Citation Nr: 18159822 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 15-22 429 DATE: December 20, 2018 REMANDED Entitlement to a disability rating in excess of 20 percent for degenerative changes of the thoracolumbar spine is remanded. Entitlement to an increased initial disability rating for sleep apnea, rated at 30 percent prior to April 23, 2011, and at 50 percent thereafter is remanded. REASONS FOR REMAND The appellant is a Gulf War Era Veteran who served in the United States Army from May 2001 to September 2008. The Veteran was awarded the Army Commendation Medal and the Army Achievement Medal, among other decorations. The Veteran appeals his Rating Decision from October 2012 from St. Petersburg, Florida. On the Veteran’s May 2015 substantive appeal, the Veteran’s representative noted that the Veteran wished to appeal only the issue of entitlement to an increased rating for the Veteran’s low back disability (the reasons for the sleep apnea remand are explained below), a contention that the Veteran’s attorney later reaffirmed. Accordingly, though the statement of the case also considered claims for an earlier effective date for the grant of service connection for sleep apnea and entitlement to a compensable rating for the Veteran’s tinea pedis, those issues are not before the Board. The Veteran’s May 2015 substantive appeal also requested a hearing via videoconference. The Veteran’s attorney later withdrew that request. 1. Entitlement to an increased rating for the Veteran’s lower back. The Veteran last underwent a VA examination for his back disability in 2015. Since that time, the Veteran and his attorney contend that his disability is more severe than currently rated. Further, since the time of that examination, recent precedential decisions from the Court of Appeals for Veterans Claims (Court) have clarified what additional commentary and information is necessary in claims for increase for musculoskeletal disabilities. See Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing (if applicable) and, if possible, with the range of the opposite undamaged joint), and Sharp v. Shulkin, 29 Vet. App. 26 (2017) (outlining VA examiners’ obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups). A new VA examination is warranted. 2. Entitlement to an increased initial disability rating for sleep apnea. The Veteran’s October 2013 notice of disagreement included the issue of entitlement to an increased rating for sleep apnea. The RO later scheduled the Veteran for a new VA examination and later increased his evaluation to 50 percent, effective the date of that new examination. The RO did not, however, include this issue on the Statement of the Case. The Veteran is presumed to seek the maximum possible rating for his service-connected disability, and the granting of an increased rating does not represent a complete grant of benefits on appeal. On remand, the RO must issue the Veteran a Statement of the Case for this issue. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected low back disability. The examiner must note the Veteran’s range of motion in both weight-bearing and nonweight-bearing positions, and on both active and passive motion. If this cannot be performed, the examiner should explain why. Further, the examiner must state whether the Veteran’s examination is being performed during a period of flare-up and, if not, any additional functional impact during such time must be estimated on the Veteran’s reports. 2. Provide the Veteran and his representative with a Statement of the Case as to the issue of entitlement to an increased rating for sleep apnea. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. N. P. Jochem, Associate Counsel