Citation Nr: 21030213 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-10 847 DATE: May 18, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1999 to November 1999, June 2002 to October 2005, and May 2009 to September 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has previously been before the Board. An August 2018 Board remanded the issues on appeal for the RO to schedule the Veteran for VA examinations to obtain etiology opinions. Additionally, the remand directed the RO to request that the Veteran identify the specific records that he believes have not been associated with the virtual file. Further, the remand directed the RO to send notice to the Veteran and his attorney-representative that third party statements and nexus opinion are not associated with the virtual file. This matter has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives as the Veteran was provided with VA examinations. Additionally, the files that the Veteran identified are now of record, and the RO sent notice to the Veteran and his representative that third-party statements and nexus opinion were not associated with the virtual file. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board, in August 2018, also remanded the issues of entitlement to service connection for bilateral knee, bilateral hearing loss, and hypertension disabilities. A March 2021 rating decision granted service connection for bilateral knee, bilateral hearing loss, and hypertension. As such, these matters are no longer on appeal due to the full grant of the service connection benefit sought and they will not be discussed herein. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 1. Service connection for a back disability. 2. Service connection for a neck disability. 3. Service connection for a right ankle disability. 4. Service connection for a left ankle disability. 5. Service connection for OSA. After review of the record, another remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends service connection for OSA, back, neck, left ankle, and right ankle disabilities. The record showed that the Veteran was diagnosed with left ankle tendonitis, left acute ankle sprain (resolved), degenerative arthritis of the spine, intervertebral disc syndrome of lumbar spine, cervical strain, cervical muscle spasms, and OSA. See 3/10/2021 C&P Examination. Regarding the in-service incident, the Veteran testified that his current orthopedic problems are due to wearing a suit and gear weighing 300 pounds for three hours at a time. Additionally, the Veteran testified that he fell while wearing the suit and hurt his back. Further, the Veteran testified that his OSA was due to exposure to biological warfare agents and other toxins, such as fuel and fumes from operating equipment, and weapons grade cyanide. See 3/23/2018 Hearing Transcript, at pages 7, 9, 16, 19, and 27; see also 3/23/2018 Third Party Correspondence, at pages 2 and 3. In a March 2018 correspondence, the Veteran's representative identified numerous third-party letters and a dispositive medical opinion not associated with the virtual file. See 3/23/2018 Third Party Correspondence, at page 3. The August 2018 Board remand directed the RO to send notice to the Veteran and his representative that the above-mentioned third-party statements and nexus opinion are not associated with the virtual file. In accordance to the remand directives, the RO sent the Veteran and his attorney-representative a letter to inform them that the third-party statements and nexus opinion were not of record. See 2/5/2020 Subsequent Development Letter. However, the record showed that the correspondence addressed to the Veteran's attorney-representative was returned as undeliverable; thus the above-mentioned documents are still not associated with the virtual file. See 3/4/2020 Returned Mail. Furthermore, at the conclusion of the March 2021 VA examinations and record review, the examiner opined that the Veteran's back, neck, and left ankle disabilities were less likely than not related to an in-service injury, event, or disease. As rationale, the examiner reported the lack of medical diagnosis or treatment for a back, neck, and left ankle disabilities during service or within a year after separation from service. See 3/10/2021 C&P Examination. The Board finds these opinions incomplete and tend to be conclusory. The examiner relied on a lack of in-service diagnoses and did not cite to specific medical evidence of record or medical history of this Veteran to justify the conclusions. Therefore, the Board finds that addendum opinions are required to determine if the Veteran's back, neck, and left ankle disabilities were caused by service. These matters are REMANDED for the following actions: 1. Obtain any and all of the Veteran's outstanding records from appropriate repositories, to include record of disciplinary actions. All records and/or responses received should be associated with the claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide the records. 38 U.S.C. § 5103A (b)(2); 38 C.F.R. § 3.159 (e). 2. The Veteran's attorney-representative has indicated that she submitted several statements by third parties and a positive nexus opinion regarding the claimed disorders; such evidence has not been associated with the virtual file. Ensure the Veteran's and his attorney's addresses are up to date. Then, send notice to the Veteran and his attorney-representative that such evidence is not associated with the virtual file and invite them to submit such evidence for consideration. 3. After completing directives # 1 and 2, return the claims file to the examiner who conducted the March 2021 OSA, back, neck, left ankle, and right ankle examinations and authored the opinions. A copy of this remand request should also be provided. After a review of the claims file, the examiner is to specifically address: (a.) Whether it is at least as likely as not (probability of 50 percent or more) that the Veteran's current back disability is related to an in-service injury, event, or disease. (b.) Whether it is at least as likely as not that the Veteran's current neck disability is related to an in-service injury, event, or disease. (c.) Whether it is at least as likely as not that the Veteran's current left ankle disability is related to an in-service injury, event, or disease. (d.) Whether it is at least as likely as not that the Veteran's current right ankle disability is related to an in-service injury, event, or disease. (e.) Whether it is at least as likely as not that the Veteran's current OSA disability is related to an in-service injury, event, or disease. **The examiner must address the Veteran's contentions that his current orthopedic problems are due to wearing a suit and gear weighing 300 pounds for three hours at a time. Additionally, the Veteran testified that he fell while wearing the suit and hurt his back. Further, the Veteran testified that his OSA was due to exposure to biological warfare agents and other toxins, such as fuel and fumes from operating equipment, and weapons grade cyanide. See 3/23/2018 Hearing Transcript, at pages 7, 9, 16, 19, and 27; see also 3/23/2018 Third Party Correspondence, at pages 2 and 3.** If the March 2021 examiner is no longer available, then the claims file, the March 2021 examination report and opinion should be forwarded to another examiner of at least equal qualifications to obtain the requested opinion. A new physical examination is not required unless deemed necessary by the clinician. A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical, should be considered. If medical literature is reference, please provide a copy of it or a full citation that allows general access. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fuentes, 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.