Citation Nr: 21040929 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-15 289 DATE: July 7, 2021 REMANDED Entitlement to service connection for left arm disability is remanded. Entitlement to service connection for left knee disability is remanded. Entitlement to service connection for head trauma residuals is remanded. Entitlement to service connection for eye disability as secondary to head trauma is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served in the Army from July 1971 to November 1971 and in the Army National Guard of Texas from July 1971 to May 1981. These matters come before the Board of Veteran's Appeals (Board) on appeals from September 2015, July 2017, and October 2018 rating decisions of the Veterans Affairs (VA) Regional Office in Houston, Texas. Since his original appeal to the Board in March 2018, two of the seven service connection claims that were before the Board were granted by the RO. The RO granted service connection for painful scars, left palm and left knee, and other scars, left palm, and left knee in April 2018, so those issues are no longer on appeal. In a March 2018 Form 9 appeal, the Veteran requested a video conference hearing before the Board, but the Veteran cancelled the hearing request in April 2020 due to his health problems, those of his wife, and those of his son. The Board advanced the case on the docket in April 2021 based on the Veteran's November 2020 motion. 1. Entitlement to service connection for left arm disability is remanded. 2. Entitlement to service connection for left knee disability is remanded. 3. Entitlement to service connection for head trauma residuals is remanded. 4. Entitlement to service connection for eye disability as secondary to head trauma is remanded. The Veteran claims service connection for the four listed issues above, which he contends incurred when he fell while running on rocks during a field training exercise in full combat gear on June 27, 1972 while on active duty training for the Texas Army National Guard. Service treatment records (STR) list lacerations of the left palm and left knee, but not these other injuries. STR do say that the Veteran was referred to Darnell Hospital in South Fort Hood, Texas for further treatment. Records from Darnell Hospital were never requested and should be obtained. The Veteran stated in a February 2020 VA Form 10182 Notice of Disagreement: The injuries were severe enough that it cut through my skin on my left knee and it affected my knee itself. I have been limping since the injury to my knee. The injury to my knee happened while wearing full military gear with weapons, ammunition, equipment, and rucksack that add a significant amount of weight to the impact of the injury to my knee. The injuries were severe enough that it cut through my skin on my left palm and it affected my hand and shoulder itself. I have been having shoulder pains since the injury to my palm. The Veteran said in a November 2018 Notice of Disagreement, speaking of the June 27, 1972 fall injury: It is during this incident that I injured my palm and knee, that I also hit my head. Since this incident I have suffered with symptoms associated with head trauma and I have developed an eye condition that is directly related to the incident that happened in service. The Veteran contends that the VA by denying his claim without providing VA medical examinations and nexus opinions failed its duty to assist. The Veteran was not afforded a VA examination of any of his claimed disabilities currently pending before the Board. In determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all Veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, the in-service event, a traumatic fall during combat training, is corroborated by the Veteran's STR added to the file in March 2015. The Veteran is competent and attests to continued discomfort since the event in the areas of his body affected. Although there are some treatment notes of record for symptoms reported by the Veteran, the medical evidence of record is not sufficient for the Board to competently determine service connection. The Board finds the McLendon factors are satisfied for the disabilities claimed by the Veteran as having directly and secondarily resulted from his June 1972 fall in service. VA examinations are needed to determine the nature, etiology and extent of the Veteran's current disabilities. The four issues listed above are remanded to the RO for VA examinations and nexus opinions prior to adjudication of service connection on the merits for the claims. 5. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. The Veteran contends his OSA is due to service in his October 2017 Statement in Support of Claim: I feel that this condition deve1oped due to the type of environment I was in as an infantryman and the type of hours that we had to maintain while on active military service of one weekend a month and 2 weeks a year for 10 years. I was always having problems breathing and would wake up while laying out in the dirt while at training exercises. The Veteran completed a home sleep study in February 2016 through his local VA medical center sleep clinic. The Veteran was diagnosed with mild OSA and prescribed a continuous positive airway pressure (CPAP) machine. The Veteran has a current disability of OSA, so the first element required for service connection is met. He claims events in service caused his OSA, and that it began in service. OSA is not a disability for which a lay person is competent to establish a causal link between events in service and a current diagnosis of OSA. The Board needs a nexus opinion from a competent medical professional to determine if service connection is warranted. OSA is remanded for further development. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all non-VA treatment for his claimed disabilities listed above, if any are not currently of record. The AOJ should specifically request records from Darnell Army Medical Center. If necessary, get signed VA Form 21-4142s and send them to all identified treatment providers and request any missing records. Incorporate any missing treatment records into the file. If the identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record any VA clinical notes not already in the file pertaining to treatment of the Veteran since November 2019. Request treatment records from Darnell Hospital in South Fort Hood, Texas from the Veteran's field training accident of June 27, 1972. Make all relevant medical records available to the examiner(s) for review. The examinations should state that the examiner(s) conducted a thorough records review. 3. Schedule the Veteran for VA examinations to determine the current nature, etiology, and severity of his claimed Left shoulder and left knee disabilities. All indicated tests and studies should be accomplished and the findings reported in detail. Following a review of the claims file, the examiner(s) should provide the following information: (a.) Is it at least as likely as not (50/50 probability or greater) that the Veteran's complaint of left shoulder disability was caused by service, started during service, or is otherwise etiologically the result of active duty service? (b.) Is it at least as likely as not (50/50 probability or greater) that the Veteran's complaint of left knee disability was caused by service, started during service, or is otherwise etiologically the result of active duty service? The examiner should provide a rationale for all opinions provided. 4. Schedule the Veteran for VA examinations to determine the current nature, etiology, and severity of his claimed Residuals of head trauma and Eye condition associated with head trauma. All indicated tests and studies should be accomplished and the findings reported in detail. Following a review of the claims file, the examiner(s) should provide the following information: (a.) Is it at least as likely as not (50/50 probability or greater) that the Veteran's complaint of Residuals of head trauma were caused by service, started during service, or are otherwise etiologically the result of active duty service? (b.) Is it at least as likely as not (50/50 probability or greater) that the Veteran's complaint of Eye condition associated with head trauma was caused by service, started during service, or is otherwise etiologically the result of active duty service? (c.) Is it at least as likely as not (50/50 probability or greater) that the Veteran's complaint of Eye condition associated with head trauma was caused or aggravated by the Veteran's head trauma? The examiner should provide a rationale for all opinions provided. 5. Schedule the Veteran for VA examinations to determine the current nature, etiology, and severity of his claimed Obstructive sleep apnea. All indicated tests and studies should be accomplished and the findings reported in detail. Following a review of the claims file, the examiner(s) should provide the following information: (a.) Is it at least as likely as not (50/50 probability or greater) that the Veteran's complaint of Obstructive sleep apnea was caused by service, started during service, or is otherwise etiologically the result of active duty service? The examiner should provide a rationale for all opinions provided. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Black, 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.