnea was not caused or aggravated by a service-connected disability, including bronchial asthma, because “[t]here is no pathophysiological relationship between sleep apnea and bronchial asthma on medical literature.” The Board finds these opinions to be inadequate. First, the examiner’s opinions lack the kind of detailed rationale necessary to enable the Board to make an informed decision on the Veteran’s claim. The examiner’s opinions essentially amount to conclusions without rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (“the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion”). Further, the lack of evidence of treatment for the claimed disorder in the Veteran’s STRs cannot, standing alone, serve as the basis for a negative opinion. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Finally, the examiner did not address lay evidence associated with the claims file, including a September 2018 written statement from the Veteran’s wife, suggesting the Veteran started struggling with sleep upon his return from Iraq. Finally, regarding service connection on a secondary basis, while the examiner offered an opinion concerning causation, he did not opine as to whether the Veteran’s sleep apnea was aggravated by a service-connected disability, including bronchial asthma. In this regard, the Board notes that service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). For these reasons, the Board finds that remand is warranted to obtain an adequate addendum opinion concerning the etiology of the Veteran’s sleep apnea. 2. Entitlement to increased ratings for service-connected left and right lower extremity radiculopathy The parties to the November 2020 JMPR agreed that the Board erred by not providing an adequate statement of reasons or bases with respect to whether the evidence of record warrants assigning separate ratings for the Veteran’s bilateral lower extremity radiculopathy, currently assigned under 38 C.F.R. § 4.124a, Diagnostic Code 8521 based on involvement of the external popliteal (common peroneal) nerves. The January 2016 VA peripheral nerves examination report documented normal findings for both the right and left sciatic nerve, but mild incomplete paralysis in the right and left external popliteal (common peroneal) nerves. However, as noted by the parties to the JMPR, the May 2019 VA back conditions examination reflected bilateral “involvement of the L4/L5/S1/S2/S3 nerve roots (sciatic nerve).” Unfortunately, the May 2019 VA examination report does not mention the extent of any involvement of the external popliteal (common peroneal) nerves and otherwise provides little additional information as to the specific nerve roots involved. Therefore, the Board finds that remand is warranted to afford the Veteran a VA peripheral nerves examination to ascertain this information, which is necessary to determine whether separate ratings are warranted. The matters are REMANDED for the following action: 1. Make all appropriate attempts to obtain any outstanding treatment records associated with the Veteran’s service in the Puerto Rico Army National Guard. All efforts to obtain such records must be documented in the claims file. If any records are unavailable, issue a formal finding of unavailability and notify the Veteran. 2. Then, obtain an addendum opinion from an appropriate VA medical professional concerning the etiology of the Veteran’s currently diagnosed obstructive sleep apnea. The need for an additional examination is left to the discretion of the medical professional offering the addendum opinion. After review of the evidence, to include the Veteran’s service treatment records, VA treatment records, and lay testimony, the examiner should provide answers to the following questions: (a.) Is at least as likely as not (a 50 percent probability or greater) that the Veteran’s currently diagnosed obstructive sleep apnea was incurred during active military service? In forming an opinion, the examiner should consider the Veteran’s wife’s September 2018 written statement describing how the Veteran struggled with sleep upon his return from deployment to Iraq. (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s obstructive sleep apnea was caused by a service-connected disability, including bronchial asthma? (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s obstructive sleep apnea was aggravated by a service-connected disability, including bronchial asthma? The VA examiner must provide separate findings and rationales relating to causation and aggravation. The examiner is advised that secondary service connection does not require permanent worsening of the condition and requires considering whether there has been any worsening, no matter how incremental, even if not above and beyond the condition’s natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiner should provide a complete rationale for his or her opinions, and citation to any medical literature or evidence would be helpful to the Board. If the examiner is unable to provide the requested opinions without resort to speculation, he or she should so state; however, a complete rationale for such a finding should be provided. (Continued on the next page)   3. Schedule the Veteran for a VA peripheral nerves examination by an appropriate clinician to determine the current severity of his service-connected left and right lower extremity radiculopathy, as well as the specific nerve roots involved. 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 particular, the examiner should review the January 2016 VA examination report, which documented involvement of the external popliteal (common peroneal) nerves, and the May 2019 VA back conditions examination report, which reflected bilateral “involvement of the L4/L5/S1/S2/S3 nerve roots (sciatic nerve),” and clarify which specific nerve(s) are affected by the Veteran’s bilateral lower extremity radiculopathy, to include the sciatic and external popliteal (common peroneal) nerves. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. T. Raftery, 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.