Citation Nr: A25035155 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 250107-501815 DATE: April 16, 2025 REMANDED Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for a head injury is remanded. Entitlement to service connection for arthritis is remanded. Entitlement to service connection for glaucoma is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1968 to June 1971. The rating decision on appeal was issued in January 2024 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In April 2022, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of his arthritis, glaucoma, head injury and sleep disorder claim most recently addressed in a May 2021 rating decision. In September 2022, the AOJ issued a supplemental claim rating decision, which found that new and relevant evidence had not been received and denied the claim based on the evidence of record at the time of that decision. However, the AOJ still adjudicated the claims despite finding that there was no new and relevant evidence. Thus, the Board finds that there has been an implicit finding that new and relevant evidence has been received and will not adjudicate that issue. In August 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the September 2022 decision. In January 2024, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior September 2022 decision. Therefore, the Board may only consider the evidence of record at the time of the September 2022 decision. In the January 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the September 2022 AOJ decision, which was subsequently subject to higher-level review, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 3 8 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. However, because the Board is remanding the claim of arthritis, glaucoma, head injury and sleep disorder, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). This case has been advanced on the docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). 1. Service Connection - Sleep Disorder The Veteran seeks to establish service connection for his sleep disorder secondary to his service-connected posttraumatic stress disorder. Specifically, he asserts that his problems falling asleep and staying asleep occurred after the military. See March 2008 VA Examination. He also reports not being able to sleep due to anxiety of having nightmares. See October 2007 VA Medical Records. He is currently diagnosed with obstructive sleep apnea and insomnia. See December 2019 Sleep Study and August 3, 2022, VA Medical Records. The Veteran has not undergone a VA examination for the claimed sleep disorder disability. Given his reports as to the onset and continuity of the claimed disability, of which he is competent to assert, VA examination is necessary to determine whether the claimed disability is due to his service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the AOJ did not afford an examination at the time of the September 2022 rating decision, such was a pre-decisional duty to assist error. A remand is necessary to correct it. 2. Service Connection - Head Injury and Arthritis The Veteran seeks entitlement to service connection for a head injury and arthritis related to his active service. Specifically, the Veteran contends that while in service and assigned to an Airborne unit, he jumped "on a cold and windy day...[and] I hit the ground. I was dragged and hit my head, neck, and shoulders" and injured his back. See February 2021 Statement in Support of Claim for PTSD; March 2021 VA Back Examination. In April 2019, the Veteran was afforded a VA examination for his arthritis. The Veteran was diagnosed with degenerative arthritis of the spine and spondylolisthesis. The examiner, Dr. S.G., opined the Veteran's degenerative arthritis of the spine and spondylolisthesis disability was less likely than not due to his service due to lack of in-service treatment records. The Board finds this opinion inadequate to decide the claim. In this regard, the VA examiner seems to rely solely on the lack of complaints or treatment records during active service when rendering the opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, the VA examiner did not provide a supporting rationale for the conclusions reached. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). This opinion is therefore insufficient to decide the appeal. In March 2021, the Veteran was afforded another VA examination for his arthritis. The Veteran was diagnosed with lumbosacral strain. The examiner, Dr. S.G., opined the Veteran's lumbosacral strain disability was less likely than not due to his service due to lack of in-service treatment records. The Board finds this opinion inadequate to decide the claim. In this regard, the VA examiner seems to rely solely on the lack of complaints or treatment records during active service when rendering the opinion. Dalton v. Nicholson, supra. Moreover, the VA examiner did not provide a supporting rationale for the conclusions reached. Nieves-Rodriguez v. Peake, supra. This opinion is therefore insufficient to decide the appeal. In April 2021, the Veteran was afforded a VA examination for his head injury. At that time, the VA examiner opined the Veteran did not have a traumatic brain injury (TBI) as he did not seek medical treatment at the time of the parachute landing incident so it was difficult to establish the incident as a mild TBI. See April 2021 VA Examination. The Board finds this opinion inadequate to decide the claim. In this regard, the VA examiner seems to rely solely on the lack of complaints or treatment records during active service when rendering the opinion. Dalton v. Nicholson, supra. Moreover, the VA examiner did not provide a supporting rationale for the conclusions reached. Nieves-Rodriguez v. Peake, supra. This opinion is therefore insufficient to decide the appeal. In the November 2020 supplemental claim application submitted by the Veteran, he stated he wanted and authorized VA to get his federal records from Womack Army Medical Center documenting his parachute landing injury hospitalization while in service. VA has not attempted to obtain these outstanding records. Based on the foregoing and finding that there is a reasonable possibility that the missing treatment records will help in substantiating the Veteran's service connection claim for his head injury and arthritis, the Board finds that a remand is necessary. In order to ensure that VA has met its duty to assist, a remand is necessary to obtain those records and to provide the Veteran an opportunity to present for VA examination and obtain an adequate opinion as to the nature and etiology of the Veteran's head injury and arthritis. The AOJ's failure to obtain outstanding treatment records is a pre-decisional duty to assist error that necessitates a remand for development. The examiner is reminded that the lack of in-service complaints of, treatment for, or diagnosis of head injury and arthritis is not a sufficient basis to find that the claimed disabilities are not etiologically related to active service. 3. Service Connection - Glaucoma Regarding the issue of entitlement to service connection for glaucoma, the Board notes that the issue is inextricably intertwined with the head injury claim remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for entitlement to service connection for glaucoma should be deferred pending final dispositions of the claim of entitlement to service connection for head injury. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the etiology of the claimed head injury. The record, to include a copy of this Remand, should be made available to the examiner. First, the examiner is asked to identify and diagnose any and all currently present head injury related disorders. After reviewing the complete VA claims file, complete private medical records, and conducting any necessary tests, the clinician must address the following: Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any currently present and diagnosed head injury disorder had its onset during the Veteran's active service, or is otherwise etiologically related to such service? The examiner must consider the Veteran's lay statements regarding the onset and continuity of his symptoms. The examiner must be sure to address the Veteran's lay statements and contentions regarding the onset and continuity of his symptoms, to include his statements of injuring his head and back during a parachute jump while in service. The examiner is reminded that the lack of in-service complaints of, treatment for, a head injury is not a sufficient basis to find that the claimed disability is not etiologically related to active service. A rationale should be provided for all opinions offered. The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Schedule the Veteran for a VA examination with an appropriate clinician to determine the etiology of the claimed arthritis (diagnosed as degenerative arthritis of the spine, spondylolisthesis and lumbosacral strain). The record, to include a copy of this Remand, should be made available to the examiner. First, the examiner is asked to identify and diagnose any and all currently present disorders related to the low back, to include degenerative arthritis of the spine, spondylolisthesis, and lumbosacral strain. After reviewing the complete VA claims file, complete private medical records, and conducting any necessary tests, the clinician must address the following: Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any currently present arthritis had its onset during the Veteran's active service, or is otherwise etiologically related to such service? The examiner must consider the Veteran's lay statements regarding the onset and continuity of his symptoms. The examiner must be sure to address the Veteran's lay statements and contentions regarding the onset and continuity of his symptoms, to include his statements of injuring his head and back during a parachute jump while in service. The examiner is reminded that the lack of in-service complaints of, treatment for, a low back disorder is not a sufficient basis to find that the claimed disability is not etiologically related to active service. A rationale should be provided for all opinions offered. The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Schedule the Veteran for a VA examination with an appropriate clinician to address the sleep disorder, to include obstructive sleep apnea and insomnia. The record, to include a copy of this Remand, should be made available to the examiner. After reviewing the complete VA claims file, complete private medical records, and conducting any necessary tests, the clinician must address the following: The clinician must identify all current diagnoses referable to the claimed sleep disorder. (a) For each diagnosis, the clinician must then opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any currently present sleep disorder had its onset during the Veteran's active service, or is otherwise etiologically related to such service? The examiner must consider the Veteran's lay statements regarding the onset and continuity of his symptoms. In rendering this opinion, the clinician must specifically consider the following: 1) the total potential exposure through all applicable military deployments of the Veteran; and 2) the synergistic, combined effect of all toxic exposure risk activities of the Veteran. (b) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's sleep disorder disability is caused by his service-connected PTSD? (c) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's sleep disorder disability was caused OR aggravated by the service-connected PTSD. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions? In rendering this opinion, the clinician must specifically consider the following: 1) February 2020 Sleep Study; 2) Insomnia diagnosis in August 2022 VA Treatment Records; and 3) Veteran's lay statements that he has problems sleeping. Specifically, that his problems falling asleep and staying asleep occurred after the military and that before the military he was able to sleep and rest well. See May 2000 Veteran's Statement in Support of Claim, March 2008 VA Treatment Records, April 2008 VA Examination, May 2008 VA Examination, May 2008 VA Treatment Records, April 2021 VA TBI Examination. The examiner is reminded that the lack of in-service complaints of, treatment for, a sleep disorder is not a sufficient basis to find that the claimed disability is not etiologically related to active service. A rationale should be provided for all opinions offered. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resorting to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Mariah N. Sim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Pagan 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.