Citation Nr: 22010293 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 18-49 771 DATE: February 23, 2022 REMANDED Service connection for sleep apnea is remanded. Service connection for a bilateral knee disability is remanded. Service connection for a bilateral ankle disability is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for a miscarriage is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1989 to December 1990, with additional Reserve or Guard service from December 1990 to September 1997. These claims come to the Board of Veterans' Appeals (Board) from an October 2015 rating decision. In October 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ) and a copy of the transcript is associated with the electronic claims file. The Board notes that the Veteran's representative explicitly refused to represent her at the hearing. The Veteran agreed to proceed with the hearing absent representation. A subsequent October 2021 letter from the Veteran indicates that she was still in the process of seeking alternative representation. The Veteran is informed that she may choose a new representative if she desires and, if she wishes for a Veterans Service Organization (VSO) to represent her, she may access a directory of VSOs on VA's website here: https://www.va.gov/vso. Although the Board regrets the additional delay, a remand is required for further development and readjudication. Initially, the record reflects that the Veteran had Guard or Reserve service from December 1990 to September 1997. See March 2011 Application for Compensation. Unfortunately, there have been no attempts to obtain these records, and therefore, on remand the AOJ must make all steps to obtain them. 1. Service connection for sleep apnea is remanded. The Veteran is claiming service connection for sleep apnea and private treatment records document a current diagnosis. She testified at her hearing before the Board that she was first diagnosed with sleep apnea by a VA provider in 2014. She indicated her snoring began during service and that she believed her sleep apnea also began during service while she was stationed in Germany for a year and suggested it may have been caused by the time zone difference. The Veteran has not yet been afforded an examination to determine the etiology of her sleep apnea. Given that she has reported symptoms of snoring during service, the Board finds the low threshold requiring an examination and opinion has been met, and therefore, a remand is required. 2. Service connection for a bilateral knee disability is remanded. 3. Service connection for a bilateral ankle disability is remanded. The Veteran is claiming service connection for bilateral knee and ankle disabilities. The Veteran testified at her hearing that while stationed in West Germany, she was playing softball and twisted her ankle and fell on her knee; she clarified that only her left ankle and left knee were affected. She stated that while at bat, she went to swing and that when her leg and knee turned, her ankle sort of gave out, and she fell on her knee. She also raised the theory that her service-connected bilateral foot disorder (diagnosed as pes planus) has caused or aggravated her bilateral ankles and knees. She indicated that she receives treatment through the VA Healthcare System, that she has been diagnosed with arthritis in her ankles and knees, and that she sees a VA podiatrist every three months. The record contains a May 2013 opinion regarding direct service-connection for the knees. Unfortunately, with regard to the left knee, this opinion does not discuss the Veteran's in-service injury. Thus, a remand is required to obtain an adequate opinion. Moreover, there are no opinions regarding direct service-connection for the left ankle. Finally, there are no opinions considering secondary service-connection for the bilateral ankles/knees as related to the Veteran's service-connected bilateral foot disorder. Thus, examinations and opinions must be obtained on remand. Given that the record reflects the Veteran has a diagnosis of rheumatoid arthritis, the examiner must consider this diagnosis as well. See October 2021 Letter from VA Provider. Finally, given that the most recent VA treatment records are dated in August 2018, and because the Veteran reported regular podiatry visits, the Board finds all outstanding VA treatment records must be associated with the claims file, as they may assist in substantiating the Veteran's secondary service-connection claims. 4. Entitlement to compensation under 38 U.S.C. § 1151 for a miscarriage is remanded. The Veteran is claiming that she believes a miscarriage in 1995 was caused by negligent care at a VA Medical Center (VAMC) and that she now has PTSD as a result. She testified at her hearing before the Board that she had a prior miscarriage in 1984 when she was five months pregnant and was told it was because she had type A negative blood, which does not mix with other blood unless she received a shot (RhoGAM). She indicated that she was given a card that indicated whenever he got pregnant or miscarried, she had to get a RhoGAM shot. She stated that when she became pregnant in 1994 she informed the VA provider of the circumstances surrounding her prior miscarriage but that the provider refused to give her a RhoGAM shot as mixing positive blood with her blood could kill her. She testified that a few days before she miscarried she sought VA treatment because she was spotting and the provider informed her to go home and stay off her feet. Shortly thereafter, she miscarried and went to her VA provider, who transferred her to Walter Reed Hospital; at Walter Reed she was given a shot and she stated she felt like the VAMC had not been equipped to do. She indicated that after her miscarriage she went back to her VA doctor and asked why he had not given her the shot and he explained he was going to give it to her at six months. She believes VA was negligent by not administering the shot earlier and that if her VA provider was unable to administer the shot when she initially asked, the provider should have sent her to another hospital for adequate prenatal care. The record contains, in pertinent part, treatment records from the Washington, D.C. VAMC dated November 1995. However, the Veteran also indicated she sought treatment at the same facility on April 28, 1995. See April 2011 Correspondence. It is also unclear whether she had any treatment at that facility prior to November 1995 other than the referenced April date. Accordingly, on remand all attempts to obtain these records should be made. The identified records from Walter Reed are not associated with the evidence of record. A June 2015 response from the National Personnel Records Center (NPRC) reflects there were no records for the Veteran and the response suggested that VA use the Defense Personnel Records Information Retrieval System (DPRIS) to obtain information from Official Military Personnel Folders in the custody of the Department of Defense. An August 2015 Personnel Information Exchange System (PIES) request also provided a negative response; however, the Board notes that PIES requests are used to search the NPRC. No subsequent requests through DPRIS or any other records repositories follow in the record. Most importantly, the Board notes that the Veteran was not on active duty during this treatment and such treatment notes would ostensibly NOT be associated with service treatment records but rather must be requested directly from the facility (now combined with Bethesda Naval Medical Center and called Walter Reed National Military Medical Center). Thus, the Board finds a remand is required as it is not convinced that VA has exhausted all efforts to attempt to obtain these Federal records, as required by VA regulation. Accordingly, on remand, the AOJ must attempt to obtain these records. If any of the aforementioned records are unable to be obtained, the AOJ should prepare a Memorandum of Formal Finding of Unavailability outlining all steps taken to attempt to obtain these records. Following completion of the above, the Board finds an examination and opinion are required to determine if compensation under 38 U.S.C. § 1151 for a miscarriage is warranted. Compensation under section 1151 shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.358(a). In essence, there are three elements required to establish benefits under 38 U.S.C. § 1151: there must be (1) additional disability; (2) a causal nexus between the VA treatment (medical, surgical or hospitalization), an examination, or vocational rehabilitation under chapter 31 and the additional disability; and (3) a finding of fault or a finding of an unforeseen circumstance. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. The Board notes that the Veteran's additional disability she is claiming is posttraumatic stress disorder (PTSD). See March 2011 Application for Compensation. However, in obtaining medical opinions, consideration must be given to any additional disability as a result of the 1995 miscarriage. The Veteran and her representative have the right to submit additional evidence and argument on the matters the Board has remanded. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records from August 2018 to the present AND prior to November 21, 1995, and associate them with the electronic claims file. Specifically, the AOJ must pay special attention to obtaining records from the Washington, D.C. VAMC dated January 1995 to November 1995. These records are in paper and must be requested directly from the facility. If these records are unable to be obtained, the AOJ must prepare a Memorandum of Formal Finding of Unavailability outlining all steps taken to attempt to obtain them. 2. Take all steps in accordance with VA regulation to attempt to obtain the Veteran's Reserve or Guard service treatment records from December 1990 to August 1997. If these records are unable to be obtained, the AOJ must prepare a Memorandum of Formal Finding of Unavailability outlining all steps taken to attempt to obtain them. 3. Take all steps in accordance with VA regulation to obtain the Veteran's medical records from Walter Reed dated in 1995, to include, making a request through DPRIS, as suggested by a June 2015 response from the NPRC. Additionally, paper records must be requested directly from Walter Reed National Military Medical Center. If these records are unable to be obtained, the AOJ must prepare a Memorandum of Formal Finding of Unavailability outlining all steps taken to attempt to obtain them. 4. Following completion of steps 1 through 3, afford the Veteran an examination to determine the etiology of her sleep apnea. The examiner must obtain from the Veteran and record in the examination report a complete history regarding the onset and continuity of symptoms. Following a review of the evidence and with consideration of the Veteran's statements, the examiner should provide the following opinion: Is the Veteran's sleep apnea related to her active duty service? Why or why not? The examiner is informed: Consideration must be given to the Veteran's statements regarding symptoms she experienced during and since service, to include reports of in-service snoring. A positive opinion finding a nexus to service does not require certainty. Rather, if the weight of the evidence is in approximate balance for and against a nexus, the examiner should make a finding favorable to the Veteran. A complete rationale for this opinion is required. If the examiner is unable to provide this opinion without resorting to speculation, he or she must explain why this is so. 5. Following completion of steps 1 through 3, afford the Veteran the appropriate examinations to determine the etiology of any knee and ankle disabilities. The examiner must obtain from the Veteran and record in the examination report a complete history regarding the onset and continuity of symptoms. All appropriate diagnostic tests, such as x-rays, must be performed. Following a review of the evidence and with consideration of the Veteran's statements, the examiner should provide the following opinions: (a) Is the Veteran's left knee disability related to her active duty service, to include as due an in-service softball injury? Why or why not? (b) Is the Veteran's left ankle disability related to her active duty service, to include as due to an in-service softball injury? Why or why not? (c) Is the Veteran's left knee disability caused by her service-connected bilateral foot disability? Why or why not? (d) Is the Veteran's left knee disability aggravated (worsened) by her service-connected bilateral foot disability? Why or why not? (e) Is the Veteran's right knee disability caused by her service-connected bilateral foot disability? Why or why not? (f) Is the Veteran's right knee disability aggravated (worsened) by her service-connected bilateral foot disability? Why or why not? (g) Is the Veteran's left ankle disability caused by her service-connected bilateral foot disability? Why or why not? (h) Is the Veteran's left ankle disability aggravated (worsened) by her service-connected bilateral foot disability? Why or why not? (i) Is the Veteran's right ankle disability caused by her service-connected bilateral foot disability? Why or why not? (j) Is the Veteran's right ankle disability aggravated (worsened) by her service-connected bilateral foot disability? Why or why not? The examiner is informed that: Consideration must be given to the Veteran's lay statements. Consideration must be given to the diagnosis of rheumatoid arthritis. Pain alone may constitute a disability; therefore, even in the absence of a formal diagnosis pertaining to any of the knees or ankles, an opinion is still required. A positive opinion finding a nexus to service (or between a service-connected disability and nonservice-connected disability) does not require certainty. Rather, if the weight of the evidence is in approximate balance for and against a nexus, the examiner should make a finding favorable to the Veteran. A complete rationale for each opinion is required. If the examiner is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 6. Following completion of steps 1 through 3, obtain the appropriate examination(s) and opinions to determine whether compensation under 38 U.S.C. § 1151 is warranted for a miscarriage. The examiner must obtain from the Veteran and record in the examination report all relevant medical history, to include the onset and continuity of any symptoms. Following a review of the record and with consideration of the Veteran's statements, the examiner is requested to provide the following opinions: (a) Did the Veteran incur an additional disability as a result of her miscarriage? Why or why not? The Board notes the Veteran is claiming she has PTSD as a result of her miscarriage. However, in obtaining medical opinions, consideration must be given to any additional disability as a result of the 1995 miscarriage. (b) If additional disability exists, is the proximate cause of such disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA? Why or why not? In providing a response to (b), the examiner must discuss if VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider. (c) If additional disability exists, was that disability due to an event reasonably foreseeable? Why or why not? In providing the above opinions, the examiner must cite to the relevant evidence of record. Citation to accepted medical literature, principles, and procedures would be of great assistance to the Board. The examiner is informed that a positive opinion does not require certainty. Rather, if the evidence is in approximate balance both for and against a positive opinion, the examiner should provide an opinion in favor of the Veteran. A complete rationale for each opinion is required. If the examiner is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.