Citation Nr: 22013723 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 18-41 870 DATE: March 10, 2022 REMANDED Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1999 to March 2002 and from September 2003 to July 2013. On appeal is a March 2015 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO) that, as relevant here, denied service connection for a left shoulder disorder, right shoulder disorder, and sleep apnea. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in November 2021. A transcript of that hearing has been associated with the claims file. This matter is now before the Board of Veterans' Appeals (Board) for appellate review. 1. Entitlement to service connection for a left shoulder disorder is remanded. 2. Entitlement to service connection for a right shoulder disorder is remanded. The Veteran seeks service connection for a left shoulder disorder and a right shoulder disorder, to include as secondary to his service-connected neck disability. The Veteran's DD-214 reflects he served as a combat infantryman. Service treatment records include a March 2011 Physical Profile for conditions that included shoulder pain. The Veteran testified at the Board hearing that his shoulders have been bothering him since service, "almost every morning when I wake up." Accordingly, the Board finds that the low threshold for obtaining a VA examination regarding the Veteran's claimed disabilities has been satisfied and the claims should be remanded for a VA examination and opinion addressing the etiology of any current left and right shoulder disabilities. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for sleep apnea is remanded. The Veteran seeks service connection for sleep apnea, to include as secondary to his service-connected posttraumatic stress disorder (PTSD) or traumatic brain injury (TBI). The Board acknowledges that a VA examination for sleep apnea was conducted in March 2015. Although the examiner noted a January 2014 diagnosis of sleep apnea, the examiner did not provide a nexus opinion, noting in the remarks section that there was "no evidence of sleep apnea in service." As such, the Board finds the March 2015 VA examination to be inadequate. First, a nexus opinion was not provided, and second, the acknowledged January 2014 diagnosis of sleep apnea was within 6 months of the Veteran's discharge from service in July 2013, a fact that should be considered by an examiner when formulating a nexus opinion. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). On remand, a new VA examination for sleep apnea must be obtained, and it must also include consideration of whether the claimed sleep apnea is secondary to the Veteran's service-connected PTSD or TBI. The matters are REMANDED for the following action: 1. After any necessary releases are obtained, obtain any outstanding service treatment records, as well as any outstanding VA and private treatment records pertinent to the claims on appeal. In particular, the Veteran testified at the Board hearing in this matter that there was a 2010 sleep study conducted while he was in service. Efforts should be made to obtain this sleep study and associate it with the Veteran's file. 2. Schedule the Veteran for a VA examination to address the nature and etiology of his claimed left and right shoulder disabilities. The claims file, to include a copy of this remand, should be reviewed by the examiner in connection with the examination. All relevant tests and studies should be accomplished. The examiner should respond to the following: (a) Identify each left and right shoulder disability diagnosed during the appeal period, to include any functional impairment caused by pain. (b) For each disability, is it at least as likely as not (50 percent or greater probability) that the disability had its onset in service, within one year of service separation, or is otherwise related to the Veteran's period of active service? (c) For each disability, is it at least as likely as not (50 percent or greater probability) that the disability was caused by the Veteran's service-connected neck disability? (d) For each disability, is it at least as likely as not (50 percent or greater probability) that the disability was aggravated by the Veteran's service-connected neck disability? The Board notes that the Veteran is competent to report shoulder pain, when he began experiencing such pain, and any related functional impairment. The examiner must discuss the Veteran's contentions regarding the in-service onset and continuity thereafter of his bilateral shoulder pain, as well as the March 2011 in-service profile for shoulder pain. 3. Schedule the Veteran for a VA examination to address the nature and etiology of his claimed sleep apnea. The claims file, to include a copy of this remand, should be reviewed by the examiner in connection with the examination. All relevant tests and studies should be accomplished. The examiner should respond to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the claimed sleep apnea had its onset in or is otherwise related to the Veteran's period of active service? (b) Is it at least as likely as not (50 percent or greater probability) that the claimed sleep apnea was caused by the Veteran's service-connected PTSD or TBI? (c) Is it at least as likely as not (50 percent or greater probability) that the claimed sleep apnea was aggravated by the Veteran's service-connected PTSD or TBI? In formulating each requested nexus opinion, the examiner must consider and discuss the Veteran's January 2014 diagnosis of sleep apnea, which diagnosis was within 6 months of the Veteran's discharge from service in July 2013. The examiner must also discuss the Veteran's testimony at his November 2021 hearing that he first developed sleep problems in service that have continued since that time and that he was sent for a sleep study in 2010 while he was still on active duty. The examiner should provide a rationale for all opinions expressed. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bess, T. 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.