Citation Nr: 21024080 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 19-19 610 DATE: April 22, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for chronic kidney disease to include as due to diabetes mellitus is remanded. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a sleep disorder, to include insomnia and/or obstructive sleep apnea is remanded. REASONS FOR REMAND Although the Board regrets the delay, remand is required to ensure there is a complete record on which to decide the Veteran’s claims. The Board acknowledges that the Veteran’s claims have been remanded several times before; however, due to inadequate VA examinations a decision cannot be made on the current record. 1. Entitlement to service connection for a lumbar spine disorder The Veteran contends that he has a lumbar spine condition as a result of his military service. The Veteran’s service treatment records (STRs) show in August 1984, the Veteran had a jump injury, landing on his buttocks, with pain in the sacral area. The pain was deep and did not radiate. He had pain with bending and sitting. His lumbosacral spine and coccyx did not show boney abnormality. He was assessed with sacral contusion. A January 1988 service medical examination did not include notation of a spine disorder/symptoms. A March 1989 service medical examination included a “normal” notation next to the spine, but in the “summary of defects and diagnoses” section was the notation of low back pain. The Veteran was seen for VA examination in September 2012. The examiner provided a negative opinion with the rationale that the claims file did not show evidence of any treatments, sick calls, or diagnosis of lumbar conditions during service. As the Veteran was seen for complaints of back pain after a parachute jump, this opinion was found inadequate. In August 2014, an addendum opinion was provided following a review of the Veteran’s service treatment records. The examiner again provided a negative opinion, noting that following the jump injury in 1984, his physical evaluation and x-rays were unremarkable, and the Veteran “had no further complaints during service.” His condition was “acute, transient, and responded well to treatment” through the remainder of the Veteran’s service in 1989. There was a note of the Veteran’s complaint of low back pain in his separation history in 1989. “But without any evidence of treatments, medications, or radiological evidence for any lumbar conditions during that time or the year after.” Although the 2014 medical opinion addressed both the initial complaint of back pain in 1984, and the notation of the Veteran’s report of back pain on his separation medical history in 1989, the examiner found that a positive nexus could not be provided because there was no evidence to treatment or diagnosis within one year of discharge. However, service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Therefore, the August 2014 opinion was also inadequate. In November 2020, a VA examiner again provided an examination and reviewed the Veteran’s medical history. The examiner noted the Veteran’s description of events in service but found that the Veteran’s service treatment records were silent for any lumbar spondylosis or lumbar muscle spasm. The examiner noted the Veteran did not show radiographic evidence of lumbar spondylosis until 2013, 24 years after service. The examiner opined the Veteran’s lumbar spondylosis is a degenerative condition for which aging is the most common cause. Unfortunately, the Board finds the November 2020 VA examination is also inadequate. It is not clear that the examiner considered the Veteran’s report of low back pain in 1989. Further, the Veteran’s VAMC treatment records indicate that the Veteran has been receiving ongoing treatment for lumbar related issues since at least 2000, which was 11 years after service. Accordingly, the Board finds an additional VA opinion is needed to consider the Veteran’s complete history of a lumbar spine condition. 2. Entitlement to service connection for chronic kidney disease to include as due to diabetes mellitus is remanded. The Veteran alleges his chronic kidney disease is due to service or alternatively due to his diabetes mellitus. The Veteran has been seen for VA examinations in November 2017, December 2018, and October 2020. The November 2017 VA diabetes examination included that there was no evidence of kidney disease or nephropathy. A December 2018 medical opinion included that the Veteran did not have kidney disease due to his diabetes mellitus because “no microalbuminuria present.” In October 2020, the examiner found the Veteran has not been diagnosed with a chronic kidney condition because renal function is adequate and there is no evidence of microalbuminuria or proteinuria. However, a December 2017 VA nutrition note included that the Veteran was instructed on a protein restriction diet due to CKD stage 3 history. Ongoing VA treatment records list the Veteran as having stage 3 CKD. Further, a May 29, 2018 VA cardiology note included a notation of CKD. Laboratory tests from December 2017, January 2018, and April 2018 all showed creatinine levels of just above 1.4. He was assessed with CKD stage III. In the September 2020 Board remand, the VA examiner was directed to address the Veteran’s VA treatment record notations that the Veteran has CKD stage 3. Unfortunately, as there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to service connection for chronic kidney disease, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is remanded. The Veteran claims entitlement to service connection for an acquired psychiatric disorder to include PTSD. In the September 2020 Board remand, the Board directed a VA examiner to consider the Veteran’s history of psychiatric treatment. The examiner was specifically directed to consider the diagnoses of anxiety disorder, depressive disorder, and PTSD in the record and the Veteran’s prescriptions for anti-anxiety medication for the majority of the appeal period to include Xanax and Clonopin. The Veteran was seen for a psychological VA examination in November 2020. The examiner found that the Veteran’s only mental disorder under the DSM-5 criteria was insomnia disorder. However, the examiner did not provide any consideration of the Veteran’s mental health diagnoses in the record or history of anti-anxiety medications. Unfortunately, as there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to service connection for an acquired psychiatric disorder, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Entitlement to service connection for a sleep disorder, to include insomnia and/or obstructive sleep apnea is remanded. The Veteran claims entitlement to service connection for a sleep disorder to include insomnia and/or obstructive sleep apnea. In the September 2020 Board remand, the Board requested a VA examiner address the Veteran’s sleep conditions. The examiner was asked to address if the Veteran has a diagnosis of sleep apnea and to address if a sleep study is medically indicated. Further, the VA examiner was asked to address if the Veteran has a primary insomnia disorder or if it is a symptom of another disorder. Finally, the examiner was asked to address the relationship between the Veteran’s insomnia and military service to include his service in Vietnam. Upon VA examination in November 2020, a VA examiner opined the Veteran’s diagnosis was insomnia disorder, in partial remission. The examiner did not address any potential sleep apnea diagnosis. Further, the examiner did not address if the Veteran’s insomnia had any relationship to the Veteran’s service in Vietnam. Unfortunately, as there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to service connection for a sleep disorder to include sleep apnea and insomnia, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Ask an appropriate examiner other than the November 2020 VA examiner to review the Veteran’s file regarding his back condition, including lumbar spondylosis. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The entire claims file must be made available to the designated examiner, including this remand. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the back condition, including lumbar spondylosis, was incurred in service or is otherwise medically related to service. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account. The examiner must address the Veteran’s history of back related impairments in 1984 and 1989. Further, the examiner is addressed to note the Veteran’s history of treatment for lumbar spine conditions since at least 2000. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) 2. Ask an appropriate examiner other than the October 2020 VA examiner to review the Veteran’s file regarding his chronic kidney disease (CKD). The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. After a review of the record, the examiner should address the following: (a.) Does the Veteran have a current kidney disorder? The examiner must address the various VA treatment record notations that the Veteran has CKD stage 3. (b.) Is it at least as likely as not (50/50 probability or greater) that the Veteran’s CKD is caused or aggravated by the Veteran’s service-connected diabetes? The prior rationale was “no microalbuminuria present.” Additional explanation is necessary. (c.) Is it at least as likely as not (50/50 probability or greater) that the Veteran’s CKD is caused or aggravated by the Veteran’s other service-connected disabilities (hypertension, hypertensive heart disease, etc.)? A complete explanation must accompany each opinion expressed. 3. Ask an appropriate examiner other than the November 2020 VA examiner to review the Veteran’s file regarding his acquired psychiatric disorder, to include PTSD. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The entire claims file must be made available to the designated examiner, including this remand. The examiner is asked to address the following: (b.) Does the Veteran have a current psychiatric disorder? For the purposes of this opinion, consider whether the Veteran has met the criteria for a psychiatric disorder form April 2012 to the present under the DSM-IV and DSM-V. The examiner must address the diagnoses of anxiety disorder, depressive disorder, and PTSD in the record. The examiner must also address the Veteran’s prescription for an anti-anxiety medication for the majority of the appeal period (both Xanax and Clonopin). A complete explanation must accompany each expressed opinion. 4. Ask an appropriate examiner other than the November 2020 VA examiner to review the Veteran’s file regarding his sleep disorder to include sleep apnea and insomnia. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The entire claims file must be made available to the designated examiner, including this remand. The examiner is asked to address the following: (a.) Does the Veteran have obstructive sleep apnea? If he has not undergone sleep study testing, is it medically indicated? (b.) Does the Veteran have a primary insomnia disorder? Is the Veteran’s insomnia a symptom of another disorder? (c.) If the Veteran has primary insomnia, then is it at least as likely as not (50/50 probability or greater) that it is due to his military service? To include as due to his service in Vietnam.   A complete explanation must accompany each expressed opinion. J. NICHOLS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura C. Owens 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.