Citation Nr: 21041711 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-27 420 DATE: July 10, 2021 REMANDED Entitlement to an initial compensable rating for a right knee meniscal tear ("right knee disability") is remanded. Entitlement to an initial compensable rating for a right ankle lateral collateral ligament strain ("right ankle disability") is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1988 to March 1998 and from January 2003 to March 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in September 2015, October 2015, and March 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in September 2015 the RO granted service connection for right knee and right ankle disabilities, assigning a noncompensable rating for both disabilities, and denied service connection for a low back disability, a left ankle disability, and a left knee disability. The RO then denied service connection for a right shoulder disability in October 2015 service connection for sleep apnea in March 2016. The Veteran properly perfected appeals as to the ratings assigned for the right knee and right ankle disabilities and the denials of service connection. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2021. A transcript of the hearing is of record. 1. Entitlement to an increased rating for right knee and ankle disabilities. During his February 2021 testimony, the Veteran reported that he had just finished VA physical therapy for his right knee and ankle. However, the most recent VA treatment records associated with the file are dated January 2020. As the Veteran has potentially identified relevant and outstanding VA treatment records, the issues must be remanded so that appropriate efforts may be made to obtain those records. 38 C.F.R. § 3.159(c)(2). In addition, the Veteran was most recently provided with a VA knee examination in June 2019 and an ankle examination in July 2015. During his testimony, the Veteran reported that his disabilities had worsened, stating specifically that he experienced increased loss of range of motion and instability in both the right knee and right ankle. As there is evidence of worsening since the most recent examinations, a remand is necessary so that new examinations may be obtained to determine the current severity of the right knee and ankle disabilities. 38 C.F.R. § 3.159(c)(4); see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to service connection for sleep apnea. During the course of the appeal, VA did not obtain an opinion concerning the etiology of the Veteran's claimed sleep apnea. However, treatment records associated with the file in January 2020 reflect notations of obstructive sleep apnea. Further, on an October 2004 post-deployment health assessment the Veteran reported that during his deployment he had issues with feeling tired after sleeping. Finally, lay statements of record reflect that the Veteran has reported long-standing issues with sleep disturbances. Based on the foregoing, the Board finds that a remand is necessary for an opinion to determine whether the Veteran's claimed sleep apnea is causally related to his period of service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for a low back disability. VA obtained an opinion concerning the etiology of the claimed low back disability in July 2015. The examiner stated that the disability was less likely than not related to the Veteran's service, stating in pertinent part that the service record did not document findings consistent with a high energy injury to the soft tissue of the lumbar spine, and therefore there was no evidence to support a finding of a post-traumatic or inflammatory process. However, the Veteran's service treatment records clearly reflect that in August 2003 the Veteran was involved in a motor vehicle accident where he was rear-ended. The Veteran reported low back pain at the time of the collision and was treated in an emergency room for such pain. Further, the Veteran was diagnosed at the time with a lumbar sprain or strain, which was the same diagnosis rendered at the VA examination. While the examiner noted the history of the accident in the examination report, the examiner in no way reconciled the fact that the Veteran was clearly in a motor vehicle accident in service with her statement that there was no evidence of a high energy injury to the soft tissue of the spine in the service treatment records. Dalton v. Peake, 21 Vet. App. 23 (2007). As such, the Board finds that a remand is necessary for a new opinion concerning the etiology of the claimed low back disability. 38 C.F.R. § 3.159(c)(4). 4. Entitlement to service connection for right shoulder, left knee, and left ankle disabilities. As discussed with respect to the increased rating claims, during his February 2021 hearing testimony the Veteran indicated that there were outstanding VA treatment records. While the Veteran indicated that these records only pertained to his claims for increased ratings for his right knee and ankle, VA treatment records must be obtained regardless of their relevance. Sullivan v. McDonald, 815 F.3d 786, 79092 (Fed. Cir. 2016). As such, a remand of the claims for service connection for right shoulder, left knee, and left ankle disabilities is necessary so that appropriate efforts may be made to obtain the outstanding records. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records from January 2020 forward. 2. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of his right knee disability. The examiner is asked to provide the following: (a) Report the extent of the symptoms of the right knee disability in accordance with VA rating criteria. (b) Conduct testing for pain on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, an explanation must be provided. (c) Render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. (d) State whether the examination is taking place during a flare-up. If not, the examiner should ask the Veteran to describe the flare-ups, including: frequency, duration, characteristics, severity, and/or extent of functional impairment he experiences. 3. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of his right ankle disability. The examiner is asked to provide the following: (a) Report the extent of the symptoms of the right ankle disability in accordance with VA rating criteria. (b) Conduct testing for pain on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, an explanation must be provided. (c) Render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. (d) State whether the examination is taking place during a flare-up. If not, the examiner should ask the Veteran to describe the flare-ups, including: frequency, duration, characteristics, severity, and/or extent of functional impairment he experiences. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's sleep apnea. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the claimed sleep apnea is causally related to the Veteran's active service, to include exposure to environmental hazards? Attention is invited to a July 2019 VA treatment record noting sleep apnea (labelled "CAPRI" pg. 55 uploaded 1/7/20); a post-deployment health assessment noting the Veteran felt fatigued after sleeping during deployment (labelled "Medical Treatment Record - Government Facility" pg. 13 uploaded 4/16/15); and a May 2007 reserve medical examination report and report of medical history (labelled "Medical Treatment Record - Government Facility" pgs. 33, 36, 39 uploaded 4/16/15). A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's low back disability. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the low back disability is causally related to the Veteran's active service, to include an August 2003 motor vehicle accident? Attention is invited to August 2003 records reflecting treatment for low back pain after a motor vehicle accident (labelled "Medical Treatment Record - Government Facility" pg. 4 to 21 uploaded 4/16/15); a post-deployment health assessment noting back pain following an August 2003 motor vehicle accident (labelled "Medical Treatment Record - Government Facility" pg. 13 uploaded 4/16/15); and a May 2007 reserve medical examination report and report of medical history (labelled "Medical Treatment Record - Government Facility" pgs. 33, 36, 39 uploaded 4/16/15). A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.