Citation Nr: 21026340 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 18-31 163 DATE: April 30, 2021 REMANDED Entitlement to service connection for a back disorder, to include a lumbar spine disorder, is remanded. Entitlement to service connection for a shoulder disorder is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1979 to April 1982, from October 1988 to August 1989, and from December 1990 to May 1991, with additional service in the reserves. This appeal comes before the Board of Veterans’ Appeals (Board) from February 2016 and September 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge on the issues of service connection for a shoulder disorder and for a back disorder, to include a lumbar spine disorder. A transcript of the hearing is of record. The matters of entitlement to service connection for a shoulder disorder and for a back disorder, to include a lumbar spine disorder, were previously remanded by the Board in October 2019 for further development. Specifically, the Board remanded these claims for VA examinations. The claims for entitlement to service connection for a shoulder disorder and for a back disorder, and the claim for entitlement to service connection for OSA were remanded by the Board in February 2021. Specifically, the Board remanded the back and shoulder claims for addendum etiology opinions and the OSA claim was remanded to afford the Veteran a VA sleep apnea examination. Although the Board sincerely regrets additional delay, for the reasons below, remand is necessary to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This appeal has been advanced on the Board’s docket. 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for a back disorder, to include a lumbar spine disorder The Veteran contends that his degenerative arthritis of the spine, claimed as a back disorder, is related to his active service. Specifically, the Veteran contends that his duties as a combat medic and then a licensed practical nurse, necessitated that he carry a ruck sack over 65 pounds, with additional special medical equipment which added another 35 pounds, and that he helped remove deceased soldiers whom he would pick up over his shoulder, carry to stretchers, and on stretchers, would carry two or three bodies at a time. See June 2018 VA Form 9 and August 2019 Board Hearing Transcript. Pursuant to the February 2021 Board remand, an addendum opinion issued in February 2021. The VA examiner opined that it was less likely as not that the Veteran’s lumbar disc disease with spondylosis was incurred in service or caused by the claimed in-service injury, stating that the Veteran’s current disability does not develop in short periods of service, but rather is chronic and tends to worsen over time as a result of the natural aging process and/or due to repetitive trauma. The examiner opined that the Veteran’s lumbar disability was more likely than not caused by age, obesity and/or post-service occupational history as an entry and processing clerk and as a nurse, all of which predisposed the Veteran to develop lumbar spine degenerative disc disease. The examiner further stated that medical literature supports the fact that this disability is considered part of the normal aging process in patients older than 40 years old and that there is no evidence of continuity of treatment for the lumbar disability within a year of separating from active duty service. The Board finds that the February 2021 VA examination is inadequate because the examiner did not adequately consider the Veteran’s competent and credible lay statements regarding the responsibilities required to be performed as part of his duties as a combat medic, even though the examiner specifically noted that “repetitive trauma” is a risk factor for this type of disability. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding an examination inadequate where the examiner “impermissibly ignored the appellant’s lay assertions that he had sustained a back injury during service”). In particular, the Veteran contends that his unit picked up thousands of corpses and that he aided with wounded soldiers and carrying dead bodies for pick up. See September 2018 Statement and June 2018 VA Form 9. The examiner did not consider the repetitive motions of bending or stooping down, picking up and carrying a corpse, including over his shoulder, as well as carrying stretchers with two or three bodies at a time, as “repetitive trauma,” particularly considering the volume of corpses the Veteran reported, and his reports of working more than 14 hours a day. See December 2020 Statement and August 2019 Hearing Testimony. Similarly, the examiner did not address Veteran’s in-service occupational history as a practical nurse, particularly as the Veteran reported that his post-service occupation was the same as his military occupational specialty. See November 2014 VA Form 21-8940. While the February 2021 examiner noted that degenerative joint disease or degenerative disc disease does not develop in short periods of service like this Veteran’s periods of active duty, the examiner did not address the nature of the Veteran’s duties as a combat medic and litter bearer who helped to pick up thousands of corpses for more than 14 hours a day. Nor did the examiner address the Veteran’s statement that he sought treatment for his lumbar disability during service but treatment was primarily pain killers, and that he tried to go to a VA medical center but arrived late and was marked as a no-show, which did not sit well with him. See August 2019 BVA Hearing Transcript. The Veteran further stated that he treated himself with over-the-counter medication until he sought treatment through the VA around 2011 or 2012. Id. Providing the Veteran with an inadequate examination is a duty to assist error; and therefore, the matter must be remanded. See Barr v. Nicholson, 21 Vet. App. 303 (2007). VA’s “duty to assist “includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (internal quotation omitted). A remand is necessary for an addendum opinion to address the nature and etiology of the Veteran’s lumbar disorder. 2. Entitlement to service connection for a shoulder disorder The Veteran contends that his shoulder disorder is related to his active service. His assertion is based on the same contentions noted above regarding his back disorder. A remand is also warranted for his shoulder disorder. Pursuant to the February 2021 Board remand, the Veteran was afforded a VA shoulder examination in February 2021. The VA examiner opined that it was less likely as not that the Veteran’s bilateral shoulder disabilities were incurred in service or caused by the claimed in-service injury. The examiner based his opinion on the lack of evidence of any shoulder complaints during service and the length of time between the Veteran’s separation and onset. The absence of contemporaneous treatment records does not preclude granting service connection for a claimed disability and examiners simply are not free to ignore a veteran’s statements related to lay observable symptoms. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Dalton, 21 Vet. App. at 39. The examiner appears to have wholly based his opinion in this matter on the Veteran’s lack of treatment in service and just after discharge and ignored the Veteran’s competent reports of symptom manifestation therein. Additionally, the February 2021 Board remand directive specifically instructed the examiner that the Veteran’s reports must be considered in formulating an opinion. The Board therefore finds that the February 2021 VA shoulder examination is inadequate. A remand is necessary for an addendum opinion to address the nature and etiology of the Veteran’s lumbar disorder. 3. Entitlement to service connection for OSA The Veteran contends that his obstructive sleep apnea is a result of his active military service. He also contends that he suffered obstructive sleep apnea symptoms during active duty. See February 2020 VA Form 9. Pursuant to the February 20210 Board remand, the Veteran was afforded a VA sleep apnea examination in February 2021. The VA examiner opined that it was less likely as not that the Veteran’s OSA was incurred in service or caused by the claimed in-service injury. The examiner based his opinion on the lack of evidence of any in-service OSA complaints or diagnosis, and the length of time between the Veteran’s separation and diagnosis, 26 years after separation. The absence of contemporaneous treatment records does not preclude granting service connection for a claimed disability. See Buchanan, 451 F.3d at 1337. Further, examiners simply are not free to ignore a veteran’s statements related to lay observable symptoms. See Dalton, 21 Vet. App. at 39. The examiner appears to have wholly based his opinion in this matter on the Veteran’s lack of treatment in service and just after discharge and ignored the Veteran’s competent reports of symptom manifestation therein. Specifically, the Veteran contends that he developed sleeping problems while deployed and that fellow soldiers complained of extreme snoring and jumping while the Veteran was sleeping. See February 2020 VA Form 9. Additionally, the February 2021 Board remand directive specifically instructed the examiner to address the Veteran’s contention that his OSA is due to exposure to air pollutants from burning oil and while deployed, and that the Veteran’s statements made in connection with an Open Burn Pit Registry received by VA in April 2017, statements received by VA in March 2017, and statements made on the February 2020 VA Form 9 must be considered in formulating an opinion. The February 2021 VA examiner does not address any of these statements. The Board therefore finds that the February 2021 VA sleep apnea examination is inadequate. A remand is necessary for an addendum opinion to address the nature and etiology of the Veteran’s OSA. The matters are REMANDED for the following action: 1. Forward the record to an appropriate VA examiner, different from the January 2020 and February 2021 examiner (if possible, an orthopedic surgeon), for an addendum opinion as to the etiology of the Veteran’s back disorder. The examiner must review the entire claims file, to include a copy of this Remand, in conjunction with authoring the opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician. The examiner is asked to address whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s back disorder had its onset in, or is otherwise related to, the Veteran’s military service, to include the nature of his duties as a practical nurse and also as a litter-bearer, which included assisting in picking up thousands of corpses and wounded soldiers, carrying dead bodies for pick up, as well as carrying stretchers with two or three bodies at a time, and his reports of working more than 14 hours a day. The examiner is advised that the Veteran has medical training, as he served as a combat medic and is a licensed nurse. He is competent and his reports must be considered in formulating the requested opinion. If there is a medical basis to support or doubt the Veteran’s statements, the examiner must state this with a fully reasoned explanation. A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate. If it is not possible to provide a specific measurement, or an opinion without report to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for a VA examination with an appropriate clinician (if possible, an orthopedic surgeon) to obtain a medical opinion which addresses the nature and etiology of the Veteran’s shoulder disorder. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner must review the entire claims file, to include a copy of this Remand, in conjunction with authoring the opinion. For every distinct shoulder disorder found, the examiner is asked to address whether it is at least as likely as not (a 50 percent or greater probability) the shoulder disorder had its onset in, or is otherwise related to, the Veteran’s military service, to include the nature of his duties as a practical nurse and also as a litter-bearer, which included assisting in picking up thousands of corpses and wounded soldiers and carrying dead bodies for pick up, including over his shoulder, as well as carrying stretchers with two or three bodies at a time, and his reports of working more than 14 hours a day. The examiner is advised that the Veteran has medical training, as he served as a combat medic and is a licensed nurse. He is competent and his reports must be considered in formulating the requested opinion. If there is a medical basis to support or doubt the Veteran’s statements, the examiner must state this with a fully reasoned explanation. A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate. If it is not possible to provide a specific measurement, or an opinion without report to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Forward the record to an appropriate clinician to determine the nature and etiology of the Veteran’s obstructive sleep apnea. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner must review the entire claims file, to include a copy of this Remand, in conjunction with authoring the opinion. The need for an examination of the Veteran is left to the discretion of the clinician. The examiner is asked to address whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s obstructive sleep apnea had its onset in, was caused by, or is otherwise related to, active service, to include his exposure to air pollutants from burning oil while deployed during the Gulf War. The examiner should address the Veteran’s lay statements received by VA in March 2017 and on his February 2020 VA Form 9, as well as the Open Burn Pit Registry received by VA in April 2017, including that he developed sleeping problems while deployed and that fellow soldiers complained of extreme snoring and jumping while the Veteran was sleeping. The examiner is advised that the Veteran has medical training, as he served as a combat medic and is a licensed nurse. He is competent and his reports must be considered in formulating the requested opinion. If there is a medical basis to support or doubt the Veteran’s statements, the examiner must state this with a fully reasoned explanation. A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate. If it is not possible to provide a specific measurement, or an opinion without report to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Battaile 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.