Citation Nr: 18141098 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-23 162 DATE: October 9, 2018 REMANDED Entitlement to service connection for a back disability, including L3-L4 paracentral/foraminal annular tear (claimed as lumbar spine disorder) is remanded. Entitlement to a sleep disorder, including sleep apnea, is remanded. Entitlement to a rating in excess of 30 percent for status post right knee total replacement is remanded. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating due to individual unemployability is remanded. REASONS FOR REMAND The Veteran had active duty from August 1979 to December 1979, November 1980 to November 1983, and January 2004 to February 2005. He also served in the Army Reserves. The Board has expanded the claims for a back disability and sleep disorder to better serve the interests of the Veteran. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). 1. Entitlement to service connection for a back disability, including L3-L4 paracentral/foraminal annular tear, is remanded. The Board observes that the Veteran had a VA examination in June 2013 regarding his claim for a back disability. The examiner diagnosed the Veteran with a left paracentral/foraminal annular tear at L3-L4 and opined that it was less likely as not related to the Veteran’s active duty. In reaching this conclusion, the examiner observed that the Veteran sought treatment for low back pain in 1984 after jumping from 15 feet towers. At that time, the Veteran reported that his muscles locked while running. The clinician diagnosed him with myositis. The examiner then cited to a 2005 examination, which was negative for back pain. Additionally, she noted that there was no further evidence of a low back condition until 2012; almost a 30-year gap in treatment. Accordingly, she concluded that the Veteran’s currently diagnosed back disability was unrelated to his service. The evidence of record further includes a VA examination conducted in April 2016. This examiner diagnosed the Veteran with lumbar degenerative joint disease (DJD) with foraminal annual tear. Similarly, he opined like the previous June 2013 examiner that it was less likely as not that the Veteran’s current low back condition was caused by or a result of his active service. The examiner stated that there was no new information to dispute the Veteran’s back condition was directly related to service as per the 2013 rating decision. He further commented that there was no objective evidence of aggravation over and above the expected natural progression with aging and wear and tear. The Board, however, finds that these VA examinations are inadequate for several reasons. The service treatment records (STRs) reflect that the Veteran presented twice in August 1984 for treatment for low back pain after the 15 feet jump. See STRs dated August 1984. At the first visit, the clinician noted that the Veteran had pain in the thoracic region on the left side, which extended to the scapulas. At a follow-up visit, the Veteran indicated that the pain had not subsided even after taking Motrin. On physical examination, the clinician observed that while the Veteran had almost full range of motion, there was tenderness to palpation of most of the back, especially in the L5 region. Moreover, contrary to the June 2013 VA examiner, the STRs also reflect that the Veteran sought treatment for low back pain again in February 2004. On physical examination, the clinician observed that Veteran’s back pain was located between the L2-L3 region. The Veteran also indicated that he had a history of back spasms dating back two years prior. Further, the record includes a November 2006 private treatment record documenting that the Veteran had chronic back pain and was treated with oral medications and Toradol injections. On physical examination, at that time, the clinician observed that the Veteran had severe spasms throughout the thoracic facet joint as well as tenderness in the right coastal region and in the lumbar facet joints at L1-L2 and L2-L3. The clinician diagnosed the Veteran with thoracic radiculopathy, thoracic and lumbar joint facet syndrome, previous episode of lumbosacral radiculopathy, myofascial pain, which were all unresponsive to conservative therapeutic treatment. At a follow-up visits in November 2006 and January 2007, the clinician observed that on physical examination, the Veteran had severe spasms throughout the thoracic area as well as sacroiliitis. None of these private medical treatment records were addressed by the examiners, even though they are contemporaneous to the Veteran’s discharge in February 2005. Moreover, from the evidence of record, it is unclear whether the August 1984 STRs reflecting that the Veteran had pain throughout the thoracic region, especially in L5, is the same, continuing thoracic spasms noted by the Veteran’s private physician discussed above. Additionally, it is also unclear whether the Veteran had a pre-existing back disability before he re-entered active duty in January 2004 and, if so, whether it was aggravated beyond its natural progression. Accordingly, further medical commentary is necessary. 2. Entitlement to a sleep disorder, including sleep apnea is remanded. Similarly, the June 2013 VA examiner, while confirming that the Veteran had obstructive sleep apnea, opined that it was less likely than not that it was proximately due to or the result of the Veteran’s service-connected condition. She stated that there was no cause and effect relationship between PTSD and sleep apnea. She explained that OSA is an anatomical defect in the upper airway, which is not caused or aggravated by PTSD. The examiner commented that OSA occurs when the muscles in the back of the throat relax, resulting in the airway narrowing or closing not allowing adequate breath in. The examiner, however, failed to consider the June 2005 STR showing the Veteran’s complaint of sleeping difficulty a few months after his return from deployment in Iraq and Kuwait, resulting in his prescription for Ambien and the sleep study that diagnosed the Veteran with sleep apnea. Additionally, she did not consider whether the Veteran had a separate and distinct sleep disorder in addition to OSA or, alternatively, if the Veteran’s difficulty sleeping is a manifestation of his service-connected sleep disorder. Therefore, a VA addendum opinion is warranted. 3. Entitlement to a rating in excess of 30 percent status post right knee total replacement is remanded. 4. Entitlement to a rating in excess of 70 percent for PTSD is remanded. The last relevant VA examinations assessing the severity of the Veteran’s service-connected PTSD and right knee disability were conducted in June 2013. The Veteran and his attorney have indicated that the severity of these disabilities have increased since the last VA examinations. Concerning the right knee disability, in Correia v. McDonald, 28 Vet. App. 158 (2016) promulgated since, the United States Court of Appeals for Veterans Claims (CAVC) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia established additional requirements that must be met prior to a finding that a VA examination is adequate. The VA examinations of record do not reflect the additional testing required under Correia was completed (and is not shown to be unnecessary or not possible). Therefore, in light of the above, the claims are being remanded for new VA examinations. 5. Entitlement to a total disability rating due to individual unemployability is remanded. The claim for TDIU is inextricably intertwined with the claims for service connection and increased ratings. As such, it too must be remanded pending the additional development and adjudication of those claims. The matters are REMANDED for the following action: 1. Make arrangements to obtain the Veteran’s VA medical treatment records dated since April 2016 forward. 2. Make arrangements to obtain the Veteran’s private treatment records, including from Dr. Andres Vega and Family Medical Center, dated since January 2007 forward. 3. Thereafter, schedule another VA examination to determine the nature and etiology of the Veteran’s back disability. All diagnostic testing and evaluation needed to make these important determinations should be performed and all findings reported in detail. The designated examiner must review the claims file, including a complete copy of this remand and the report of the prior VA examinations and opinions, for the pertinent medical and other history. The examiner must list all currently diagnosed back disorders, including, thoracic radiculopathy, thoracic and lumbar joint facet syndrome, myofascial pain, left paracentral/foraminal annular tear at L3-L4 and DJD of the lumbar spine. The examiner is asked to provide medical comment on: (a) Whether it is as least as likely as not (a 50 percent probability or more) that any diagnosed back disorder had its clinical onset during active service from August 1979 to December 1979 or November 1980 to November 1983, or is related to any incident of service, including complaints of back pain in August 1984 after the 15-feet jump. (b)Whether the Veteran clearly and unmistakably had a pre-existing back disorder prior to his re-entry to active duty in January 2004. (c) If he did, is there also clear and unmistakable evidence indicating this pre-existing back disorder was not aggravated during or by his service, meaning not chronically (permanently) worsened beyond its natural progression? (d) If, conversely, it is determined that the back disorder did NOT clearly and unmistakably pre-exist the Veteran’s re-entry to military service in January 2004, is it at least as likely as not (a 50 percent probability or more) this condition instead had its onset during his service from January 2004 to February 2005, including the February 2004 treatment for low back pain? A clear rationale for all opinions should be provided. If an opinion cannot be provided without resorting to speculation, the examiner must state why this is the case. 4. Return the claims file, to include a copy of this remand, to the June 2013 examiner for an addendum opinion regarding the claim for a sleep disorder, including sleep apnea. If the examiner who drafted the June 2013 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner is asked to furnish an opinion with respect to the following questions: (a) Identify all sleep disorders found to be present. (b) The examiner is asked to opine as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that any sleep disorder is (i) related to the Veteran’s service from August 1979 to December 1979, November 1980 to November 1983, and January 2004 to February 2005, including the Veteran’s complaints of his inability to sleep documented in June 2005; (ii) is caused or aggravated by a service-connected disability (PTSD, right knee disability, tinnitus, dermatitis, etc.); or (iii) a manifestation of the Veteran’s PTSD? In providing the requested opinions, the examiner should refer to the relevant evidence of record, to include the service treatment records, VA and private medical treatment records, physical examination of the Veteran and his statements. 5. Also, schedule the appropriate VA examination to assess the current level of severity of the Veteran’s service-connected right knee disability. The claims file, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. All indicated tests should be completed and all relevant clinical findings reported. The appropriate Disability Benefits Questionnaire (DBQ) should be filled out. In the examination report, the examiner must include all of the following for right knee disability: A. Active range of motion testing results. B. Passive range of motion testing results. C. Weightbearing range of motion testing results. D. Non-weightbearing range of motion testing results. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or nonweightbearing), must be specified. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 6. Schedule another VA examination to reassess the severity of the Veteran’s service-connected PTSD with major depressive disorder. The claims folder and any other information deemed pertinent must be provided to and reviewed by the examiner in conjunction with the examination. All necessary diagnostic testing and evaluation should be performed, and all findings set forth in detail. If possible, the appropriate DBQ should be completed. A clear rationale for all opinions should be provided. If an opinion cannot be provided without resorting to speculation, the examiner must state why this is the case. DELYVONNE M. WHITEHEAD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Sangster, Counsel