Citation Nr: 23038121 Decision Date: 07/11/23 Archive Date: 07/11/23 DOCKET NO. 19-02 363 DATE: July 11, 2023 REMANDED Entitlement to an increase rating for status post fractured left elbow, currently rated as 20 percent disabling for limitation of flexion and as 20 percent disabling for limitation of extension, is remanded. Entitlement to a rating in excess of 20 percent for left ulnar neuropathy is remanded. Entitlement to service connection for bilateral hip disability is remanded. Entitlement to service connection for low back degenerative arthritis is remanded. Entitlement to service connection for right upper extremity radiculopathy is remanded. Entitlement to service connection for sleep apnea due to prescribed medications is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU), prior to January 4, 2022, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1977 to October 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned during a March 2020 hearing. In June 2020, the Board remanded the claim for additional development. Here, service connection is established for a left elbow disability. The condition is rated based on left elbow limitation of motion and ulnar nerve neuropathy. The Veteran's April 2016 claim sought an increased rating for "left arm paralysis." Interpreting this claim in the light most favorable to the Veteran, it encompasses assertions of increased disability due left elbow limitation of range of motion and neurological symptoms. Although the February 2017 rating decision and the Board's June 2020 remand identified only a claim for increased left arm neurological disability, the additional issue of entitlement to an increased rating for left elbow limitation of motion is now added to the claim. Medical evidence, including a June 2016 VA elbow conditions examination indicates the Veteran's left elbow disability impacts his ability to be employed. The issue of entitlement to a TDIU, prior to January 4, 2022 is raised by the record as part and parcel of the claim for an increased left elbow rating. This issue is now added to the claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A November 2020 rating decision allowed service connection for a dental disability. This represents a complete grant as to the benefit sought. The issue of entitlement to service connection for a dental condition is no longer in appellate status. 1. Entitlement to an increase rating for status post fractured left elbow, currently rated as 20 percent disabling for limitation of flexion and as 20 percent disabling for limitation of extension, is remanded. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. A VA elbow conditions examination was most recently provided in June 2016. The Veteran reported current symptoms including constant elbow pain and constant pain shooting down his arms and hands, severe limited range of motion in extension and in flexion, constant edema, decreased strength, sleep disturbance, stiffness, and numbness. His symptoms were aggravated with any movement and with weight bearing. The Veteran's report of aggravated symptoms with use indicates the left elbow condition is subject to flare ups. The Veteran completed initial range of motion testing with left elbow extension measured from 90 to 30 degrees and left elbow flexion measured from 30 to 90 degrees. He was unable to complete observed repetitive use testing. The examiner did not estimate range of motion with repeated use over time or during flare ups. He stated he was unable to provide these estimates without resorting to mere speculation. The examiner did not explain why he was unable to obtain information from the Veteran to support an estimate for his limitations during flare ups or with use over time. The examination does not provide the evaluation required under Sharp. It is inadequate to evaluate the claim. Id. 2. Entitlement to a rating in excess of 20 percent for left ulnar neuropathy is remanded. Where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Evaluation of the left elbow ulnar nerve disability is inextricably intertwined with evaluation of the left elbow limitation of motion disability. It must also be remanded. 3. Entitlement to service connection for bilateral hip disability is remanded. 4. Entitlement to service connection for low back degenerative arthritis is remanded. 5. Entitlement to service connection for right upper extremity radiculopathy is remanded. The Veteran seeks entitlement to service connection for bilateral hip, low back, and right upper extremity disabilities. The Board finds additional development is necessary regarding these claims. First, limited service treatment records from the Veteran's active service period (January 1977 to October 1991) are included in the claims file. There is no indication any service treatment records have been determined to be unavailable. Additional efforts to obtain all outstanding service treatment records are required. 38 C.F.R. § 3.159. Second, in March 2020, the Veteran testified that his bilateral hip replacement surgeries were performed by private medical treatment providers through a VA community care referral program. A July 2020 VA treatment record indicates bilateral hip surgeries and acupuncture treatments were provided through a community care program. VA community care records are not included in claims file. Outstanding VA treatment records, including records of private treatment provided through a VA program must be associated with the claims file. Id. Third, VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331(Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In June 2020, the Board remanded the Veteran's claims to obtain additional etiology opinions for his lumbar spine, bilateral hip, and upper right extremity disabilities. In March 2020, Veteran testified he experienced in-service hip strain, including strain related to marching. He also described overuse of his right side, including his right upper extremity due to his left elbow disability and general left side weakness. He also testified his hip condition resulted in an awkward gait. As a lay person, the Veteran is competent to describe his experience of observable symptoms including pain, weakness, altered gait, and other altered movements. In September 2020 multiple VA examinations were provided to evaluate these claims. The VA examiner opined the Veteran's low back disability was less likely than not directly caused by his active service. In support he noted, although the September 1991 separation examination indicated mild infrequent lumbar strain, there was no evidence of disabling back issues at the time of the separation examination. The examiner did not explain why the absence of symptoms on the day of the separation examination would eliminate any link between the present back disabilities and in-service lumbar strain. Moreover, there appear to be outstanding service treatment records which may more fully document in-service back treatment. Thus, it is not clear the examiner considered the Veteran's complete medical history in providing this opinion. The examiner opined bilateral hip disabilities were less likely than not directly caused by the Veteran's active service because there was no evidence of any disabling hip issue during active service or within in one year after the Veteran separated from service. He did not discuss or provide any reason for dismissing the Veteran's competent report of in-service hip strain (as described in his March 2020 testimony). Service treatment records documenting hip treatment may be outstanding. Accordingly, it is not clear that this opinion is based on the Veteran's complete medical history. The examiner also opined a right upper extremity disability was less likely directly caused by the Veteran's active service because no right upper extremity symptoms were present during active service. As there appear to be outstanding service treatment records, the examiner may not have considered the Veteran's complete medical history. The opinions as to direct service connection for lumbar spine, bilateral hip, and right upper extremity disabilities are inadequate to evaluate the claim. See Stefl, supra. The September 2020 examiner also evaluated the Veteran's claims seeking entitlement to service connection for lumbar spine, bilateral hip, and right upper extremity disabilities based on the theory of secondary service connection. He opined these disabilities were less likely than not caused by or aggravated by any service connected disabilities. In support he stated there were "absolutely no pathophysiological correlation(s)" between the service connected conditions and his claimed disabilities. No additional supporting rationale was provided. The examiner did not discuss the Veteran's competent testimony that his left side weakness resulted in overuse or out of balance use of his right side. The opinions as to secondary service connection are also inadequate to evaluate the claim. Id. 6. Entitlement to service connection for sleep apnea due to prescribed medications is remanded. The Veteran seeks entitlement to service connection for sleep apnea. Initially, he claimed the condition was caused by or aggravated by medications used to treat his service connected disabilities. A July 2020 rating decision granted entitlement to service connection for posttraumatic stress disorder (PTSD). In November 2021, he additionally asserted sleep apnea is secondary to his PTSD. He submitted medical literature describing a link between these conditions. The longstanding policy of the Department of Veterans Affairs (VA) is that obesity, per se, is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis, consistent with title 38, United States Code. Nevertheless, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis pursuant to 38 C.F.R. § 3.310. See VAOPGCPREC 1-2017. The Court of Appeals for Veterans Claims held that proper interpretation of VA General Counsel Opinion 1-07 requires consideration of both proximate causation and aggravation in its analytical framework. Walsh v. Wilkie, 32 Vet. App. 300 (2020). That is, (1) whether the service-connected disability caused the veteran to become obese or aggravated the veteran's obesity; if so, (2) whether such obesity or aggravation thereof was a substantial factor in causing the current disability; and, if so, (3) whether the current disability would not have occurred but for such obesity or aggravation thereof. If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. The Board additionally notes, service connection is established for the Veteran's PTSD, irritable bowel syndrome, headaches, left elbow, hypertension, bilateral hearing loss, and a dental disability. A June 2016 VA mental disorders examination shows the Veteran's psychiatric disability is associated with symptoms of depressed mood, chronic sleep impairment, and disturbances of mood and motivation. These symptoms may impact the Veteran's ability to make healthy dietary choices and to develop and maintain exercise routines. His service connected physical disables may limit his ability to engage in physical activities, including exercise. In September 2020 a VA sleep apnea examination and etiology opinion was provided. The examiner opined sleep apnea was less likely than not secondary to any service connected disability. In support, he observed sleep apnea was diagnosed in August 2010, many years after the Veteran separated from active service. He noted, without additional support that there was no pathophysiological link between any service connected disability and sleep apnea. The examiner did not discuss medications used to treat any service connected disability. As the literature linking PTSD and sleep apnea was not submitted until after September 2020, he did not consider or discuss this evidence. The September 2020 examiner attributed the Veteran's sleep apnea to obesity. However, the opinion did not include any evaluation as to whether obesity represented an intermediate step between sleep apnea and any service connected disability. The September 2020 etiology opinion is inadequate to evaluate the claim. Id. In January 2022, an additional VA etiology opinion addressing whether the Veteran's sleep apnea was secondary to his PTSD was obtained. The examiner discussed medical studies and literature evaluating connections between PTSD and sleep apnea. He did not discuss whether sleep apnea was caused or aggravated by medications used to treat any service connected disability. He did not discuss whether obesity represents an intermediate step between a service connected disability and sleep apnea. This opinion is inadequate to determine the Veteran's claim. Id. 7. Entitlement to a total disability rating due to individual unemployability (TDIU), prior to January 4, 2022, is remanded. The issue of entitlement to a TDIU, prior to January 4,2022 is inextricably intertwined with the remanded claims discussed above. See Harris, supra. The matters are REMANDED for the following action: 1. Attempt to obtain any service treatment records that are not already of record. Make requests for these records from the appropriate repositories and associate those documents with the claims file. All such attempts should be documented in the claims file. If the additional service treatment records are unavailable, the Veteran's file must be documented clearly to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain all outstanding VA treatment records, including records of treatment provided through any VA Choice or VA Community Care program, including records of bilateral hip replacement surgeries and acupuncture services. 3. Obtain addendum etiology opinions from an appropriate clinician regarding whether the Veteran's lumbar strain, bilateral hip and right upper extremity disabilities are at least as likely as not related to his active service. The clinician should review the entire claims file, including all service treatment records and the Veteran's March 2020 testimony before the Board. The examiner should specifically address the Veteran's reports of in-service back and hip symptoms. The clinician must also opine whether it is at least as likely as not that a lumbar spine, bilateral hip, or right upper extremity disability is proximately due to or aggravated beyond its natural progression by any service connected disability. The examiner must specifically discuss the Veteran's March 2020 testimony asserting he uses his right side upper extremity more due to the service-connected left side upper extremity disability as well as his report of an awkward gait and left side weakness. The examiner is advised the Veteran is competent to report his experience of observable symptoms, including pain, weakness, awkward gait, left side disuse, and right side increased use. If he or she rejects any such statement, a complete rationale for doing so must be provided. The examiner is also advised causation and aggravation are separate concepts and must be addressed independently. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the claimed disability prior to aggravation by the service-connected disability or disabilities. If the clinician determines any additional examinations are needed to provide the requested opinions, schedule the necessary examinations. 4. Obtain an addendum opinion as to whether obesity represents an intermediate step between a service-connected disability or multiple service-connected disabilities (PTSD, irritable bowel syndrome, headaches, left elbow, hypertension, bilateral hearing loss, and a dental disability) and the claimed sleep apnea disability. The clinician should respond to the following inquiries: 1) Whether the service-connected PTSD, irritable bowel syndrome, headaches, left elbow, hypertension, bilateral hearing loss, and a dental disability, either individually or in combination, caused the Veteran to become obese or aggravated the Veteran's obesity? 2) If so, whether such obesity or aggravation thereof was a substantial factor in causing sleep apnea? 3) If so, whether sleep apnea would not have occurred but for such obesity or aggravation thereof? The clinician should review the complete claims file and consider and discuss the symptomatology and limitations associated with the Veteran's service-connected conditions. Specifically, the examiner must address the psychiatric symptoms which may limit the Veteran's ability to regulate his dietary choices and to initiate or maintain any exercise routine. He or she should also discuss limitations on physical activity or dietary choices, related to all additional service connected disabilities. The clinician must provide a complete rationale for the opinions provided. If the clinician cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and explain why an opinion cannot be provided without resorting to speculation. If the clinician opines obesity is less likely than not an intermediate step between sleep apnea and any service connected disability, he or she must opine whether sleep apnea is at least as likely as not proximately due to or aggravated beyond its natural progression by any service connected disability, including medications used to treat any service connected disability. The examiner is advised the Veteran is competent to report his experience of observable symptoms. If he or she rejects any such statement, a complete rationale for doing so must be provided. The examiner is also advised causation and aggravation are separate concepts and must be addressed independently. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the sleep apnea prior to aggravation by the service-connected disability or disabilities. If the clinician determines the opinions requested cannot be provided without an additional examination, schedule an examination. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.