Citation Nr: 21040009 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 13-26 897 DATE: July 2, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for associated lumbar spine radiculopathy, right lower extremity (RLE), is remanded. Entitlement to service connection for right knee disability, to include arthritis, is remanded. Entitlement to service connection for left knee disability, to include arthritis, and as due to right knee disability, is remanded. Entitlement to service connection for right (dominant) shoulder disability, to include arthritis, and as due to cervical spine disability, is remanded. Entitlement to service connection for left shoulder disability, to include arthritis and as due to cervical spine disability, is remanded. Entitlement to service connection for cervical spine disability, to include as due to service-connected lumbar spine disability, is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND Initially the issues related to the right knee and left shoulder were characterized as whether new and material evidence (NME) was received to reopen them, as an October 1999 rating decision denied service connection for those disorders. See 10/21/1999 Rating Decision; 11/23/2015 Remand BVA. Although the April 2017 SOC notes that a Decision Review Officer reopened the right knee claim, see 04/19/2017 SOC, the Board observes that the service treatment records (STRs) related to the Veteran's first tour of active service apparently were added to the claims file in 2019. Accordingly, the NME standard does not apply. 38 C.F.R. § 3.156(c)(1). Hence, the Board has recharacterized the issues as they appear on the Title page. Previously, this case reflected separate issues for the claimed separate pathology of the knees and shoulders. The Board has recharacterized the issues so as to note a single claim for each extremity, regardless of the pathology which may merit service connection. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran had active duty training from May 1975 to December 1975, and he had active service from May 1980 to December 1986, and from August 1988 to October 1999. On initial review of this case, the Board denied an initial rating in excess of 20 percent for the chronic orthopedic manifestations of the Veteran's lumbar spine disability and remanded the other issues. See 11/23/2015 Remand BVA. Upon the most recent review of this case, the Board remanded it for additional development, to include scheduling the hearing the Veteran requested. See 08/15/2017 Remand BVA. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in April 2021. See 04/12/2021 Hearing Transcript. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for associated lumbar spine radiculopathy, RLE, is remanded. In a March 2019 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for associated RLE radiculopathy and assigned an initial 10 percent rating, effective November 30, 2017. See 03/20/2019 Rating Decision. Remarkably, the AOJ did not notify the Veteran and his representative of the decision until April 2021. See 04/20/2021 Notification. (Emphasis added). Thus, it is obvious that the Veteran did not have a prior opportunity to decide whether to appeal the initial rating or the assigned effective date, to include in testimony at his Board hearing. Here, the Board's initial remand included the issue of whether there was associated neurological symptoms of the lumbar spine disability. In light of this, the Board may take jurisdiction of the issue without a separate NOD to the March 2019 rating decision. See Chavis v. McDonough, 2021 U.S. App. Vet. Claims 660 (__ Vet. App. ___, April 21, 2021); cf. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Nonetheless, since the initial evaluation may involve a staged rating; the fact that the Veteran's last examination was in 2017; and, the fact that neither he nor his representative had any knowledge that the service connection issue had been resolved at the time of the hearing, the Board finds that a remand for a current examination is indicated. The Veteran and his representative will be at liberty to submit evidence to the AOJ while the case is on remand. 2. Entitlement to service connection for right knee disability, to include arthritis, is remanded. 3. Entitlement to service connection for left knee disability, to include arthritis, is remanded. Two prior VA examination reports reflect each VA examiner's opinion that the currently diagnosed disorders of the knees did not have onset in active service. Both examiners also found that the knee disorders were not causally related to entries in the STRs. The nurse practitioner who conducted the 2014 examination and rendered a negative nexus opinion noted that she found no evidence of a 1984 aspiration of the leftt knee in the STRs. See 09/15/2014 C&P Exam, P. 25. Hence, the Board must infer that it was because that the STRs related to the Veteran's first active duty tour were not part of the claims file at that time. Further, all of the VA examinations were conducted prior to the Board hearing, where the Veteran testified to historical details of his disorders not reported at the prior VA examinations. After the hearing, the Veteran's representative submitted the opinion of Dr. James M. Dauphin, an orthopedist. See 05/03/2021 Medical Treatment-Non-Government Facility. The evidence was submitted with a waiver of initial review and consideration by the AOJ. See 05/03/2021 Other. Nonetheless, while the Board finds Dr. Dauphin's opinion helpful, it does not find it determinative of the knee, shoulder, and cervical spine issues, as it is not fully supported by the evidence of record. Hence, the Board finds that additional development is indicated so that the Board may make a fully informed decision. See generally Mariano v. Principi, 17 Vet. App. 305, 312 (2003). 4. Entitlement to service connection for right (dominant) shoulder disability, to include arthritis, is remanded. See 2, above and 6, below. 5. Entitlement to service connection for left shoulder disability, to include arthritis, and as due to cervical spine disability, is remanded. See 2, above and 6, below. 6. Entitlement to service connection for cervical spine disability, to include as due to service-connected lumbar spine disability, is remanded. There are no entries in the Veteran's STRs that specifically note complaints of or treatment for neck pain or other neck symptoms. See 05/17/2019 STR-MED; 08/12/2014 STR-MED. At the Board hearing, however, the representative asserted, and the Veteran testified, that what he thought were symptoms related to his shoulder, which he reported during his active service, he now realizes were symptoms related to his neck. Dr. Dauphin's opines that the in-service shoulder complaints were in fact neck or cervical spine complaints. He also opines, contrary to the VA examiner, that the lumbar spine can in fact impact the cervical spine, though he concedes that the related medical literature does not support the position. Hence, the current posture of the case calls for additional medical development. 7. Entitlement to service connection for OSA is remanded. The Veteran was not afforded an examination in conjunction with the adjudication of this claim. The Board finds that the hearing testimony of he and his wife triggers the low threshold for an examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also 38 C.F.R. § 3.159(a)(2). Hence, this issue must also be remanded. The matters are REMANDED for the following action: 1. The AOJ shall ensure that all related treatment records generated since the last supplemental statement of the case are obtained and added to the claims file. 2. After the above is complete, arrange an examination of the Veteran by an appropriate clinician to determine the current severity of his RLE lumbar radiculopathy disability. Inform the examiner the claims file should be reviewed, and that the Veteran's lay report of the history of his disability must be considered. 3. The AOJ shall arrange a comprehensive medical review of the claims file by an appropriate physician clinician. Ask the clinician to review the claims file and to opine on whether it is at least as likely as not that either or both knees had onset in active service or is causally connected to his active service, to include the complaints and treatment noted in the STRs in 1984 and during his second tour of active service. Inform the examiner that the Board requests specific input on the following: A) reference the 1984 aspiration of the left knee (05/17/2019 STR-MED, P. 21-22, 44-45). The Board cannot read all of the writing of the treating physician on P. 45, where the diagnostic assessment is a synovial [??]. The clinician is asked to decipher the word that immediately follows "synovial" and indicate whether it contributed to the Veteran's subsequent knee symptoms; and B) the clinician is also asked to note the Veteran's documented in-service history of tight hamstrings and to discuss whether that symptomatology likely contributed to the development of the Veteran's knee problems and his currently diagnosed disorders. Inform the clinician that, as concerns all of the claims, the Board has not yet determined whether the Veteran's reports of his lay history are credible or accurate, if credible. Nonetheless, the Veteran's lay history must be considered, to include in light of the objective evidence of record. The clinician must provide a complete explanation for the opinions rendered. A full explanation must include a discussion of Dr. Dauphin's April 2021 opinions. The discussion must indicate agreement or disagreement and the specific reasons for agreement or disagreement. 4. Arrange a review of the claims file by an appropriate clinician to address the disorders of the cervical spine and the shoulders. Ask the examiner to opine whether it is at least as likely as not that the Veteran's currently diagnosed disorder of the shoulders had onset in active service or is otherwise causally connected to active service, to include the entries in the STRs. The Board understands that the clinician may have to address the shoulders twice, depending on whether he/she opines that the in-service shoulder symptoms were of an orthopedic nature or due to cervical radiculopathy. Ask the examiner to opine whether it is at least as likely as not that the Veteran's currently diagnosed cervical spine disability had onset in active service or is otherwise causally connected to active service, to include the entries in the STRs. The clinician's attention is invited to the Veteran's hearing testimony where he testified that although he complained of shoulder symptoms, he now believes that his in-service symptoms in fact emanated from his neck. As with the knee claims, the clinician must provide a complete explanation for the opinions rendered. A full explanation must include a discussion of Dr. Dauphin's April 2021 opinions, to include that cervical spine symptoms were present in service, and that carrying heavy rucksacks contributed to the development of the disability. The discussion must indicate agreement or disagreement and the specific reasons for agreement or disagreement. If the clinician opines that it is at least as likely as not that the currently diagnosed cervical spine disorder is causally related to active service, and that any orthopedic component of the bilateral shoulder disorder is not causally related to active service, then is it at least as likely as not that the shoulder disorders are due to the cervical spine disorder? If the answer is no, then is it at least as likely as not that the shoulder disorders have been worsened by the cervical spine disability? If the clinician opines that it is not at least as likely as not that the currently diagnosed cervical spine disorder is causally related to active service, then is it at least as likely as not that the cervical spine disability is due to the service-connected lumbar spine disability? If the answer is no, then is it at least as likely as not that the cervical spine disability is worsened by the service-connected lumbar spine disability? If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to such aggravation. Again, the clinician must provide a complete explanation for the opinions rendered. A full explanation must include a discussion of Dr. D.'s April 2021 opinions, to include that cervical spine symptoms were present in service, and as concerns secondary service connection, that a lumbar spine disorder can in fact impact the cervical spine due to biomechanics. The discussion must indicate agreement or disagreement and the specific reasons for agreement or disagreement. If the clinician provides a positive nexus opinion for any of the claimed disorders on a secondary service connection basis due to aggravation, please provide a baseline of aggravation in terms of a percentage. Advise the clinician further that any worsening need not be chronic or permanent, but that any impairment in earning capacity due to temporary flares caused by a service-connected disability will suffice for a positive nexus opinion. See Ward v. Wilkie, 31 Vet. App. 233 (2019). 5. Arrange an examination of the Veteran by an appropriate clinician to determine whether it is at least as likely as not that his currently diagnosed OSA had onset in active service or is otherwise causally connected to his active service. The Veteran's and his wife's lay testimony must be considered in arriving at an opinion. The Veteran's weight and BMI are noted in the STRs, and obesity is noted in his Problem Lists in his VA outpatient records. If the clinician opines that there is no direct causal linkage between the Veteran's currently diagnosed OSA and his active service, then is it at least as likely as not that the Veteran's obesity/weight gain is as a result of the service-connected lumbar spine disability and, whether it is at least as likely as not that the OSA would not have occurred but for the obesity/weight gain caused by the service-connected lumbar spine disability? If the answer is, No, then is it at least as likely as not that the Veteran's obesity worsens the OSA? Advise the clinician that any worsening need not be permanent; instead, an impairment in earning capacity due to temporary flare-ups of the OSA caused by a service-connected disability is sufficient. See Ward, 31 Vet. App. 233. If so, in terms of a percentage, please provide a baseline of aggravation. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.