Citation Nr: 18150918 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-38 620 DATE: November 16, 2018 REMANDED Entitlement to service connection for obstructive sleep apnea, secondary to service-connected low back disorder is remanded. Entitlement to a rating in excess of 20 percent for lumbosacral strain is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1992 to June 1996, with a period of ACDUTRA from June 5, 1991 to August 29, 1991. This matter comes before the Board of Veterans’ Appeals (hereinafter Board) on appeal from rating decisions by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Cleveland, Ohio. By a rating action in April 2015, the RO denied the Veteran’s claim of service connection for obstructive sleep apnea. Subsequently, in August 2015, the RO denied the Veteran’s claim of entitlement to a rating in excess of 20 percent for lumbosacral strain. He perfected a timely appeal to those decisions. On December 15, 2016, the Veteran appeared at the RO and testified at a videoconference hearing before a Veterans Law Judge. A transcript of that hearing is of record. After examining the record, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A. The specific bases for remand are set forth below. 1. Entitlement to service connection for obstructive sleep apnea, secondary to service-connected low back disorder is remanded. The Veteran maintains that he developed sleep apnea as a result of pain and sleep problems caused by his service-connected low back disorder. The Veteran was afforded a DBQ examination in March 2015 in connection with his service connection claim. Following a review of the Veteran’s medical records and clinical evaluation of the Veteran, the examiner reported a diagnosis of obstructive sleep apnea. The examiner opined that the claimed condition is less likely as not related to chronic lumbar strain, radiculopathy, or bilateral knee tendonitis; the examiner explained that chronic lumbar strain, radiculopathy and bilateral knee tendonitis are not known to cause sleep apnea. Upon review of the DBQ examination report, the Board finds the March 2015 medical opinion to be inadequate for adjudicative purposes. The medical opinion only addressed secondary service connection under a theory of causation; the examiner failed to address the theory of aggravation-i.e., whether the Veteran's obstructive sleep apnea was aggravated by the Veteran's service-connected lumbosacral strain. As such, the Board finds that a remand is necessary in order to obtain an opinion that is more thorough than the current opinion provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided); see also Hicks v. Brown, 8 Vet. App. 417, 422 (1995) (concluding that inadequate medical evaluation frustrates judicial review). 2. Entitlement to a rating in excess of 20 percent for lumbosacral strain is remanded. The Veteran essentially maintains that his low back disorder is more disabling than reflected by the 20 percent rating currently assigned. At his personal hearing in December 2016, the Veteran testified that his incapacitating episodes have increased in severity; he stated that there are instances where he has such severe pain that he has to stop all motion for anywhere from 15 minutes to two hours waiting for it to subside before he is able to move. The Veteran related that, since his last examination in June 2015, he has been having more episodes and they have increased in severity; he reported that he occasionally has to hold onto something to help him move. He also reported having had episodes where his legs have given out under him. The Veteran indicated that his employer has actually moved him into a position which is less stressful and he is able to sit; he noted that he is able to take breaks whenever necessary to relieve stress on his back. After examining the record, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A. While a new VA examination is not warranted based solely upon the passage of time, VA’s duty to assist includes providing a new medical examination when a Veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current disability. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of the veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). As noted above, the Veteran stated at his December 2016 hearing that the episodes of pain caused by his back disorder have increased in severity since his last VA examination, and that he has increased symptoms in his lower extremities. The Board notes that the Veteran was provided a DBQ examination in connection with his service-connected lumbosacral strain in June 2015. This is fairly recent. However, subsequent to the DBQ examination, the U.S. Court of Appeals for Veterans Claims, in Correia v. McDonald, 28 Vet. App. 158 (2016), 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 non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes requirements that must be met prior to finding that a VA examination is adequate, that have not been met in this case. The June 2015 examination report does not fully satisfy the requirements of 38 C.F.R. § 4.59. The Board also notes that the June 2015 examiner indicated that he was unable to estimate the additional functional limitation of the lumbar spine caused by flare-ups because a flare-up was not present at the time of the examination. The United States Court of Appeals for Veterans Claims (Court) has found that the mere lack of opportunity to observe a flare-up is an insufficient basis for not estimating its functional effects. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Under these circumstances, the Board finds that a remand is warranted in order to afford the Veteran a contemporaneous VA examination addressing the severity of his lumbar spine disability. The examiner will be instructed to conduct the examination in such a way as to comply with the Court’s holdings in Correia and Sharp. The matters are REMANDED for the following action: 1. Obtain all VA treatment records of the Veteran not already of record and associate them with the claims file. 2. After securing all outstanding relevant records, refer the claims file to an appropriate VA examiner for additional medical opinion on the issue of entitlement to service connection for obstructive sleep apnea. Specifically, the examiner should comment on whether it is at least as likely as not (50 percent or greater probability) that the currently diagnosed obstructive sleep apnea disability has been aggravated (chronically worsened beyond the natural progression of the condition), by the Veteran's service-connected lumbosacral strain or other service-connected disability. 3. Then, schedule the Veteran for a VA examination in order to determine the current severity of his lumbosacral spine. The claims file must be provided to and reviewed by the examiner prior to the any examination. Any testing deemed necessary must be performed. The appropriate DBQ must be utilized. Tests of range of motion must be performed to determine the extent of limitation of motion due to pain on active motion and passive motion, and with weight-bearing and without weight-bearing. 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 must clearly explain why that is so. The extent of any incoordination, weakened movement, and excess fatigability on use must be described. To the extent possible, the functional impairment due to incoordination, weakened movement, and excess fatigability must be assessed in terms of additional degrees of limitation of motion. If this is not feasible, the examiner must so state and explain why. The examiner must express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare-ups. A failure to provide this opinion based solely on the lack of observing a flare-up will not be an adequate reason for not providing the opinion. The examiner must comment on the functional impairment caused by the Veteran’s lumbar spine disability. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Thereafter, readjudicate the Veteran’s claims that are the subject of this Remand. If any benefit sought is not granted in full, both he and his representative should be furnished a supplemental statement of the case. An appropriate period of time should be allowed for response prior to returning the case to the Board. Suzie Gaston Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs