Citation Nr: 21031589 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-10 114 DATE: May 24, 2021 REMANDED Entitlement to service connection for hypothyroidism is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected left knee disability is remanded. Entitlement to a compensable rating prior to July 28, 2016 and in excess of 10 percent thereafter for left hip strain, impairment of the thigh is remanded. Entitlement to a rating in excess of 10 percent for left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1998 until March 1999, July 2003 until April 2004, October 2005 until May 2009, and May 2011 until July 2012. In March 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of that transcript is of record. This appeal was last before the Board in August 2019 when it was remanded for further development to include new VA medical examinations and opinions. Unfortunately, there has not been substantial compliance with the Board's prior remand directives and another remand is now required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for hypothyroidism is remanded. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected left knee disability is remanded. 3. Entitlement to a compensable rating prior to July 28, 2016 and in excess of 10 percent thereafter for left hip strain, impairment of the thigh is remanded. 4. Entitlement to a rating in excess of 10 percent for left knee disability is remanded. The Veteran's representative asserted that the claims need to remanded again because there was not compliance with the prior remand. See April 2021 written brief. The Board agrees. In the August 2019 remand, the Board directed the agency of original jurisdiction (AOJ) to afford the Veteran VA examinations to determine the nature and etiology of the Veteran's hypothyroidism and sleep apnea and to evaluate the current severity of his hip and thigh and left knee disability. Those examinations have not been conducted. The AOJ requested new examinations for the Veteran. Documentation in the Veteran's claims folder indicates the Veteran cancelled the requested examinations with VA contract examiners, because he preferred to complete the examinations at a VA medical center. See August 2020 Deferred Rating. In August 2020, the Veteran was sent correspondence that informed him that his appeal would be delayed indefinitely until exams could be conducted by the local VA medical center. The Veteran was sent additional correspondence in October 2020 that again informed him that his appeal would be delayed indefinitely until examinations could be scheduled at the local VA medical center. In a November 2020 Supplemental Statement of the Case (SSOC), the AOJ continued the denial of the claims. Included in the reasoning for the denial, the AOJ stated that the letters previously sent to the Veteran informed him that a decision may be made on the appeal if he did not respond in 30 days. In an April 2021 Post Remand Brief, the Veteran's representative asserted that the Veteran was not informed that his claim would be decided if he did not reply to the August 2020 and October 2020 correspondence sent to him by VA. The Board agrees. The Veteran was informed by VA that his appeal would be delayed indefinitely until exams could be scheduled at his local VA medical center. The Veteran was not informed that his claim would be decided if he did not respond to VA correspondence within 30 days. On remand, the Veteran should be provided another opportunity to report for a VA examination. The record indicates the Veteran continues to receive treatment from VA. On remand, updated VA treatment records must be obtained. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from October 2020 to the present. 2. After the completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's hypothyroidism. Copies of all pertinent records should be made available to the examiner for review. Based on an examination, review of the record, and any tests or studies deemed necessary the examiner should provide opinions as to the following: (a) Is it at least as likely as not that the Veteran's hypothyroidism at least as likely as not related to his active duty service, to include being near an IED explosion in July 2006 during his third period of active duty service? The examiner should consider and discuss as necessary the July 2006 affidavits from D.E.F. and S.S. that the Veteran was standing near an IED explosion, June 2010 diagnosis of hypothyroidism, articles discussing a link between blast exposure and hypopituitarism and the link between pituitary and thyroid hormones. 3. After the completion of (1), schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's sleep apnea. Copies of all pertinent records should be made available to the examiner for review. Based on an examination, review of the record, and any tests or studies deemed necessary the examiner should provide opinions as to the following: (a) Is it at least as likely as not that the Veteran's sleep apnea is related to his active duty service? In answering this question, the examiner should discuss whether the Veteran's competent report of in-service sleep issues during his third period of service (October 2005 to May 2009) was a prodromal symptom of the later-diagnosed sleep apnea. (b) If the answer to (a.) is no, the examiner should specifically address the following: (1) whether the Veteran's claimed left knee disability caused the Veteran to become obese; (2) if so, whether the obesity as a result of his left knee disability was a substantial factor in causing sleep apnea; and (3) whether the sleep apnea would not have occurred but for obesity caused by the left knee disability The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 4. After the completion of (1), schedule the Veteran for an examination of the current severity of his left hip disability, specifically impairment of the left thigh. All indicated testing must be conducted. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In this regard, the examiner must complete the corresponding VA disability benefits questionnaire (DBQ). 5. After the completion of (1), schedule the Veteran for an examination of the current severity of his left knee disabilities. The examiner must test the active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to his left knee disabilities alone and discuss the effect of the Veteran's left knee disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. In this regard, the examiner must complete the corresponding VA DBQ. The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, 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.