Citation Nr: 22018784 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 18-34 857 DATE: March 30, 2022 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a back condition is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for dyspepsia is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) from June 1989 to August 1989, and on active duty from October 1990 to June 1991. His military personnel records reflect that he was ordered to active duty in support of Operation Desert Shield/Storm and served in Southwest Asia from November 30, 1990, to May 4, 1991. In January 2020, he testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. This matter was most recently before the Board in July 2021, at which time the issues were remanded for additional development. There has not been substantial compliance with the remand directives and the claim must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for sleep apnea is remanded. In July 2021 the Board found, in part, that the September 2020 VA opinion was inadequate as to whether the sleep apnea was secondary to the Veteran's service-connected posttraumatic stress disorder (PTSD) because there was no discussion of the effect of the PTSD symptoms. The claim must be remanded again because the October 2021 VA opinion is inadequate. The examiner offered a negative opinion, because the Veteran's medical records do not show support that the sleep apnea incurred in or related to service, to include exposure to environmental toxins and other chemicals while working as a petroleum supply specialist during service. The examiner then concluded that the sleep apnea was not aggravated beyond its natural progression by the Veteran's service-connected disabilities. That portion of the opinion is inadequate because "beyond the natural progression" is the improper standard and in-service aggravation is not the question. The claim must be remanded to obtain an adequate medical opinion. 2. Entitlement to service connection for a back condition is remanded. The Board previously remanded the claim to obtain a nexus opinion that considered the Veteran's lay statements. The October 2021 VA opinion obtained on remand is inadequate and the claim must be remanded again. The examiner offered a negative opinion, noting there no was no pathology to render a diagnosis and review of the medical records does not show claimed back condition incurred in or related to the Veteran's service. The opinion is inadequate because the examiner did not comment on the prior diagnoses or adequately discuss the Veteran's lay statements attesting to back pain in service due to the physical rigors, despite the fact that there is no documented treatment in service. 3. Entitlement to service connection for GERD is remanded. 4. Entitlement to service connection for dyspepsia is remanded. The Board previously remanded the claims to obtain a medical opinion that considered whether the claimed disabilities were related to in-service exposure to various toxic chemicals while working as a petroleum supply specialist and/or to medications used to treat the Veteran's service-connected PTSD. The claims must be remanded again because the October 2021 VA opinion is inadequate. The examiner diagnosed GERD but said there was no objective evidence of dyspepsia. The examiner then offered a negative opinion as to whether the GERD was caused by the service-connected disabilities. The opinion is inadequate because the examiner did not comment on the prior diagnoses of dyspepsia, address whether the claimed disabilities were directly related to service or consider aggravation. 5. Entitlement to service connection for headaches is remanded. The claim must be remanded again because the October 2021 VA opinion is inadequate. The examiner offered a negative opinion on direct service connection but discussed only the specific aspect of claimed toxic exposures; there was no opinion as to whether the headaches could otherwise be directly related to service. The examiner did not consider the Veteran's statements that he self-medicated for headaches in service with over-the-counter medication like Tylenol. 6. Entitlement to service connection for erectile dysfunction is remanded. The claim must be remanded again because the October 2021 VA opinion is inadequate. The examiner diagnosed erectile dysfunction but offered negative opinions as to direct and secondary service connection. Finally, the examiner found that the Veteran's erectile dysfunction was not at least as likely as not to aggravated beyond its natural progression by PTSD and unspecified depressive disorder with substance abuse. The rational provided was that there was no evidence showing an increase of symptoms during service to be considered an aggravation. The examiner did not include adequate rationale for any aspect of the opinion. The cited rationale for direct service connection was to support the finding that the Veteran's erectile dysfunction was not directly related to service was stated in a conclusory manner, noting only that medical notes or literature did not support this etiology. The rationale for secondary service connection was inadequate because the examiner used the incorrect legal standard and improperly considered in-service aggravation, rather that secondary service connection. 7. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. 8. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded The claims must be remanded again because the October 2021 VA opinion is inadequate. That examiner did not diagnose any lower extremity peripheral neuropathy, but did note the Veteran's report of intermittent pain, paresthesias and/or dysesthesias. In subsequent medical opinions, the examiner found that it was less likely than not that the Veteran's lower extremity neuropathies were related to service-connected condition due to a lack of clinical evidence to support diagnosis. The examiner then offered inadequate opinions on secondary service connection, relying on the improper standard of aggravation. In providing the opinion, the examiner does not contemplate the prior diagnoses of bilateral lower extremity neuropathies, including reported positive electromyographic testing results, in finding that the Veteran did not have a lower extremity neuropathy disability. The opinion on remand must consider whether the disabilities diagnosed during the appeal period, are related to the service-connected disabilities. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from April 2021 to the present. 2. After completion of the above, obtain a medical opinion on the nature and likely etiology of the Veteran's obstructive sleep apnea. If the examiner determines that an opinion cannot be provided without an examination then one should be scheduled (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). Copies of all pertinent records must be made available to the examiner for review. The clinician should answer the following questions: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea had its onset during service or is otherwise related to active duty service, to include his conceded exposures to environmental toxins and other chemicals while working as a petroleum supply specialist, or to his documented history of difficulty maintaining military weight standards while in service? (b) Is it at least as likely as not (50 percent probability or greater) that obstructive sleep apnea was caused or aggravated (defined as any increase in disability) by the Veteran's service-connected disabilities, to include the medication used to treat the disabilities? The examiner is informed that aggravation here is not limited to aggravation during service. A complete rationale must be included for all opinions offered. 3. Schedule the Veteran for an examination (or telehealth interviews, review of the records, etc., if in-person examinations are not feasible) by an appropriate clinician to determine the nature and etiology of any back disability. Copies of all pertinent records must be made available to the examiner for review. The examiner should answer the following: Is it at least as likely as not (i.e., probability of 50 percent or greater) that any currently diagnosed back disability had its onset during service or is otherwise related to active duty service? The examiner should provide a complete rationale for any opinion provided and should specifically comment on the Veteran's lay statements concerning the onset and progression of his low back problems, including the intermittent low back problems since service. 4. Schedule the Veteran for an examination (or telehealth interviews, review of the records, etc., if in-person examinations are not feasible) by an appropriate clinician to determine the nature and etiology of the Veteran's GERD and dyspepsia. Copies of all pertinent records must be made available to the examiner for review. The clinician should answer the following questions: (a) identify all diagnosed gastrointestinal disabilities, to include GERD and dyspepsia, since 2016. (b) Is it at least as likely as not (50 percent probability or greater) that any GERD or dyspepsia diagnosed since 2016 had its onset during service or is otherwise related to active duty service, to include the Veteran's conceded exposures to environmental toxins and other chemicals while working as a petroleum supply specialist, or to his documented history of difficulty maintaining military weight standards while in service? In so doing, the examiner must specifically comment on and reconcile, if necessary, the findings of diagnoses in the record. (c) Is it at least as likely as not (50 percent probability or greater) any GERD or dyspepsia diagnosed since 2016 was caused or aggravated (defined as any increase in disability) by the Veteran's service-connected disabilities, to include the medication used to treat the disabilities? Aggravation here defined as any increase in disability; not whether there was an increase DURING service. A complete rationale must be provided for all opinions. 5. Obtain an opinion from an appropriate clinician on the likely etiology of the Veteran's headaches. Copies of all pertinent records must be made available to the examiner for review. If the examiner determines that an addendum opinion cannot be provided without an examination, the Veteran should be scheduled for an appropriate examination (or telehealth interviews, review of the records, etc., if in-person examinations are not feasible). The examiner must answer the following: Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's headaches had onset during service or is otherwise related to active duty service? The examiner should provide a complete rationale for any opinion provided and should specifically comment on the Veteran's lay statements concerning the onset and progression of his headache symptoms. 6. Obtain an addendum opinion from an appropriate clinician on the likely etiology of the Veteran's erectile dysfunction. Copies of all pertinent records must be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination then one should be scheduled (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). Following review of the record, the clinician should answer the following questions: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's erectile dysfunction had its onset during service or is otherwise related to active duty service, to include his conceded exposures to environmental toxins and other chemicals while working as a petroleum supply specialist, or to his documented history of difficulty maintaining military weight standards while in service? (b) Is it at least as likely as not (50 percent probability or greater) that erectile dysfunction was caused or aggravated (defined as any increase in disability) by the Veteran's service-connected disabilities, to include the medication used to treat the disabilities? Aggravation here defined as any increase in disability; not whether there was an increase DURING service. A complete rationale must be provided for all opinions. 7. Schedule the Veteran for an examination (or telehealth interviews, review of the records, etc., if in-person examinations are not feasible) by an appropriate clinician to determine the nature and etiology of the Veteran's bilateral lower extremity peripheral neuropathy. Copies of all pertinent records must be made available to the examiner for review. The clinician should answer the following questions: Is it at least as likely as not (50 percent probability or greater) that bilateral lower extremity peripheral neuropathy was caused or aggravated (defined as any increase in disability) by the Veteran's service-connected disabilities, to include the medication used to treat the disabilities and the substance abuse stemming from the Veteran's service-connected PTSD? Aggravation here defined as any increase in disability; not whether there was an increase DURING service. If there is a finding of no diagnosis, the examiner must specifically comment on and reconcile, if necessary, the findings of diagnoses in the record. A complete rationale must be provided for all opinions. 8. Confirm that the VA medical opinions provided above comport with this remand, specifically that the standard for the secondary aggravation opinions is any increase in disability, not the standard of beyond the natural progression or whether there was any increase in disability DURING service. If not, get an addendum opinion that corrects this error. M.E. LARKIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert J. Burriesci, 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.