Citation Nr: 1334462 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-04 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to an initial disability rating of 40 percent for degenerative arthritis, lumbar spine. 3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Lisa A. Lee, Attorney at Law ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran had active service from January 1960 to January 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in January 2008 and March 2010 by a Department of Veterans Affairs (VA) Regional Office (RO). The 2008 rating decision denied, in pertinent part, service connection for obstructive sleep apnea. The 2010 rating decision granted service connection for lumbar spine degenerative with an assigned rating of 20 percent effective December 7, 2009. In a letter dated in March 2011, the Veteran's attorney wrote that the Veteran was requesting an initial disability rating of 40 percent for his service-connected lumbosacral disability. In June 2011, and in January 2013, the Board remanded the issue of service connection for sleep apnea for further development, including a medical nexus opinion. Unfortunately, further evidentiary development of this issue is needed. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND As regards the claim for service connection for sleep apnea, in opinions dated in November 2009 and April 2012, a VA examiner stated that the Veteran's sleep apnea was not aggravated by his service-connected rhinitis, but the rationale for this opinion focused only on whether the Veteran's sleep apnea was caused by his rhinitis. Additionally, in an opinion dated in June 2013, another VA examiner indicated that the Veteran's sleep apnea did not have its onset in-service because it was not diagnosed by sleep study until 2006. Unfortunately, the examiner did not comment on the lay evidence regarding the Veteran's sleep during active duty service. Remand for expansion of the opinion that the Veteran's sleep apnea did not have its onset during service, and for expansion of the opinion that the Veteran's sleep apnea disorder is not aggravated by his service-connected rhinitis disability, is warranted. See 38 C.F.R. § 3.159(c)(4). With regard to the lumbar spine disability, the symptoms the Veteran has described appear to be more severe than when he was last examined for VA purposes. Another examination should be scheduled. Also on remand, all of the Veteran's outstanding VA treatment records dated after December 2011 should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The claims file should then be sent for an opinion with regard to claim for TDIU. 38 C.F.R. § 3.159(c)(4). Notice consistent with the Veterans Claims Assistance Act on the issue of TDIU should also be sent. 38 C.F.R. § 3.159(b). Accordingly, the case is REMANDED for the following action: 1. Issue notice to the Veteran regarding the evidence and information necessary to establish entitlement to TDIU, as required by 38 U.S.C.A. § 5103. 2. Associate all of the Veteran's VA medical records dated after December 2011 with the claims file. Any additional pertinent private treatment records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran. 3. Return the claims file to the June 2013 reviewing physician for an addendum opinion regarding the issue of service connection for sleep apnea. The examiner is specifically requested to accomplish the following: a) Familiarize yourself with the record, and while noting the conclusion in the June 2013 report that sleep apnea did not have its onset in-service; address whether the evidence showing the Veteran snored loudly while on active duty renders it at least as likely as not that his sleep apnea began during service (albeit not formally diagnosed at that time). b) Provide a rationale for the conclusion expressed in the November 2009 and April 2012 reports that sleep apnea was not aggravated (increased in severity beyond its natural progress) by the Veteran's service-connected rhinitis disability. If it is your judgment upon review of the record that sleep apnea was aggravated by the Veteran's rhinitis disability, that conclusion should be stated and explained. In any event, a full explanation to account for whatever opinions are expressed should be provided. If the June 2013 evaluator is not available, the file should be forwarded to another for the requested opinions. 4. Afford the Veteran a VA examination with regard to his claim for a higher rating for his service-connected lumbosacral disability. All indicated tests should be done, and all findings reported in detail. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. The extent of any incoordination, weakened movement and excess fatigability on use should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should also state whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups); and, to the extent possible, provide a clinical assessment of the functional impairment on repeated use or during flare-ups. Any additional functional impairment on repeated use or during flare-ups should be expressed in terms of the degree of additional range of motion loss. The examiner should provide a clinical assessment of the impact of the Veteran's service-connected back disability on his activities of daily living. A rationale for all opinions should be set forth in the examination report. 5. After completion of the foregoing, send the claims file to a person with the appropriate credentials for review and an opinion on the issue of entitlement to TDIU. After review of the claims file, and taking into account this Veteran's education, training, and work history (but not the effect of any nonservice-connected disabilities, or impairment due to age), an opinion should be offered as to whether it is at least as likely as not that the Veteran's service-connected disabilities (identified below) together with any effects of medication taken for them are, singularly or in combination, of sufficient severity to preclude the Veteran from obtaining and retaining substantially gainful employment. The Veteran is service-connected for the following disabilities: Degenerative arthritis of the lumbosacral spine; Internal derangement, right knee; and Perennial rhinitis. The examiner should include a detailed rationale in support of his/her opinion. 6. After completion of all of the above and any other development deemed necessary, readjudicate the claims. If any benefit remains denied, issue a supplemental statement of the case and provide the Veteran and his attorney an opportunity to respond before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL E. KILCOYNE 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).