Citation Nr: 21023940 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-20 219 DATE: April 21, 2021 REMANDED Entitlement to service connection for right hand degenerative arthritis is remanded. Entitlement to service connection for left hand degenerative arthritis is remanded. Entitlement to service connection for right shoulder disability is remanded. Entitlement to service connection for left shoulder disability is remanded. Entitlement to service connection for degenerative arthritis of the lumbar spine is remanded. Entitlement to service connection for right knee disability is remanded. Entitlement to service connection for left knee disability is remanded. Entitlement to service connection for a heart disability, claimed as abnormal mitral valve (mitral valve prolapse), is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran had active military service from June 1980 to November 1984 and from April 1985 to October 2003. He testified in support of these claims during a February 2021 hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. All claims The Veteran has filed for Social Security Administration (SSA) benefits. Since these records are potentially relevant to this appeal, VA should obtain them before deciding these claims. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Entitlement to service connection for an abnormal mitral valve, including, but not limited to, mitral valve prolapse The Veteran filed a claim for service connection for an abnormal mitral valve. However, he has been diagnosed with several conditions referable to his heart; thus, all diagnoses must be considered in deciding this claim. Clemons v. Shinseki, 23 Vet. App (2009) (holding that an appellant's diagnoses arising from the same symptoms for which he is seeking benefits do not relate to entirely separate claims not yet filed by the appellant, rather, these diagnoses should be considered to determine the nature of the appellant's current condition relative to the claim he submitted). The Veteran’s service treatment records (STRs) reflect that he had risk factors for heart disease, and that he was told how to prevent the same heart problems as his father (see June 2000 STR). A February 2003 Internal Medicine Procedure Note reflects that the Veteran, who complained of sharp left arm pain and intermittent chest pain, was given a treadmill test. It was noted that he had risk factors for coronary artery disease (CAD) – those being then current tobacco use and that both parents had CAD. The impression was “clinically equivocal, electrically normal maximal full Bruce exercise treadmill test with average exercise capacity overall. Hypertensive response but clinical asymptomatic - without chest pain or dyspnea.” It was recommended that he stop smoking and continue a walking program. The Veteran separated from service in October 2003. Six months later, a May 2004 Cardiac Catherization Laboratory record list assessments of nonobstructive CAD, myocardial bridge, mitral valve prolapse, and mild mitral regurgitation. The Board may not make medical determinations, and the claims file does not specify whether any of the Veteran’s disabilities is a “cardiovascular-renal disease”. If so, and if the disease manifested to a compensable degree within a year of his separation from service in October 2003, so by October 2004, service connection would be warranted on a presumptive basis according to 38 C.F.R. § 3.309(a). An October 2019 Non-Invasive Cardiology record affirms the Veteran had mild mitral regurgitation, but that he had normal mitral valve structure and functions and normal mitral valve leaflet mobility. He also had mild tricuspid regurgitation, but normal tricuspid valve structure and function. Additional medical comment therefore is needed concerning the likelihood the Veteran has a current heart disability that began during his service, or within a year of his discharge, or that is otherwise related or attributable to his service. These determinations will include clarifying whether his diagnoses in May 2004 are “cardiovascular-renal disease” and, if so, the estimated METs level at that time to, in turn, determine whether there was the required manifestation of the disease to at least 10-percent disabling to warrant presuming it was incurred during his service. Entitlement to service connection for bilateral hand degenerative arthritis, acromioclavicular joint osteoarthritis of both shoulders, degenerative arthritis of the lumbar spine, and bilateral knee disability As already mentioned, the Veteran separated from service in October 2003. The report of his February 2003 retirement physical shows that, with regard to having suffered from any injury or illness while on active duty for which he did not seek medical care, he reported only that he had pain in his left arm from the elbow to the wrist and an injury to his foot from a fall in Saudi Arabia. His only concern about his health was regarding a lump on his back. With regards to whether he planned to seek VA disability, he reported “yes” for continuously being in contact with fuel oil and injuries from continuous use of the computer (arthritic). He did not report spine complaints, shoulder complaints, or knee complaints. The earliest evidence of any one of these claimed conditions is not for more than a decade after the Veteran’s separation from service. A September 2014 report from Dr. Peterson notes that the Veteran reported cervical, thoracic, hands, feet, knees, and occasional hip pain. The report is unremarkable for shoulder complaints. An addendum to an examination note reflects that the Veteran informed the doctor that his “problems [had] started years ago while working in the Airforce”. Dr. Peterson indicated it “appears that the work this gentleman used to do with the extensive use [of] his hands, stooping, squatting, bending etc. has contributed to his arthritis being worse at this stage. At this stage he is mild to moderate. . . ” An April 2015 record from Dr. Vester expresses his opinion that the Veteran’s arthritic condition of the shoulders and knees is at least as likely as not due to service because he did “a lot of heavy lifting, walking on hard surfaces, walking up and down ladders, and carrying heavy objects.” Dr. Peterson’s opinion was based, in part, on the Veteran’s self-reported history of continuity of symptoms, and neither he nor Dr. Vester discussed why the Veteran’s mild to moderate severity of symptoms was worse than to normally be expected for a man in his fifties with a history of smoking and did not discuss at all the Veteran’s post-service employment (including as a technician). The reports do not reflect that either doctor was aware of the Veteran’s STRs showing he did not have chronic complaints in service. Although he reported back and joint problems in 1997, he previously denied this impairment (August 1984, March 1985, July 1987, July 1991, April 1995) and subsequently denied it (April 2002) and described his heath as “excellent” (February 2001).   The Board has considered that the Veteran told a Disability Benefits Questionnaire (DBQ) examiner that he never went to sick call because it “was forbidden to call to sick call and the only time he ever really went was when he had to get stiches in his head.” However, his STRs show he sought treatment in service for a variety of reasons on several occasions. As notable examples, he was seen at the following times for the respective ailments: public lice (April 1981), hurt big toe playing basketball (March 1982), laceration on top of head (June 1982), abrasions to both hands from a motorbike accident (November 1982), twinge in the lower back, which resolved and was “100 percent better (September 1983), right shoulder strain (June 1984), sore throat (February 1986), nose bleed (March 1986), finger injury (November 1987), vomiting, diarrhea, cramps (June 1988), penile discharge (January 1989, February 1989), growth near groin area (April 1989), abdominal complaints (May 1989), possible hernia (June 1989), cut finger (January 1990), sore throat (February 1990), left side pain after fall from a horse (April 1991), laceration on arm (April 1991), stomach cramps (April 1991), allergic reaction (August 1991), allergic reaction (October 1991), bronchitis (April 1992), abdominal pain (April 1996), acute gastroenteritis (July 1996), nose bleed (September 1996), probable broken toe (2000) congestion and body aches (November 2002), and intermittent chest pain (February 2003). The claims file also includes an August 2015 DBQ in which the examiner conversely found it less likely than not the Veteran’s disabilities of the spine, hands/fingers, and shoulders are due to his service. This examiner considered that the Veteran had a soft tissue injury to the right hand in 1981, acute lumbar pain in 1983, and a right shoulder strain in 1984 but did not believe he had any current disability as a result. The examiner did not discuss the Veteran’s knees. After obtaining all SSA records, a supplemental opinion may be useful in resolving these conflicting medical opinions. To this end, the examiner should consider the Veteran’s contention of repetitive use of his joints due to his military occupational specialty (MOS) in aircraft maintenance, his post-service employment, the severity of his disabilities upon diagnosis, and whether they are indicative of a relationship with his service or normal for a man of his age and with his medical history (e.g., smoker, etc.). May 2016 private records (Lanier Health Services) also show the Veteran had bilateral rotator cuff tears; however, the August 2015 DBQ contrarily indicates a rotator cuff tear was not suspected because the Veteran had negative Hawkins test, negative empty-can test, negative external rotation/infraspinatus strength test, and negative lift-off subscapular is test. This suggest he may have had some type of intervening injury between August 2015 and May 2016 or, at minimum, this discrepancy needs to be reconciled. Obstructive Sleep Apnea The Veteran’s STRs show he denied frequent trouble sleeping or frequent headaches in service (see August 1984, March 1985, July 1987, and July 1991 Reports of Medical History). The earliest clinical evidence of this condition is in March 2015, more than a decade after the Veteran’s separation from service, when he received a diagnosis of severe obstructive sleep apnea. Also, of record, is a 2016 statement from M. B. attesting that he served with the Veteran from 1997 to 2001 and that, on several occasions, he witnessed the Veteran snoring loudly and stopping breathing. He stated that he would have to frequently shake the Veteran because of his 10-15-second-long pauses of breathing. A medical opinion, therefore, also is needed to assist in deciding this claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Accordingly, these claims are REMANDED for the following action: 1. Contact the SSA and attempt to obtain all records concerning the Veteran’s claim for disability benefits from this other Federal Agency. Document all requests for these additional records, as well as all responses, and appropriate notify the Veteran and his attorney if unable to obtain these additional records. 2. Ask the Veteran to complete a VA Form 21-4142 for all medical providers from October 2003 to 2017. If he provides this necessary authorization and the amount of information needed, obtain these additional records. Document all requests for these records, as well as all responses, and appropriately notify him and his attorney if unable to obtain these additional records 3. Thereafter, obtain additional medical comment as a supplement to the 2015 DBQ. To this end, the examiner is specifically asked to answer the following questions: (A) Is it as likely as not (50 percent or greater probability) the Veteran has a right- and/or left-hand disability because of his military service? (B) Is it as likely as not (50 percent or greater probability) the Veteran has a right and/or left knee disability because of his military service? (C) Is it as likely as not (50 percent or greater probability) the Veteran has a right and/or left shoulder disability because of his military service? (D) Is it as likely as not (50 percent or greater probability) the Veteran has a lumbar spine disability because of his military service? *The Veteran essentially attributes all these disabilities to his MOS in service as a mechanic working on aircraft on the flight line. He cites having to work in confined spaces, in contorted positions, for hours at a time, heaving lifting, repetitive movements, etc., so the examiner should consider whether any of these claimed disabilities is consistent with that type of activity. To aid in providing an adequate rationale, the examiner should consider the pertinent evidence of record, including especially: a) the STRs noting the Veteran reported back and joint problems in 1997, but previously had denied this (August 1984, March 1985, July 1987, July 1991, April 1995), and subsequently denied it (April 2002) and described his heath as “excellent” (February 2001); b) the earliest clinical evidence of disabilities, post service; c) the Veteran’s contention with supporting clinical opinions that his repetitive-use activity in service caused his current disabilities; d) the level of severity of the Veteran’s disabilities when diagnosed and whether it supports his claims or whether it is normally expected or reasonable for a man of his age with his medical history (e.g., at least two decades as a smoker, etc.) and e) his post-service employment. The Veteran claims to have experienced continuity of symptoms since his service, and it is continuity of symptoms (not continuous treatment for them) that is the essence of continuity of symptomatology. Thus, the examiner should not impermissibly equate continuity of symptoms with continuity of care (continuous treatment, chronicity of care, etc.). However, if there is reason to have expectation of more indication of continuous symptoms during the years following the Veteran’s service up to initial indication of the condition, post service, such as in the way of diagnosis, the examiner must discuss why it is reasonable to have this expectation and not use this as the sole reason for disassociating a condition from the Veteran’s service.   In other words, this is one of several factors in determining whether a condition being claimed is attributable to the Veteran’s service and cannot be exclusive (the only) reason for concluding it is not, although it is a relevant consideration, among others. Thus, rationale for all opinions is essential, regardless of whether favorable or unfavorable to the claims, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. 4. Also obtain a medical opinion concerning the origin of the Veteran’s heart disabilities – particularly in relation to his time in the military. To this end, the clinician should answer the following specific questions: (A) Were any of the disabilities diagnosed in 2004 (i.e., nonobstructive CAD, myocardial bridge, mitral valve prolapse, and mild mitral regurgitation) a “cardiovascular-renal disease”; and, if so, what was the likely METs level at that time to, in turn, assist in determining whether it manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of the Veteran’s separation from service to, in turn, warrant presuming it was incurred during his service? (B) If not presumptively related to his service, is it as likely as not (50 percent or greater probability) that any of the Veteran’s heart disabilities (see May 2004 and October 2019 clinical records) are otherwise related or attributable to his service? Rationale must be provided for all opinions, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. 5. As well, obtain a medical opinion concerning whether it is as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea originated during his service or is otherwise related or attributable to his service. In making this determination, the examiner should consider the Veteran’s STRs, the 2015 diagnosis of obstructive sleep apnea, and the 2016 buddy statement. Rationale must be provided for all opinions, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.