Citation Nr: 22017828 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 18-50 247 DATE: March 26, 2022 REMANDED Entitlement to service connection for a recurrent right leg disability is remanded. Entitlement to service connection for a recurrent sleep disability, to include obstructive sleep apnea, is remanded. REASONS FOR REMAND The Veteran had active service from February 2002 to April 2006 and from October 2006 to November 2007. He served in Iraq and was awarded the Combat Action Badge. In August 2019, the Board of Veterans' Appeals (Board) denied service connection for a right leg disability, obstructive sleep apnea, migraine headaches, and a respiratory disability and an increased rating for the lumbar spine degenerative disc disease. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In March 2021, the Court vacated those portions of the August 2019 Board decision which denied service connection for a right leg disability and obstructive sleep apnea and remanded the issues to the Board for further action consistent with its decision. 1. Entitlement to service connection for a recurrent right leg disability is remanded. In its November 2021 Remand instructions, the Board requested that the Veteran be afforded a Department of Veterans Affairs (VA) lower extremity evaluation. The examiner was directed to opine, "if the Veteran does not have a right leg condition" as to "the likely explanation for his past reports of numbness and tingling in his right leg." A January 2022 VA evaluation states that "there is a lack of objective medical evidence noted in the available medical records to confirm or support a diagnosis for a chronic right leg condition" and "unable to confirm a current chronic diagnosis or an etiology for the reported right leg condition with the current available records." The nurse practitioner conveyed further that: "the available documentation does not note an explanation for the reported numbness and tingling in the right leg, nor does that available documentation provide a diagnosis for the reported right leg condition;" "there are a wide variety of conditions that can cause numbness and tingling in the lower extremities;" and "without sufficient objective medical and/or diagnostic evidence regarding the right leg numbness and tingling, providing an explanation for the reported right leg numbness and tingling would be based strictly on mere speculation." The Board observes that the phrase "on mere speculation" should indicate the limitations of knowledge in the medical community at large and not those of a particular examiner." Jones v. Shinseki, 23 Vet. App. 382 (2010). The opinion in the January 2022 VA evaluation expresses the examiner's limitations. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtain an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Board finds that further VA right lower extremity is needed. 2. Entitlement to service connection for a recurrent sleep disability, to include obstructive sleep apnea, is remanded. In its November 2021 Remand instructions, the Board requested that the Veteran be afforded a Department of Veterans Affairs (VA) sleep apnea evaluation. The examiner was directed to opine whether "it is at least as likely as not that the Veteran's sleep apnea was caused or aggravated by any of the Veteran's service connected disabilities, to include traumatic brain injury and anxiety disorder with alcohol use disorder" and "if the Veteran's sleep apnea is unrelated to his military service, or to any service-connected disability" as to the "likely etiology" of the disability. A January 2022 VA evaluation states that the examiner concluded that "the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The nurse practitioner commented that: "no chronic diagnosis is made for sleep apnea while on active duty;" "symptoms are subjective only;" "there is no objective medical evidence noted in the available medical records to support or confirm a link between the Veteran's current diagnosis of obstructive sleep apnea and the Veteran's time on active duty;" "the Veteran is deemed competent to provide a history of his symptoms;" "the lay/buddy statements regarding the Veteran's symptoms were also reviewed and considered;" "however, the Veteran is not capable of diagnosing the medical condition related to those symptoms;" and "a nexus has not been established." She opined further that "the conditions of sleep apnea and of any of the Veteran's service-connected disabilities, to include traumatic brain injury and anxiety disorder with alcohol use disorder are not medically related;" the sleep apnea is a separate entity entirely from any of the Veteran's service-connected disabilities, to include traumatic brain injury and anxiety disorder with alcohol use disorder and unrelated to it;" "a thorough review of medical literature failed to demonstrate a causal relationship;" "the available scientific and objective medical evidence does not support a conclusion that obstructive sleep apnea is associated with any of the Veteran's service-connected disabilities, to include traumatic brain injury and anxiety disorder with alcohol use disorder;" "there is no established causal link for obstructive sleep apnea due to or the result of any of the Veteran's service-connected disabilities, to include traumatic brain injury and anxiety disorder with alcohol use disorder." The examiner did not address whether the diagnosed obstructive sleep apnea was aggravated by the traumatic brain injury residuals, the psychiatric disability, and the other service connected disabilities. The Agency of Original Jurisdiction's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Clinical documentation dated after January 2022 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated any right leg and sleep disability. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain any VA treatment records not of record, to include those pertaining to treatment after January 2022. 3. Schedule the Veteran for a VA lower extremity examination conducted by a medical doctor to assist in determining the nature and etiology of any identified right leg disability and any relationship to active service and the service connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Identify all right leg disabilities found. If a recurrent right leg disability is not diagnosed, the examiner should state whether the reported recurrent right leg symptoms alone constitute a diagnosable condition. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent right leg disability had its onset during active service or is related to any incident of service, including the Veteran's service in Iraq. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent right leg disability is due to or caused by posttraumatic stress disorder (PTSD)with alcohol use disorder and traumatic brain injury residuals and the other service connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified recurrent right leg disability has been aggravated (increased in severity beyond the natural progress of the disorder) by PTSD with alcohol use disorder and traumatic brain injury residuals and the other service connected disabilities. 4. Schedule the Veteran for a VA sleep apnea examination conducted by a medical doctor to assist in determining etiology of the diagnosed obstructive sleep apnea disability and any relationship to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all sleep disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that the diagnosed obstructive sleep apnea had its onset during active service or is related to any incident of service, including the Veteran's service in Iraq. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that the diagnosed obstructive sleep apnea is due to or caused by PTSD with alcohol use disorder and traumatic brain injury residuals and the other service connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that the diagnosed obstructive sleep apnea has been aggravated (increased in severity beyond the natural progress of the disorder) by PTSD with alcohol use disorder and traumatic brain injury residuals and the other service connected disabilities. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Casula 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.