Citation Nr: 21028841 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-09 872 DATE: May 12, 2021 REMANDED The claim of entitlement to service connection for a right shoulder disability is remanded. The claim of entitlement to service connection for a right knee disability is remanded. The claim of entitlement to service connection for headaches is remanded. The claim of entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1986 to July 1989. This appeal is from July 2015, September 2015, and April 2017 rating decisions. In February 2019, the Veteran had a personal hearing before the undersigned. These appeals were last remanded in January 2021. Regrettably, after review of the record, the Board finds that another remand is required, as none of the VA examination opinions adequately address all the theories of contention. This remand is necessary in order to preserve the Veteran's due process rights. 1. The claim of entitlement to service connection for a right shoulder disability is remanded. The January 2021 VA examiner opined that a relationship to service was less likely because there were no records from service or in the years thereafter, and that a relationship could not be established without evidence establishing a chronic disability during service or within the period immediately following service. This is an incorrect standard, as service connection may be established for disabilities diagnosed after service. The examiner indicated consideration of the Veteran's statements, but did not explain why they were not helpful in rendering an opinion. A lack of documentation, alone, is not dispositive of the issue. On remand, another examination will be conducted. 2. The claim of entitlement to service connection for a right knee disability is remanded. Similar to the right shoulder, the VA examiner based a negative opinion on a lack of documentation of an injury or a diagnosis in service, which is not dispositive of whether there is a relationship. Another examination must be conducted. 3. The claim of entitlement to service connection for headaches is remanded. As above, the VA examiner did not adequately take into account the Veteran's arguments or reports. He has argued that medical literature has shown a relationship between tinnitus and headaches. Although he has not cited any specific articles, it does not appear the VA examiner conducted any search of the literature. Further, the Veteran argues that his tinnitus makes his headaches worse, which was not discussed. The record shows he has sensitivity to sounds during his headaches, and that he complains his tinnitus is very intrusive. He has been advised to use a special pillow to help with the disturbance. The examiner should address this relationship. Finally, the Veteran has presented evidence that exposure to jet fuel causes headaches. This has not been addressed by the examiner. 4. The claim of entitlement to service connection for sleep apnea is remanded. The Veteran has asserted that his PTSD and major depressive disorder have caused or aggravated sleep apnea, which has not been addressed. His PTSD causes chronic sleep impairment. During his personal hearing, he asserted that sleep deprivation aggravated sleep apnea. Accordingly, an updated opinion must be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran's service personnel file. Attempt to verify exposure to jet fuel while in service. 2. Associate updated VA treatment records with the Veteran's claims file. 3. After completion of directives 1 and 2, schedule the Veteran for an appropriate examination for opinions on whether any right shoulder and/or right knee disability is as likely as not (50/50 probability or greater) related to service. The examiner is asked to review the record and to elicit from the Veteran a detailed history of the injuries and the symptoms in and since service. He reports injuring his shoulder when climbing a ladder and losing his footing, he grabbed onto a hatch and pulled his shoulder. He reports injuring his knee when he knocked it into a hatch, which immediately caused swelling that he treated with ice. He reported that he felt that it was discouraged for seeking medical attention and did not seek treatment for these injuries. He reports having persistent symptoms since service. The examiner is asked to opine on whether there is a 50/50 probability that any current diagnosis is related to those injuries. The examiner is asked to consider the Veteran's statements regarding the type of injury and his symptoms thereafter, and to use information provided by the Veteran to assist in rendering the opinion. If the Veteran's statements are not helpful, the examiner must explain why. The examiner is advised that a lack of documentation of an injury or chronicity in service is not dispositive of the question. All opinions must be accompanied with explanation. 4. After completion of directives 1 and 2, schedule the Veteran for an appropriate examination for an opinion on whether it is as likely as not (50/50 probability or greater) that headaches are related to service. The Veteran asserts that they are aggravated by service-connected tinnitus, and are related to jet fuel exposure during service. The examiner is asked to research the relevant medical literature regarding both theories. In regard to tinnitus, the Veteran reports that his tinnitus makes his headaches worse. The record shows that he has sensitivity to sound during his headaches. He has been advised to use a special pillow to help minimize the disturbance the tinnitus causes him. The examiner is asked whether this, or anything else reported by the Veteran during the examination, shows aggravation by tinnitus. "Aggravation" means to cause any increase in severity that is beyond the normal progression and it need not be permanent in nature. In regard to jet fuel, the Veteran has provided medical literature (received February 27, 2019), and asserted that his headaches are related to that exposure. All opinions must be accompanied with explanation. 5. After completion of directives 1 and 2, schedule the Veteran for an appropriate examination for a report on whether it is as likely as not (50/50 probability or greater) that sleep apnea is related to service. The examiner is asked to review the record and the relevant literature prior to opining. The examiner is asked to elicit from the Veteran a detailed history of his symptoms in and since service. The Veteran asserts that his chronic sleep impairment, which is associated with his service-connected PTSD, aggravates his sleep apnea. In general, he asserts there is a relationship between his PTSD and his sleep apnea. The examiner is asked to provide an opinion on whether PTSD causes or aggravates sleep apnea. "Aggravates" means to cause any increase in severity that is beyond the normal progression and it need not be permanent in nature. All opinions must be accompanied with explanation Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.