Citation Nr: 18131240
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-11 373
DATE:	August 31, 2018
REMANDED
Entitlement to service connection for gout is remanded.
Entitlement to service connection for a left wrist disorder is remanded.
Entitlement to service connection for a right wrist disorder is remanded.
Entitlement to a service connection for a back disorder is remanded.
Entitlement to service connection for sleep apnea is remanded.
Entitlement to service connection for headaches is remanded.
Entitlement to service connection for an acquired psychiatric disorder is remanded.
Entitlement to an evaluation in excess of 10 percent for right knee status post tear chondromalacia of the patella and degenerative changes is remanded.
Entitlement to an evaluation in excess of 10 percent for left knee chondromalacia of the patella and degenerative changes is remanded.
Entitlement to a compensable evaluation for hypertension is remanded.

REASONS FOR REMAND
The Veteran had active duty service from November 1980 to June 1992.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and July 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.

Right Knee, Left Knee, and Hypertension
February 2014 records show that the Veteran was to be scheduled for examinations with regard to his service-connected right knee disability, left knee disability, and hypertension.  In a March 2014 rating decision, these claims were denied because the Veteran failed to appear for his scheduled examinations.  The rating decision referenced a March 2014 Report of No Show, as evidence of the Veteran’s failure to appear.
The claims file does not include a March 2014 report documenting the Veteran’s failure to report for the examinations, nor does the claims file include a letter notifying the Veteran of the date and time of the scheduled examinations.  The Board is mindful of the provisions of 38 C.F.R. § 3.655 regarding action to be taken when a veteran fails to report for a scheduled VA examination “when entitlement to a benefit cannot be established” without the scheduled examination.  38 C.F.R. § 3.655 (a), (b) (2017).  In this case, however, it is unclear whether the Veteran was properly notified, and there is no published guidance establishing the presumption of regularity in such a situation.  See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013).  Thus, the Board finds that the Veteran should be afforded another opportunity to appear for VA examinations in connection with these claims.
Moreover, in light of a decision issued by the United States Court of Appeals for Veterans Claims (Court), additional examinations for the right and left knees are also required.  In Correia v. McDonald, 28 Vet. App. 158, 169 (2016), the Court held that the final sentence of § 4.59 creates a requirement that the examination should record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and nonweight-bearing.” Correia v. McDonald, 25 Vet. App. 158 (2016).  In this case, the most recent VA examination report does not include all of these findings.
In addition, in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court noted that the adequacy of a VA examination not conducted during a flare-up depends on whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during a flare-up.  In this case, range of motion findings during a flare-up were absent, and the examiner did not document the efforts made to provide an estimate of functional loss.  
Thus, additional VA examinations are needed to ascertain the current severity and manifestations of the Veteran’s service-connected left and right knee disabilities.  The examiner should also determine whether it is possible to provide a retrospective medical opinion for the VA examinations conducted during the appeal period.  See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted).

Gout, Sleep Apnea, Right Wrist, Left Wrist, Back, Headaches, and Acquired Psychiatric Disorder
The March 2014 and July 2014 rating decisions denied the Veteran’s claims for service connection, finding that service treatment records failed to show evidence of these conditions in service.  In the March 2015 Statement of the Case (SOC), the denial of service connection was continued with the RO noting that medical evidence had not been received which showed that the Veteran was diagnosed with these conditions.
A review of the Veteran’s service treatment records shows that he reported and was treated for many of these conditions during service.  For example, in an October 1980 report of medical history, the Veteran reported that he had nervous trouble, and in a July 1985 record, he indicated that he had headaches and stomach cramps.  In December 1985, the Veteran received treatment for a right hand fracture, and the examiner noted pain and swelling of the right hand.  In an October 1989 record, he also reported having back pain of unknown etiology.
In December 2015, the Veteran’s representative submitted additional medical evidence of his claimed conditions.  The submission included a June 2013 consultation record indicating that the Veteran presented with a history of gout and sleep apnea.  The Veteran reported that his gout occurred in his feet, ankles, and wrists.
A May 2015 disability questionnaire (DBQ) also noted that the Veteran had a depressive disorder due to another medical condition with depressed features.  The Veteran denied having any mental health history prior to his period of military service.
A September 2015 examination and medical opinion issued by H.S. (initials used to protect privacy), the Veteran’s private physician, noted that the Veteran had tension headaches and attributed them to his mental health condition, hypertension, and sleep apnea.  
A separate September 2015 opinion, also provided by H.S., stated that the Veteran’s depression aided in the development of and permanently aggravated his obstructive sleep apnea.  In support of the medical opinions submitted, journal articles were also included, which noted a relationship between depression and obstructive sleep apnea.
Given that the Veteran’s reports in service of his claimed conditions, as well as the medical evidence submitted by his representative which shows that he is currently diagnosed with many of these claimed conditions, a remand is necessary to obtain VA examinations and medical opinions which address the nature and etiology of the Veteran’s claimed conditions.  In particular, medical opinions are necessary to address the issue of secondary service connection raised in the December 2015 submission of evidence by the Veteran’s attorney.  A medical opinion is also necessary with regard to the Veteran’s claim for an acquired psychiatric disorder in order to determine whether this disorder preexisted service, and if so, whether it was aggravated by service.

The matters are REMANDED for the following action:

1.  The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his right knee, left knee, hypertension, gout, sleep apnea, right wrist, left wrist, back, headaches, and any psychiatric disorder.  
After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file  
The AOJ should also obtain any outstanding VA medical records.
2.  After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected right and left knee disabilities.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.

The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions.
The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation.
The examiner should report all signs and symptoms necessary for rating the left and right knee disabilities under the rating criteria.  In particular, the examiner should provide the range of motion in degrees of the right and left knees.  In so doing, the examiner should test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report.
The examiner should also indicate whether there is any ankylosis; dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint; or the symptomatic removal of semilunar cartilage.  He or she should also address whether the Veteran has recurrent subluxation or lateral instability, and if so, comment as to whether such symptomatology is slight, moderate, or severe.  The examiner should further state whether the Veteran has any impairment of the tibia and fibula or if he has genu recurvatum.
The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors.
Further, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for the other VA examinations conducted during the appeal period.  If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report.
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important “that each disability be viewed in relation to its history[,]”38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review.
3.  After completing the foregoing development, obtain a VA examination and medical opinion from a qualified examiner regarding the current severity and manifestations of the Veteran’s service-connected hypertension.  Any studies, tests, and evaluations deemed necessary by the examiner should be performed.
The examiner is requested to review all pertinent records associated with the claims file.  
The examiner should report all signs and symptoms necessary for evaluating the Veteran’s service-connected hypertension under the rating criteria.  In particular, the examiner should provide the predominant diastolic and systolic pressures and indicate whether the Veteran requires continuous medication for control of his blood pressure.
4.  After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any acquired psychiatric disorder that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  
The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions.  
It should also be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.
The examiner should identify all current psychiatric disorders.  If any previously diagnosed psychiatric disorders are not found on examination, the examiner should address whether such disorders were misdiagnosed or have resolved.
For each diagnosis identified, the examiner should provide an opinion as to whether the disorder clearly and unmistakably preexisted the Veteran’s entry into service.
For each psychiatric disorder that clearly and unmistakably preexisted the Veteran’s active duty service, the examiner should state whether there is clear and unmistakable evidence that there was no permanent increase in disability during service and whether it is clear and unmistakable that any such increase in disability was due to the natural progress of the preexisting condition.
For each psychiatric disorder that did not clearly and unmistakably preexist the Veteran’s active duty service, the examiner should state whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to his military service.
In rendering this opinion, the examiner should address the October 1980 report of medical history, taken prior to the Veteran’s entry into service, wherein he reported having nervous trouble.
(The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.)
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important “that each disability be viewed in relation to its history[,]”38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review.
5.  After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any sleep apnea that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  
The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements.  
It should also be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.
The examiner should opine as to whether it is at least as likely as not that the Veteran has sleep apnea that manifested in service or is otherwise causally or etiologically related to his military service, to include any symptomatology therein.
The examiner should opine as to whether it is at least as likely as not that any sleep apnea was either caused by or permanently aggravated by an acquired psychiatric disorder.
In rendering this opinion, the examiner should specifically consider the September 2015 medical opinion submitted by H.S. (initials used to protect privacy), which found that the Veteran’s depression aided in the development of and permanently aggravated his sleep apnea.
(The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.)
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important “that each disability be viewed in relation to its history[,]”38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review.
6.  After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any headaches that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  
The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements.  
It should also be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.
The examiner should opine as to whether it is at least as likely as not that the Veteran has headaches that manifested in service or are otherwise causally or etiologically related to his military service, to include any injury or symptomatology therein.
The examiner should opine as to whether it is at least as likely as not that any sleep apnea was either caused by or permanently aggravated by hypertension, sleep apnea, and/or acquired psychiatric disorder.
In rendering this opinion, the examiner should specifically consider the July 1985 record wherein the Veteran reported having headaches in service and the September 2015 medical opinion submitted by H.S. (initials used to protect privacy), which found that the Veteran’s hypertension, sleep apnea, and mental health condition may contribute to his headaches.
(The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.)
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important “that each disability be viewed in relation to its history[,]”38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review.
7.  After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any left and right wrist disorders that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  
The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements.  
It should also be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.
The examiner should opine as to whether it is at least as likely as not that the Veteran has left or right wrist disorders that manifested in service or are otherwise causally or etiologically related to his military service, to include any injury or symptomatology therein.
The examiner should opine as to whether it is at least as likely as not that any left or right wrist disorders were either caused by or permanently aggravated by gout.
In rendering this opinion, the examiner should specifically consider the December 1985 record documenting the Veteran’s right hand fracture, and the June 2013 medical record from R.A. (initials used to protect privacy), wherein the Veteran was noted to have attacks of gout in his wrists.
(The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.)
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important “that each disability be viewed in relation to its history[,]”38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review.
8.  After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any back disorder that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  
The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements.  
It should also be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.
The examiner should opine as to whether it is at least as likely as not that the Veteran has a back disorder that manifested in service or is otherwise causally or etiologically related to his military service, to include any injury or symptomatology therein.
In rendering this opinion, the examiner should specifically consider the October 1989 record documenting the Veteran’s back pain of unknown etiology.
(The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.)
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important “that each disability be viewed in relation to its history[,]”38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review.
9.  After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any gout that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  
The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements.  
It should also be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.
The examiner should opine as to whether it is at least as likely as not that the Veteran has gout that manifested in service or is otherwise causally or etiologically related to his military service, to include any injury or symptomatology therein.
 (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.)
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important “that each disability be viewed in relation to its history[,]”38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review.
10.  The AOJ should notify the Veteran that it is his responsibility to report for any scheduled examination, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims.  38 C.F.R. §§ 3.158, 3.655 (2017). 
In the event that the Veteran does not report for any scheduled examination, documentation which shows that notice scheduling the examination was sent to the last known address should be associated with the claims file.  It should also be noted whether any notice that was sent was returned as undeliverable.
11.  The AOJ should then review the VA examination reports and medical opinions to ensure that they are in compliance with this remand.  If the reports and opinions are deficient in any manner, the AOJ should implement corrective procedures.
12.  After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs.  
 
J.W. ZISSIMOS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Saikh, Associate Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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