Citation Nr: 18160587
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 14-19 810A
DATE:	December 27, 2018
REMANDED
The claims for service connection for a back disorder, sleep apnea, skin condition, migraine headaches, and joint pain are remanded. 
REASONS FOR REMAND
The Veteran had active service from March 1989 to November 1993, to include service in Southwest Asia.
These matters come before the Board of Veterans’ Appeals (Board) from June 2011, August 2011, and March 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). 
The Board observes that the RO denied service connection for a back disorder, skin condition, migraine headaches, and joint pain in March 2007.  Service personnel and treatment records were not available at that time.  See March 2007 memorandum and March 2007 rating decision.  Service personnel and treatment records were obtained in June 2015; therefore, new and material evidence is not required before the Board can adjudicate these claims on the merits.  38 C.F.R. § 3.156(c).
In March 2018, the Veteran provided testimony via video conference before the undersigned Veterans’ Law Judge.  A transcript of the hearing is associated with the claims file. 
1. Back Disorder
The Veteran seeks service connection for a back disability; however, a remand is required to schedule a VA examination and obtain an adequate opinion report.  
In November 2010, the Veteran had a VA examination and the examiner provided an opinion addressing the relationship between the back disability and service; however, the examiner only addressed the December 1992 service treatment record.  The examiner did not address the complaints and treatment of back pain documented in January 1990 or August 1992.  The examiner also failed to consider the Veteran’s lay statements alleging chronic back pain since service and VA treatment records showing his treatment of back pain since at least 2001.  The Veteran is competent to describe his back pain and indicate how and when it started.  Importantly, a February 2003 VA treatment record documented the Veteran’s report of having had back pain since 1990.  He made this report to VA medical personnel years before he filed his claim for service connection, which lends credibility to his statement alleging continuity of symptoms since service.  Since the November 2010 examiner did not consider all of the lay and medical evidence, the opinion report is inadequate for rating purposes.
Based on the foregoing, a remand is necessary to schedule a VA examination and obtain an opinion addressing whether the Veteran’s back condition is related to service. 
2. Sleep Apnea
The Veteran seeks service connection for sleep apnea, to include as secondary to his service-connected posttraumatic stress disorder (PTSD) and as an undiagnosed illness related to his service in Southwest Asia.  Unfortunately, a remand is required to obtain outstanding private treatment records and to schedule a VA examination.
During his hearing before the Board, the Veteran testified that he was treated for his sleep apnea through the Choice Plan and had to see a civilian doctor.  See transcript at 20.  Treatment records from private providers have not been obtained.  Therefore, on remand, the Veteran must be asked to identify his providers and submit copies of his records or provide an authorization form, VA Form 4142, for VA to obtain records on his behalf.
Additionally, during the Veteran’s hearing he indicated that he was submitting a medical opinion and an authorization form, VA Form 4142 for review.  See transcript at 19.  Of record is a note from P & S Associates, indicating that the Veteran has been treated for sleep apnea and PTSD since 1991 or 1992.  Records from P & S Associates have not been obtained; therefore, on remand, attempts must be made to obtain them.
In addition to obtaining records, a remand is necessary to schedule a VA examination.  While the Veteran had a VA examination in March 2016, the addendum opinion provided by the examiner in December 2017 is not adequate for rating purposes.  Specifically, the examiner opined that PTSD does not cause sleep apnea.  She did not indicate whether the Veteran’s PTSD aggravates his sleep apnea.  Additionally, during the Veteran’s hearing, he testified that he started having symptoms of sleep apnea during service.  He stated that his bunk buddy as well as his former wife would tell him that he snored loudly.  He indicated that he sought treatment during service and was prescribed a sleeping pill but was not put on profile.  He did not think that his sleep condition had been diagnosed during service.  He testified that he sought treatment for his sleep disorder approximately six months after separation from service.  Accordingly, a VA examination should be scheduled and opinions obtained addressing whether the Veteran’s sleep apnea is related to service and/or whether it has been aggravated by his PTSD.
3. Skin Condition
The Veteran seeks service connection for a skin condition of his hands and feet, to include as an undiagnosed illness related to his service in Southwest Asia.  However, a remand for a VA examination and opinion is required.
A March 2016 VA examination report shows the examiner found that the Veteran had a skin condition with a clear and specific etiology and diagnosis and that it was not likely a disability pattern or diagnosed disease related to a specific exposure event experienced by the Veteran during his service in Southwest Asia.  However, the examiner did not indicate the etiology of the skin condition or whether it is otherwise related to service.  Notably, during the hearing, the Veteran testified that his skin condition manifested during service after he was exposed to burn pits.  He testified that he sought treatment for blisters at that time and was placed on profile.  He indicated that his skin condition has persisted since service.  Accordingly, on remand, an examination should be scheduled and an opinion obtained addressing whether the Veteran has a skin condition related to service.
Additionally, the Board observes that a VA treatment record dated in April 2001 indicates that the Veteran’s skin condition worsened when he had gut discomfort.  The Veteran is service-connected for irritable bowel syndrome (IBS).  On remand, the examiner should indicate whether any skin condition of the extremities is due to or has been aggravated by his service-connected IBS.
4. Migraine Headaches
The Veteran seeks service connection for migraine headaches, to include as an undiagnosed illness related to his service in Southwest Asia; however, a remand is required to attempt obtain private treatment records and schedule a VA examination.  
During his hearing before the Board, the Veteran indicated that he had been treated by Dr. B.E. and Dr. C., both private physicians.  See transcript at 16.  Treatment records from these providers have not been submitted.  On remand, the Veteran must be asked to provide copies of his records or provide the appropriate authorization forms for VA to obtain records on his behalf.
In March 2016, the Veteran had a VA examination; however, the opinion is inadequate for rating purposes.  In the opinion, the examiner stated that the Veteran’s migraine condition is a diagnosable chronic multi-symptom illness with a partially explained etiology; therefore, it was not likely it represented a disability pattern or diagnosed disease related to a specific exposure event experienced by the Veteran during his service in Southwest Asia.  However, she did not indicate the etiology of his migraines or indicate whether his headache condition is otherwise related to service.  Accordingly, a remand is necessary to obtain an opinion indicating whether the Veteran has a headache disorder that manifested during or as a result of service.
5. Joint Pain
The Veteran seeks service connection for joint pain, to include as an undiagnosed illness related to his service in Southwest Asia; however, a remand is required for a VA examination.
During his July 2011 Gulf War examination, the Veteran reported having chronic intermittent joint pain primarily at the ankles, knees, hips, shoulders, and elbows.  These joints were asymptomatic at the time of the examination.  X-rays were not completed.  No diagnosis was provided.  
During a March 2016 examination, the Veteran reported daily moderate to severe generalized pain in the neck, shoulders, hips, knees, and hands.  X-rays of the hips, neck, back, and knees were completed and showed degenerative arthritis, which the examiner found consistent with the Veteran’s age and not related to service.  The examiner did not perform x-rays of the shoulders or hands and did not indicate whether any of the Veteran’s degenerative changes manifested during or within one year of separation from service.  Notably, during his hearing, the Veteran reported that his joint pain started during service and that he has sought treatment for it since service.  
On remand, an examination of the joints must be scheduled, to include x-rays of the ankles, shoulders, elbows, and hands.  For any disability of the ankles, shoulders, elbows, hands, neck, knees, and hips, to include degenerative changes, the examiner should opine whether the disability manifested during service, within one year of separation from service, or is otherwise related to service.
The matters are REMANDED for the following actions:
1. Obtain VA treatment records dated since August 2018.
2. Ask the Veteran to identify all private providers who have treated his disabilities on appeal, to include any provider authorized to provide treatment under the Choice Plan.  Ask him to provide an authorization and release form, VA Form 4142, for each provider, to include Dr. B.E., Dr. C., and P & S Associates.  Make two requests for the authorized records from each identified provider unless it is clear after the first request that a second request would be futile.  All attempts to obtain records must be documented.  Inform the Veteran that he may submit copies of his records on his behalf.    
3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back disorder.  The examiner must be provided access to the electronic claims file and he or she should indicate review of the claims file in the examination report.
For each back disability diagnosed, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the disability manifested during or within one year of service or whether it is otherwise related to an in-service injury, event, or disease. 
A detailed rationale for the opinion must be provided. All relevant medical and lay evidence, including the service treatment records, to include those dated in January 1990, August 1992, and December 1992; VA treatment records, including the February 2003 record noting the Veteran’s report of back pain starting in 1990; private treatment records; and Veteran’s statements and contentions regarding the onset of his disability, must be discussed in the rationale.  
The Veteran is competent to report his symptoms, and his reports must be considered in formulating the requested opinion.  If his reports are discounted, the examiner should provide a reason for doing so.  A Veteran’s statements may not be discounted solely on the basis of the lack of confirmation in the medical records.
If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to 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.
4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his sleep apnea.  The examiner must be provided access to the electronic claims file and he or she should indicate review of the claims file in the examination report.
The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that sleep apnea manifested during or as a result of service, to include service in Southwest Asia.  
If the answer to the foregoing is negative, then the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea is due to or has been aggravated (permanently worsened) by his service-connected PTSD. 
A detailed rationale for the opinion must be provided. All relevant medical and lay evidence, including the service treatment records, private treatment records, VA treatment records, and Veteran’s statements and contentions regarding the onset of his disability, must be discussed in the rationale.  
The Veteran is competent to report his symptoms, and his reports must be considered in formulating the requested opinion.  If his reports are discounted, the examiner should provide a reason for doing so.  A Veteran’s statements may not be discounted solely on the basis of the lack of confirmation in the medical records.
If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to 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.
5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his skin condition of the hands and feet.  The examiner must be provided access to the electronic claims file and he or she should indicate review of the claims file in the examination report.
For any skin disability, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability manifested during service or as a result of service, to include exposure to burn pits while serving Southwest Asia.  
If the answer to the foregoing is negative, then the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s skin condition is due to or has been aggravated (permanently worsened) by his service-connected IBS.  
A detailed rationale for the opinion must be provided. All relevant medical and lay evidence, including the service treatment records; private treatment records; VA treatment records, to include the April 13, 2001 record; and Veteran’s statements and contentions regarding the onset of his disability, must be discussed in the rationale.  
The Veteran is competent to report his symptoms, and his reports must be considered in formulating the requested opinion.  If his reports are discounted, the examiner should provide a reason for doing so.  A Veteran’s statements may not be discounted solely on the basis of the lack of confirmation in the medical records.
If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to 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.
6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his migraine headaches.  The examiner must be provided access to the electronic claims file and he or she should indicate review of the claims file in the examination report.
For any migraine headache disability, clearly indicate whether said disability is attributable to a medical diagnosis.  Otherwise, indicate whether said disability is attributable to an undiagnosed illness under 38 C.F.R. § 3.317.
If there is a diagnosis, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disability manifested during service, to include as a result of exposure to burn pits, or is otherwise related to service, to include service in Southwest Asia.  
For any migraine headache disability not attributable to a clinical diagnosis, indicate whether there are objective indications of a chronic disability that are at least as likely as not resulting from an undiagnosed illness or medically unexplained multi-symptom illness.
A detailed rationale for the opinion must be provided. All relevant medical and lay evidence, including the service treatment records, private treatment records, VA treatment records; and Veteran’s statements and contentions regarding the onset of his disability, must be discussed in the rationale.  
The Veteran is competent to report his symptoms, and his reports must be considered in formulating the requested opinion.  If his reports are discounted, the examiner should provide a reason for doing so.  A Veteran’s statements may not be discounted solely on the basis of the lack of confirmation in the medical records.
If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to 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.
7. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disability of the ankles, shoulders, elbows, hands, neck, knees, and hips.  The examiner must be provided access to the electronic claims file and he or she should indicate review of the claims file in the examination report.  X-rays of the ankles, shoulders, elbows, and hands should be completed.
For each joint where pain has been reported, clearly indicate whether said pain is attributable to a medical diagnosis.  Otherwise, indicate whether said pain is attributable to an undiagnosed illness under 38 C.F.R. § 3.317.
For each asserted diagnosis, provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service or within one year of separation from service, was caused by service, or is otherwise related to service, to include foreign service in Southwest Asia.
The examiner should specifically indicate for any right ankle disability whether it is at least as likely as not (50 percent or greater probability) manifested during or within one year of service or whether it is otherwise related to an in-service injury, event, or disease, to include the right ankle injury documented in April 1990.
The examiner should specifically indicate for any left hand disability whether it is at least as likely as not (50 percent or greater probability) that it manifested during or within one year of service or whether it is otherwise related to an in-service injury, event, or disease, to include the left hand injury documented in August 1991.
For chronic joint pain not attributable to a clinical diagnosis, indicate whether there are objective indications of a chronic disability that are at least as likely as not resulting from an undiagnosed illness or medically unexplained multi-symptom illness.
A detailed rationale for the opinions must be provided.  All relevant medical and lay evidence, including the service treatment records, VA treatment records, private treatment records, and Veteran’s statements and contentions regarding the onset of his disabilities, must be discussed in the rationale.  The Veteran is competent to report his symptoms, and his reports must be considered in formulating the requested opinion.  If his reports are discounted, the examiner should provide a reason for doing so.  A Veteran’s statements may not be discounted solely on the basis of the lack of confirmation in the medical records.
If the examiner is unable to offer the requested opinion(s), it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to 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.
8. Conduct any additional development necessary as a result of this remand.
(Continued on the next page)
 
9. Then, readjudicate the Veteran’s claims on appeal.  If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case.  Allow an appropriate period of time for response.
 
L. CHU
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Amanda G. Alderman

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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