Citation Nr: 22014875 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 11-23 195 DATE: March 15, 2022 ORDER Service connection for headaches as due to lumbar stenosis and left leg radiculopathy is granted. Service connection for a right shoulder disorder as due to lumbar stenosis and left leg radiculopathy is granted. Service connection for a left leg condition is denied. REMANDED Service connection for a sleep disorder, to include obstructive sleep apnea (OSA) and a disability manifested by interrupted sleep is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period before September 16, 2020, is remanded. FINDINGS OF FACT 1. The evidence persuasively shows that the Veteran's headaches and right shoulder condition are due to falls sustained as a result of his service connected lower back and left leg disabilities. 2. The evidence does not persuasively show that the Veteran has a left leg disability other than his service connected radiculopathy. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches and a right shoulder disability are met. 38 U.S.C. §§ 1110, 1157; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for service connection for a left leg disability are not met. 38 U.S.C. §§ 1110, 1157; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1978 to March 1978. In his July 2018 Appeal to the Board of Veterans' Appeals, Form 9, the Veteran requested a hearing before a Veterans' Law Judge. However, in November 2020, he submitted a statement indicating that he wished to withdraw his request for a hearing. As such, the Board deems his request for a hearing withdrawn. 38 C.F.R. § 20.704 (e). Additionally, in regard to his claim for a sleep disorder the Veteran testified before a Veterans Law Judge (VLJ) in a video-conference hearing in February 2015. A transcript of the hearing is of record. The VLJ who conducted the February 2015 hearing has retired from the Board. The law requires that the VLJ who conducted a hearing shall participate in making the final determination of the claim. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. In a September 2021 letter, the Veteran was given the opportunity to request another Board hearing. He was advised that if he did not respond within 30 days, the Board would assume that he did not want a hearing. The Veteran has not responded to the letter and another Board hearing is not warranted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Headaches Right Shoulder In this matter, the Veteran has stated that his headaches and right shoulder condition are due to falls he sustained as a result of his service connected lumbar spine and left leg radiculopathy. The Board concurs. The Veteran's VA medical records show a documented history of falls as a result of the Veteran's lumbar spine disability and his left leg numbness. See, in part, September 2012, April 2014, August 2014, November 2014, February 2017, and September 2021 VA medical records. Indeed, the November 2014 VA medical record reported that the Veteran's falls were consistent with acute radicular pain and weakness in the L2-4 and diagnosed the Veteran with headaches and right upper extremity pain. The Veteran underwent VA examinations in December 2021 and the examiner specifically related the Veteran's headaches and right shoulder disorder to falls. The Board additionally notes that the Veteran's left shoulder disability was service connected due to injury sustained after a fall caused by the Veteran's back and left leg service connected disabilities. As such, the Board finds that service connection for the Veteran's headaches and right shoulder disorder as due to falls caused by his low back and left lower extremity radiculopathy is warranted. Left Leg Condition The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. After review of the record, the Board cannot find that the Veteran has been diagnosed with a left leg disability other than his service connected left leg radiculopathy. A December 2021 VA examination also did not find a left leg disability other than his service connected radiculopathy and showed that the Veteran reported his only left leg disability was his service connected condition. As such, the Board concludes that the Veteran does not have a current diagnosis of a left leg disability other than his service connected left leg radiculopathy or such left leg pain and functional limitation separate from his left leg radiculopathy, and has not had one at any time during the pendency of the claims or recent to the filing of the claims. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The evidence does not persuasively show that the Veteran has a left leg disability other than his service connected left leg radiculopathy. Thus, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Sleep Disorder As previously noted, the Veteran has stated that his diagnosed sleep apnea and his sleep are aggravated by his service connected posttraumatic stress disorder (PTSD). A December 2021 VA examination did not find such a link. However, that examination did not note or consider the medical journal article submitted by the Veteran in May 2019 which discussed such a link. As such, the December 2021 VA medical opinion is inadequate for adjudication purposes and a new examination opinion is warranted. TDIU prior to September 16, 2020 The Board finds that the claim of entitlement to TDIU is inextricably intertwined with the grants of service connection contained in this Decision and the remand of the remaining claim for service connection. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, remand is proper until effective dates and disability ratings have been assigned and the Veteran's claim for service connection for a sleep disorder has been adjudicated. The matters are REMANDED for the following action: Obtain a VA examination opinion, by a physician who has not previously examined the Veteran, to determine the nature and etiology of his sleep apnea and any other diagnosed sleep disorder. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner should indicate in his/her report whether or not such was reviewed. All necessary tests and studies should be accomplished. The examiner must opine whether the Veteran's sleep apnea and any other diagnosed sleep disorder are at least as likely as not (50 percent or greater probability) proximately due to or aggravated beyond its natural progression by any of the Veteran's service connected PTSD. The examiner must specifically review the medical journal article submitted by the Veteran in May 2019 and note such review in the examination opinion. The lay assertions of record regarding onset and continuity of symptomatology, including the February 2015 hearing testimony as well as the May 2015 statement from the Veteran's wife, should be recorded and considered. A rationale for all opinions must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish 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.