Citation Nr: 21040904 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-50 231 DATE: July 7, 2021 REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a thoracolumbar spine disability is remanded. Entitlement to service connection for a tailbone disability is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for a right wrist/hand disability is remanded. Entitlement to service connection for a left wrist/hand disability is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from June 1990 to October 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. After reviewing the contentions and evidence of record, and in order to contemplate all of the Veteran's symptoms, however diagnosed, the Board has recharacterized the issues on appeal as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). The Board observes that the Veteran submitted additional lay and medical evidence since the RO's adjudication in an August 2017 Statement of the Case (SOC), without a waiver of initial RO consideration. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). 1. Entitlement to service connection for a right shoulder disability is remanded. The Veteran asserts that he is entitled to service connection for a right shoulder disability. The Board finds that additional development is necessary prior to appellate consideration of this claim. During the December 2020 Board hearing, the Veteran testified that he did a lot of heavy weightlifting during service which injured his right shoulder. In May 2021, the Veteran submitted a newspaper clipping stating that he won his Survival School bench press competition. Additionally, the Veteran reported having a head-on motor vehicle accident during service, and in an April 2021 private medical evaluation, Dr. F.G., a medical doctor and orthopedic surgeon, indicated that the Veteran's "[r]epetitive injury during weightlifting combined with upper extremity injury in his MVA [motor vehicle accident] are causal" of his current right shoulder disability. The Veteran currently endorses right shoulder pain and states that he has a rotator cuff condition. See September 2011 VA 21-0820 Report of General Information; December 2020 Board hearing transcript; April 2021 private medical evaluation. To date, VA has not obtained a competent medical examination and opinion addressing this claim. Given the Veteran's competent reports of injuries to his right shoulder from weightlifting and a motor vehicle accident during service, and his competent reports of right shoulder pain since service, a VA examination should be afforded to him. McClendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a thoracolumbar spine disability is remanded. 3. Entitlement to service connection for a tailbone disability is remanded. 4. Entitlement to service connection for headaches is remanded. The Veteran asserts that he is entitled to service connection for a thoracolumbar spine disability, a tailbone disability, and headaches. The Board finds that additional development is necessary prior to appellate consideration of these claims. During the December 2020 Board hearing, the Veteran testified that he had a head-on motor vehicle accident during service and that he has had back pain and headaches since that time. In the August 2011 claim application, the Veteran stated that since the accident, "I cannot sit down for long periods without significant pain." He reported that he did not seek treatment for the residuals of the motor vehicle accident until after service, and that he was later told he had a fractured coccyx and a herniated intervertebral disc in his low back. See August 2011 claim application; December 2020 Board hearing transcript; April 2021 private medical evaluation. Private treatment records reveal current diagnoses including lumbar sprain and strain with herniated nucleus pulposus, sciatica neuralgia, thoracic disc bulges, and lumbago. See private treatment records dated April 2007 to May 2010. To date, VA has not obtained a competent medical examination and opinion addressing these claims. Given the Veteran's current thoracolumbar spine diagnoses, competent report that he was told by a medical professional that he had a fractured coccyx, competent report of current headaches, competent report of a motor vehicle accident during active service, and lay evidence of continuing symptoms since the accident, a VA examination should be afforded to him. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the Veteran testified at the December 2020 Board hearing that he sought private treatment for his back pain as early as 1995 or 1996, to include from Dr. Mosch. He also testified that he receives treatment from the VA, but the Board observes that no VA treatment records have been associated with the claims file. On remand, a VA Form 21-4142 Authorization for Release of Information should be provided to the Veteran so that VA may obtain any outstanding treatment records relating to his claimed disabilities, and all outstanding VA treatment records should be associated with the claims file. 5. Entitlement to service connection for a sleep disorder is remanded. The Veteran asserts that he is entitled to service connection for a sleep disorder, to include as secondary to his claimed thoracolumbar spine disability. The Board finds that additional development is necessary prior to appellate consideration of this claim. During the December 2020 Board hearing, the Veteran testified that he has trouble sleeping due to back pain and that his girlfriend tells him he snores all the time. The Veteran endorsed difficulty sleeping due to back pain in private treatment records dated April 2007 to May 2010 and in the April 2021 private medical evaluation. To date, VA has not obtained a competent medical examination and opinion addressing this claim. Given the Veteran's competent reports of current sleep disturbances, to include observable symptoms of snoring, and the indication that the sleep disturbances may be related to his claimed thoracolumbar spine disability, a VA examination should be afforded to him. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, the Board finds that the Veteran's service connection claim for a sleep disorder must be remanded as it is inextricably intertwined with the outcome of the Veteran's service connection claim for a thoracolumbar spine disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Additionally, in the April 2021 private medical evaluation, Dr. F.G. wrote, "[The Veteran] as a participant in Desert Storm was exposed to multiple toxicants including aerosolized metals dust and particulate toxicant exposures and persistent organic pollutants as well as poly alkyl organic substances. These toxicant exposures are responsible for his condition of sleep apnea with a 40% impairment." However, review of the Veteran's DD-214 does not show any foreign service. On remand, the Veteran's complete military personnel records should be obtained and associated with the claims file. 6. Entitlement to service connection for a right wrist/hand disability is remanded. 7. Entitlement to service connection for a left wrist/hand disability is remanded. The Veteran asserts that he is entitled to service connection for right and left wrist/hand disabilities. The Board finds that additional development is necessary prior to appellate consideration of these claims. In various lay statements of record, and at the December 2020 Board hearing, the Veteran reported that for years during active service, he worked at a computer without any wrist support, and he started noticing numbness and tingling in both hands which has continued ever since service. See August 2011 claim application; December 2020 Board hearing transcript; April 2021 private medical evaluation. Additionally, in the April 2021 private medical evaluation, Dr. F.G. wrote, "[The Veteran] experienced a frontal impact motor vehicle accident during his period of active duty while driving a nonmilitary vehicle. He sustained both direct impact injuries to both arms and hand[s] and inertial loading injuries to the cervical spine and thoracolumbar spine." To date, VA has not obtained a competent medical examination and opinion addressing this claim. Given the Veteran's competent reports of numbness and tingling in his both hands which onset during service and has continued ever since, and the indication that he injured his hands in the in-service motor vehicle accident, VA examination should be afforded to him. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the matters are REMANDED for the following action: 1. Send the Veteran a VA Form 21-4142, Authorization for Release of Information, for completion, to obtain any outstanding private treatment records relating to his claimed disabilities, to include from Dr. Mosch. 2. Ensure that all outstanding VA treatment records are associated with the claims file. 3. Obtain and associate with the claims file the Veteran's complete military personnel records. 4. Provide the Veteran a VA examination, if possible, to determine the nature and likely etiology of his claimed right shoulder disability. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. ** IF an in-person examination is not feasible given the circumstances surrounding the recent pandemic, refer the case to an appropriate examiner for a thorough review of the record, possible telephone/virtual interview with the Veteran, and medical opinion. After a thorough review of the claims file and examination of the Veteran (if possible), the examiner is asked to: (a) Elicit from the Veteran and the record the history of his right shoulder symptoms. In doing so, also elicit information as to any functional impairment caused by the Veteran's claimed right shoulder disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). (b) Identify all diagnoses relating to the Veteran's claimed right shoulder disability (to include symptoms resulting in functional impairment of earning capacity). (c) For each currently diagnosed right shoulder disability (to include symptoms resulting in functional impairment of earning capacity), provide an opinion as to whether it at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to it, to include as due to an injury from heavy weightlifting and/or a motor vehicle accident. 5. Provide the Veteran a VA examination, if possible, to determine the nature and likely etiology of his claimed thoracolumbar spine disability. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. ** IF an in-person examination is not feasible given the circumstances surrounding the recent pandemic, refer the case to an appropriate examiner for a thorough review of the record, possible telephone/virtual interview with the Veteran, and medical opinion. After a thorough review of the claims file and examination of the Veteran (if possible), the examiner is asked to: (a) Elicit from the Veteran and the record the history of his thoracolumbar spine symptoms. In doing so, also elicit information as to any functional impairment caused by the Veteran's claimed thoracolumbar spine disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). (b) Identify all diagnoses relating to the Veteran's claimed thoracolumbar spine disability (to include symptoms resulting in functional impairment of earning capacity). (c) For each currently diagnosed thoracolumbar spine disability (to include symptoms resulting in functional impairment of earning capacity), provide an opinion as to whether it at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to it, to include as due to a motor vehicle accident. * Specifically, address Dr. F.G.'s opinion in the April 2021 private medical evaluation that "[The Veteran] experienced a frontal impact motor vehicle accident during his period of active duty while driving a nonmilitary vehicle. He sustained both direct impact injuries to both arms and hand and inertial loading injuries to the cervical spine and thoracolumbar spine. He has developed intervertebral disc changes at L5S1 with loss of disk height and trace retrolisthesis. He has developed a chronic low back pain. In the motor vehicle accident[,] he sustained through the biomechanics of inertial loading injury tensile loading and compressive loading injuries at cervical and thoracolumbar spine." In providing an etiology opinion, please address any intercurrent causes, with attention to the following evidence: ** April 2007 private medical evaluation (The Veteran had a motor vehicle accident on April 17, 2007, and the provider wrote, "The patient's past history is non-contributory and he states that he was suffering no symptoms of pain until the accident of 04/17/2007."). ** March 2008 private treatment record (The Veteran was "involved in a motor vehicle accident several months ago. He has had ongoing low back and sacral pain with minimal radiation. He had no back problems prior to this accident."). 6. Provide the Veteran a VA examination, if possible, to determine the nature and likely etiology of his claimed tailbone disability. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. ** IF an in-person examination is not feasible given the circumstances surrounding the recent pandemic, refer the case to an appropriate examiner for a thorough review of the record, possible telephone/virtual interview with the Veteran, and medical opinion. After a thorough review of the claims file and examination of the Veteran (if possible), the examiner is asked to: (a) Elicit from the Veteran and the record the history of his tailbone symptoms. In doing so, also elicit information as to any functional impairment caused by the Veteran's claimed tailbone disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). (b) Identify all diagnoses relating to the Veteran's claimed tailbone disability (to include symptoms resulting in functional impairment of earning capacity). (c) For each currently diagnosed tailbone disability (to include symptoms resulting in functional impairment of earning capacity), provide an opinion as to whether it at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to it, to include as due to a motor vehicle accident. 7. Provide the Veteran a VA examination, if possible, to determine the nature and likely etiology of his claimed headaches. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. ** IF an in-person examination is not feasible given the circumstances surrounding the recent pandemic, refer the case to an appropriate examiner for a thorough review of the record, possible telephone/virtual interview with the Veteran, and medical opinion. After a thorough review of the claims file and examination of the Veteran (if possible), the examiner is asked to: (a) Elicit from the Veteran and the record the history of his headache symptoms. In doing so, also elicit information as to any functional impairment caused by headaches. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). (b) Identify all diagnoses relating to the Veteran's claimed headaches (to include symptoms resulting in functional impairment of earning capacity). (c) For each currently diagnosed disability relating to the Veteran's claimed headaches (to include symptoms resulting in functional impairment of earning capacity), provide an opinion as to whether it at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to it, to include as due to a motor vehicle accident. 8. Provide the Veteran a VA examination, if possible, to determine the nature and likely etiology of his claimed sleep disorder. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. ** IF an in-person examination is not feasible given the circumstances surrounding the recent pandemic, refer the case to an appropriate examiner for a thorough review of the record, possible telephone/virtual interview with the Veteran, and medical opinion. After a thorough review of the claims file and examination of the Veteran (if possible), the examiner is asked to: (a) Elicit from the Veteran and the record the history of his claimed sleep disorder symptoms. In doing so, also elicit information as to any functional impairment caused by the Veteran's claimed sleep disorder. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). (b) Identify all diagnoses relating to the Veteran's claimed sleep disorder (to include symptoms resulting in functional impairment of earning capacity). (c) For each currently diagnosed disability relating to the Veteran's claimed sleep disorder (to include symptoms resulting in functional impairment of earning capacity), provide an opinion as to: i. Whether it at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to it. ii. Whether it is at least as likely as not (50 percent probability or greater) proximately due to OR aggravated by the Veteran's claimed thoracolumbar spine disability. * Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation/worsening of a non-service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). 9. Provide the Veteran a VA examination, if possible, to determine the nature and likely etiology of his claimed right wrist/hand disability. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. ** IF an in-person examination is not feasible given the circumstances surrounding the recent pandemic, refer the case to an appropriate examiner for a thorough review of the record, possible telephone/virtual interview with the Veteran, and medical opinion. After a thorough review of the claims file and examination of the Veteran (if possible), the examiner is asked to: (a) Elicit from the Veteran and the record the history of his right wrist/hand symptoms. In doing so, also elicit information as to any functional impairment caused by his right wrist/hand. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). (b) Identify all diagnoses relating to the Veteran's claimed right wrist/hand disability (to include symptoms resulting in functional impairment of earning capacity). (c) For each currently diagnosed disability relating to the Veteran's claimed right wrist/hand disability (to include symptoms resulting in functional impairment of earning capacity), provide an opinion as to whether it at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to it, to include as due to working at a computer for years without any wrist support and/or an in-service motor vehicle accident. 10. Provide the Veteran a VA examination, if possible, to determine the nature and likely etiology of his claimed left wrist/hand disability. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. ** IF an in-person examination is not feasible given the circumstances surrounding the recent pandemic, refer the case to an appropriate examiner for a thorough review of the record, possible telephone/virtual interview with the Veteran, and medical opinion. After a thorough review of the claims file and examination of the Veteran (if possible), the examiner is asked to: (a) Elicit from the Veteran and the record the history of his left wrist/hand symptoms. In doing so, also elicit information as to any functional impairment caused by his left wrist/hand. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). (b) Identify all diagnoses relating to the Veteran's claimed left wrist/hand disability (to include symptoms resulting in functional impairment of earning capacity). (c) For each currently diagnosed disability relating to the Veteran's claimed left wrist/hand disability (to include symptoms resulting in functional impairment of earning capacity), provide an opinion as to whether it at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to it, to include as due to working at a computer for years without any wrist support and/or an in-service motor vehicle accident. A complete rationale should be provided for all opinions. 11. Thereafter, readjudicate the remanded claims. In so doing, ensure that all applicable theories of entitlement are addressed. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.