Citation Nr: 1603543 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 12-11 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased disability rating for a lumbar spine disability in excess of 10 percent for the period prior to February 23, 2012 and in excess of 20 percent therefrom. 2. Entitlement to service connection for a right knee disability. 3. Whether new and material evidence has been received to reopen a previously denied claim for service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from March 1993 to October 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. By that rating action, the RO, in part, denied an increased disability rating in excess of 10 percent for the service-connected lumbosacral strain. The Veteran appealed this rating action to the Board. This appeal also stems from a September 2014 rating action issued by the above RO. By that rating action, the RO denied service connection for a right knee disability. The Veteran appealed this rating action to the Board. Regarding the increased rating claim on appeal, in a January 2015 decision, the Board denied an increased disability rating in excess of 10 percent for the service-connected low back disability for the period prior to February 23, 2012, the date of a VA examination report, and assigned a 20 percent disability rating therefrom. The Veteran appealed the Board's January 2015 decision to the United States Court of Veterans Appeals (Court). In a November 2015 Order, the Court granted a Joint Motion for Remand (JMR) of the Veteran's counsel and counsel for the Secretary of Veterans Affairs ("Parties") and remanded the issue on appeal for action consistent with the terms of the JMR. At this juncture, the Board noes that it is unclear from the vague and ambiguous language in the Parties' JMR and Court Order as to which portion of the increased rating claim the Veteran had appealed to the Court, as well the portion that was the subject of the Court's Order. Thus, in the interest of justice and fairness, the Board will resolve the ambiguity in the Veteran's favor and finds that the 10 and 20 percent ratings and their respective time periods are the subject of its appellate review of the increased rating claim. If the Veteran does not wish to pursue any aspect of the increased rating claim, he should communicate this to VA. Concerning the claim for service connection for sleep apnea, by a July 2015 rating action, the RO reopened a previously denied claim for service connection for this disability and denied the de novo claim on its merits. (See July 2015 rating action). The Veteran was informed of the RO's decision that same month. In November 2015, the Veteran filed a notice of disagreement (NOD) with the July 2015 rating decision. (See VA Form 21-0948, Notice of Disagreement, received by the RO in November 2015). A statement of the case (SOC) has not yet been issued to address the matter. Manlincon v. West, 12 Vet. App. 238, 24 (1999). Notably, regarding the Veteran's claim of entitlement to service for sleep apnea, the question of whether new and material evidence has been received to reopen the claim must be addressed in the first instance by the Board (regardless whether the RO reopened the claim) because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2011); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Thus, the Board has characterized the issue accordingly. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND This appeal is remanded, in part, for compliance with the Court's November 2015 Order, as it pertains to the increased rating issue on appeal. In the JMR, the Parties agreed that the Board had erred in its January 2015 decision, wherein it had denied an increased rating for the service-connected lumbar spine disability in excess of 10 percent for the period prior to February 23, 2012 and in excess of 20 percent therefrom, by relying on a February 2012 VA examination report. As argued by the Parties, the February 2012 VA examiner had failed to adequately address the functional loss associated with the Veteran's report of flare-ups of spine pain three (3) times a month that had caused him to miss work. In addition, the parties argued that the Board's decision failed to address the discrepancy between the Veteran's reports of having flare-ups of spine pain once a month that lasted for 24-hours during a September 2009 VA examination with his reports of having flare-ups of spine pain three (3) times a month during the February 2012 VA examination. (See JMR at pages (pgs.) 3-4). In compliance with the Court's order, the Board now remands the issues on appeal to obtain the necessary VA medical examination and opinion. This additional development is required in order to provide an adequate statement of reasons and bases in the analysis of the issues. See Forcier v. Nicholson, 19 Vet. App. 414 (2006) (holding that the duty to ensure compliance with a Court Order extends to the terms of the agreement struck by the parties that forms the basis of the JMR). Per the parties' JMR and Court's Order, a remand is necessary for a new examination and opinion that adequately addresses additional loss of range of motion due the Veteran's lumbar spine symptoms due to flare-ups. A remand is also warranted on the claim for service connection for a right knee disability. Specifically, the Veteran should be scheduled for a videoconference hearing before a Veterans Law Judge. On his October 2015 Form 9 substantive appeal, the Veteran requested a videoconference hearing before the Board. A review of the Veteran's Veterans Benefits Management System (VBMS) and Virtual VA electronic records found that he has not withdrawn this hearing request. He is entitled to a hearing on appeal in this matter and his request must be honored. 38 C.F.R. § 20.700 (2015). Therefore, the appeal must be remanded so that the Veteran can be scheduled for a videoconference hearing on the above-cited issue, as he has requested. 38 C.F.R. § 20.704 (2015). Finally, a remand is also warranted on the issue of entitlement to service connection for sleep apnea. As noted in the Introduction, the Veteran's November 2015 NOD initiated an appeal seeking service connection for sleep apnea on a new and material evidence basis. An SOC has not been issued regarding this matter. Therefore, the Board must remand the matter pending the issuance of an SOC to the Veteran and his representative and receipt of a timely Substantive Appeal in response thereto. Manlincon, supra. Accordingly, the case is REMANDED for the following action: 1. Associate with the record any identified VA treatment records dated from July 2015, pertaining to the treatment of the service-connected lumbar spine disability and claimed right knee disability. 2. Following completion of the above, schedule the appropriate VA examination in order to assist in determining the current level of severity of the service-connected lumbar strain. The relevant documents in the Veteran's electronic record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. Range of motion testing, in degrees, should be performed of the lumbar spine. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. The extent of any incoordination, weakened movement, and excess fatigability on use of the lumbar spine should also be described by the examiner. The examiner should also express an opinion concerning whether there would be additional limits on functional ability of the lumbar spine on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss of the lumbar spine. If the VA examiner is unable to report the degree of additional range of motion loss on repeated use or during a flare-up, the VA examiner must explain why it is not feasible to render such an opinion. In rendering the above opinion, even if the Veteran advances not having flare-ups at the time of the examination, the VA examiner should address any resultant loss in range of lumbar spine motion due to flare-ups in terms of degrees at the time of the September 2009 and February 2012 VA examinations, when the Veteran reported having had flare-ups of lumbar spine pain once a month that lasted for a 24-hour period and flare-ups of spine pain three (3) times a month, respectively. The examiner should also indicate the effect the lumbar strain has on the Veteran's current level of occupational impairment. 3. Issue an SOC to the Veteran that addresses the matter of whether new and material evidence has been received to reopen a previously denied claim for service connection for sleep apnea. The Veteran and his representative should be informed that he must file a substantive appeal in order to perfect his appeal of this matter to the Board. If a timely substantive appeal is received, then the case should be returned to the Board for appellate review. 4. Then readjudicate the issues of entitlement to an increased rating for lumbar strain in excess of 10 percent for the period prior to February 23, 2012, and in excess of 20 percent therefrom and entitlement to service connection for a right knee disability. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. 5. Schedule the Veteran for a videoconference Board hearing on the issue of entitlement to service connection for a right knee disability. Notify him of the date and time of the hearing in accordance with 38 C.F.R. § 20.704(b). A copy of the notice of that hearing should be placed in the record. After the hearing is conducted, or if the Veteran withdraws the hearing request or fails to report for the scheduled hearing, the electronic record should be returned to the Board in accordance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other (CONTINUED ON NEXT PAGE) appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ BARBARA B. COPELAND 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) (2015).