Citation Nr: 1549739 Decision Date: 11/25/15 Archive Date: 12/03/15 DOCKET NO. 14-16 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for right and left pectineus muscle disabilities. 3. Entitlement to service connection for right and left leg cramping and stiffness, including as due to service-connected healed left pelvic fracture with residual bursitis (left pelvic fracture disability). 4. Entitlement to service connection for a right shoulder disability, including a tear at the supraspinatus tendon, rotator cuff tear, and a right arm disorder. 5. Entitlement to service connection for a right hip disability with limited motion, including traumatic arthritis and degenerative joint disease. 6. Entitlement to a higher rating for lumbar strain, currently evaluated as 20 percent disabling. 7. Entitlement to a higher rating for a left pelvic fracture disability, currently evaluated as 20 percent disabling. 8. Entitlement to an effective date earlier than December 23, 2009, for the grant of a 20 percent rating for lumbar strain. 9. Entitlement to an effective date earlier than December 23, 2009, for the grant of a 20 percent rating for a left pelvic fracture disability. 10. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The Veteran had active military service from June 1977 to December 1999. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. An October 2009 rating decision denied ratings higher than 10 percent for the Veteran's left pelvic fracture and lumbar strain disabilities. On December 23, 2009, he submitted statement evidencing a claim for increased ratings, essentially indicating a worsening of his disabilities. New and material evidence received within the appeal period after a VA decision is considered to have been received in conjunction with the claim that gave rise to that decision. 38 C.F.R. § 3.156(b) (2015). Even in increased rating claims, when VA receives new and material evidence within one year of a rating decision, 38 C.F.R. § 3.156(b) the prior decision remains pending until there is a re-adjudication. Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The Veteran's December 23, 2009 statement constitutes new and material evidence. 38 C.F.R. § 3.156(b). Thus, the October 2009 rating action is the proper rating decision on appeal as to his increased rating claims. A September 2010 rating decision granted 20 percent ratings for the Veteran's lumbar strain and left pelvic fracture disabilities, effective December 28, 2009, and denied service connection for hypertension, right shoulder, left and right pectineus muscle disabilities, and left and right leg cramping and stiffness due to service-connected left pelvic fracture disability. A separate September 2010 rating decision denied service connection for a right hip disability. The issues of entitlement to service connection for right shoulder, hip, and pectineus muscle disabilities were perfected, but not yet certified to the Board. See e.g., May 2014 statement of the case (SOC), June 2014 substantive appeal statement, and July 2014 Certification of Appeal (VA 8). As such, the Board has jurisdiction over them. 38 C.F.R. § 20.200 (2014). A May 2014 rating decision granted an effective date of December 23, 2009 for the 20 percent ratings for the lumbar strain and left pelvic fracture disability. An April 2015 rating decision denied service connection for sleep apnea. The Veteran's increased rating and service connection claims, other than that for right pectineus muscle disability, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has current residuals of in-service pectineus muscle injury of the right thigh. 2. On July 10, 2009, the RO received the Veteran's claim for increased ratings for his lumbar strain and left pelvic fracture disabilities; an increase in disability was initially ascertainable on that date. 3. An increase in lumbar strain and left pelvic fracture disabilities was factually ascertainable on September 25, 2009, but not earlier. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of pectineus muscle injury of the right thigh are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 2. The criteria for an effective date of July 10, 2009 for the grant of a 20 percent disability rating for lumbar strain have been met. 38 U.S.C.A. §§ 5101, 5103, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.159, 3.400 (2015). 3. The criteria for an effective date of July 10, 2009 for the grant of a 20 percent disability for left pelvic fracture disability have been met. 38 U.S.C.A. §§ 5101, 5103, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The effective date appeal arises from disagreement arising from the grant of increased benefits. The underlying claim has been substantiated and further VCAA notice with regard to the downstream elements of the claims is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained, to the extent available, and considered. VA provided examinations for the lumbar strain and left pelvic fracture in September 2009 and August 2010. These examinations addressed the pertinent rating criteria and there is no argument or indication that they are inadequate to the extent that the earlier effective dates may be adjudicated at this time. As VA satisfied its duties to notify and assist the Veteran, he will not be prejudiced as a result of the Board's adjudication of his claims. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §3.159. I. Service Connection When a veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). The Veteran contends that he sustained a pectineus muscle injury to his right thigh during a pelvic crush injury in service in 1987. It bothered him in service and progressively worsened. Thus, he maintains that service connection is warranted for a right pectineus muscle injury. Legal Criteria A veteran is entitled to compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To establish service connection, evidence must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence may be competent to establish in-service injury, current disability and nexus to service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), See also 38 C.F.R. § 3.159(a)(2) (2015) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. .Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.) Analysis Service treatment records show that in October 1987, the Veteran suffered a crushing injury to his right pelvis when pinned under a military trailer. He was transferred to Tampa General Hospital for stabilization, monitoring, and possible external fixation of a pelvic fracture. He returned to a military medical facility in October 1987 for further treatment. On examination of his extremities there was significant tenderness with compression of the iliac wings or greater trochanters referred to the symphysis pubis and left lower back in the area of the left sacroiliac joint. Subsequent medical records do not discuss a right thigh injury. In January 2010 a VA magnetic resonance imaging study (MRI) was interpreted as showing "atrophy and deformity of the right pectineus muscle [that] could be a sequela of old trauma". The impression included prominent seminal vesicles, "probable sequela of trauma in the region of the right pectineus muscle". In a February 2010 letter regarding the MRI results, a VA physician advised the Veteran that there was a "right pectineus muscle that was smaller and scarred looking like from an old injury (presumably the one you told me about)". During his August 2010 VA examination, the Veteran reported a right pectineus muscle injury to the right upper thigh in 1987 in conjunction with the left pelvic fracture. He said it was bothersome and had progressively worsened. The diagnosis was recurrent pectineus muscle strain. The VA examiner opined that the pectineus muscle injury was not caused by or a result of the service-connected left pelvic fracture. The examiner's rationale was that service treatment and VA medical records were silent for the claimed condition and current examination revealed normal muscle function and strength in the lower extremities, including hip flexor strength. The evidence in favor of the Veteran's claim includes the October 8, 1987 private hospital record noting his report of pain in his right groin and thigh; his credible statements regarding his right thigh pain while in active service and afterward; and the January 2010 MRI report and February 2010 letter from the VA physician who found the radiologic findings consistent with the Veteran's report of old right pectineus muscle trauma. The evidence against the claim includes the August 2010 opinion. The examiner did not; however, comment on the Veteran's competent reports. Cf. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (a medical opinion is inadequate, if it relies on the silence of the service treatment records without consideration of a veteran's competent reports). The examiner also did not comment on the findings on the recent MRI of the VA physician's finding that the results were consistent with the injury reported by the Veteran. Thus, the examiner's opinion is of little probative value. At the very least, this leaves the probative evidence of record in equipoise. As such, resolving doubt in the Veteran's favor, service connection for recurrent pectineus muscle strain of the right thigh is warranted and the Veteran's appeal is granted. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. II. Earlier Effective Date Contentions In a November 2014 statement, the Veteran's attorney asserted that the effective date for the grant of the 20 percent ratings for his service-connected lumbar strain and left pelvic fracture disabilities should be "as early as" December 23, 2008, but did not make specific argument. Legal Criteria Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (2015); 38 C.F.R. § 4.1 (2015). Separate diagnostic codes identify the various disabilities. Although the Veteran's entire history is reviewed when assigning a disability evaluation, as required under 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Cf. 38 U.S.C.A. § 5107. Generally, the effective date for an award of an increased rating will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. If the increase is factually ascertainable within one year prior to the receipt of the claim for an increased rating, the rating will be effective as of the date of increase; however, if the increase occurred more than one year prior to receipt of the claim, the increase will be effective on the date of claim. Further, if the increase occurred after the date of claim, the effective date will be the date of increase. 38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1),(2). VAOPGCPREC 12-98 (1998). The Board must consider all of the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet App 511 (1997). In determining when entitlement to an increase in disability compensation arises, the disability must have increased in severity to a degree warranting an increase in compensation. Hazan v. Gober, 10 Vet. App. at 519. Thus, determining the proper effective date for an increased rating requires (1) a determination of the date of the receipt of the claim, and (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Id. at 521. A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Generally, an application for VA compensation must be a specific claim in the form prescribed by the VA Secretary; however any communication or action received from a claimant or his representative which indicates intent to apply for identified benefits may be an informal claim. 38 U.S.C.A. § 5101(a); 38 C.F.R. §§ 3.151(a); 3.155(a). Once a claim for service connection has been allowed, information contained in treatment records may constitute an informal claim for an increased rating. 38 C.F.R. § 3.157 (2014) (removed effective March 25, 2015); VA treatment records are considered to be in constructive possession of VA adjudicators on the date they were created, regardless of whether they were physically in the claims file. Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). The date of receipt of claim will be considered the date VA records are created; or date or receipt of records from a private provider or layperson that shows a reasonable possibility of entitlement to benefits. 38 C.F.R. § 3.157(b)(2)-(3) (2014). Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a (2015). Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See Plate V, 38 C.F.R. § 4.71a (2015). Under Diagnostic Code 5252, that rates hip motion, flexion limited to 30 degrees warrants a 20 percent rating. 38 C.F.R. § 4.71a (2015). Normal range of hip flexion is from 0 to 125 degrees. Normal hip abduction is from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II (2015). Analysis The Veteran was granted service connection for lumbar strain and a left pelvic fracture in February 2000, with 10 percent ratings assigned, effective date from January 1, 2000. He was notified of his appellate rights and submitted a timely notice of disagreement as to an initial rating higher than 10 percent for his left pelvic fracture disability in May 2000. That month, the RO issued a SOC as to the claim for an increased initial rating higher than 10 percent for a left pelvic fracture. The Veteran did not submit a substantive appeal within the year after notice of the January 2000 rating or within 60 days of the SOC and the appeal was closed. Thus, the January 2000 rating decision became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104. In March 2008, the Veteran completed a questionnaire regarding the status of his dependents, but there was no reference to the service connected disabilities. There was no communication evidencing an intent to apply for additional benefits for lumbar and left pelvic fracture disabilities until July 10, 2009, when the Veteran filed a claim for increased ratings. On July 31, 2009, the RO asked the Veteran to submit evidence in support of the claim. On August 27, 2009, the Veteran submitted private chiropractic records, dated from November 2001 to July 2009. These reflected regular treatment for low back and pelvic symptoms. A January 31, 2002 statement from Dr. L.S.B., his chiropractor, notes that the Veteran's mid thoracic spine was vulnerable to misalignment and that he was seen bimonthly for spinal correction. In an August 2009 statement, Dr. L.S.B. explained that the Veteran initially complained of T4-T5 and low back pain. He had pronounced low back and pelvic pain for which he had one or two monthly adjustments. It was noted that he had prior chiropractic treatment in 1999. The chiropractic records describe the Veteran's treatment for continuing symptoms of lumbar spine and left hip pain, but do not show an increase in disability within the year prior to his July 2009 claim. August 19, 2009 private hospital X-ray report revealed minor pelvic bone deformities and adjacent soft tissue calcifications perhaps relating to the history of old trauma with no acute boney abnormality detected. X-rays of his lumbar spine show mild multi-level lumbar spondylosis. During the September 25, 2009 VA examination, the Veteran reported that his hips "acted up" periodically and, when they did, he was unable to climb up/over vehicles and equipment at work that he was normally able to do. He took ibuprofen and went to a chiropractor for which he got temporary relief. but his symptoms returned. The Veteran was active, worked fulltime, played golf, and did all normal activities of daily living, but did not engage in high impact activities like jogging. His symptoms progressively worsened since onset. The Veteran had moderate flare-ups of pain every 2 or 3 weeks that lasted 3 to 7 days. He had hip pain, stiffness, and weakness. On examination, range of motion of his left hip was flexion to 70 degrees, extension to 20 degrees, and abduction to 25 degrees. He was able to cross his left leg over his right and toe out greater than 15 degrees. Diagnoses included a healed pelvic fracture and bursitis of the hips. The examiner noted that the hip disability had significant effects on the Veteran's occupation due to decreased mobility and pain, The Veteran complained of chronic low back pain, stiffness, decreased motion, and weakness. His back bothered him intermittently, and he went to a chiropractor and got good temporary relief, but his symptoms always returned in a few weeks. The Veteran's symptoms progressively worsened since onset. He reported fatigue, decreased motion, stiffness, weakness, spasms, and pain. The Veteran had nearly constant, moderate, daily pain. He had severe flare-ups every 1 to 2 months that lasted 3 to 7 days during which he estimated that he was 70 percent functionally impaired. The Veteran's gait, posture, and spinal curvature were normal. Range of motion of his thoracolumbar spine was flexion to 75 degrees, extension to 20 degrees, right lateral flexion to 15 degrees, left lateral flexion to flexion to 20 degrees, and right and left lateral rotation to 20 degrees. The Veteran worked full time and estimated losing 21 days from work due to lumbar spine disability. Lumbar strain significantly affected his ability to lift and carry objects while working. The examiner reported objective evidence of painful motion and tenderness of the lumbar spine and left pelvis, with no additional range of motion loss due to pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The October 2009 rating decision denied ratings in excess of 10 percent for the left pelvic fracture and lumbar strain disability. On December 23, 2009, the Veteran submitted a statement essentially reporting that his disabilities had worsened. The September 2010 rating decision granted 20 percent ratings for the left hip and lumbar spine disabilities, effective December 28, 2009, later adjusted to December 23, 2009. Evidence and examinations prior to December 23, 2009 did not include specific reports of ranges of motion that met the criteria for a 20 percent rating for the lumbar spine or left hip disability. Prior to December 23, 2009, however, there were reports of significant functional impairment, including flare ups of pain, tenderness, and pain on motion that had significant occupational effects. The September 2009 examination reported flare-ups, but did not comment on limitation of motion during the flare ups, other than to say that the flare ups were "moderate." The August 2009 X-ray reports suggest some increase in lumbar spine and left pelvis disability, confirmed on the subsequent VA examination, but the Veteran's claim evidences an earlier worsening of his disability. See Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Resolving doubt in the Veteran's favor, an effective date of July 10, 2009 is assigned for the 20 percent ratings for lumbar strain and the left pelvic fracture disability. See 38 U.S.C.A. § 5107. ORDER Service connection for a recurrent pectineus muscle strain of the right thigh is granted. An effective date of July 10, 2009 for the grant of a 20 percent rating for lumbar strain is granted. An effective date of July 10, 2009 for the grant of a 20 percent rating for a left pelvic fracture is granted. REMAND The August 2010 VA examiner diagnosed lumbar strain and degenerative disc disease/degenerative joint disease and left pelvis fracture. The examiner noted that there was lumbar spine weakness, stiffness, spasm, decreased motion, and objective evidence of pain with spine and hip motion and limitation of motion, but did not provide opinions as to the extent, if any, of additional loss of motion due to these factors. This is required. See Mitchell v. Shinseki, 25 Vet. App. at 32. The examiner opined that the Veteran's degenerative disc disease/degenerative joint disease of the lumbar spine was not related to active service as service treatment records were silent for degenerative changes and lumbar strain did not produce significant stressors on the lumbar strain that would produce degenerative joint disease/degenerative disc disease changes in the lumbar spine. Service treatment records include results of a computed tomography (CT) scan performed on October 9, 1987, showing a slight separation of the sacroiliac (SI) joint on the left. An October 23, 1987 CT scan showed a fracture of the sacrum below the left SI. More significantly, a January 1990 service treatment record includes an assessment of early onset degenerative joint disease of the LS-SI joint. It does not appear that the examiner considered all the Veteran's service treatment records. Further clarification is needed as to whether the Veteran's degenerative disc disease/degenerative joint disease of the lumbar spine had its onset in service or is due to service-connected disability. As well, in August 2014, the Veteran's attorney offered that the lumbar spine and left pelvis disabilities had worsened since the 2010 VA examination. The Veteran is entitled to a new examination. See e.g., Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran reports right shoulder problems that originated in service and continued after active duty. Service treatment records show he was seen on June 9, 1998 for complaints of right arm pain and, on June 7, 1999 for right shoulder strain. Post service, he was seen at MacDill Air Force Base on October 5, 2000, December 12, 2000, January 4, 2001, and March 6, 2001 for right shoulder pain. An October 2000 MRI showed findings consistent with subacromial bursitis that could be a tear. An April 2009 MRI showed a small full-thickness rotator cuff tear. In March 2014, a VA examiner opined that the Veteran's right shoulder rotator cuff tear was less likely than not (less than 50/50 probability) caused by or a result of complaints of pain noted from June 1998 to June 1999. The examiner's rationale was that her review of currently available medical records failed to document chronicity of the claimed condition during service or after discharge from service. Veteran was seen once in service for right shoulder, stated resolved at time of appointment (June 1999) and the MRI in 2000 resulted no rotator cuff tear, no impingement. A rotator cuff tear was diagnosed in 2009. It does not appear that the examiner considered the Veteran's reports of a continuity of right shoulder pain. See e.g., Dalton v. Nicholson, 21 Vet. App. at 23. The August 2010 VA examiner noted the Veteran's history of right hip and right and left leg pain since the 1987 accident in service. The examiner opined that findings were consistent with bursitis of the right hip, consistent with mechanical irritation rather than residual from prior injury. A right or left leg disability was not diagnosed. The examiner opined that the claimed bilateral leg cramping and stiffness was not due to or caused by service-connected left pelvic fracture. The examiner did not comment on whether service-connected lumbar strain or left pelvic fracture aggravated the Veteran's right hip, or right and left leg disabilities. 38 C.F.R. § 3.310(a), (b). The examiner did not address the claimed left pectineus muscle disability. A new VA opinion is need to determine if the Veteran has a right hip, left or right leg, or left pectineus muscle, disability due to or aggravated by service-connected lumbar strain or left pelvic fracture disability. The August 2010 VA examiner opined that the Veteran's hypertension was not due to active service. The examiner noted no treatment in service for hypertension or within two years after retirement, that the Veteran's blood pressure readings were in the normotensive range between 1997 and 1999, and that VA medical records diagnosed hypertension in 2009. In August 2014, the Veteran's attorney argued that the examiner did not address the Veteran's "numerous readings which were clearly within the pre-hypertensive range and above." In a footnote, the attorney noted that systolic blood pressure readings between 120 and 139 are regarded as prehypertension, while readings in the 140-159 range are regarded as Stage 1 hypertension, and cited http://www.heart.org/HEARTORG/Conditions/HighBloodPressure/AboutHighBloodPressure/Understanding-Blood-Pressure-Readings UCM 301764 Article.jsp. A review of the Veteran's service treatment records shows numerous systolic blood pressure readings over 130, starting in October 1987. A new VA opinion is warranted to address whether the elevated readings represented prehypertension. The AOJ considered VA medical records dated to February 2014 in the February 2014 SOC, and to April 2014 in the May 2014 SOC. Recent medical records regarding the Veteran's VA medical treatment should be obtained, dated since April 2014. The April 2015 rating decision denied service connection for sleep apnea. In May 2015, the Veteran submitted a NOD with this decision. The Board is required to remand this matter for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case regarding entitlement to service connection for sleep apnea. This issue should not be returned to the Board, unless the Veteran or his representative submits a timely substantive appeal. 2. Obtain all records regarding the Veteran's VA treatment for the disabilities at issue since April 2014. If any requested records cannot be obtained, the Veteran must be notified of the attempts made and of what additional actions will be taken with regard to his claims. 3. After completing the development requested above, schedule the Veteran for appropriate VA examinations to determine the current severity of his service-connected lumbar strain and left pelvic fracture and whether a right shoulder, right hip, left pectineus, left and right leg, or hypertension, disability is related to service. All indicated tests and studies should be conducted. The claims folder must be provided to the examiner(s) for use in the study of this case. After completion of the examination and review of the record, the examiner(s) should answer the following questions. a. Lumbar Strain and Left Pelvic Fracture i. The examiner should indicate the range of motion of the Veteran's lumbar spine and left pelvis in terms of degrees. ii. The examiner should report whether there is additional limitation due to weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should construe the Veteran's complaints of weakness, stiffness, pain, limited function, and limited range of motion during physical activity as flare-ups. iii. The examiner must express the additional functional limitation (either noted on examination or as credibly reported by the Veteran) in terms of the degree of additional limitation due to weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should solicit information from the Veteran regarding limitation of motion during flare-ups. iv. The examiner should report whether there is any ankylosis of the thoracolumbar spine or entire spine or the left pelvis. If thoracolumbar ankylosis is present, the examiner should specify whether it is favorable or unfavorable and the angle at which the spine is held. v. The examiner should also report the total duration of any incapacitating episodes due to intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician during the past 12 months, if any. vi. The examiner should also identify each neurologic abnormality that is attributable to the low back or left pelvic fracture disability, if any. vii. The examiner must provide reasons for any opinion given. viii. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. ix. If the examiner finds the Veteran's reports to not be credible, the examiner should provide reasons for this finding. b. Degenerative Disc Disease/Degenerative Joint Disease and Lumbar Strain i. Has the Veteran had degenerative joint disease/degenerative disc disease of the lumbar spine at any time since 2009? ii. If so, is it as likely as not that the Veteran's degenerative joint disease/degenerative disc disease is the result of a disease or injury in active service, including the February 1980 acute lumbar sprain, October 1987 crush injury, or October 1998 motor vehicle accident, or had its onset in such service (including the notation in the January 1990 service treatment record reflecting early onset degenerative joint disease of the LS-SI joint)? iii. For any degenerative joint disease/degenerative disc disease, the examiner should indicate whether it is at least as likely as not (a 50 percent or higher degree of probability) that it is proximately due to or the result of service-connected lumbar strain and/or left pelvic fracture. iv. If not, is it at least as likely as not aggravated by service-connected lumbar strain and/or left pelvic fracture? If aggravated, what permanent, measurable increase in current degenerative disc disease/degenerative joint disease pathology is attributable to the service-connected lumbar strain and/or left pectineus muscle disability? c. Right Shoulder i. Has the Veteran had a rotator cuff tear or another right shoulder disability at any time since 2009? ii. If so, is it as likely as not that the Veteran's rotator cuff tear is the result of a disease or injury in active service, or had its onset in such service, including the findings in the June 1998 and June 1999 service treatment records, and his work as a machinist in service? d. Right Hip, Left and Right Leg, and Left Pectineus Muscle: i. Has the Veteran had bursitis of the right hip, or another right hip, left and right leg, or left pectineus muscle, disorder, at any time since 2009? ii. If so, is it as likely as not that the Veteran's bursitis of the right hip, or other right hip, right and left leg, or left pectineus muscle, disorder, is the result of a disease or injury in active service, including the October 1987 crush injury, or had its onset in such service? iii. For any right and left leg, left pectineus muscle, or right hip, disorder, including bursitis, the examiner should indicate whether it is at least as likely as not (a 50 percent or higher degree of probability) that it is proximately due to or the result of service-connected lumbar strain and/or left pelvic fracture. iv. If not, is it at least as likely as not aggravated by service-connected lumbar strain and/or left pelvic fracture? If aggravated, what permanent, measurable increase in current right hip, right and left leg, or left pectineus muscle pathology is attributable to the service-connected lumbar strain and/or left pectineus muscle disability? e. Hypertension i. Has the Veteran had hypertension at any time since 2009? ii. If so, is it as likely as not that the Veteran's hypertension is the result of a disease or injury in active service; or manifest to a compensable degree within one year of discharge from active service? iii. The examiner should consider the blood pressure readings in the Veteran's service treatment records, including in October 1987 (135/87), on an undated record apparently in 1991 (150/80), and on March 14, 1996 (137/83), April 8, 1997 (146/84), June 10, 1997 (138/72), November 19, 1998 (147/74), and June 30, 1999 (130/84). iv. The examiner should discuss the Veteran's post service reports of symptoms and a post service March 6, 2001 MacDill Air Force Base record blood pressure reading (148/102). v. The examiner should address the opinions offered by the VA examiner in August 2010 and the contention that the Veteran's numerous readings in service were in the pre-hypertensive range and above. The examiner should indicate whether the blood pressure readings in service represented the onset of hypertension diagnosed after retirement from active duty. f. If the examiner(s) is(are) unable to provide an opinion without resort to speculation, he or she should explain if this is due to the limits of the examiner's medical knowledge, the limits of medical knowledge in general; or there is additional evidence would be necessary before an opinion could be rendered. g. The absence of evidence of treatment for right hip, right and left leg, left pectineus muscle, and hypertension problems in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. h. If an examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 4. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Then the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs