Citation Nr: 18153084 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-36 011 DATE: November 28, 2018 REMANDED Service connection for sleep apnea, to include as secondary to the service-connected postoperative deviated nasal septum, is remanded. Service connection for a neurological disability of the legs, to include as secondary to the service-connected thoracolumbar spine disability, is remanded. Service connection for neurological disability of the arms, to include as secondary to the service-connected thoracolumbar spine disability, is remanded. Service connection for a disability of the chest, to include as secondary to a neurological disability of the arms, is remanded. A disability rating in excess of 20 percent for the thoracolumbar spine disability is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1976 to August 1980 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In characterizing the claim involving a neurological disability of the arms, the Board has not considered it an application to reopen service connection, as did the RO. While the RO last denied service connection for a “nerve condition of the spine and neck” in June 2010, the claim here also involves the bilateral arms. Because the present claim is based on a different disability than that considered in June 2010, the current claim may be considered without regard to whether new and material evidence has been received. See Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008). With further regard to this claim, the RO has characterized it as a claim for a “nerve condition of the spine and neck/neuropathy of the bilateral upper extremities,” as secondary to the thoracolumbar spine disability. However, as assessing any associated neurological disabilities is implicit in adjudicating the claim for a higher rating for the thoracolumbar spine disability, the Board has recharacterized the claim as above, eliminating reference to the “spine and neck,” for clarity. In the July 2018 Appellate Brief, the Veteran’s representative requested a remand of all issues on appeal. The Board agrees that this development is necessary. The Veteran’s military separation examination report is not of record. As several of the disabilities on appeal were noted in the service treatment records (STRs), this report, if available, should be associated with the file. Treatment records from the Gainesville VA Health Care system and the Jacksonville Outpatient Clinic, both dated through the present, must be obtained in accordance with the Veteran’s March 2013 and June 2016 requests, respectively. No records from Gainesville have been obtained, and the Jacksonville notes of record are dated only through 2012. In the June 2016 statement of the case (SOC), the RO referenced a May 22, 2013 VA examination report pertinent to the thoracolumbar spine disability. The file contains an entry for this examination, but the body of the report is blank and contains only the following sentence, “you may not view this completed compensation & pension exam.” This report must be associated with the file. With further regard to the 2013 examination report, since that time, the United States Court of Appeals for Veterans Claims (Court) rendered decisions in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While on remand, an updated VA examination compliant with these decisions should be provided. On examination, the lumbar spine examiner should also address the etiology of the current neurological disabilities of the legs and arms (shown in a December 2016 VA treatment record and on VA examination in February 2010, respectively). Secondary service connection must be addressed. Direct service connection must also be considered, as neurological problems of the legs were documented in October 1978, November 1978, and June 1980 STRs, and neurological problems of the arms were documented in June 1980. Prior VA examiners have not adequately addressed these matters. If a neurological disability of the arms is found to be related to service, or caused or aggravated by the service-connected disability, a further opinion addressing the etiology of the Veteran’s current chest wall pain (documented in February 2010, for example) must be obtained. A VA examination is also needed on the claim for sleep apnea. The Veteran has current sleep apnea, shown on VA examination in August 2012. He reports his symptoms began in service, and/or are attributable to the 1979 septorhinoplasty and adenoid removal performed during service. The August 2012 examiner provided a negative nexus opinion but did not clearly explain why the current sleep apnea was unrelated to the in-service procedure, or the service-connected postoperative deviated nasal septum. Finally, because a decision on the above issues could significantly impact a decision on the the claim for a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is also required. The matters are REMANDED for the following action: 1. Obtain and associate with the record the Veteran's service separation examination report, if available. 2. Obtain all of the Veteran’s VA treatment records from the Gainesville VA Health Care system, and records from the Jacksonville Outpatient Clinic dated since 2012. Associate with the file the May 22, 2013 VA examination report (discussed in the June 2016 SOC). 3. Afford the Veteran a VA examination to ascertain the current severity of his service-connected thoracolumbar spine disability, in accordance with the applicable worksheet for rating the disorder. The examiner must further opine on whether it is at least as likely as not that any current neurological disability of the arms or legs (i.) began during active service or is related to an in-service injury, event, or disease or (ii.) was caused OR aggravated (chronically worsened) by the service-connected thoracolumbar spine disability. In doing so, the examiner must consider the October 1978, November 1978, and June 1980 service treatment records documenting neurological problems of the legs, and the June 1980 service treatment record documenting neurological problems of the arms. 4. IF, and only if, a neurological disability of the arms is found related to service or caused or aggravated by the service-connected thoracolumbar spine disability, afford the Veteran a VA examination to obtain evidence addressing the etiology of any current chest disability, to include his chest wall pain shown in February 2010, for example. The examiner must opine on whether it is at least as likely as not that any current chest disability (i.) began during active service or is related to an in-service injury, event, or disease, or (ii.) was caused OR aggravated (chronically worsened) by the neurological disability of the arms. 5. Afford the Veteran a VA examination to obtain evidence addressing the etiology of his current sleep apnea. The examiner must opine on whether it is at least as likely as not that the current sleep apnea (i.) began during active service or is related to an in-service injury, event, or disease, or (ii.) was caused OR aggravated (chronically worsened) by the service-connected postoperative deviated nasal septum. (Continued on the next page)   In doing so, the examiner must consider the Veteran’s reports of experiencing sleep apnea symptoms in service, as well as the in-service 1979 septorhinoplasty and adenoid removal. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith, Counsel