Citation Nr: 1501074 Decision Date: 01/09/15 Archive Date: 01/13/15 DOCKET NO. 11-28 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to a disability rating in excess of 10 percent for a cervical spine strain. 3. Entitlement to disability ratings in excess of 10 percent prior to September 11, 2014, and in excess of 20 percent thereafter, for a thoracic spine strain. 4. Entitlement to initial disability ratings in excess of 30 percent prior to September 11, 2014, and in excess of 50 percent thereafter, for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran had active service from August 1985 to August 2005, including service in Southwest Asia from February 2004 to February 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2009 (sleep apnea, cervical spine, and thoracic spine) and September 2010 (PTSD) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The issues of entitlement to service connection for sleep apnea; and increased ratings for cervical and thoracic spine disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to September 11, 2014, the symptoms of the Veteran's PTSD resulted in nightmares, difficulty sleeping, hypervigilance, irritability, anger, anxiety, panic attacks with shortness of breath and a sense of a foreshortened future, hypersensitivity, depression, lost temper, recurrent distressing dreams of his stressor, and an exaggerated startle response. 2. As of September 11, 2014, the symptoms of the Veteran's PTSD resulted in difficulty with relationships with family and friends due to social isolation, verbal altercations at work, anger, anxiety, distressing memories of the traumatic event, flashbacks, distress, avoidance of memories and people, diminished interest in activities, detachment, estrangement, irritability, sleep disturbance, depressed mood, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for the Veteran's PTSD prior to September 11, 2014 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411 (2014). 2. The criteria for a rating in excess of 50 percent for the Veteran's PTSD as of September 11, 2014 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has met its duty to notify for this claim. Service connection for PTSD was granted in a September 2010 rating decision. The Veteran is now appealing the downstream issue of the initial ratings that were assigned. Therefore, additional notice under the VCAA is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1131 (Fed. Cir. 2007), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained service treatment and personnel records, and private and VA treatment records. The Veteran was afforded VA compensation and pension examinations germane to his PTSD in September 2010, March 2012, and September 2014. These examinations were adequate because the examiners based their opinions upon consideration of the Veteran's prior medical history, described the disabilities in sufficient detail so that the Board's evaluations of the disabilities will be fully informed, and supported all conclusions with analyses that the Board could consider and weigh against contrary opinions. Additionally, the VA examinations of record fully describe the functional effects caused by the Veteran's disabilities. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). For the foregoing reasons, the Board concludes that VA made all reasonable efforts to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. Initial Ratings for PTSD Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The record shows that the Veteran first sought service connection for his PTSD on October 16, 2009. The RO issued a rating decision in September 2010 that granted the Veteran's claim for service connection for PTSD and assigned a 10 percent rating, effective as of the date of the claim. The Veteran filed a timely Notice of Disagreement in November 2010, and the RO issued a Statement of the Case in March 2012, wherein it increased the Veteran's initial rating from 10 to 30 percent. The Veteran filed a timely Substantive Appeal in March 2012. The RO issued a new rating decision and supplemental statement of the case in October 2014 in which it increased the Veteran's disability rating for PTSD from 30 to 50 percent as of September 11, 2014, the date of his most recent VA examination. The Veteran's PTSD has been evaluated under the General Rating Formula for Mental Disorder. 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula, a 30 percent disability rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. The symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the U.S. Court of Appeals for Veterans Claims (Court) held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. In evaluating psychiatric disorders, the VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-V). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to DSM-V. See 38 C.F.R. § 4,125(a). Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). A GAF of 61 to 70 is indicative of some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. A GAF score of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). A GAF score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with an appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case it is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Following a review of the evidence of record, the Board finds that initial ratings in excess of 30 percent prior to September 11, 2014, and in excess of 50 percent thereafter, are not warranted. In reaching this decision, the Board has reviewed the evidence of record, to include VA treatment and examination reports, and the Veteran's statements. The Veteran contends in his March 2012 substantive appeal and elsewhere that his PTSD warrants higher initial ratings. The Board has considered the Veteran's records of VA treatment for his service-connected PTSD, as well as the VA examinations dated September 2010, March 2012, and September 2014. At his September 2010 VA examination, the Veteran reported that he experiences nightmares, difficulty sleeping, hypervigilance, irritability, anger, anxiety, panic attacks with shortness of breath and a sense of a foreshortened future, and hypersensitivity. The Veteran denied any history of violence or suicidal ideation. The VA examiner noted the Veteran's sincerity. The VA examiner opined that the Veteran's "symptoms are not such that they are interfering with his ability to maintain gainful employment nor his ability to actively participate in his college courses." He assigned a GAF score of 65. VA treatment records for PTSD beginning in August 2009 reflect reports of depression and three panic attacks in the past two weeks during sleep, and GAF scores of 65. See March 20, 2012 CAPRI records, pp. 69, 94. From March 2010 through January 2011, VA treatment records reflect GAF scores of 60. See March 20, 2012 CAPRI records, pp. 24, 26, 37, 39, 60. At his March 2012 VA examination, the Veteran reported that he has lost his temper on a couple of occasions at work, when provoked. He further reported experiencing recurrent distressing dreams of his stressor, irritability or outbursts of anger, exaggerated startle response, and anxiety. The examiner opined that the Veteran has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. He assigned a GAF score of 55. A March 2012 VA treatment report includes a report of hypervigilance. See October 8, 2014 CAPRI records, pp. 141-142. At his September 2014 VA examination, the Veteran reported having some difficulty with relationships with family and friends due to his social isolation. He also reported having four verbal altercations at work over the past four months, and receiving one written reprimand in June 2014. He described experiencing anger, anxiety, social isolation, distressing memories of the traumatic event, flashbacks, distress, avoidance of memories and people, diminished interest in activities, detachment, estrangement, irritability, angry outbursts, sleep disturbance, depressed mood, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. He denied experiencing any hallucinations, delusions, or suicidal or homicidal ideation, plan, or intent. The examiner opined that the Veteran has occupational and social impairment with reduced reliability and productivity. Based on the evidence of record described above, the Board finds that for the period prior to September 11, 2014, the Veteran's PTSD results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, panic attacks, and chronic sleep impairment. For the period as of September 11, 2014, the Veteran's PTSD results in occupational and social impairment with reduced reliability and productivity due to such symptoms as impaired judgment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Board notes that the evidence of record reflects that the Veteran has additional symptomatology. Prior to September 11, 2014, this included hypervigilance, irritability, anger, hypersensitivity, lost temper, and an exaggerated startle response. As of September 11, 2014, this included altercations at work, anger, anxiety, distressing memories of the traumatic event, flashbacks, distress, avoidance of memories and people, detachment, estrangement, irritability, and sleep disturbance. See Mauerhan, 16 Vet. App. 436 (2002). However, the Board finds that such symptoms do not more nearly approximate ratings in excess of 30 percent prior to September 11, 2014, or in excess of 50 percent thereafter, under the General Rating Formula. Specifically, the Veteran's symptoms prior to September 11, 2014 do not reflect occupational and social impairment with reduced reliability and productivity. Further, the Veteran's PTSD symptoms do not at any time reflect occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; or total occupational and social impairment. The Board has considered whether further staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected PTSD; however, the Board finds that other than the increased symptoms found at the September 11, 2014 VA examination, his symptomatology has been essentially stable throughout the appeal, as reflected in the relative stability of the GAF scores assigned by his treating VA clinicians and VA examiners. Therefore, the assignment of further staged ratings for such disability is not warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected PTSD with the established criteria found in the rating schedule. The Board finds that the Veteran's PTSD symptomatology is fully addressed by the rating criteria under which such disability is rated. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Finally, the Court of Appeals for Veterans Claims has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied, and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board finds that the most probative evidence shows that the Veteran is not unemployable due to his PTSD. As noted above, the September 2010 VA examiner found that the Veteran's "symptoms are not such that they are interfering with his ability to maintain gainful employment nor his ability to actively participate in his college courses." Further, the Veteran reported having ongoing employment at his March 2012 and September 2014 VA examinations. Thus, TDIU is not raised by the record. In summary, the Board finds that the Veteran's PTSD symptoms result in no more than occupational and social impairment with occasional decrease in work efficiency prior to September 11, 2014, and no more than occupational and social impairment with reduced reliability and productivity as of September 11, 2014. Accordingly, the Board concludes that reasonable doubt does not apply, and the criteria for ratings in excess of 30 percent prior to September 11, 2014, and in excess of 50 percent thereafter, for the Veteran's PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.130, Diagnostic Code 9411. ORDER An increased rating for PTSD is denied. REMAND Remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the claim for entitlement to service connection for sleep apnea, the record contains competent lay evidence of persistent symptoms of a sleep apnea disability, as well as competent medical evidence of a diagnosis of sleep apnea and similar findings. Specifically, the Veteran told a VA physician in October 2009 that he had been experiencing sleep problems since 2005; the VA physician diagnosed sleep apnea. See March 20, 2012 CAPRI records, pp. 76-77. Further, a VA polysomnography technologist provided a provisional diagnosis of sleep apnea in December 2009. In April 2010, a VA nurse practitioner provided a diagnosis of "?? OSA," referring to obstructive sleep apnea. In May 2010, the Veteran told a VA clinician that he "had a horrid experience" at his sleep study because the room was dirty, there was no hot water in the shower, and he could feel the coils of the mattress; he stated that he barely slept and the technician told him that the report would probably be inconclusive, but instead the report stated that he had no sleep apnea. See March 20, 2012 CAPRI records, p. 47. In June 2010, the Veteran told a military hospital clinician that he snores heavily and does not sleep well; the clinician diagnosed the Veteran with snoring, and referred him to a sleep study. In November 2010, a VA clinician recorded, "He had another sleep study. No OSA found." See March 20, 2012 CAPRI records, p. 32. The record also establishes that the Veteran experienced sleeping problems related to his breathing during service. A May 1985 Report of Medical History indicates that the Veteran had surgery for a deviated septum (displacement of the cartilage dividing the left and right nostrils) in 1981, before entering service. In a May 1985 Report of Medical Examination conducted prior to active service, the examiner found that the Veteran's nose was normal. In February 1989, a clinician diagnosed the Veteran with chronic nasal congestion. In January 1992, the Veteran reported that his chronic nasal blockage was worse at night; x-rays of his paranasal sinuses were normal. In an October 1992 Report of Medical History, a clinician recorded that the Veteran has congestion at night when he lies down. As the Veteran has provided competent and credible lay and medical evidence of his current sleep apnea symptoms, there are service treatment records establishing that his chronic nasal blockage was worse at night, and the evidence indicates that the claimed disability may be linked with service, a VA examination as to that issue is warranted. McLendon, 20 Vet. App. 79 (2006). Additionally, because the Veteran served in Southwest Asia from February 2004 to February 2005, a VA examiner should also consider whether his claimed sleep disorder constitutes either 1) an undiagnosed illness, or 2) a medically unexplained chronic multi-symptom illness. 38 C.F.R. § 3.317 (2014). The Board notes that both respiratory system symptoms and sleep disturbances are expressly contemplated as potential signs or symptoms of undiagnosed illness and medically unexplained chronic multisymptom illnesses. 38 C.F.R. §§ 3.317(b)(8), (9). With respect to the claims for entitlement to increased ratings for cervical spine and thoracic spine disability, the Board finds that an addendum opinion to the September 2014 VA examination report is required so that the examiner can explain why the Veteran's additional limitation of the cervical and thoracolumbar spine due to less movement, incoordination, and pain (pp. 4, 13) cannot be expressed in terms of the degrees of additional ROM loss without resorting to speculation (pp. 9, 17). The September 2014 VA examiner wrote, "Such an opinion [as to the degrees of additional ROM lost] is not feasible at this time and cannot be rendered to due speculation." As this statement includes no rationale, it is facially inadequate. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (an examiner's report that she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement). If the examiner is unable to offer an opinion, it is essential that the examiner provide 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. Id. On remand, the AOJ should request the Veteran's most recent VA and private medical records regarding his claimed sleep apnea and cervical and thoracic spine disabilities. The Veteran should be given an opportunity to identify any additional healthcare providers who had treated him for his claimed disabilities on remand. Thereafter, the AOJ should obtain any identified records that are not already included in the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his claimed sleep apnea and cervical and thoracic spine disabilities that are not already of record. The RO should take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file. Any negative response should be in writing and associated with the claims file. 2. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge of the nature and onset of his claimed sleep apnea, and of the nature and severity of his cervical and thoracic spine disabilities. He should be provided an appropriate amount of time to submit this lay evidence. 3. After physically or electronically associating any pertinent, outstanding records with the file, arrange for a VA examination and opinion from a VA polysomnography technologist or person with such suitable expertise. That person should identify or confirm the presence of sleep apnea or any other sleep disorder present. The examiner should state whether it is at least as likely as not that the Veteran's claimed sleep apnea, or any other diagnosed sleep disorder, is related to any in-service event or injury, or had its onset in service. The examiner should also state whether the Veteran has a sleep disorder which constitutes either 1) an undiagnosed illness, or 2) a medically unexplained chronic multi-symptom illness. A medically unexplained chronic multi-symptom illness is defined as a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, or disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. In offering any opinion, the examiner should take into consideration all the evidence of record, to include the medical records, the Veteran's lay statements, accepted medical principles, and objective medical findings. The examiner should specifically consider the following: * The Veteran's May 1985 Report of Medical History, indicating that he had surgery for a deviated septum in 1981, before entering service. * The Veteran's May 1985 Report of Medical Examination, wherein the examiner found that the Veteran's nose was normal. * The Veteran's February 1989 diagnosis of chronic nasal congestion. * The Veteran's January 1992 report that his chronic nasal blockage was worse at night; x-rays of his paranasal sinuses were normal. * The Veteran's October 1992 Report of Medical History, wherein a clinician recorded that the Veteran has congestion at night when he lies down. * The Veteran's October 2009 diagnosis of sleep apnea by a VA physician. * The Veteran's December 2009 provisional diagnosis of sleep apnea by a VA polysomnography technologist. * The Veteran's April 2010 diagnosis of "?? OSA" by a VA nurse practitioner. * The Veteran's May 2010 statement to a VA clinician that he "had a horrid experience" at his sleep study because the room was dirty, there was no hot water in the shower, and he could feel the coils of the mattress; he stated that he barely slept and the technician told him that the report would probably be inconclusive, but instead the report stated that he had no sleep apnea. * The Veteran's June 2010 statement to a military hospital clinician that he snores heavily and does not sleep well. * The Veteran's VA clinician's November 2010 notation that "He had another sleep study. No OSA found." 4. After physically or electronically associating any pertinent, outstanding records with the file, obtain an addendum opinion to the September 2014 examination report, explaining why expressing the Veteran's additional limitation of the cervical and thoracolumbar spine due to less movement, incoordination, and pain (pp. 4, 13) cannot be expressed in terms of the degrees of additional ROM loss without resorting to speculation (pp. 9, 17). It is essential that the September 2014 VA examiner (or another clinician) provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to 1) whether there is additional evidence that could enable an opinion to be provided, or 2) whether the inability to provide the opinion is based on the limits of medical knowledge. Likewise, if the examination report was filled out in error and the degrees of ROM expressed in the report reflect the Veteran's ROM even with less movement, incoordination, and pain on movement, then the examiner should state this for the record. 5. Then readjudicate the appeal. If any claim remains denied, issue a supplemental statement of the case to the Veteran and his attorney and provide an opportunity to respond before the case is returned 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). This claim 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 2014). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs