Citation Nr: 1332508 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-06 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a sleep disorder, to include sleep apnea, to include as due to service-connected disorder. 2. Entitlement to an increased evaluation for status post lumbar spinal stenosis and pseudoarthrosis of L5 to S1, rated 20 percent disabling prior to December 2, 2011. 3. Entitlement to an increased evaluation for status post lumbar spinal stenosis and pseudoarthrosis of L5 to S1, currently rated 40 percent disabling. 4. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from April 1969 to November 1970. The appeal comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. REMAND The Veteran testified at his June 2013 hearing before the Board that he believed his low back disorder had increased in severity since his last examination for his low back disorder in December 2011. An examination will be requested whenever VA determines, as in this case, that there is a need to verify the severity of a disability. See 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, remand is in order for another VA examination. Also at the hearing before the Board, the Veteran contended that his sleep disorder was due to his service-connected posttraumatic stress disorder or to his service-connected low back disorder. He testified that he had significant recurring pain associated with his low back, and that he had sleep difficulty which limited his sleeping at night. In a statement received in April 30, 2013, the Veteran claimed that due to his service-connected low back he was unable to work. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a request for entitlement to a total disability rating based on individual unemployability (TDIU) is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation). Accordingly, the case is remanded for the following action: 1. The Veteran must be informed of consideration of the appealed status post lumbar spinal stenosis and pseudoarthrosis of L5 to S1, as a claim for increased rating including based on TDIU. All statutory and regulatory notice and duty to assist must be provided to the Veteran with regard to this claim. 2. The Veteran must be contacted to afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 3. The Veteran must be afforded a VA examination to address the current severity of his service-connected status post lumbar spinal stenosis and pseudoarthrosis of L5 to S1. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. All indicated testing must be conducted. The examiner must conduct full range of motion studies on the service-connected low back disorder. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the status post lumbar spinal stenosis and pseudoarthrosis of L5 to S1. The examiner must also report any associated neurological complaints or findings attributable to the Veteran's service-connected lumbar spine disorder. If necessary to evaluate the complaints, nerve conduction studies and/or electromyography studies must be conducted. The specific nerve(s) involved must be identified. If incomplete paralysis is found, the examiner must state whether the incomplete paralysis is best characterized as mild, moderate, or severe; with the provision that wholly sensory involvement should be characterized as mild, or at most, moderate. Any neurologic abnormalities associated with the Veteran's lumbar spine disorder must be reported. The examiner must also state whether the Veteran has intervertebral disc syndrome; if so, the examiner must state whether the Veteran experiences incapacitating episodes, as defined by 38 C.F.R. § 4.71a, and the frequency and total duration of such episodes over the course of the past 12 months. 4. The Veteran must be afforded the appropriate VA examinations to determine whether any sleep disorder, to include sleep apnea, found or previously diagnosed ,is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all electronic records, to include on Virtual VA, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any current or previously diagnosed sleep disorder is related to the Veteran's active duty service. The examiner must also state whether any current or previously diagnosed sleep disorder is due to or aggravated by any service-connected disorder, to include the Veteran's posttraumatic stress disorder and lumbar spine disorder. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed 5. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claims. 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 (2013). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be readjudicated, to include TDIU. If any issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).