Citation Nr: 18148910 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 09-00 827 DATE: November 8, 2018 ISSUES 1. Entitlement to service connection for loss of energy and fatigue, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317. 2. Entitlement to service connection for memory loss, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317. 3. Entitlement to service connection for sleep apnea, claimed as secondary to the service-connected posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for a cervical spine (neck) disability, claimed as secondary to the service-connected back disability. 5. Entitlement to a rating in excess of 20 percent for a back disability. 6. Entitlement to a rating in excess of 10 percent prior to October 25, 2017, and in excess of 20 percent thereafter for radiculopathy of the right lower extremity. REMANDED Entitlement to service connection for loss of energy and fatigue, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317 is remanded. Entitlement to service connection for memory loss, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317 is remanded. Entitlement to service connection for sleep apnea, claimed as secondary to the service-connected PTSD is remanded. Entitlement to service connection for a cervical spine (neck) disability, claimed as secondary to the service-connected back disability is remanded. Entitlement to a rating in excess of 20 percent for a back disability is remanded. Entitlement to a rating in excess of 10 percent prior to October 25, 2017, and in excess of 20 percent thereafter for radiculopathy of the right lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1994 to September 1997, and from December 2003 to March 2005, including service in the Southwest Asia theater of operations during the Persian Gulf War. These matters are on appeal from three rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. An October 2007 rating decision continued the 20 percent disability rating for the Veteran’s back disability. An August 2010 rating decision denied the Veteran’s claim of entitlement to service connection for sleep apnea. A May 2013 rating decision in pertinent part denied the Veteran’s claims of entitlement to service connection for a cervical spine condition, memory loss, and loss of energy/fatigue. In an October 2015 decision, the Board denied entitlement to a rating higher than 20 percent for a back disability, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran, through his representative, and the Secretary of Veterans Affairs submitted a Joint Motion for Partial Vacatur and Remand (Joint Motion) requesting that the portion of the October 2015 Board decision that denied entitlement to a disability rating higher than 20 percent for the Veteran’s service-connected back disability be vacated and remanded. In a May 2016 Order, the Court granted the motion, vacated the portion of the October 2015 Board decision that denied entitlement to an increased rating for a service-connected back disability, and remanded the case to the Board for further appellate action. In October 2015 the Board in pertinent part also remanded the issues of entitlement to service connection for cervical spine condition and loss of energy for the issuance of a Statement of the Case (SOC). Manlincon v. West, 12 Vet. App. 238 (1999). The sleep apnea claim was remanded for further development. In May 2016 an SOC was issued pursuant to the remand. When this case was most recently before the Board in April 2017, it was decided in part and remanded in part for additional evidentiary development. It has since been returned to the Board for further appellate action. In a February 2018 rating decision, the evaluation of radiculopathy to the right lower extremity was increased to 20 percent, effective October 25, 2017. This did not satisfy the Veteran’s appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board finds that additional evidentiary development is required before the issues on appeal are adjudicated. In regards to the claim for service connection for sleep apnea, the Board notes that an addendum VA opinion regarding sleep apnea was obtained in May 2016. Subsequently, the Veteran stated in March 2018 that this disability was secondary to his service-connected PTSD. As prior VA examiners did not address this secondary theory of service connection, an addendum opinion is required on remand. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). The Board also notes that the Veteran’s claims for service connection for loss of energy and fatigue, and memory loss, are inextricably intertwined with the claim for service connection for sleep apnea because the medical evidence indicates that fatigue and memory loss may be a symptom of, or caused by, sleep apnea, and the Veteran indicated in his March 2018 statement that these claimed disabilities were also secondary to his PTSD. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). Therefore, these claims are remanded along with the claim for service connection for sleep apnea. In regards to the claim for service connection for a cervical spine disability, in response to the Board’s April 2017 remand, an addendum opinion was received in February 2018 in which the examiner stated in pertinent part that osteoarthritis risk factors included age, obesity, previous injury to the joint, genetics, occupations which cause repetitive stress to the joint, and joint/bone deformity. The Board previously stated in the April 2017 remand that the Veteran himself denied having problems with his neck directly related to his service. However, the Veteran submitted a statement in March 2018 that his neck condition was directly associated with service because of his deployments in which he had to wear full battle gear every day for over twelve hours per day. As prior VA examiners did not address this direct theory of service connection, an addendum opinion is required on remand. See Barr, 21 Vet. App. 303. In regards to the claims for increased ratings for a back disability and radiculopathy of the right lower extremity, the Board notes that in Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) noted the final sentence of § 4.59, which states “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” The Court found this sentence to be ambiguous because the regulation, considered as a whole, is meant to guide adjudicators in determining the proper level of disability of joints, and if the range of motion testing listed in the last sentence is not required, it is unclear how an adjudicator could adequately rate a claimant’s joint disability and account for painful motion. However, compelled by § 4.59’s place in the regulatory scheme (it preceded the disability rating schedule), the Court held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. In response to the Board’s April 2017 remand, the Veteran was afforded a VA examination in October 2017 in which the examiner noted pain in forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. The examiner stated that there was pain with weight bearing. The examiner stated that any effect of flares or repetitive motion would vary from incident to incident in intensity and severity; these events would occur unobserved by this examiner. For these reasons, the examiner stated that any increased loss of motion or increased functional impairment could not be determined without resort to mere speculation. In this case, it is unclear as to whether the 2017 VA examiner performed both active and passive / weight-bearing versus non-weight-bearing range of motion testing of the Veteran’s back. Notably, in Correia, the Court found similar range of motion testing to be inadequate. As also relevant, a more recent Court decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. A VA examiner should, on remand, address any flare-ups claimed by the Veteran, per Sharp. As the examination report did not provide all of the information specified by Correia and Sharp, these claims must be remanded for new VA examinations to obtain the information necessary to properly adjudicate these claims. The matters are REMANDED for the following action: 1. Provide access to the electronic claims file to the May 2016 VA examiner, or appropriate substitute if this examiner is not available, to provide an addendum opinion regarding the Veteran’s claimed sleep apnea. The electronic claims file must be made available to and reviewed by the examiner(s). An examination should be performed if deemed necessary by the examiner providing the requested opinion. Based on review of the files, the examiner should state a medical opinion as to whether it is at least as likely as not (50 percent or better probability) with respect to any sleep apnea present at any time during the pendency of this claim that the disability was caused or aggravated (permanently worsened) by the Veteran’s service-connected PTSD. The examiner is asked to address whether the Veteran has any disabilities that are separate and distinct from the service-connected PTSD and diagnosed sleep apnea that are manifested by loss of energy and fatigue, and memory loss. If the disabilities manifested by loss of energy and fatigue, and memory loss, are separate and distinct from the service-connected PTSD and diagnosed sleep apnea, then the examiner should indicate whether it is as least as likely as not (50 percent probability or more) that they had their onset in service, are otherwise related to service, or were caused or aggravated (permanently worsened) by any service-connected disability. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 2. Provide access to the electronic claims file to the February 2018 VA examiner, or appropriate substitute if this examiner is not available, to provide an addendum opinion regarding the Veteran’s claimed cervical spine disability. The electronic claims file must be made available to and reviewed by the examiner. An examination should be performed if deemed necessary by the examiner providing the requested opinion. Based on review of the files, the examiner should state a medical opinion as to whether it is at least as likely as not (50 percent or better probability) with respect to any cervical spine disability present at any time during the pendency of this claim that the disability is related to the Veteran’s period of active duty service; to include his deployments in which he had to wear full battle gear every day for over twelve hours per day. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 3. Schedule the Veteran for appropriate VA examination(s) to assess both the manifestations of the Veteran’s service-connected back disability and radiculopathy of the right lower extremity. The electronic record, to include a copy of this remand, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. The examiner(s) should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran’s back and radiculopathy of the right lower extremity, i.e., the extent of the Veteran’s pain-free motion. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on “weight-bearing,” please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is “yes,” the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner(s) must ALSO name the precipitating and alleviating factors. The examiner(s) must ALSO estimate, “per [the] veteran,” to what extent, if any, they affect functional impairment. The examiner(s) should also obtain a detailed clinical history from the Veteran and provide a thorough account and analysis of the manner in which the Veteran’s back and radiculopathy of the right lower extremity disabilities affects him in his everyday life, particularly the impact that it has on the Veteran’s ability to secure and follow a substantially gainful occupation. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 4. Review the addendums and examination reports to ensure that they comply with the Board’s remand directives. Any inadequacies should be addressed prior to recertification to the Board. 5. Then, after undertaking any additional development that is deemed warranted, readjudicate the claims on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.M.K., Counsel