Citation Nr: 1509217 Decision Date: 03/03/15 Archive Date: 03/17/15 DOCKET NO. 10-19 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to an initial evaluation in excess of 10 percent for chronic lumbar vertebral degenerative arthritis/disc disease. 3. Entitlement to an initial evaluation in excess of 10 percent for left lower extremity radiculopathy associated with chronic lumbar vertebral degenerative arthritis/disc disease. 4. Entitlement to an initial evaluation in excess of 10 percent for right lower extremity radiculopathy associated with chronic lumbar vertebral degenerative arthritis/disc disease. 5. Entitlement to an initial evaluation in excess of 30 percent for gastritis/gastroesophageal reflux disease and diverticulosis. 6. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Marine Corps League WITNESS AT HEARING ON APPEAL The Veteran and her daughter ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from September 1986 to October 1990 and from November 1990 to May 1991. She had subsequent service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO). REMAND Sleep Apnea Pursuant to a January 2012 remand, the Veteran underwent a VA examination in April 2012 with respect to the sleep apnea claim. Following a review of the evidence and clinical examination of the Veteran, the examiner opined that the Veteran's "sleep apnea or its aggravation is less likely as not due to service." In providing the rationale for this opinion, the examiner highlighted that the Veteran's sleep apnea was not diagnosed until 1998, "many years after leaving service." The examiner also rationalized that there was no documented evidence suggestive of sleep apnea during service or in the Veteran's civilian records immediately following her separation. The Board finds that, despite the January 2012 remand instructions, the examiner's opinion does not given adequate consideration to the Veteran's or her daughter's testimony essentially that the Veteran experienced symptoms of sleep apnea during service and that her symptoms continued following her discharge from the military. See 38 C.F.R. § 3.303(a) (2014); Buchanan v. Nicholson, 451 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Instead, the examiner's opinion is based only on the lack of documented evidence of sleep apnea shown in the Veteran's service treatment records and post-service records. A medical opinion based solely on the absence of documentation in the record is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Thus, the April 2012 examiner's opinion is inadequate with which to decide the Veteran's claim. Given the deficiencies of the April 2012 VA medical opinion, the Veteran must be afforded a new examination to determine the nature and etiology of her diagnosed sleep apnea. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Stegall v. West, 11 Vet. App. 268, 271 (1998). Lumbar Spine, Bilateral Lower Extremity Radiculopathy, and Gastritis/Gastroesophageal Reflux Disease Claims The record reflects that the Veteran was last afforded VA examinations with respect to her lumbar spine, bilateral lower extremity radiculopathy and gastritis/gastroesophageal reflux disease (GERD) disabilities in April 2012. In a February 2015 informal hearing presentation, the Veteran, by way of her representative, asserted that her orthopedic and digestive disabilities have worsened since the April 2012 examinations. A new VA examination is necessary where there is evidence, including the Veteran's statements that her service-connected disabilities have worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Given the Veteran's assertions of an increase in the severity of her orthopedic and digestive disabilities, the Board has determined that she should be afforded VA examinations to determine the current manifestations of her service-connected lumbar spine, bilateral lower extremity radiculopathy, and gastritis/GERD disabilities. A Total Rating For Compensation Purposes Based Upon Individual Unemployability As for the Veteran's remaining claim, the Board finds that the claim for a TDIU is inextricably intertwined with the service connection and increased rating claims, and must also be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford her the opportunity to identify or submit any additional pertinent evidence in support of her claims. Based on her 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. Regardless of her response, the RO must obtain any available updated VA treatment records, to include all pertinent treatment records dated from October 2012. 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 she is ultimately responsible for providing the evidence. The Veteran and her representative must then be given an opportunity to respond. 2. After completion of all records development, the Veteran must be provided with an appropriate VA examination to determine the etiology of her diagnosed sleep apnea disorder. The Veteran's claims file and all electronic records must be made available to the examiner, and the examiner must indicate that these records have been reviewed. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. After a review of the claims file, the service and post-service treatment records, and with consideration of the lay evidence of record, to include the Veteran and her daughter's statements that the Veteran experienced sleep apnea symptoms since service, the examiner must render an opinion as to whether the Veteran's diagnosed sleep apnea was incurred in or is due to her active military service, including her active duty from September 1986 to October 1990 and from November 1990 to May 1991, as well as her periods of active duty for training in the Army National Guard. The examiner must provide a complete rationale for all opinions expressed. 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. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The Veteran must be afforded an appropriate examination to determine the current severity of her service-connected chronic lumbar vertebral degenerative arthritis/disc disease. The Veteran's claims file and all electronic records must be made available to the examiner, and the examiner must indicate that these records have been reviewed. All pertinent symptomatology and findings must be reported in detail. Any testing that is deemed necessary for an accurate assessment must be conducted. The examiner must conduct full range of motion studies on the service-connected chronic lumbar vertebral degenerative arthritis/disc disease. The examiner must first record the range of motion of the lumbar spine 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. The VA examiner must specifically state whether there is any favorable or unfavorable ankylosis in the lumbar spine. Then, after reviewing the Veteran's complaints and medical history, the examiner must provide 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 service-connected lumbar disability. It must also be determined whether there is weakened movement, excess fatigability, or incoordination attributable to the service-connected lumbar disability, expressed in terms of the degree of additional range of motion loss. Separate ratings have been assigned for bilateral lower extremity radiculopathy. The examiner must report all associated neurological complaints and findings attributable to the Veteran's service-connected chronic lumbar vertebral degenerative arthritis/disc disease degenerative joint disease. The examiner must also specifically state whether any neurologic manifestation found, to include the bilateral lower extremity radiculopathy results in complete or incomplete paralysis of any nerve. The specific nerves 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. Additionally, the examiner must also note whether the Veteran has any associated intervertebral disc syndrome. If so, the examiner must state whether the Veteran experiences incapacitating episodes that required bed rest prescribed by a physician and the frequency and total duration of such episodes over the course of the past 12 months. 4. The Veteran must be afforded a comprehensive VA digestive disorders examination, covering areas including gastritis/GERD and diverticulosis, to determine the current severity of her service-connected digestive disability. The claims file and all pertinent 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 perform any test or studies deemed necessary for accurate assessment. The examiner must address whether the Veteran has symptoms of vomiting, material weight loss, hematemesis, melena, moderate anemia, or other symptom combinations associated with her gastritis/GERD, and whether any such symptoms are productive of severe impairment of health. The examiner must also address whether the Veteran has persistently recurring epigastric distress, dysphagia, pyrosis, or regurgitation, accompanied by substernal or arm or shoulder pain, and, if so, whether these symptoms are productive of "considerable" impairment of health. The examiner must also identify and explain any other manifestations of the Veteran's gastritis/GERD. The examiner must address whether the Veteran's diverticulitis manifests as diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress; or frequent episodes of bowel disturbance with abdominal distress; or disturbances of bowel function, with occasional episodes of bowel distress. The examiner must also address whether the Veteran's diverticulitis results in marked malnutrition, anemia, general debility or serious complication; whether it results in numerous attack a year with malnutrition and health only fair during remissions; whether it results in the equivalent of severe colitis with frequent exacerbations; and whether it results in the equivalent of moderate colitis, with infrequent exacerbations. The examiner must also address whether the Veteran's diverticulitis results in definite partial obstruction shown by x-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage; or results in impairment of health manifested by anemia and weight loss; whether her diverticulitis results in recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year; whether her diverticulitis results in episodes of recurring symptoms several times a year; and whether her diverticulitis results with brief episodes of recurring symptoms once or twice yearly. The diverticulitis examination must also identify and explain any other manifestations of the Veteran's diverticulitis. 5. The RO must notify the Veteran that it is her responsibility to report for any examination scheduled and to cooperate in the development of her 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 an examination, documentation must be obtained that shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. The RO must review the examination reports to ensure that they are in complete compliance with the directives of this remand. If any report is deficient in any manner, the RO must implement corrective procedures. 7. Once the above actions has been completed, 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 adjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until she receives further notice; however, she 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).