Citation Nr: 18157514 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 17-05 132 DATE: December 12, 2018 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to an initial evaluation in excess of 10 percent for lumbago and paravertebral muscle strain with pain and muscle spasms is remanded. Entitlement to an initial evaluation in excess of 10 percent for residuals of a right shoulder rotator cuff tear is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1992 to November 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran elected to participate in the Rapid Appeals Modernization Program (RAMP), selecting the option for higher level review. However, appeals that have been activated by the Board are not eligible for RAMP processing. As the instant appeal had already been activated by the Board, the Board will continue with adjudication pursuant to current appeal procedures. The Board notes that the Veteran has submitted an April 2016 disability benefits questionnaire (DBQ) from Dr. A.G.-C. (initials used to protect privacy). Dr. A.G.-C. diagnosed him with mixed sleep apnea, which he indicated was confirmed by a sleep study performed in April 2016 at the District of Columbia VAMC. However, that sleep study report does not appear in the claims file. Thus, on remand, the Agency of Original Jurisdiction (AOJ) should attempt to obtain any outstanding VA medical records. The Board also notes that the Veteran has not been afforded a VA examination in connection with his claim for service connection for sleep apnea. Dr. A.G.-C. opined in April 2016 that the Veteran’s sleep apnea is at least as likely as not secondary to his service-connected post-traumatic stress disorder (PTSD). He also stated in the April 2016 DBQ that the Veteran’s sleep apnea was related to his polytrauma, PTSD, and chronic facet pain. However, he did not provide any rationale for those statements. Therefore, the Board finds that a VA examination and medical opinion are needed to determine the nature and etiology of any sleep apnea that may be present. Moreover, the Veteran was afforded VA examinations in March 2015 in connection with his claims for service connection for low back and right shoulder disabilities. However, in light of a decision issued by the United States Court of Appeals for Veterans Claims (Court), a remand is required. Specifically, the Court held that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive range of motion, as well as with weight-bearing and nonweight-bearing. Correia v. McDonald, 25 Vet. App. 158 (2016). In this case, the VA examination reports did not include these findings. In addition, the evidence of record suggests that the Veteran’s service-connected lumbar spine and right shoulder disabilities may have worsened since his last VA examinations in March 2015. See June 2016, May 2017 private treatment records; July 2016 DBQs from Dr. R.A.; January 2017 VA Form 9. For these reasons, additional VA examinations are needed to ascertain the current severity and manifestations of the Veteran’s service-connected lumbar spine and right shoulder disabilities. Lastly, the Board notes that additional evidence has been received since the last statement of the case. See May 2017 private treatment records. On remand, the AOJ will have the opportunity to consider such evidence in the first instance. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for sleep apnea and his service-connected right shoulder and lumbar spine disabilities. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file, including records from the District of Columbia VAMC and April 2016 sleep study report. 2. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any sleep apnea that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and lay assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran has sleep apnea that manifested in or is otherwise causally or etiologically related to his military service, including any symptomatology therein. The examiner should also provide an opinion as to whether it is at least as likely as not that the Veteran has sleep apnea that was either caused by or permanently aggravated by his service-connected PTSD. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available for review. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected lumbar spine disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the lumbar spine disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the lumbar spine. In so doing, the examiner should test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-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 should clearly explain so in the report. The examiner should also comment on whether there is any form of ankylosis. In addition, the examiner should state the total duration of incapacitating episodes over the past 12 months and identify all neurological manifestations of the disability. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. Further, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for the other VA examination conducted during the appeal period in March 2015. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected right shoulder disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In particular, the examiner should provide the range of motion of the left and right shoulder in degrees on active motion, passive motion, weight-bearing, and nonweight-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 should provide an explanation for this determination in the report. The examiner should state whether there is any ankylosis; malunion, recurrent dislocation, fibrous union, nonunion (false flail joint), or loss of head (flail shoulder) of the humerus; or, any impairment of the clavicle or scapula. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion). Further, the examiner should comment as to whether ranges of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for the other VA examination conducted during the appeal period. See, e.g., March 2015 VA examination. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. The AOJ should review the examination reports to ensure compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. 6. After completing these actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claims should be reviewed on the basis of additional evidence. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel