Citation Nr: 21028235 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-14 277A DATE: May 10, 2021 ORDER Entitlement to service connection for lumbar strain and posterior facet joint arthropathy is granted. REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for diabetes mellitus type II is remanded. Entitlement to service connection for a right shoulder disability, other than right upper extremity radiculopathy is remanded. Entitlement to service connection for a left shoulder disability, other than left upper extremity radiculopathy and residuals of stab wound is remanded. Entitlement to service connection for a respiratory disability, to include asbestosis is remanded. Entitlement to service connection for hemorrhoids is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his lumbar strain and posterior facet joint arthropathy is at least as likely as not related to parachute jumps and paravertebral muscle strain incurred during active service. CONCLUSION OF LAW The criteria for service connection for lumbar strain and posterior facet joint arthropathy are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1988 to July 1993, with additional reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters for further development in May 2019. They have since been returned to the Board for further appellate consideration. In April 2021, the Veteran submitted a VA Form 20-0995 Supplemental Claim for "lower back with balancing issues," identifying the July 2020 supplemental statement of the case (SSOC) as the decision on appeal. However, as the form was not submitted within 60 days of the SSOC on appeal or within the 1-year period following the underlying rating decision, it is not a timely attempt to opt-in to the Appeals Modernization Act framework. The Board may therefore continue with appellate review. Entitlement to service connection for lumbar strain and posterior facet joint arthropathy is granted. The Veteran asserts that he suffers from continuing low back pain and disability relating to his multiple parachute jumps and low back symptoms in service. The Board concludes that the Veteran has a current disability that is related to his in-service parachute jumps and back complaints. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA treatment records document complaints of chronic low back pain during the relevant appeal period. X-rays of the lumbosacral spine taken in December 2017 displayed moderate posterior facet joint arthropathy in the lower lumbar spine, which the physician noted represented "degenerative changes"/ arthritis of the spine. VA examination conducted in January 2020 also diagnosed lumbar strain. The Veteran's service treatment records document that he suffered injuries during rough parachute jumps, a January 1989 record documents the Veteran's report of back pain and noted history of back spasms and assessed muscle strain, and a June 1989 STR again noted the history of back spasms, and assessed paravertebral muscle strain. Thus, the question becomes whether the current disability is related to service. Of note, the Veteran first submitted claims for service connection of a back disability in 1993 and 1996. He has reported to his VA treatment providers that he has experienced back pain since jumping out of planes in the military. At a September 2008 chiropractic consult, the Veteran was diagnosed with lumbar subluxation and chronic low back pain complicated by muscle strain. A private medical opinion was submitted on the Veteran's behalf in January 2021. The physician noted that the Veteran continued to experience multiple pains of the lumbar spine and other joints, and stated that to a reasonable degree of medical certainty, his injuries from jumping out of planes in the 1990s are causally related to his degenerative arthritic conditions, including of the lumbar spine. He explained that an abundance of medical literature exists that lends support for a clear pattern of chronic musculoskeletal injuries following repeated trauma from paratrooper jumps. The Veteran was provided with a VA examination and medical opinion regarding his back in January 2020. The examiner diagnosed lumbar strain and noted the Veteran's report of onset of back pain in 1990. The examiner opined that the Veteran's claimed lumbar spine/low back disability was less likely than not incurred in or caused by his lumbar/spine condition during service. He reasoned that although the Veteran reported back pain at his December 1996 examination, there was no objective evidence of pathology and MRI of the lumbar spine in July 2011 was normal, "negating the assertion of the claimed residuals from the back pain from 15 years earlier." He concluded that the minimal decrease in range of motion at the January 2020 examination was "suggestive of lumbar strain which is at least as likely as not an aging process compounded by the veteran's history of obesity." Inasmuch as the examiner did not address how repeated parachute jumps could impact the physiological integrity of the Veteran's lumbar spine, the probative value of this opinion is limited. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current lumbar disability is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for lumbar strain and posterior facet joint arthropathy is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND As an initial matter, the record indicates that the Veteran was part of the active reserve from 1994 to 2002. As part of an earlier claim, a request for records was made to the Veteran's reserve unit, and a May 1998 response from a unit administrator indicates that they searched the Veteran's files and did not locate any medical records or line of duty determinations pertaining to any medical problem the Veteran may have had prior to being assigned to the unit. It does not appear, however, that the Veteran's complete reserve service treatment record have been requested or associated with the file. On remand, such development should be completed. 1. Entitlement to service connection for a right ankle disability is remanded. Pursuant to the Board's May 2019 remand, the Veteran was provided with a VA examination for his right ankle claim in January 2020. The examiner found that the "current exam does not show any objective findings to warrant a current diagnosis," and cited that as part of the rationale for his opinion that a claimed right ankle disability was less likely than not incurred in or caused by the ankle condition during service. The Board notes that the service connection criterion of a current disability is met if the Veteran had the disability in question at any time during the relevant appeal period, whether or not it resolved by the time of the examination. See McClain v. Nicholson, 21 Vet. App. 319 (2007). VA examination of the ankles in August 2012 included radiographic imaging demonstrating soft tissue swelling, more on the medial aspect of the right ankle, with deformity of the distal fibula suggesting old healed fracture, as well as some deformity of the tip of medial malleolus suggesting previous injury. Additionally, while the January 2020 examiner referenced 1990 STRs which showed pain and fracture of the right fibula, there is no indication that he considered the chronic right ankle sprains and re-injury noted in 1989 and 1990 STRs. The August 2012 examiner considered the in-service sprains, but neglected to consider the documented right fibula stress fracture when rendering his opinion. On remand, a supplemental medical opinion should be sought which takes into consideration the full evidence of in-service injuries, and which provides an adequate rationale for any conclusion stated. 2. Entitlement to service connection for sleep apnea is remanded. The Veteran was provided with VA examination and medical opinion concerning his claim for service connection for sleep apnea in January 2020. The examiner stated an opinion that the Veteran's current sleep apnea was less likely incurred in or caused by sleep apnea during service because there was no documentation of sleep apnea complaints or treatment in the Veteran's service treatment records. He also noted that obesity is a risk factor for obstructive sleep apnea. While the examiner stated that he took the Veteran's lay statement into consideration, the opinion reads like he fully dismissed it due to a lack of contemporaneous evidence in the STRs. There is also no indication that the examiner considered a lay statement submitted by the Veteran's spouse in May 2012, stating that she first noticed the Veteran's snoring around 1993, and that he would stop breathing while sleeping. The examiner additionally opined that the Veteran's sleep apnea was less likely proximately due to, a result of, or aggravated by service-connected disabilities, because obstructed airways are not related to nor are affected by any of the Veteran's service-connected disabilities. The Veteran's representative submitted argument in May 2016 that the Veteran's back and right ankle conditions resulted in limited physical activity and weight gain. While the January 2020 examiner noted that obesity is a risk factor for obstructive sleep apnea, no discussion or opinion was made as to whether the Veteran's obesity could be attributed to his service-connected disabilities. The Board notes that obesity may be an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis pursuant to 38 C.F.R. § 3.310. See VAOPGCPREC 1-2017. For the reasons specified above, the medical opinion provided concerning entitlement to service connection for sleep apnea is found to be inadequate. On remand, a supplemental medical opinion should be sought which considers the Veteran and his spouse's lay statements and which considers whether the Veteran's obesity represents an intermediate step between his service-connected disabilities and his obstructive sleep apnea. A decision on the remanded issue of entitlement to service connection for a right ankle disability could also have a significant impact on the issue of entitlement to service connection for sleep apnea. They are thus found to be intertwined. 3. Entitlement to service connection for diabetes mellitus type II is remanded. As noted above, the Veteran contends that his service-connected disabilities, including lumbar and right ankle disabilities, prevent him from exercise and have led to his obesity, which in turn contributed to him developing diabetes mellitus. The Veteran was provided with VA examination and medical opinion concerning his claim for service connection for diabetes mellitus, type II on a secondary basis in January 2020. The January 2020 examiner opined that the Veteran's diabetes mellitus was less likely than not proximately due to or a result of service-connected conditions, because diabetes mellitus is due to impaired insulin secretion and variable degrees of insulin resistance and is in no way due to or remotely related to any of the service-connected disabilities. As the examiner did not consider or comment upon the Veteran's contentions regarding obesity as an intermediate step, the opinion is inadequate. On remand, a supplemental medical opinion should be provided that includes a complete rationale. A decision on the remanded issue of entitlement to service connection for a right ankle disability could also have a significant impact on the issue of entitlement to service connection for diabetes mellitus, type II. They are thus found to be intertwined. 4. Entitlement to service connection for a right shoulder disability, other than right upper extremity radiculopathy is remanded. 5. Entitlement to service connection for a left shoulder disability, other than left upper extremity radiculopathy and residuals of stab wound is remanded. At the VA examination for his left and right shoulder claims in January 2020, the examiner opined that a current shoulder disability was less likely than not incurred in or caused by a shoulder condition during service. He reasoned that the evidence demonstrated that the Veteran had fully healed from his left shoulder stab wound, and that there was no documentation of any problems with the right shoulder in the service treatment records, and that there was no current active diagnosis for either shoulder. Again, the criterion of a current disability for service connection purposes is fulfilled if the disability exists at any point during, or sometimes immediately preceding the relevant appeal period, whether or not it resolves. A March 2014 VA pain consult note documented the Veteran's report of aching pain and difficulty doing overhead activities. The treatment note indicates that examination of both shoulders revealed decreased range of motion on flexion, extension, and abduction, with painful arches noted for both shoulders. The impression was bilateral shoulder pain with rotator cuff weakness. Earlier VA examination of the shoulders in August 2012 noted subjective tenderness for both shoulders and objective findings suggestive of bilateral rotator cuff injury. The January 2020 VA medical opinion is therefore found to be inadequate for adjudication. On remand, the Veterans reserve treatment records should be considered, and a supplemental medical opinion provided. 6. Entitlement to service connection for a respiratory disability, to include asbestosis is remanded. The Veteran was provided with a VA respiratory examination in January 2020, where the examiner diagnosed calcified granuloma of the left lung, and reversible obstructive airways disease per PFT. The examiner stated an opinion that notations in STRs of a calcified granuloma in 1992 means it had originated long before that date, because it takes years if not decades for calcification to manifest. He then stated an opinion that calcified granuloma was at least as likely as not incurred in or due to active duty. The Board notes that the Veteran's July 1987 enlistment examination is silent for any abnormalities of the lungs or respiratory system. The presumption of soundness therefore applies, which carries a different burden of proof. Given the contradictory statements in the January 2020 opinion and the need for opinion as to whether the granuloma clearly and unmistakably predated service and clearly and unmistakably was not aggravated by service, remand is needed to obtain an adequate supplemental medical opinion. 7. Entitlement to service connection for hemorrhoids is remanded. The Veteran asserts that he suffers from hemorrhoids and blood in his stool as a result of a bad parachute landing during service, and that it has occurred over the years and still occurs today. At the January 2020 VA hemorrhoids examination, the examiner found that the hemorrhoids were less likely than not incurred in or caused by hemorrhoids during service. He identified several causes of hemorrhoids, including obesity. Given the Veteran's assertions that his service connected disabilities have resulted in an inability to exercise and have led to obesity, a supplemental medical opinion is found warranted. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service treatment records from his reserve service. All requests and responses should be documented for the file. If unsuccessful, a Formal Finding of Unavailability should be prepared, and the Veteran notified. 2. Thereafter, obtain a supplemental medical opinion concerning the nature and etiology of the Veteran's claimed right ankle disability. The examiner must review the claims file. The examiner must address the following: A. Identify a diagnosis for any current right ankle disability. A "current disability" in this context means a right ankle disability present at any time during the relevant appeal period (June 2011 to present), whether or not it has resolved. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below, and describe the functional impairment in detail. The examiner's attention is directed to the Veteran's lay statements concerning swelling and popping of the ankle, and the results of radiographic imaging at the August 2012 VA examination noting soft tissue swelling, more on the medial aspect of the right ankle, with deformity of the distal fibula noted to suggest old healed fracture, as well as some deformity of the tip of medial malleolus suggesting previous injury. B. For any current right ankle disability, is it at least as likely as not related to service, including chronic right ankle sprains and right fibula fracture documented on bone scan during service? Provide a clear rationale to support any opinion or conclusion stated. 3. After associating all records responsive to Remand directive #1 with the claims file, obtain a supplemental opinion from an appropriate clinician regarding the Veteran's claimed obstructive sleep apnea. The examiner must review the claims file, and consider both the lay and medical evidence of record in responding to the following: A. Is it at least as likely as not that the Veteran's current obstructive sleep apnea was incurred during or is otherwise causally related to the Veteran's active service? The clinician's attention is directed to the Veteran's lay statements, as well as the May 2012 statement from the Veteran's spouse that she first noticed the Veteran's snoring around 1993 and would observe that he stopped breathing while sleeping. With regard to the Veteran's assertion that his obstructive sleep apnea is secondary to obesity caused or aggravated by his service-connected disabilities, the clinician is asked to address the following: B. Is it at least as likely as not that the Veteran's obesity was (i) caused or (ii) aggravated by his service-connected disabilities? i. If the clinician finds that obesity was caused by one or more of the Veteran's service-connected disabilities: a. is it at least as likely as not that obesity was a substantial factor in causing or aggravating the Veteran's obstructive sleep apnea; and b. is it at least as likely as not that obstructive sleep apnea would not have occurred/been aggravated but for the Veteran's obesity? ii. If the clinician finds that obesity was aggravated by one of more of the Veteran's service-connected disabilities: c. is it at least as likely as not that the aggravation of obesity as a result of service-connected disability was a substantial factor in causing or aggravating obstructive sleep apnea; and d. is it at least as likely as not that obstructive sleep apnea would not have occurred/been aggravated but for obesity aggravated by the service-connected disability or disabilities? The clinician must provide a clear rationale for any opinion expressed/conclusion reached. If the clinician finds that they cannot offer an opinion without resorting to mere speculation, they 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 clinician (does not have the knowledge or training). 4. After associating all records responsive to Remand directive #1 with the claims file, obtain a supplemental opinion from an appropriate clinician regarding the Veteran's claimed diabetes mellitus, type II. The clinician must review the claims file, and consider both the lay and medical evidence of record in responding to the following: With regard to the Veteran's assertion that his diabetes mellitus, type II is secondary to obesity caused or aggravated by his service-connected disabilities, the clinician is asked to address the following: * Is it at least as likely as not that the Veteran's obesity was (i) caused or (ii) aggravated by his service-connected disabilities? i. If the clinician finds that obesity was caused by one or more of the Veteran's service-connected disabilities: a. is it at least as likely as not that obesity was a substantial factor in causing or aggravating the Veteran's diabetes mellitus, type II; and b. is it at least as likely as not that diabetes mellitus, type II would not have occurred/been aggravated but for the Veteran's obesity? ii. If the clinician finds that obesity was aggravated by one of more of the Veteran's service-connected disabilities: c. is it at least as likely as not that the aggravation of obesity as a result of service-connected disability was a substantial factor in causing or aggravating the Veteran's diabetes mellitus, type II; and d. is it at least as likely as not that diabetes mellitus, type II would not have occurred/been aggravated but for obesity aggravated by the service-connected disability or disabilities? The clinician must provide a clear rationale for any opinion expressed/conclusion reached. If the clinician finds that they cannot offer an opinion without resorting to mere speculation, they 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 clinician (does not have the knowledge or training). 5. After associating all records responsive to Remand directive #1 with the claims file, obtain a supplemental opinion from an appropriate clinician regarding the Veteran's claimed left and right shoulder disabilities. The clinician must review the claims file, and consider both the lay and medical evidence of record in responding to the following: A. Identify a diagnosis for any current left shoulder disability, other than radiculopathy upper left extremity middle and lower radicular groups and residuals of stab wound, left shoulder. A "current disability" in this context means a left shoulder disability present at any time during the relevant appeal period (June 2011 to present), whether or not it has resolved. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below, and describe the functional impairment in detail. The examiner's attention is directed to the following: * a March 2014 VA pain consult note documenting the Veteran's report of aching pain and difficulty doing overhead activities and that examination of both shoulders revealed decreased range of motion on flexion, extension and abduction, with painful arches noted for both shoulders and an impression of bilateral shoulder pain with rotator cuff weakness; * the August 2012 examination report documenting tenderness subjectively for both shoulders and objective findings suggestive of bilateral rotator cuff injury; and, * the May 2016 Veteran's representative's argument that the Veteran suffers from muscle spasm of the bilateral shoulders. For any current left shoulder disability identified, is it at least as likely as not that the current left shoulder disability: i. was incurred in or is otherwise related to the Veteran's active service; ii. was proximately caused by one or more of the Veteran's service-connected disabilities (to include radiculopathy upper left extremity middle and lower radicular groups and residuals of stab wound, left shoulder); or iii. was aggravated beyond its natural progression by one or more of the Veteran's service-connected disabilities (to include radiculopathy upper left extremity middle and lower radicular groups and residuals of stab wound, left shoulder). B. Identify a diagnosis for any current right shoulder disability, other than radiculopathy upper right extremity middle and lower radicular groups. A "current disability" in this context means a right shoulder disability present at any time during the relevant appeal period (June 2011 to present), whether or not it has resolved. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below, and describe the functional impairment in detail. The examiner's attention is directed to the following: * a March 2014 VA pain consult note documenting the Veteran's report of aching pain and difficulty doing overhead activities and that examination of both shoulders revealed decreased range of motion on flexion, extension and abduction, with painful arches noted for both shoulders and an impression of bilateral shoulder pain with rotator cuff weakness; * the August 2012 examination report documenting tenderness subjectively for both shoulders and objective findings suggestive of bilateral rotator cuff injury; and, * the May 2016 Veteran's representative's argument that the Veteran suffers from muscle spasm of the bilateral shoulders. For any current right shoulder disability identified, is it at least as likely as not that the current right shoulder disability: i. was incurred in or is otherwise related to the Veteran's active service; ii. was proximately caused by one or more of the Veteran's service-connected disabilities (to include radiculopathy upper right extremity middle and lower radicular groups); or iii. was aggravated beyond its natural progression by one or more of the Veteran's service-connected disabilities (to include radiculopathy upper right extremity middle and lower radicular groups)? Provide a clear rationale to support any opinion or conclusion stated. 6. After associating all records responsive to Remand directive #1 with the claims file, obtain a supplemental opinion from an appropriate clinician regarding the Veteran's claimed respiratory disability. The clinician must review the claims file, and consider both the lay and medical evidence of record in responding to the following: A. Identify a diagnosis for any current respiratory/lung disability. A "current disability" in this context means a respiratory and/or lung disability present at any time during the relevant appeal period (June 2011 to present), whether or not it has resolved. The examiner's attention is directed to the January 2020 VA examination noting diagnoses of granuloma and reversible obstructive airways disease per PFT. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below, and describe the functional impairment in detail. B. For any current respiratory/lung disability identified, is it at least as likely as not that the current disability arose during or is otherwise related to the Veteran's active service? For the calcified granuloma specifically: i. did the granuloma clearly and unmistakably (i.e. it is undebatable) preexist the Veteran's service? ii. If the examiner finds that the calcified granuloma did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? The clinician must provide a clear rationale for any and all opinions and conclusions stated. An explanation of the relevant physiological processes may be of assistance to the Board. If the clinician finds that they cannot offer an opinion without resorting to mere speculation, they 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 clinician (does not have the knowledge or training). 7. After associating all records responsive to Remand directive #1 with the claims file, obtain a supplemental opinion from an appropriate clinician regarding the Veteran's claimed hemorrhoids. The clinician must review the claims file, and consider both the lay and medical evidence of record in responding to the following: A. Is it at least as likely as not that the Veteran's current hemorrhoid condition was incurred during or is otherwise causally related to the Veteran's active service? With regard to the Veteran's assertions concerning obesity relating to his service-connected disabilities: B. Is it at least as likely as not that the Veteran's obesity was (i) caused or (ii) aggravated by his service-connected disabilities? i. If the clinician finds that obesity was caused by one or more of the Veteran's service-connected disabilities: a. is it at least as likely as not that obesity was a substantial factor in causing or aggravating the Veteran's hemorrhoids; and b. is it at least as likely as not that the Veteran's hemorrhoid condition would not have occurred/been aggravated but for the Veteran's obesity? ii. If the clinician finds that obesity was aggravated by one of more of the Veteran's service-connected disabilities: c. is it at least as likely as not that the aggravation of obesity as a result of service-connected disability was a substantial factor in causing or aggravating the Veteran's hemorrhoid condition; and d. is it at least as likely as not that hemorrhoid condition would not have occurred/been aggravated but for obesity aggravated by the service-connected disability or disabilities? The clinician must provide a clear rationale for any opinion expressed/conclusion reached. If the clinician finds that they cannot offer an opinion without resorting to mere speculation, they 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 clinician (does not have the knowledge or training). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.