Citation Nr: 21024403 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-34 353 DATE: April 22, 2021 ORDER Entitlement to service connection for residuals of right wrist tendonitis is granted. REMANDED Entitlement to service connection obstructive sleep apnea (OSA) is remanded. Entitlement to an initial compensable rating for service-connected bilateral pes planus with plantar fasciitis is remanded. Entitlement to an initial compensable rating for service-connected for sebaceous cyst, left axillary vault with residual scar is remanded. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease, thoracolumbar spine is remanded. Entitlement to an initial compensable rating for degenerative changes, right knee is remanded. Entitlement to an initial rating in excess of 10 percent for osteoarthritis, status post meniscal repair left knee is remanded. Entitlement to an initial compensable rating for service-connected gastroesophageal reflux disorder (GERD) is remanded. Entitlement to an initial compensable rating for service-connected ovarian cyst with menstrual irregularity and pain is remanded. Entitlement to an initial compensable rating for service-connected bulimia nervosa is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s current right wrist pain causes occupational impairment and is related to service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for residuals of right wrist tendonitis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1997 to April 2011. This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). It granted service connection and assigned initial ratings for the service-connected disabilities listed on the title page and denied service connection for OSA and right wrist tendonitis. In August 2019, the Veteran revoked Veterans of Foreign Wars as her representative. She has not appointed another representative. In February 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. The Board has recharacterized the service-connected disability of sebaceous cyst, left axillary to include a residual scar. Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (characterization of a claim generally is within VA's discretion). The recharacterization is appropriate since the Veteran had this sebaceous cyst excised in 2014 and currently has a residual scar. The Board notes the Veteran submitted private treatment records with her August 2014 substantive appeal and updated VA treatment records were received in November 2019 following the June 2014 statement of the case (SOC), and these records have not been reviewed by the RO. The Veteran has not waived her right to review of the evidence by the agency of original jurisdiction (AOJ). The automatic AOJ review waiver only applies to evidence submitted by the Veteran. See Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154 (amending 38 U.S.C. § 7105 by adding new paragraph (e), which provides that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, it is subject to initial review by the Board unless the Veteran explicitly requests RO consideration). Thus, the automatic AOJ review waiver covers the medical records submitted by the Veteran in connection with her August 2014 substantive appeal but not the VA treatment records received in November 2019. Id. In addition, the Appeals Modernization Act removed the new 38 U.S.C. § 7105(e). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service treatment records (STRs) from July 2002 included complaints about a two month history of right wrist pain. It had a gradual onset and increased with daily activities. Physical examination showed a full range of motion with tenderness on extension. The clinician assessed tendonitis. May 2006 STRs included complaints about left wrist pain. The clinician noted a history of carpal tunnel syndrome for the right wrist. The Veteran reported her right wrist pain self-resolved. In November 2011, the Veteran had a VA General Medical examination. The clinician reported right wrist tendonitis with a 2001 onset. The Veteran stated that she developed right wrist pain after typing extensively. She was treated for tendonitis with a splint. It helped but she continued to experience a dull ache. It interfered with her ability complete military physical examinations. She was free from pain at rest, but she developed 5-6/10 pain with physical training exercises. These episodes lasted 5 to 10 minutes then resolved with rest. She continued to use a splint when using a keyboard for long hours. There was no associated medication use. Physical examination showed good range of motion for both wrists without pain. The clinician diagnosed right wrist tendonitis by history with a normal examination. At the February 2021 Board hearing, the Veteran reported that she was treated for right wrist CTS but her medical records were missing. She received treatment and diagnosis while she was stationed in New Orleans and right before hurricane Katrina. Her medical records were transcribed on paper. She believed her 2006 medical records were missing due to chaos surrounding the hurricane evacuation and paper transcript format. She stated that her right wrist symptoms had remained the same since service. She had right wrist pain, numbness and sensory disturbances. It affected her ability to work. For the following reasons, service connection for residuals of right wrist tendonitis is warranted. The Veteran is competent to report about right wrist pain and her medical treatment history. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). The Veteran appears to be an accurate historian and available STRs show an instance of treatment for right wrist pain in 2002. She provided a specific explanation as to why STRs documenting another in-service episode of care for right wrist pain were missing. She confirmed that she continues to experience right wrist pain following service and it negatively affects her ability to perform her job. In this regard, her February 2021 report establishes a current disability for VA compensation purposes since current disability includes joint pain resulting in occupational impairment. Saunders, 886 F.3d at 1364-65. Given these considerations, the Board finds that the Veteran’s reports show continuous symptoms starting in service for a right wrist disability and are highly probative evidence of a current disability and relationship to service. The Board notes the November 2011 VA medical assessment questioning whether a current right wrist disability was present. However, as noted above a current disability includes joint pain that results in occupational impairment. Id. The Board finds that Veteran’s competent and credible reports about continuing right wrist pain satisfy the current disability element. In sum, the evidence is thus at least evenly balanced as to whether the Veteran's residual pain associated with right wrist tendonitis had its onset in service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for residuals of right wrist tendonitis is warranted. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). REASONS FOR REMAND Although the Board regrets the delay, additional development is needed for the claims below. Entitlement to service connection for OSA is remanded. The Veteran reported difficulty sleeping and snoring symptoms starting service. She was afforded a sleep study for this claim in January 2011. A polysomnogram was taken in March 2011 and returned normal. At the February 2021 hearing, the Veteran reported that she was not married during service and that after service her husband had noticed her experiencing not only loud snoring but paused breathing while she was asleep. She confirmed that fellow service members informed her about her extreme snoring problems during service. Given the above, the Board finds that another OSA examination is needed. The Veteran’s current reports about continued loud snoring and paused breathing symptoms warrant another examination to confirm OSA. Entitlement to an initial compensable rating for service-connected bilateral pes planus with plantar fasciitis is remanded. An updated VA examination is needed for this claim. The Veteran was last afforded a VA foot condition examination in 2011. At the February 2021 hearing, her reports suggest a material increase in severity for this disability, specifically her report of extreme tenderness affecting the bottom of her feet. Updated information is needed to assign an appropriate rating. Entitlement to an initial compensable rating for service-connected for sebaceous cyst, left axillary vault with residual scar is remanded. An updated VA examination is needed for this claim since there has been a material change in disability since the January 2011 VA examination. In March 2014, the Veteran had surgery to remove the service-connected cyst. The operative report reflects that an elliptical incision was made without further detail. It is unknown how much of an affected area is involved. At the February 2021 hearing, the Veteran indicated this scar affected a large area with keloid formation and pain. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease, thoracolumbar spine is remanded. Entitlement to an initial compensable rating for degenerative changes, right knee is remanded. Entitlement to an initial rating in excess of 10 percent for osteoarthritis, status post meniscal repair left knee is remanded. Entitlement to an initial compensable rating for service-connected GERD is remanded. There are outstanding private medical records for these claims. For the lumbar spine disability, in an August 2014 statement accompanying her substantive appeal, the Veteran reported that she continued to seek medical treatment for back pain and received several medications. She also reported at the February 2021 Board hearing that in 2013, she had physician directed bed rest for incapacitating episodes of back pain. The August 2014 correspondence identifies medical records from Fredericksburg Orthopedic Associates that include a recent diagnosis of lumbar facet syndrome. Although additional private medical records were submitted at this time, the submissions did not include low back pain treatment or otherwise include this private medical provider. For the knee disabilities, VA treatment records from January 2019 and July 2019 note continuing left knee pain that was managed by a private orthopedist. The Veteran last submitted private medical records in August 2014 in connection with her substantive appeal. For GERD, at the February 2021 Board hearing, the Veteran stated that she recently received emergency treatment for what she initially believed was a heart attack but later was assessed as an episode of severe acid reflux. VA has adopted a regulation requiring that when it becomes aware of the existence of relevant records before deciding a claim, it will specifically notify the claimant of the records and provide a release to obtain the records. If the claimant does not provide the release, VA will request that the claimant obtain the records and submit them to VA. 38 C.F.R. § 3.159(e)(2). Since VA is now aware of the above private orthopedic records and GERD treatment records, further development is needed to ensure compliance with the above regulations. Id.; see 38 U.S.C. § 5103A(b)(1) (requiring VA to assist claimants in obtaining evidence necessary to substantiate their claims by making "reasonable efforts to obtain relevant private records"). Then, the January 2011 VA examination report is not fully responsive to the updated Court guidance for ascertaining motion loss during flare-ups or repetitive use over time and additional examinations are warranted for the lumbar spine and bilateral knee disability claims. Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). For GERD, the February 2021 Board hearing testimony indicates a worsening occurred and an updated examination is needed for this claim as well. Entitlement to an initial compensable rating for service-connected ovarian cyst with menstrual irregularity and pain is remanded. The medical evidence indicates that this disability has worsened since the January 2011 VA examination. In November 2011, the Veteran underwent surgery to remove an ovarian cyst. There are no pertinent medical records since November 2011. At the February 2021 hearing, the Veteran reported associated symptoms including bloating, pressure, swelling, bleeding, back pain, pelvic pain and thigh pain. The frequency, severity and duration of these symptoms is unclear as well as the effectiveness of medical treatment in managing these symptoms. The Board also observes that ascertaining ovarian disease symptoms is a complex medical question due to the internal nature of ovarian pathology. For these reasons, the Board finds that an updated VA ovary examination is needed for this claim. Entitlement to an initial compensable rating for service-connected bulimia nervosa is remanded. The Veteran has not been afforded a VA examination specific to this claim. The January 2011 VA examination concerned posttraumatic stress disorder (PTSD) and addressed bulimia as an ancillary issue. Then, at the February 2021 Board hearing, the Veteran identified tooth decay and acid reflux as associated symptoms, which raises secondary medical issues. The Board also notes that the updated VA treatment records include relevant treatment for bulimia, and the AOJ has not had an opportunity to review this evidence. In light of the above, the Board finds that a VA bulimia nervous examination and dental examination for associated tooth decay is needed. The Board notes the associated acid reflux symptoms, but finds that such symptoms are reasonably encompassed by the GERD rating claim and will be included in the GERD rating. These matters are REMANDED for the following action: 1. Obtain a complete copy of the Veteran’s VA treatment records from January 2011 to the present. 2. Furnish a release for private medical records to the Veteran, request that she complete and return the private release for the Fredericksburg Orthopedic Associates for lumbar spine disability and the private provider for knee pain as referenced in January 2019 and July 2019 VA primary care records. Alternatively, advise the Veteran she may also directly submit these private medical records to VA. Request that the Veteran identify the medical provider furnishing treatment for chest pain later assessed as GERD as reported at the February 2021 hearing and provide appropriate development based upon her response. For all identified private medical records in the Veteran’s response, take appropriate action to secure the identified private medical records with documentation of all search efforts. Notify the Veteran of any inability to obtain sufficiently identified records and inform her that she may submit any records in his possession directly to VA. 3. Schedule the Veteran for an examination by an appropriate physician to determine the nature and etiology of her OSA. The claims file must be reviewed, and such review should be noted in the report. Any indicated evaluations, studies, and tests should be conducted. If the sleep study confirms sleep apnea, the physician must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea is etiologically related to her period of service. The physician must consider the Veteran’s competent and credible lay reports about loud snoring symptoms starting in service. All opinions must be accompanied by adequate reasons and bases. 4. Schedule the Veteran for a VA examination with an appropriately qualified clinician to determine the current severity of her service-connected bilateral pes planus with plantar fasciitis. The claims file must be reviewed, and such review should be noted in the report. Any indicated evaluations, studies, and tests should be conducted. The clinician should identify all symptoms attributable to the Veteran's pes planus and plantar fasciitis and the examination should be conducted in accordance with the current disability benefits questionnaire. 5. Schedule the Veteran for a VA examination with an appropriately qualified physician to determine the current severity of her service-connected sebaceous cyst, left axillary vault with residual scar. The claims file must be reviewed, and such review should be noted in the report. Any indicated evaluations, studies, and tests should be conducted. The physician should identify all symptoms attributable to the Veteran's residual scar from the March 2014 surgery removing the left axillary cyst, and the examination should be conducted in accordance with the current disability benefits questionnaire. 6. Schedule the Veteran for a VA orthopedic examination with an appropriately qualified physician to evaluate the severity of her service-connected lumbar spine and bilateral knee disabilities. The claims file must be reviewed, and such review should be noted in the report. Any indicated evaluations, studies, and tests should be conducted. The examination should be conducted in accordance with the current lumbar spine and knee disability benefits questionnaires and consistent with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Then, to the extent possible, the physician should review the knee range of motion studies from the January 2011 VA examination report and estimate the lumbar spine and bilateral knee motion loss during flare-ups and repetitive use over time. If the physician is unable to estimate motion loss in terms of degrees during periods of repetitive use or flare-ups either upon current examination or from the prior examinations, he or she must provide a clear explanation and state whether such inability to estimate motion loss in terms of degrees is due to a lack of knowledge by the individual examiner or among the medical community at large. 7. Schedule the Veteran for a VA examination with an appropriately qualified physician to determine the current severity of her service-connected GERD. The claims file must be reviewed, and such review should be noted in the report. Any indicated evaluations, studies, and tests should be conducted. The physician should identify all symptoms attributable to the Veteran's GERD and the examination should be conducted in accordance with the current disability benefits questionnaire. 8. Schedule the Veteran for a VA examination with an appropriately qualified physician to determine the current severity of her service-connected ovarian cyst with menstrual irregularity and pain. The claims file must be reviewed, and such review should be noted in the report. Any indicated evaluations, studies, and tests should be conducted. The physician should identify all symptoms attributable to the Veteran's ovarian cyst with menstrual irregularity and pain. The examination should be conducted in accordance with the current disability benefits questionnaire. 9. Schedule the Veteran for a VA examination with an appropriately qualified psychiatrist or psychologist to determine the current severity of her service-connected bulimia nervosa disorder. The claims file must be reviewed, and such review should be noted in the report. Any indicated evaluations, studies, and tests should be conducted. The examination should be conducted in accordance with the current disability benefits questionnaire. 10. Schedule the Veteran for a VA oral conditions examination to determine whether she has any additional dental disability associated with service-connected bulimia nervosa disorder. The claims file must be reviewed, and such review should be noted in the report. The examination should be conducted in accordance with the current disability benefits questionnaire. Any indicated evaluations, studies, and tests should be conducted. For each oral condition found, the clinician must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) etiologically related to service-connected bulimia nervosa. The clinician must consider the Veteran’s competent and credible lay reports about her eating disorder. All opinions must be accompanied by adequate reasons and bases. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.