Citation Nr: 21027255 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-26 209A DATE: May 5, 2021 REMANDED Service connection for a bilateral knee condition is remanded. Service connection for a bilateral ankle condition is remanded. Service connection for a low back condition is remanded. Service connection for a sleep condition, to include insomnia, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1966 to March 1970. This matter originally came before the Board of Veterans' Appeals (Board) from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In April 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. The Board remanded the matter for further development in October 2019. The matter is again before the Board. 1. Service connection for a bilateral knee condition is remanded. The Veteran believes that service connection for a bilateral knee condition is warranted. See Hearing Transcript. The October 2019 Board decision remanded the matter, in part, for a VA examination of the knees. See October 2019 BVA Decision. The examination took place in March 2020. See March 2020 C&P Exam. The examination found that the Veteran's bilateral knee degenerative arthritis, which was diagnosed in 2018, was not related to service, in part, because there was no evidence of a knee problem in the service records, including the separation examination. As such, the in-service knee problems were consistent with an acute and transitory condition. The Board finds the March 2020 examination inadequate because it did not consider/was unable to consider all the relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, among other things, the examination did not consider/was unable to consider medical records from 1993 showing an assessment of knee arthritis, medical records from a chiropractor who treated the Veteran starting in the early 1980s that show that the Veteran reported even then that his knee pain was from service, and the Veteran's spouse's report that the Veteran has had knee problems since service. See July 2015 Medical Treatment Record; July 2014 Buddy / Lay Statement; Hearing Transcript. Therefore, a remand is needed for a new examination. 2. Service connection for a bilateral ankle condition is remanded. The Veteran believes that service connection for a bilateral ankle condition is warranted. See Hearing Transcript. The October 2019 Board decision remanded the matter, in part, for a VA examination of the ankles. If the examiner could not identify an ankle disability, the examiner was asked to determine whether the Veteran's ankle pain resulted in a functional loss or impairment to the Veteran. See October 2019 BVA Decision. The examination took place in March 2020. See March 2020 C&P Exam. The examination found no current ankle diagnosis and that the Veteran reported that he did not have any ankle pain, but only numbness. The Board finds the March 2020 examination inadequate because it did not consider/was unable to consider all the relevant evidence of record. See Nieves-Rodriguez, 22 Vet. App. at 295. Specifically, among other things, the examination did not consider/was unable to consider numerous medical records showing that during the appeal period, the Veteran experienced ankle pain. See April 2021 CAPRI; April 2017 Medical Treatment Record; December 2016 CAPRI; June 2015 CAPRI; July 2014 Buddy / Lay Statement. Therefore, a remand is needed for a new examination. 3. Service connection for a low back condition is remanded. The Veteran believes that service connection for a low back condition is warranted. See Hearing Transcript. The October 2019 Board decision remanded the matter, in part, for a VA examination of the low back. See October 2019 BVA Decision. The examination took place in March 2020. See March 2020 C&P Exam. The examination found that the Veteran's lumbosacral spine degenerative disc disease, which was diagnosed in 2019, was not related to service, in part, because service records were silent for any back problems and there were no objectively documented back complaints until years later. The Board finds the March 2020 examination inadequate because it did not consider/was unable to consider all the relevant evidence of record. See Nieves-Rodriguez, 22 Vet. App. at 295. Specifically, among other things, the examination did not consider/was unable to consider medical records from a chiropractor who started treating the Veteran during the early 1980s for low back problems, which show that after the Veteran left service, he went to many chiropractors for relief. See July 2014 Buddy / Lay Statement. Additionally, the examination did not consider/was unable to consider the Veteran's report of continuity of low back pain since service; the Veteran's spouse's report that right after leaving service, the Veteran complained about low back problems, which problems have continued since; and medical records from 1999 showing an assessment of lumbar spine osteoarthritis. See September 2019 Correspondence; Hearing Transcript; July 2015 Medical Treatment Record. Therefore, a remand is needed for a new examination. 4. Service connection for a sleep condition, to include insomnia, is remanded. The Veteran believes that service connection for a sleep condition is warranted. See Hearing Transcript. The October 2019 Board decision remanded the matter, in part, for a VA examination of the Veteran's sleep. See October 2019 BVA Decision. One of the examinations took place in December 2019. See December 2019 C&P Exam. The examination found that the Veteran did not meet the criteria for an insomnia disorder and that the Veteran had never been diagnosed with a mental disorder. The Board finds the December 2019 examination inadequate because it did not consider/was unable to consider all the relevant evidence of record. See Nieves-Rodriguez, 22 Vet. App. at 295. Specifically, among other things, the examination did not consider/was unable to consider medical records from 2019 showing an impression of insomnia, an assessment of insomnia with concern about possible PTSD, a diagnosis of an unspecified anxiety disorder, and medical records from 2016 showing assessments of insomnia. See April 2021 CAPRI; May 2017 CAPRI; December 2016 CAPRI. Therefore, a remand is needed for a new examination. Additionally, the Veteran reported seeing a mental health specialist through the VA Mission Act for his sleep condition. See September 2019 Statement in Support of Claim. However, it does not appear that these records are currently part of the claims file. Therefore, a remand is also needed to obtain these records. See 38 C.F.R. § 3.159. The matter is REMANDED for the following action: 1. Provide the Veteran with an opportunity to identify any relevant outstanding private and/or VA treatment records. After obtaining any necessary authorizations from the Veteran, make all reasonable attempts to obtain the outstanding records in accordance with 38 C.F.R. § 3.159. 2. Obtain the Veteran's September 2019 mental health counselling records from the VA Pacific Islands Health Care System. See September 2019 Statement in Support of Claim. 3. Update VA and private treatment records. VA treatment records appear current up to April 2021. 4. Schedule one or more appropriate VA examinations for the Veteran's low back, knee, ankle, and sleep conditions. The need for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the claims file and a copy of this Remand, the reviewing examiner is requested to furnish an opinion with respect to the following: (A) Identify all low back, knee, ankle, and sleep related disabilities existing at any point during the pendency of the appeal (i.e. since July 2013 for the sleep issue and since March 2014 for the low back, knee, and ankle issues), even if they are currently asymptomatic or have resolved during the pendency of the appeal. If the examiner cannot identify an ankle condition, the examiner shall determine whether the pain the Veteran experiences in his ankles results in a functional loss or impairment to the Veteran. (B) For each identified disability/pain resulting in a functional loss or impairment, is it at least as likely as not (a 50 percent or greater probability) that the disability/pain resulting in a functional loss or impairment is related to service, including but not limited to conceded herbicide agent exposure? (Whether a disability is a presumptive condition under 38 C.F.R § 3.309(e) is irrelevant for purposes of this question). (C) For each identified disability/pain resulting in a functional loss or impairment, is it at least as likely as not (a 50 percent or greater probability) that the disability/pain resulting in a functional loss or impairment is/was caused by any or all of the Veteran's service-connected disabilities (including any medications taken for the service-connected disabilities)? (D) For each identified disability/pain resulting in a functional loss or impairment, is it at least as likely as not (a 50 percent or greater probability) that the disability/pain resulting in a functional loss or impairment is/was aggravated beyond its natural progression by any or all of the Veteran's service-connected disabilities (including any medications taken for the service-connected disabilities)? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (E) Is it at least as likely as not (a 50 percent or greater probability) that any low back, knee, and/or ankle arthritis manifested to a compensable degree within one year following the Veteran's separation from service? If yes, which ones? (F) Is it at least as likely as not (a 50 percent or greater probability) that any "early onset" peripheral neuropathy manifested to a compensable degree within one year from the time that the Veteran left Vietnam? In addition to the other relevant evidence of record, the examiner is asked to consider the following information with a caution that this list is not a substitute for a review of the record: (1) All the evidence previously mentioned in the last Board remand instructions. See October 2019 BVA Decision. (2) Medical records from 2010 showing an assessment of obstructive sleep apnea, which was observed by the Veteran's spouse. Medical records from 2012 showed signs and symptoms consistent with osteoarthritis of the knee joints/patellofemoral joints due to poor kinetic chain alignment and lower extremity soft tissue hypomobility. Medical records from 2014 showed pain to the medial knees since at least the 1980s. See July 2014 Medical Treatment Record. (3) The Veteran's report that since returning from service, he has had extreme pain in the low back and knees; therefore, it must be related to service. The Veteran reported different tasks and situations during service which caused the problems. He suffered from pain in the low back, knees, and ankles as early as 1970. He had seen about six different chiropractors since 1970. He was told that some of them had passed away and had forgotten the names of the others. See July 2014 Buddy / Lay Statement. (4) The Veteran's spouse's report that at least since the time they were married in June 1970, the Veteran has had pain in the ankles and knees. Id. (5) Medical records from 2014 from a chiropractic who first saw the Veteran in the early 1980s for his back, knees, and ankles. The Veteran reported to the chiropractor that the problems were from service. The Veteran went to many chiropractors following service for those problems. The Veteran reported that the problems have continued. Id. (6) Medical records from 2015 showing complaints of bilateral knee swelling for many years; that the Veteran had been going to chiropractors for at least 40 years; joint pain of the back, knees, and ankles for many years; and poor sleep, which was sometimes because of nightmares and war experiences. See June 2015 CAPRI. (7) The Veteran's report of hitting his knees and ankles on the ship's hatches sometimes while running during service. The ankle problems were possibly related to circulation troubles. The Veteran may have had restless leg syndrome. See Hearing Testimony. (8) The Veteran's report that during and since service, he had been a very light sleeper, heard things while he slept, and was aware of what was going on while asleep. He became much less of a light sleeper once he started using the CPAP machine. The Veteran believed that any snoring was due to his mouth becoming dry. The Veteran did not know about VA benefits for years, or else he would have filed for them right out of service and would have received them. Id. (9) The Veteran's report that his service-connected tinnitus drove him crazy; was frustrating; was irritating; and when it rang, he could not make it stop. See December 2016 C&P Exam. (10) The Veteran's report that he was not the type of person during service to report every little incident. Since 1970, he had had extreme pain in the back and knees. It must have been related to service. See September 2019 Correspondence. (11) The Veteran's report that his sleep problems were not psychological in nature according to a mental health counselor. His sleep problems developed during service. He slept very lightly so that he could wake easily and react to an emergency. His sleep patterns were now the same as they were during service. See September 2019 Statement in Support of Claim. (12) Medical records from 2019 showing a lesion on the right ankle. See December 2019 CAPRI. (13) A medical record from 2019 showing that during service, the Veteran experienced some ethnic tension as he was challenged by people from the majority culture. He served on a ship that shelled Vietnam. See December 2019 C&P Exam. (14) Service records showing rhinorrhea, sinus congestion for two days, a problem with the pharynx, a sore throat, a cold in the nose, an inflamed throat, impressions of pharyngitis and sinus congestion, and an upper respiratory infection. See February 2020 STR Medical. (15) A medical record from 2020 showing diagnoses of lumbosacral spine degenerative disc disease and bilateral knee degenerative arthritis. See March 2020 C&P Exam. (16) The Veteran's report that during service, he did hard labor, including cleaning the deck and rocking the wooden deck, where he would work from 4:00 am to 9:00 pm. He had to manually carry supplies received from other ships, including ammunition. He carried the ammunition to the gun mount and below deck. He had to clean the gun mount after weeks of shooting. He was on the ship when the gun mount exploded, and shrapnel flew out. See May 2020 Photographs. (17) The Veteran's report of many different tasks that he had to perform during service as part of his job as well as many different situations that resulted in his low back, knee, ankle, and sleep problems today. He had none of these problems before service. They all had their onset during service and have continued ever since. Further information is provided. See May 2020 Statement in Support of Claim. (18) Medical records from 2019 showing a body mass index of 27, that the Veteran would regularly scan his property for several minutes before falling asleep/going back to sleep, a DSM-5 diagnosis of an unspecified anxiety disorder, that the Veteran could not sleep at night and always had to make sure everything was secured, a DSM-5 impression of insomnia, another impression of insomnia with concern about possible PTSD, and a diagnosis of right ankle seborrheic keratosis. See April 2021 CAPRI. (19) Medical records from 2018 showing that the Veteran's bilateral ankle pain did not really bother him while he was awake, but mostly was a problem at night while trying to sleep. It felt numb but was also painful. He had had it for years. Compressive stockings helped. There was an assessment of bilateral ankle pain, most like neuralgic pain. There was possible radiculopathy. Id. (20) All other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. Address the Veteran's spouse's assertions. Address the medical opinion which stated that it is at least 50/50 that the Veteran's low back problem is related to service. See April 2019 Medical Treatment Record. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. The Veteran and the Veteran's spouse are competent to attest to factual matters of which they have first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran and/or the Veteran's spouse, the examiner should provide a fully reasoned explanation. 5. Readjudicate the issues on appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dougan, Associate 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.