Citation Nr: 1504961 Decision Date: 02/03/15 Archive Date: 02/09/15 DOCKET NO. 13-27 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for asthma. 3. Entitlement to service connection for a sinus disability. 4. Entitlement to service connection for a left knee disability. 5. Entitlement to an initial evaluation in excess of 20 percent for degenerative disc disease, lower spine, status post-surgery. 6. Entitlement to an initial evaluation in excess of 10 percent for neuropathy of right lower extremity, secondary to lumbar spine disability. 7. Entitlement to an initial evaluation in excess of 10 percent for neuropathy of left lower extremity, secondary to lumbar spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from January 1980 to May 1980 and on active duty for training (ACDUTRA) from July 16, 2009 to July 20, 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In October 2014, the Veteran testified at a hearing held at the RO before the undersigned. Due to a technical malfunction, a recording of this hearing was not made. In December 2014, the RO notified the Veteran of the malfunction and informed him that no transcript of the hearing could be prepared. The RO's letter also him with an opportunity to have a new hearing if he so desired. A request for a new hearing has not been received. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2014). REMAND The Veteran is seeking service connection for sleep apnea, asthma, a sinus disability, and a left knee disability. He is also seeking increased initial evaluations for his lumbar spine disability, with associated neuropathy of the bilateral lower extremities. Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014). A. Service Personnel and Treatment Records Despite the RO's efforts, the Veteran's complete service personnel and service treatment records have not been obtained. In addition, not all periods of ACDUTRA and inactive duty for training (INACDUTRA) have been verified. A January 2010 memorandum indicated that the Veteran was discharged from the Army Reserves on September 29, 2009. Given the passage of time, the Veteran's service personnel and service treatment records may now be retired and available at the National Personnel Records Center in St. Louis, Missouri. Accordingly, the RO must make a final attempt to obtain a complete copy of all of the Veteran's service personnel and service treatment records, which would verify the Veteran's periods of ACDUTRA and INACDTURA service. 38 C.F.R. § 3.159(c)(2). B. Additional Treatment Records Available A February 2011 letter from P. F., M.D., noted that he was the Veteran's personal physician for over 13 years and had treated him for degenerative spine disease, bilateral lower extremity pain, sleep apnea, sinus problems, and numerous joint pains. Dr. F. also noted that these conditions occurred during the time that the Veteran was in the Army Reserves. Under these circumstances, the RO must, with the assistance of the Veteran, attempt to obtain the treatment records from Dr. F. An August 2011 statement from the Veteran's spouse noted that the Veteran had surgery on his left knee prior to his entering military service. A March 1998 treatment report noted the Veteran's history of problems with medial collateral reconstruction of his left knee. Under these circumstances, the RO must attempt, with the assistance of the Veteran, to obtain the Veteran's pre-service left knee surgical records, as well as all of his subsequent left knee treatment records. In his August 2011 notice of disagreement, the Veteran indicated that he was receiving treatment for his back and bilateral lower extremity conditions at the VA medical center in Hickory, North Carolina. The RO must attempt to obtain copies of these VA treatment records. C. New Examinations Required At his October 2014 hearing before the Board, the Veteran testified that his lumbar spine disability and associated neuropathy of the lower extremities had worsened since his most recent VA examination performed in December 2010. Under these circumstances, the RO must obtain the Veteran's updated treatment records, and provide examinations to determine the current severity of his lumbar spine disability and associated neuropathy of the lower extremities. 38 C.F.R. § 3.159(c)(4)(i); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (indicating that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination). Accordingly, the case is remanded for the following action: 1. The RO must contact the National Personnel Records Center and all other appropriate sources, to obtain the Veteran's complete service personnel file and service treatment records in order to identify his various periods of military service from January 1980 to September 2009. If, after making reasonable efforts to obtain these 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. 2. The RO must contact the Veteran to request a comprehensive statement containing as much detail as possible regarding his service connection claims for asthma, sleep apnea, a sinus disability, and a left knee disability. Specifically, the Veteran must be asked to provide specific details for each claimed disability, including the date of onset and the circumstances in which each condition began, including the place, symptoms experienced, and treatment sought. The Veteran must be advised that this information is necessary to establish his claims. The RO must also request that the Veteran identify or submit any additional pertinent evidence in support of all his claims, including: (a) records of his preservice left knee surgery, as well as any subsequent treatment for left knee disability; (b) all treatment records relating to his asthma, sinus disability and sleep apnea; and (c) all treatment records, since April 2008, for his lumbar spine disability and associated neuropathy of the lower extremities. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. Regardless of his response, all of the Veteran's treatment records since April 2008 should be obtained from the VA medical center in Hickory, North Carolina. 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. After completion of the foregoing, the Veteran must be afforded an examination to determine the current degree of severity of his service-connected lower spine degenerative disc disease, status post-surgery, with associated neuropathy of the bilateral lower extremities. The Veteran's electronic claims file must be made available to and reviewed by the examiner. All tests and studies deemed necessary by the examiner must be conducted, and their results must be included and discussed in the examination report. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, including range of motion, and comment on the functional limitations, if any, caused by his service-connected degenerative disc disease, lower spine, status post-surgery, with associated neuropathy of the bilateral lower extremities. The examiner must determine the range of motion of the Veteran's lower spine in degrees and noting by comparison the normal range of motion, with standard ranges provided for comparison purposes. If pain is present on any motion, the Veteran must be instructed to indicate to the examiner at what degree the pain begins and the examiner must report this finding. The examiner must address whether there is any weakened movement, incoordination, excess fatigability, or pain on movement after repetitions of the range of motion tests. The functional impairment due to weakened movement, incoordination, excess fatigability, or pain on movement must, if feasible, be assessed in terms of additional degrees of limitation of motion lost. With respect to any subjective complaints of pain, the examiner must comment on whether pain is visibly manifested on movement of the affected part, the presence and degree of, or absence of, muscle atrophy attributable to the service-connected lumbar spine disability, the presence or absence of changes in condition of the skin indicative of disuse, and the presence or absence of any other objective manifestations that would demonstrate disuse or functional impairment due to pain attributable to lower spine disability. The examiner must state whether any neurologic symptoms found are caused by the Veteran's service connected lower spine disability, or are due to other causes. The examiner must state whether there are any objective neurologic abnormalities such as radiculopathy, sensory impairment, bowel impairment, or bladder impairment. The examiner must address the frequency and duration of any intervertebral disc syndrome found and/or incapacitating episodes in the past 12 months due to intervertebral disc syndrome, as established by prescriptions for bed rest for treatment of intervertebral disc syndrome. The examiner must also address all symptoms shown upon examination that are related to his service-connected bilateral lower extremity neuropathy, to include whether there is complete or incomplete paralysis of the sciatic nerve. If there is incomplete paralysis, the examiner must state whether such paralysis is mild, moderate, moderately severe, or severe with marked muscular atrophy. All opinions provided must include a complete rationale. 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 must be typed. 4. The examination report must be reviewed to ensure that they are in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 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 his claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2014). 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 in the paragraphs above, the issues remaining on appeal must be readjudicated. If any claim 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. 7. This appeal has been advanced on the Board's docket. Expedited handling is required. 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 2014), 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) (2014).