Citation Nr: 22013683 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 18-16 410 DATE: March 10, 2022 REMANDED Entitlement to service connection for left shoulder strain is remanded. Entitlement to service connection for right shoulder strain is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 2001 to August 2008. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019 and September 2020, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal has since returned to the Board. In September and December 2020 decisions, the Board denied entitlement to service connection for left shoulder strain, right shoulder strain, and OSA disabilities. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an August 2021 Joint Motion for Partial Remand (JMPR) and an October 2021 Joint Motion for Remand (JMR), the parties agreed to remand these issues for further action consistent with the parties' agreements. The appeal has since returned to the Board. 1. Entitlement to service connection for left shoulder strain is remanded. 2. Entitlement to service connection for right shoulder strain is remanded. In an August 2021 JPMR, the parties agreed that the Board had erred by failing to obtain a VA examination report that substantially complies with the April 2019 remand from the Board and that complied with the duty to assist. The August 2021 JMPR detailed that the April 2019 Board remand instructed the December 2019 VA examiner to elicit a description of the Veteran's military occupation specialty (MOS) requirements and how the Veteran believes that these requirements impacted his disabilities. However, the examiner failed to elicit the information. Further, the parties agreed that the December 2019 VA examiner failed to adequately address the Veteran's lay statements concerning his MOS and parachuting activities in determining whether his disabilities are related to service. Lastly, the parties determined that the Board should ensure that all of the Veteran's service records are associated with the record. Based on the aforementioned, the Board finds that further development is warranted. 3. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. In an October 2021 JMR, the parties agreed that the Board erred by not ensuring compliance with its duty to assist through failing to obtain an adequate VA examination for rating purposes. Specifically, the parties agreed that the September 2020 VA opinion was inadequate due to internal inconsistencies within the VA examiner's report regarding whether or not the Veteran's reported symptom of frequent awakenings, morning headaches, and daytime lethargy are consistent with a diagnosis for sleep apnea. Secondly, the September 2020 VA examiner failed to adequately address, and reconcile the opinions expressed with, lay testimony supporting that the Veteran snored every night and would stop breathing during the night. Lay statements also indicated that the dust from the soil around the bases coupled with the burn pits blowing over the FOB seemed to make the Veteran's snoring worse. Moreover, the parties agreed that remand is required to obtain a medical opinion addressing whether the Veteran's sleep apnea is more likely than not caused by his environmental exposures in service. Additionally, the parties agreed that remand is warranted to ensure that VA has undertaken all required efforts to locate any outstanding service treatment records (STRs) and associate those STRs with the file. Specifically, the parties noted that the record does not contain a completed Post-Deployment Health Assessment form from the Veteran's deployment to Afghanistan and a Report of Medical Assessment or Report of Medical Examination with regard to the Veteran's separation. Based on the aforementioned, further development is warranted. The matters are REMANDED for the following action: 1. Make efforts to obtain any outstanding service treatment records to include a completed Post-Deployment Health Assessment form from the Veteran's deployment to Afghanistan and a Report of Medical Assessment or Report of Medical Examination with regard to the Veteran's separation. All attempts to find such records must be documented. 2. Schedule an examination in order for the examiner to elicit a description of the Veteran's military occupation specialty (MOS) requirements and how the Veteran believes that these requirements impacted his bilateral shoulder disabilities. The clinician is asked to opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's bilateral shoulder disabilities are related to his active duty service, to include as due to the activities required by the Veteran's MOS? The examiner should consider and discuss the Veteran's statement alleging that his bilateral shoulder disabilities began in service and has continued ever since, on the basis of his parachutist duties. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 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 it is to find against it. Note that the lack of documented treatment in service, or a long period after, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination. 3. Obtain an addendum opinion as to the nature and etiology of the Veteran's OSA disability. The clinician is asked to opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's OSA is related to his active duty service, to include as due to his environmental exposures to dust from the soil around the bases and burn pits? The examiner should consider and discuss the lay statements of record alleging that the Veteran snored every night and would stop breathing during the night. His snoring would worsen with exposure to dust from the soil around the bases coupled with burn pits blowing over the FOB on a daily basis. See VBMS document labeled VA 21-4138 Statement in Support of Claim receipt date 3/8/2019. The examiner is also asked to determine whether frequent awakenings, morning headaches, and daytime lethargy are consistent with a diagnosis for sleep apnea. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 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 it is to find against it. Note that the lack of documented treatment in service, or a long period after, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, 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.