Citation Nr: 1752955 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 15-18 419A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a chronic cough/bronchitis. 2. Entitlement to service connection for a chronic cough/bronchitis. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a heart disorder. 4. Entitlement to service connection for a heart disorder. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. 6. Entitlement to service connection for hypertension. 7. Entitlement to service connection for headaches, to include as secondary to service-connected disabilities. 8. Entitlement to service connection for acquired psychiatric disorder, to include as secondary to service-connected disabilities. 9. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder. 10. Entitlement to an initial compensable rating for hearing loss. 11. Entitlement to an initial rating in excess of 10 percent for lumbar spondylosis and retrolisthesis. 12. Entitlement to an initial rating in excess of 40 percent for left sciatic nerve neuritis. 13. Entitlement to an initial rating in excess of 40 percent for right lower extremity radiculopathy. 14. Entitlement to an effective date earlier than May 24, 2012 for the grant of entitlement to service connection for lumbar spondylosis and retrolisthesis. 15. Entitlement to an effective date earlier than January 29, 2014 for the grant of entitlement to service connection for left sciatic nerve neuritis. 16. Entitlement to an effective date earlier than January 29, 2014 for the grant of entitlement to service connection for right lower extremity radiculopathy. REPRESENTATION Veteran represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD Mary E. Rude, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to December 1973 and March 1974 to December 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for chronic cough/bronchitis, a heart disorder, hypertension, headaches, an acquired psychiatric disorder, and sleep apnea and to increased ratings for lumbar spondylosis and retrolisthesis, left sciatic nerve neuritis, and right lower extremity radiculopathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In the absence of a timely appeal, the January 1991 rating decision which denied entitlement to service connection for chronic cough, heart disease, hypertension, and a back disorder is final. 2. The evidence received since January 1991 relates to unestablished facts necessary for the claims of entitlement to service connection for chronic cough/bronchitis, a heart disorder, and hypertension. 3. The Veteran's bilateral hearing loss has not manifested by worse than Level I hearing in the right ear and Level III hearing in the left ear. 4. Since the January 1991 rating decision, the next written communication from the Veteran regarding entitlement to service connection for a back disability was received on May 24, 2012. 5. The Veteran submitted a claim of entitlement to service connection for bilateral lower extremity radiculopathy on January 29, 2014. CONCLUSIONS OF LAW 1. A January 1991 rating decision denying the claims of entitlement to service connection chronic cough, heart disease, and hypertension is final; new and material evidence has been received to reopen the claims. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). 2. The criteria for a compensable initial evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.10, 4.85, Diagnostic Code 6100 (2017). 3. The criteria for entitlement to an effective date for the award of service connection for lumbar spondylosis and retrolisthesis prior to May 24, 2012 have not been met. 38 U.S.C. §§ 5103, 5103A, 5110, 7105 (2012); 38 C.F.R. §§ 3.1, 3.104, 3.400 (2017). 4. The criteria for entitlement to an effective date for the award of service connection for left sciatic nerve neuritis prior to January 29, 2014 have not been met. 38 U.S.C. §§ 5103, 5103A, 5110, 7105; 38 C.F.R. §§ 3.1, 3.104, 3.400. 5. The criteria for entitlement to an effective date for the award of service connection for right lower extremity radiculopathy prior to January 29, 2014 have not been met. 38 U.S.C. §§ 5103, 5103A, 5110, 7105; 38 C.F.R. §§ 3.1, 3.104, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). New and Material Evidence In July 1990, the Veteran submitted a claim of entitlement to service connection for hypertension, chronic cough, and borderline left axis elevation. In a January 1991 rating decision, entitlement to service connection for hypertension, heart disease, and chronic cough was denied. The decision found that the Veteran had been diagnosed with bronchitis, but did not have a current respiratory disease, nor did he have a current diagnosis of hypertension or heart disease. The Veteran received adequate notice of the denial and his appeal rights, but did not appeal the January 1991 rating decision, and it is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. Id. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999). The Veteran's claims were previously denied on the basis that no current disabilities were found, but since the January 1991 rating decision, medical evidence has been received which indicates that the Veteran does now have current disabilities of hypertension, a heart disorder, and a chronic cough disorder. At the June 2013 VA examination, the Veteran was diagnosed with hypertension and mild left ventricular hypertrophy, attributed to his hypertension. A July 2012 letter from private physician indicated that the Veteran had hypertensive vascular disease, left axis deviation and dysfunction, and chronic complaints of cough and shortness of breath since 2005. As this additional evidence relates to a previously unestablished element for these claims-the existence of current disabilities-the Board finds that new and material evidence has been received, and the claims of entitlement to service connection for chronic cough/bronchitis, a heart disorder, and hypertension are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Hearing Loss The Veteran contends that his bilateral hearing loss warrants a compensable initial rating. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85. To evaluate the degree of disability from defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, Tables VI and VII, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). A separate table, Table VIA, is available for evaluation of exceptional patterns of hearing impairment; however, as the Veteran has not at any time been shown to have an exceptional pattern pursuant to 38 C.F.R. § 4.86(a), this criteria will not be further discussed. 38 C.F.R. § 4.86. The Board has reviewed all of the evidence of record, but finds that the Veteran's hearing test results do not warrant a compensable rating. The Veteran attended a VA examination in May 2014. The Veteran reported that before his retirement, understanding speech in noise was difficult, but that he could understand people when it was quiet and he could watch their faces. He said that he sometimes needed repetition to understand speech and that he needs louder television volume. Puretone threshold testing showed the following results, in decibels: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 30 35 35 35 34 LEFT 30 35 35 50 38 Speech discrimination scores were 92 percent in the right ear and 76 percent in the left ear. Applying the findings to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the right ear and Level III in the left ear. Where hearing loss is at Level I and Level III, a noncompensable (0 percent) rating is assigned. 38 C.F.R. § 4.85. There are no other audiological evaluations of record, and the Veteran has not indicated that he has received any treatment for hearing loss or any other evaluations pertaining to his hearing. The Board has taken considered the Veteran's complaints regarding the impact of hearing loss on his daily life, but as noted above, the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. Lendenmann, 3 Vet. App. 345. The functional effects of hearing loss on his daily life activities and occupational functioning were discussed by the Veteran at his VA examination. See 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The Veteran is noted to have reported difficulty hearing conversation, the television, and other sounds, however, this is reflective of the types of functional difficulty that would be expected to be caused by his recorded levels of hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Manifestations such as difficulty hearing speech are the types of difficulties contemplated by the schedular criteria for hearing loss.). Accordingly, the examination of record is sufficiently in compliance with the provisions of VA regulations, and it is afforded great probative value in determining the Veteran's level of hearing impairment. The most probative medical evidence as to the nature of the appellant's hearing loss are the audiometric findings, and those discussed above reveal that the Veteran's hearing loss does not warrant a compensable rating. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; the preponderance of the evidence is against the Veteran's claim, and the doctrine is not applicable. 38 U.S.C.A. § 5107(b). Lastly, the question of entitlement to referral for consideration of an extraschedular rating is neither an issue argued by the claimant nor reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities. Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). Earlier Effective Dates The Veteran first submitted a claim of entitlement to service connection for chronic low back pain in July 1990. In a January 1991 rating decision, entitlement to service connection for a back disorder was denied because there was no evidence of any treatment for a back condition in the Veteran's service treatment records. The Veteran received adequate notice of the denial and his appeal rights, but he did not appeal the January 1991 rating decision, and it is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The Veteran next submitted a claim of entitlement to service connection for limitation of motion and lumbosacral strain on May 24, 2012. In an August 2013 rating decision, it was found that new and material evidence had been received, and entitlement to service connection for lumbar spondylosis and retrolisthesis was granted and assigned an evaluation of 10 percent, effective May 24, 2012. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. When a claim is received within one year after separation from service, the effective date will be the day following separation from active service. 38 C.F.R. § 3.400(b)(2). Pertinent VA regulations in effect at the time of the Veteran's claim provided that a claim for VA benefits, whether formal or informal, must be in writing and must identify the benefit sought. See 38 C.F.R. § 3.151 (2012); Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). While VA should broadly interpret submissions from a veteran, it is not required to conjure up issues not specifically raised. Brannon v. West, 12 Vet. App. 32 (1998). In this case, the Board finds that the evidence clearly establishes that the Veteran's claim to reopen the issue of entitlement for service connection for a low back disability was received on May 24, 2012. This is not disputed by the Veteran. The January 1991 rating decision was final, and there has been no allegation of clear and unmistakable error in that decision. An unappealed rating decision is final in the absence of clear and unmistakable error, and is not subject to revision on the same factual basis. 38 U.S.C. §§ 5109A, 7105 (2012); 38 C.F.R. §§ 3.104, 3.105(a) (2017). There was no communication received by VA since the January 1991 decision and prior to May 24, 2012 that could be construed as a formal or informal claim for benefits. See Servello v. Derwinski, 3 Vet. App. 196 (1992). The Board therefore finds that the May 24, 2012 effective date for the grant of service connection for lumbar spondylosis and retrolisthesis was properly assigned. The January 1991 rating decision, which denied entitlement to service connection for a back disability, is final, and there are no documents that might be construed, even in the broadest sense, as a claim to reopen the issue of entitlement to service connection for a back disability prior to May 24, 2012. In the absence of any other communication from the Veteran prior to May 24, 2012 which could constitute a formal or informal claim for service connection, there is no basis for granting an earlier effective date for the grant of entitlement to service connection for lumbar spondylosis and retrolisthesis. Regarding the effective date assigned for the Veteran's left sciatic nerve neuritis and right lower extremity radiculopathy, the Board also finds that the January 29, 2014 effective date is appropriate. On January 29, 2014, the Veteran submitted a claim of entitlement to service connection for bilateral lower extremity radiculopathy. There is no indication of any other correspondence submitted by the Veteran prior to January 29, 2014 that could be construed as a formal or informal claim of entitlement to service connection for a lower extremity radiculopathy or neurological disorder. In the absence of any other communication from the Veteran prior to January 29, 2014 which could constitute a formal or informal claim for service connection, there is no basis for granting an earlier effective date for the grant of entitlement to service connection for left sciatic nerve neuritis and right lower extremity radiculopathy. 38 C.F.R. § 3.400. The Board acknowledges that when a Veteran is service-connected for a disability of the spine, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2017). While the Veteran was granted entitlement to service connection for a back disability effective May 24, 2012, this does not necessarily indicate that the same effective date must be assigned for the Veteran's right and left lower extremity disorders. The Veteran did not, at any time prior to January 29, 2014 indicate to VA that he had lower extremity neurological symptoms associated with his back disability. While there is some indication of leg pain and numbness in his treatment records, at the June 2013 VA examination, a straight leg raising test was negative, and the Veteran had no radicular pain or other signs or symptoms due to radiculopathy. Because the examiner found no associated neurological symptoms, no separate evaluations were assigned in the following rating decision. The Board therefore finds there is no correspondence from the Veteran requesting service connection for a lower extremity disorder prior to January 29, 2014, and the weight of the most probative medical evidence prior to January 29, 2014 did not indicate that the Veteran had neurological symptoms associated with his service-connected lumbar spondylosis and retrolisthesis for which a separate, compensable evaluation should be assigned. In light of this evidence, the weight of the evidence indicates that an effective date earlier than January 29, 2014 for left sciatic nerve neuritis and right lower extremity radiculopathy is not warranted. In reaching the above conclusions, the Board has again considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims for earlier effective dates, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER New and material evidence having been received, the claim of entitlement to service connection chronic cough/bronchitis is reopened. New and material evidence having been received, the claim of entitlement to service connection for a heart disorder is reopened. New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened. Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to an effective date for the grant of service connection for lumbar spondylosis and retrolisthesis earlier than May 24, 2012 is denied. Entitlement to an effective date earlier than January 29, 2014 for the grant of entitlement to service connection for left sciatic nerve neuritis is denied. Entitlement to an effective date earlier than January 29, 2014 for the grant of entitlement to service connection for right lower extremity radiculopathy is denied. REMAND Chronic Cough/Bronchitis The Veteran contends that he has a respiratory disorder characterized by chronic cough or bronchitis which had its onset during his service. The Veteran's service treatment records do show complaints of chronic cough and occasional treatment for colds, upper respiratory infections, and bronchitis. On December 1973, May 1986, August 1987, and July 1988 Report of Medical History, he noted that he had chronic cough. At the separation examination, the Veteran marked on his December 1989 Report of Medical History that he had chronic or frequent colds, hay fever, pain or pressure in chest, and chronic cough. The Veteran has also submitted a July 2012 letter from his private physician stating that he has had a chronic cough and shortness of breath since 2005. The Veteran has credibly asserted that he has current breathing problems, and his service treatment records do indicate that he had similar breathing problems in service, but he has not yet been afforded a VA examination address this issue. It is therefore remanded in order to obtain a VA examination discussing the nature and etiology of any current respiratory disorders. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hypertension The Veteran contends that he has hypertension which had its onset during his active duty service. The Veteran attended a VA examination in June 2013. The examiner found that the Veteran had a current diagnosis of hypertension, but opined that it was less likely than not incurred in or caused by service. The examiner discussed some of the Veteran's elevated blood pressure readings taken in service and the December 1989 cardiology evaluation which noted that the Veteran had "labile hypertension." He pointed out that at the August 1990 VA examination, the Veteran had normal blood pressure readings. The examiner explained that it was unclear when the Veteran was first diagnosed with essential hypertension, but that the first mention in the medical records was from 2006-2007, over 15 years after the Veteran's separation from service. As rationale for his conclusion, the examiner stated that the mildly elevated diastolic blood pressures documented in service were largely in the setting of acute infection or pain, and were not present on follow up. The Board finds that this medical opinion is inadequate to decide the issue at this time. As was noted by the examiner, the medical evidence shows that the Veteran does have a current diagnosis of hypertension, and his service treatment records do show multiple instances of elevated blood pressure readings. On the December 1989 Report of Medical History, the Veteran marked that he had high or low blood pressure. The doctor's note stated that the Veteran had a history of high blood pressures. The Veteran's separation examination, which was not discussed by the June 2013 VA examiner, stated that the Veteran had a diagnosis of labile hypertension, and that cardiology had recommended a low sodium, low cholesterol diet and that the Veteran should stop smoking. The Veteran was also diagnosed with mild diastolic hypertension at a July 1988 examination. The Board therefore requests that an addendum medical opinion be obtained to discuss whether the Veteran's diagnosis of labile hypertension in service constitutes the presence of a hypertension disorder at that time, and to address the relationship between the Veteran's clearly documented labile hypertension and his current diagnosis of essential hypertension. Heart Disorder The Veteran also contends that he has a heart disorder which was incurred in service. The Veteran's private treatment records show that he has been followed for irregularities of the heart. A July 2012 letter from private physician F.L. stated that the Veteran had left axis deviation and stage 1 diastolic dysfunction with mild left ventricular dysfunction which was caused by his high blood pressure. The Veteran's service treatment records do show complaints of chest pain and concerns regarding a possible heart disorder. In July 1988, the Veteran was noted to have borderline left axis deviation. In December 1989, the Veteran underwent a cardiology evaluation following reports of chest pain. The Veteran attended a VA examination in June 2013, at which the VA examiner found that the Veteran had mild left ventricular hypertrophy which was attributed to his hypertension. The examiner did not adequately evaluate the Veteran's heart, however, or provide a full medical opinion regarding the etiology of any heart disorder. This issue is therefore remanded so that a VA examination and opinion can be obtained prior to readjudication. Headaches The Veteran has indicated that his headaches started at around the same time as his tinnitus did while in service, and that they could be secondary to service-connected tinnitus. The Veteran's private treatment records show that in February 2013, he reported having recurrent morning headaches, and was given a provisional diagnosis of headache syndrome. A January 2016 Disability Benefits Questionnaire from Dr. H.S. stated that the Veteran's headaches were caused by his service-connected tinnitus, sleep apnea, and depressive disorder. Further remarks were submitted stating that the Veteran's flare ups of tinnitus brought on a headache. He also wrote that medical research showed that patients with mental health conditions were more likely to develop headaches and that mental disorders can both cause and aggravate headaches. He further wrote that sleep apnea was a major cause of headaches because headaches occurred in direct relationship to the number of REM sleep periods during the night. The Board finds that the current medical evidence of record is very unclear regarding the nature of the Veteran's headache disorder, including his exact diagnosis. The Board also finds that the January 2016 evaluation appears to contain conflicting findings regarding the etiology of the Veteran's headaches. A VA examination has not yet been held to evaluate the Veteran's headaches, and the Board remands this issue so that a VA medical examination and opinion can be obtained prior to adjudication. Psychiatric Disorder The Veteran contends that he has a psychiatric disorder which is caused or aggravated by his service-connected disabilities. In a September 2015 evaluation, psychologist H.H.-G. wrote that the Veteran had depressive disorder secondary to medical conditions and social impairment. The Veteran reported that his chronic pain caused irritability and anger and made him more emotional. The examiner stated that the Veteran's service-connected disabilities caused and "continue to manifest as a depressive disorder." The Veteran also submitted articles addressing the relationship between tinnitus and pain and psychiatric disorders. While the September 2015 private examiner came to the conclusion that the Veteran's depressive disorder is caused by his service-connected disabilities, his evaluation included many symptoms that did not appear to be related to the Veteran's increased irritability due to chronic pain. The Veteran's private treatment records also show that he has many medical diagnoses for which he has not yet been granted service connection. The Veteran has not yet been afforded a VA psychiatric examination, the issue is remanded so that an adequate examination and opinion can be obtained prior to adjudication. The Board also requests that a medical opinion be obtained regarding direct service connection for a psychiatric disorder, as the Veteran marked on his December 1989 Report of Medical History that he had depression or excessive worry. The examiner wrote that the Veteran had occasional depression or excessive worry, but was never seen by a psychiatrist. Sleep Apnea The Veteran's private treatment records show that he has been diagnosed with obstructive sleep apnea. A February 2013 Disability Benefits Questionnaire completed by Dr. H.S. stated that the Veteran had been diagnosed with obstructive sleep apnea. Dr. H.S. wrote that the Veteran's depressive disorder aided in the development of and aggravated the Veteran's sleep apnea. He also wrote that the Veteran's pain medication for his service-connected back disability aggravated his obstructive sleep apnea. As this disorder has been related to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, a decision cannot be entered on this claim until the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder has been resolved. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). While on remand, an addendum medical opinion should also be obtained address the relationship between the Veteran's sleep apnea and his service-connected back disorder, including whether sleep apnea is aggravated by his pain medication. Lumbar Spondylosis and Lower Extremity Neurological Disorders The Veteran is currently service-connected for lumbar spondylosis and retrolisthesis, rated as 10 percent disabling, and left sciatic nerve neuritis and right lower extremity radiculopathy, each rated as 40 percent disabling. While the Board recognizes that the mere passage of time does not in itself warrant that a new VA examination must be held, the Veteran's back disorder has not been evaluated in over 4 years, and evidence received since his last examination of the lumbar spine indicates that his condition may have worsened. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Veteran attended a VA examination for his back disorder in June 2013. He reported having recurrent back pain that intermittently radiated down his left leg, but he reported no numbness, weakness, tingling, bowel/bladder impairment, or other neurological symptoms. Sensory examination was normal, and the examiner found no radicular pain or other signs or symptoms due to radiculopathy. The next year, however, the Veteran attended a VA peripheral nerves examination. At this examination, the Veteran was found to have incomplete paralysis of the left sciatic nerve and was diagnosed with lumbar radiculopathy manifesting as left sciatic nerve neuritis, indicating that the Veteran's back disorder and its associated neurological symptoms had worsened since the previous examination. The Veteran was also found to have hypoactive deep tendon reflexes in the bilateral knees and ankles. The June 2013 examination also noted that the Veteran would have an additional 20 to 30 percent reduction in his range of motion following repetitive use, but this finding was not reflected in the repetitive use testing findings indicated by the examiner. The Board therefore finds that a more comprehensive examination is needed to adequately evaluate the Veteran's limitation of motion following repetitive motion, as well as to discuss any further impairment during flare up. 38 C.F.R. § 4.40 (2017); DeLuca v. Brown, 8 Vet. App. 202, 205 (1995); see also Correia v. McDonald, 28 Vet. App. 158 (2016). Lastly, the Veteran's private medical records show that he has received regular treatment for his back and legs, but medical records have not been obtained since 2013. Since these records would be relevant to the claim, the Veteran must be provided with another opportunity to submit any more recent records or authorization to obtain such records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Send to the Veteran and his attorney a letter requesting that he provide sufficient information and a signed and dated authorization, via a VA Form 21-4142 (Authorization and Consent to Release Information) to enable VA to obtain any additional relevant private medical records of treatment related to his claims. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any current respiratory disorder. The examiner must be provided access to all pertinent files in VBMS, and must specify in the report that all records have been reviewed. After a thorough review of the claims file and medical history and examination of the Veteran, the examiner is to address the following: a) What are the Veteran's current diagnoses pertaining to respiratory disease or any disorder manifested by chronic cough or recurrent bronchitis? b) For all respiratory diagnoses found, is it at least as likely as not (i.e., there is a 50/50 chance) that the disorder was incurred in service or related to any event in service? The examiner must specifically address the Veteran's treatment in service for respiratory disorders and his frequent indication on Reports of Medical History that he had a chronic cough. The examiner must provide clear conclusions and a thorough and well-reasoned medical explanation supporting any opinion offered. If unable to provide an opinion, that fact must be stated and the reasons why an opinion cannot be provided explained. 3. Schedule the Veteran for a VA cardiology examination to determine the nature and etiology of any current heart disorder or hypertension. The examiner must be provided access to all pertinent files in VBMS, and must specify in the report that all records have been reviewed. After a thorough review of the claims file and medical history and examination of the Veteran, the examiner is to address the following: a) Is the Veteran's current hypertension at least as likely as not (i.e., there is a 50/50 chance) incurred in service or related to any event in service? Please specifically discuss the many notations in service of elevated blood pressure readings and the Veteran's diagnosis of labile hypertension at separation from service. If the Veteran's current hypertension is found to be unrelated to the Veteran's in-service labile hypertension, the examiner must explain why these conditions are different and why the Veteran's current hypertension is not an extension of his previously diagnosed labile hypertension. b) What are the Veteran's current diagnoses pertaining to the heart? c) For all heart-related diagnoses found, is it at least as likely as not that the disorder was incurred in service or related to any event in service? The examiner must specifically address the Veteran's in-service finding in July 1988 of borderline left axis deviation and December 1989 cardiology evaluation following reports of chest pain. d) For all heart-related diagnoses found, has the disorder been (i) caused or (ii) aggravated (worsened beyond the natural progression) by his hypertension? The examiner must provide clear conclusions and a thorough and well-reasoned medical explanation supporting any opinion offered. If unable to provide an opinion, that fact must be stated and the reasons why an opinion cannot be provided explained. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of any current headache disorder. The examiner must be provided access to all pertinent files in VBMS, and must specify in the report that all records have been reviewed. After a thorough review of the claims file and medical history and examination of the Veteran, the examiner is to address the following: a) Does the Veteran have a current diagnosis of a chronic headache disorder? b) Are the Veteran's headaches at least as likely as not (i.e., there is a 50/50 chance) incurred in service or related to any event in service? c) Are the Veteran's headaches (i) caused or (ii) aggravated (worsened beyond the natural progression) by his tinnitus, sleep apnea, and/or depressive disorder? The examiner must specifically address the January 2016 Disability Benefits Questionnaire which stated that the Veteran's tinnitus, depressive disorder, and sleep apnea could cause or aggravate his headaches. The examiner must provide clear conclusions and a thorough and well-reasoned medical explanation supporting any opinion offered. If unable to provide an opinion, that fact must be stated and the reasons why an opinion cannot be provided explained. 5. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any current psychiatric disorder. The examiner must be provided access to all pertinent files in VBMS, and must specify in the report that all records have been reviewed. After a thorough review of the claims file and medical history and examination of the Veteran, the examiner is to address the following: a) What are the Veteran's current psychiatric diagnoses? b) For all psychiatric diagnoses found, was the disorder at least as likely as not (i.e., there is a 50/50 chance) incurred in service or related to any event in service? Please discuss the Veteran's December 1989 report of having occasional depression or excessive worry. c) For all psychiatric diagnoses found, was the disorder (i) caused or (ii) aggravated (worsened beyond the natural progression) by his service-connected lumbar spine disorder, right lower extremity radiculopathy, and/or left sciatic nerve neuritis and the chronic pain caused by these disorders? The examiner must specifically address the September 2015 private evaluation which diagnosed the Veteran with depressive disorder which could be caused by service-connected disabilities. d) Is the Veteran's sleep apnea (i) caused or (ii) aggravated by any of his psychiatric disorders? Please discuss the February 2013 Disability Benefits Questionnaire stating that the Veteran's depressive disorder aided in the development and aggravation of his sleep apnea. The examiner must provide clear conclusions and a thorough and well-reasoned medical explanation supporting any opinion offered. If unable to provide an opinion, that fact must be stated and the reasons why an opinion cannot be provided explained. 6. Obtain an addendum medical opinion from a physician regarding the etiology of the Veteran's sleep apnea. The examiner must be provided access to all pertinent files in VBMS, and must specify in the report that all records have been reviewed. After a thorough review of the claims file, the examiner is to address the following: a) Was the Veteran's sleep apnea at least as likely as not (i.e., there is a 50/50 chance) incurred in service or related to any event in service? b) Was the Veteran's sleep apnea (i) caused or (ii) aggravated (worsened beyond the natural progression) by his service-connected lumbar spine disorder, right lower extremity radiculopathy, and/or left sciatic nerve neuritis or by pain medication taken to treat these disorders? Please discuss the February 2013 Disability Benefits Questionnaire stating that the Veteran's pain medication aggravates his sleep apnea. The examiner must provide clear conclusions and a thorough and well-reasoned medical explanation supporting any opinion offered. If unable to provide an opinion, that fact must be stated and the reasons why an opinion cannot be provided explained. 7. Schedule the Veteran for a VA orthopedic and neurological examination to determine the severity of his service-connected low back and lower extremity neurological disorders. The examiner must be provided access to all pertinent files in VBMS, and must specify in the report that all records have been reviewed. After a thorough review of the claims file and medical history and examination of the Veteran, the examiner is to address the following: a) The examiner should conduct range of motion testing of the spine, specifically noting whether (upon repetitive motion) there is objective evidence of pain, weakened movement, excess fatigability, or incoordination on movement, including during flare-ups. If pain on motion is observed, the examiner should indicate the point at which pain begins. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner is also asked to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. See Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. b) The examiner should evaluate all neurological pathology related to the Veteran's spine disability, and fully describe the extent and severity of those symptoms, including a statement of which nerves are involved. 8. The Veteran is hereby notified that it is his responsibility to report for all examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for an examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 9. Thereafter, readjudicate the issues. If any benefit sought is not granted in full, the Veteran and his attorney must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file 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. §§ 5109B, 7112 (2012). ______________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs