Citation Nr: 22011000 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 18-01 027 DATE: February 25, 2022 ORDER Service connection for irritable bowel syndrome (IBS) is dismissed. Service connection for insomnia is dismissed. Entitlement to a disability rating greater than 40 percent for a lumbar spine disability is dismissed. Entitlement to an earlier effective date than October 5, 2016 for the increased rating of 40 percent for a lumbar spine disability is dismissed. Entitlement to a disability rating greater than 20 percent for a cervical spine disability is dismissed. Entitlement to an earlier effective date than October 5, 2016 for the increased rating of 20 percent for a cervical spine disability is dismissed. Entitlement to a disability rating greater than 40 percent for right upper extremity radiculopathy is dismissed. Entitlement to an earlier effective date than October 5, 2016 for the increased rating of 40 percent for right upper extremity radiculopathy is dismissed. Entitlement to a disability rating greater than 30 percent for left upper extremity radiculopathy is dismissed. Entitlement to an earlier effective date than October 5, 2016 for the increased rating of 30 percent for left upper extremity radiculopathy is dismissed. Entitlement to an initial disability rating greater than 10 percent for left lower extremity radiculopathy is dismissed. Entitlement to an earlier effective date than October 5, 2016 for the grant of service connection for left lower extremity radiculopathy is dismissed. Entitlement to an initial compensable rating for a neck surgical scar is dismissed. Entitlement to an earlier effective date than October 5, 2016 for the assignment of a separate rating for a neck surgical scar is dismissed. Entitlement to a disability rating greater than 10 percent for gastritis with gastroesophageal reflux disease (GERD) is dismissed. Entitlement to a compensable disability rating for bilateral hearing loss is dismissed. Entitlement to a disability rating greater than 10 percent prior to November 14, 2017 and greater than 20 percent thereafter for right lower extremity radiculopathy is dismissed. Entitlement to an earlier effective date than October 5, 2016 for the grant of service connection for right lower extremity radiculopathy is dismissed. REMANDED Service connection for sinusitis is remanded. Service connection for an autoimmune condition (claimed as fibromyalgia) is remanded. Service connection for a respiratory disability, to include reactive airway disease (claimed as breathing issues), is remanded. Service connection for obstructive sleep apnea (OSA) is remanded. FINDING OF FACT During the October 2021 Board hearing, the Veteran and his attorney expressly withdrew all appellate issues listed in the Order above. CONCLUSION OF LAW The criteria for the withdrawal of the appellate issues listed in the Order above have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1978 to July 1998. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during an October 2021 Board hearing and a transcript is of record. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by an authorized representative. Id. Here, during the October 2021 Board hearing, the Veteran and his attorney expressly withdrew all appellate issues listed in the Order above. The issues being withdrawn were clearly identified at the hearing, and the Veteran and his attorney affirmed their intention to withdraw the issues listed in the Order above. As there remain no allegations of errors of fact or law for appellate consideration regarding those issues, they are dismissed. REASONS FOR REMAND Initially, the Veteran characterized the respiratory disability claim on appeal as one for breathing issues. Upon review of the evidence, the Board rephrased the claim as service connection for a respiratory disability, to include reactive airway disease (claimed as breathing issues). See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The service connection claims for sinusitis, an autoimmune condition, a respiratory disability, and OSA are remanded for the following development. VA treatment records (all claims): During the Board hearing, the Veteran reported medical care at a VA facility in Georgia. However, no VA treatment records from that facility are of record. On remand, the AOJ must associate them with the file. Moreover, during the Board hearing, the Veteran testified that an unspecified VA provider opined that he suffered vagus nerve complications from a May 2014 surgery for his service-connected cervical spine disability. He also stated that this provider suggested that the disabilities at issue in this remand are secondary to that reported surgical complication. However, the only medical evidence of record noting the presence of a vagus nerve condition was an October 2016 private medical evaluation and opinion by Dr. E. regarding the withdrawn / dismissed service connection claim for IBS. It is unclear what medical evidence Dr. E. relied on to make that finding because the VA and private treatment records currently of record do not reference a vagus nerve condition. See also November 2017 VA medical opinion (observing the same). On remand, the RO must ask the Veteran to identify the VA medical facility where his provider reportedly linked the conditions at issue in this remand to his 2014 cervical spine surgery, as these records may substantiate this secondary service connection theory. Private treatment records: Regarding the autoimmune condition claim, the Veteran testified during the Board hearing that an unspecified rheumatologist diagnosed him with fibromyalgia after ruling out suspected lupus. It is unclear if the Veteran was referring to a VA or non-VA rheumatologist, and there are no rheumatology (or any other) medical records in the file competently diagnosing a current autoimmune condition or fibromyalgia. The RO should attempt to obtain authorization and request any identified non-VA / private medical records relevant to this claim. Moreover, as discussed above, the Veteran testified during the Board hearing that he suffered vagus nerve complications from a 2014 surgery for his service-connected cervical spine disability, and he contended that the disabilities at issue in this remand are secondary to that alleged surgical complication. On remand, the Veteran may submit or identify any non-VA medical records that may substantiate this secondary service connection theory (including any that may show the presence of a vagus nerve issue / cervical spine surgery complication). The RO should attempt to obtain authorization and request any identified non-VA / private records. VA examination and medial opinions (OSA claim): The AOJ must obtain a VA examination and medical opinion to address whether the Veteran's current OSA is etiologically related to active service, considering his and his spouse's October 2021 Board testimony recalling his symptoms such as snoring and gasping for air during service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The examiner also must address the Veteran's suggestion during the Board hearing that inactivity due to his multiple service-connected disabilities caused or aggravated his obesity, which in turn was an intermediate step in the etiology of his OSA. See Walsh v. Wilkie, 32 Vet. App. 300, 306-07 (2020). VA addendum medical opinions (respiratory disability and sinusitis claims): In September 2017, the AOJ obtained VA examinations and medical opinions regarding both of these claims. However, both nexus opinions were inadequate because the rationales were conclusory and based on incomplete consideration of the Veteran's medical history. In the September 2017 sinusitis opinion, the VA examiner reasoned that "[n]o chronic [sinusitis] condition was found during service." Likewise, the September 2017 respiratory disability opinion reasoned that there was no chronic respiratory condition diagnosed in service, and his separation exam did not show any respiratory / breathing condition. However, in both opinions, the examiner failed to address whether several service treatment records (STRs) documenting respiratory issues, such as reoccurring coughing including at least one March 1998 note that diagnosed sinusitis very soon before separation may have indicated the onset of sinusitis or another respiratory condition during service. Moreover, in the sinusitis opinion, the VA examiner reasoned in part that the Veteran was diagnosed with chronic sinusitis in 2017, 19 years after discharge from service. However, private treatment records show ongoing, post-service respiratory complaints of coughing resuming as early as January 2004, just a few years after service. In addition, neither of the September 2017 VA medical opinions (regarding both the respiratory disability and sinusitis claims) addressed whether the Veteran's service-connected GERD may cause or aggravate his chronic cough, one of his main respiratory symptoms. See, e.g., April 2007 VA primary care note ("Pt reports that he has had dry cough for years...Pt reports that he has been [evaluated] for this but no real etiology was found except that it may be triggered by acid reflux from the stomach."); May 2007 VA gastroenterology note (noting pre-EGD diagnoses of chronic cough and GERD); February 2017 sinus and allergy clinic private treatment record (Veteran reported reflux medications helped his constant cough in the past). On remand, the AOJ must obtain addendum medical opinions to address this secondary service connection theory raised by the evidence of record. Regarding the respiratory disability claim, evidence of record references a history of childhood asthma. See September 2017 VA respiratory condition examination (history); see also May 1998 retirement report of medical history. Since this condition was not noted on entry, the presumption of soundness attaches. See February 1978 report of medical examination. Thus, if the VA examiner finds that the Veteran has a current diagnosis of asthma, then the examiner must address: (1) whether his asthma clearly and unmistakably preexisted active service; and (2) whether his asthma clearly and unmistakably was not aggravated by service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the answer to either of those questions is no, then the examiner must address whether the evidence is in approximate balance that the Veteran's asthma is etiologically related to service. The matters are REMANDED for the following action: 1. Send the Veteran and his representative a letter: (a.) requesting completed release forms that identify all relevant non-VA / private treatment records (e.g., those that may show a current autoimmune condition, claimed as fibromyalgia; or that may substantiate his contention that alleged vagus nerve complications from his May 2014 cervical spine surgery caused or aggravated his conditions at issue in this appeal); and (b.) asking the Veteran to identify the VA medical facility where a provider reportedly attributed his conditions at issue in this appeal to an alleged vagus nerve complication from his May 2014 cervical spine surgery. 2. Obtain and associate with the file all available VA treatment records from the following facilities: - VA Atlanta Health Care System and all associated outpatient clinics, including the Blairsville, GA VA Clinic; - any additional records from other VA facilities that the Veteran may identify in response to the letter sent per Step 1 above. 3. After obtaining completed releases from the Veteran, request all outstanding treatment records from any private / non-VA providers that he may identify in completed releases. Document all records requests and any negative responses. If any requested records are unavailable, then notify the Veteran and his representative and give them the opportunity to submit the records. 4. Do not proceed with the following instructions until completing all instructions above (to the extent possible). 5. Schedule a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran's current OSA. The examiner must answer the following questions, with full supporting rationales: (a.) Is the evidence in approximate balance (i.e., nearly equal) that the Veteran's current OSA is etiologically related to active service? Please expressly consider his and his spouse's October 2021 Board testimony (recalling symptoms his such as snoring and gasping for air during his sleep as early as 1990 or 1991, during service). (b.) Is the evidence in approximate balance (i.e., nearly equal) that the Veteran's service-connected disabilities (e.g., lumbar spine disability, bilateral upper and lower extremity radiculopathy, right shoulder disability, bilateral elbow disabilities, and left ankle disability) caused OR aggravated (worsened to any degree) his current obesity? Please consider his functional impairments due to these service-connected disabilities, such as limitations on his ability to exercise see, e.g., October 2021 Board hearing testimony. (c.) IF AND ONLY the examiner opines that the Veteran's service-connected disabilities caused OR aggravated his obesity, then the examiner must answer the following questions: i. Is the evidence in approximate balance (i.e., nearly equal) that the Veteran's obesity (which was caused OR aggravated by his service-connected disabilities) was a substantial factor in causing his current OSA? ii. Is the evidence in approximate balance (i.e., nearly equal) that that his current OSA would not have occurred, but for his obesity (which was caused OR aggravated by his service-connected disabilities)? The examiner must note his or her review of the complete claims file, including this remand. If any requested finding is not possible without speculation, then the examiner must explain why. 6. Forward the claims file to the September 2017 sinusitis VA examiner (or another examiner if that person is unavailable) for addendum medical opinions. The examiner must answer the following, with full rationales: (a.) Is the evidence in approximate balance (i.e., nearly equal) that the Veteran's current sinusitis is etiologically related to active service? Please expressly consider: several STRs documenting frequent complaints and treatment of respiratory issues such as reoccurring coughing, and at least one diagnosis of sinusitis soon before separation (see March 1998 STR); ongoing complaints of coughing continuing just a few years after service (see January-to-mid-2004 private treatment records). (b.) Is the evidence in approximate balance (i.e., nearly equal) that the Veteran's service-connected GERD caused OR aggravated (worsened to any degree) his sinusitis? Please expressly consider: April 2007 VA primary care note ("Pt reports that he has had dry cough for years...Pt reports that he has been [evaluated] for this but no real etiology was found except that it may be triggered by acid reflux from the stomach."); May 2007 VA gastroenterology note (noting pre-EGD diagnoses of chronic cough and GERD); February 2017 sinus and allergy clinic private treatment record (Veteran reported reflux medications helped his constant cough in the past). The examiner must note his or her review of the complete claims file, including this remand. If any requested finding is not possible without speculation, then the examiner must explain why. If the VA examiner cannot answer any of the above questions without another examination, then the RO must schedule one. 7. Forward the claims file to the September 2017 respiratory conditions VA examiner (or another examiner if that person is unavailable) for addendum medical opinions. The examiner must answer the following, with full rationales: (a.) List all current respiratory disabilities from 2016 through present. (b.) If the Veteran has a current diagnosis of asthma, please address whether that condition: (1) clearly and unmistakably preexisted service; AND (2) clearly and unmistakably was NOT aggravated by service. Please expressly consider his May 1998 retirement report of medical history (noting history of childhood asthma, no complications no sequelae) and several STRs documenting complaints and treatment of respiratory issues (e.g., reoccurring cough). If the answer to either of the above questions (b.)(1) or (2) is no, then the examiner must answer the following question in (c.) as to all current respiratory disabilities, including asthma. If the answer to both of the above questions is yes, then the examiner need not answer the following question in (c.) as to asthma only.* (c.) Is the evidence in approximate balance (i.e., nearly equal) that the Veteran's current respiratory disabilities are etiologically related to active service? *The examiner must answer this question as to all current respiratory disabilities other than asthma; see note in (b.) above specifying when the examiner should answer this question as to asthma. Please expressly consider: several STRs documenting frequent complaints and treatment of respiratory issues, including reoccurring coughing; ongoing complaints of coughing continuing just a few years after service (see January-to-mid-2004 private treatment records). (d.) Is the evidence in approximate balance (i.e., nearly equal) that the Veteran's service-connected GERD caused OR aggravated (worsened to any degree) any of his current respiratory disabilities? Please expressly consider: April 2007 VA primary care note ("Pt reports that he has had dry cough for years...Pt reports that he has been [evaluated] for this but no real etiology was found except that it may be triggered by acid reflux from the stomach."); May 2007 VA gastroenterology note (noting pre-EGD diagnoses of chronic cough and GERD); February 2017 sinus and allergy clinic private treatment record (Veteran reported reflux medications helped his constant cough in the past). The examiner must note his or her review of the complete claims file, including this remand. If any requested finding is not possible without speculation, then the examiner must explain why. If the VA examiner cannot answer any of the above questions without another examination, then the RO must schedule one. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Janofsky, 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.