Citation Nr: 18152372 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 11-31 828 DATE: November 21, 2018 REMANDED Entitlement to service connection for a sleep disorder, to include sleep apnea and insomnia, is remanded. Entitlement to a disability rating in excess of 20 percent for a low back disability is remanded. Entitlement to a disability rating in excess of 10 percent for a left knee disability is remanded. Entitlement to a disability rating in excess of 10 percent for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1981 to February 1985 and from April 1991 to July 1994. This matter comes to the Board of Veterans’ Appeals (Board) from September 2010 and July 2011 rating decisions. In June 2014, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is of record. In December 2014 and September 2017, the Board remanded the claims back further development, to include obtaining VA examinations and medical opinions. 1. Entitlement to service connection for a sleep disorder, to include sleep apnea and insomnia, is remanded. Subsequent to the June 2018 supplemental statement of the case (SSOC), and prior to recertification of the appeal to the Board, the Veteran was afforded a VA examination and medical opinion for his sleep apnea disability. When additional evidence pertinent to the issues on appeal is submitted prior to certification to the Board, the Agency of Original Jurisdiction (AOJ) must furnish a SSOC. 38 C.F.R. § 19.31 (2017). Thus, the Veteran’s claim of entitlement to service connection for a sleep disorder must be remanded for AOJ consideration of the evidence and issuance of an updated SSOC. 2. Entitlement to a disability rating in excess of 20 percent for a low back disability, entitlement to a disability rating in excess of 10 percent for a left knee disability, and entitlement to a disability rating in excess of 10 percent for a right knee disability are remanded. In September 2017, the Board remanded these matters and called for a VA examination to reassess the severity of the Veteran’s back and knee disabilities in light of the holding in Correia v. McDonald, 28 Vet. App. 158 (2016). The Board sincerely regrets further delay from the additional remand of the increased rating claims for low back and bilateral knee disabilities, but it is necessary to ensure there is a complete record and so that the Veteran is afforded every possible consideration. While the Veteran was afforded VA examinations in December 2017, the examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Specifically, the examiners indicated that an opinion pertaining to additional limitation of functional ability after repetitive use and during flare-ups, to include evidence of pain, weakness, fatigability, or incoordination, and loss of range of motion, could not be rendered without resort to speculation due to the examination not being conducted after repetitive use or during a flare-up. However, the examiners did not indicate that whether speculation was due to lack of knowledge within the medical community. Thus, the Board finds that a remand is warranted for a new VA examination to include those considerations. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records from July 2018 to the present. 2. Schedule the Veteran for an examination to assess the current severity of his low back and bilateral knee disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s low back and left and right knees alone and discuss the effect of the Veteran’s disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completing the above, and any other development as may be indicated, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Owen, Associate Counsel