Citation Nr: 20008296 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 17-24 903 DATE: January 31, 2020 ORDER New and material evidence having been received, the claim for service connection for a left shoulder disability is reopened. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a rating in excess of 20 percent for a back disability is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to a compensable rating prior to March 7, 2017 and excess of 10 percent from that date, for right lower extremity radiculopathy is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The claim for entitlement to service connection for a left shoulder disability was denied in a November 2012 rating decision. The Veteran did not submit new and material evidence within one year of that decision or initiate an appeal. The decision became final. 2. Evidence submitted since the November 2012 rating decision was not previously considered and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW Evidence received since the November 2012 rating decision is new and material, and the claim for service connection for a left shoulder disability is reopened. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2001 to August 2001 and from October 2004 to June 2005. New and Material Evidence Whether new and material evidence has been received to reopen a claim for service connection for a left shoulder disability The Veteran’s initial claim of service connection for a left shoulder disability was denied in a November 2012 rating decision because there was no evidence of a left shoulder condition in service. The Veteran did not initiate an appeal or submit any additional evidence within a year of that decision, making the November 2012 rating decision final. Evidence added to the record since November 2012 rating decision includes the Veteran’s sworn testimony at his October 2019 Board hearing that his left shoulder disability was caused by his service-connected back disability, because he had to use his arms and shoulders to compensate for his back disability. The Veteran further testified that because he is right handed, his left shoulder was injured because it was not as strong as his left. The evidence is “new” in that it had not been previously submitted and it is “material” because it relates to an unestablished fact necessary to substantiate the claim. The November 2012 denial was based on the finding that there was no diagnosis or treatment of a shoulder condition during service. The new evidence includes the Veteran’s report of his shoulder condition being caused by his service-connected back injury. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). De novo consideration of the claims is addressed in the remand section below. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disability is remanded. The Veteran contends that his left shoulder disability was caused by compensating for his service-connected back disability. The Board is unable to make a final decision on the issue of service connection for a left shoulder disability, because no VA examiner has opined whether the Veteran’s left shoulder was caused or aggravated by his service or service-connected disabilities. On remand, schedule the Veteran for a VA examination to determine service connection. 2. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his sleep apnea was caused or aggravated by his service-connected back disability because his back disability caused obesity which then led to his sleep apnea. Obesity may be an intermediate step between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310 (a). See VAOPGCPREC 1-2017 (Jan. 6. 2017). The Veteran submitted an opinion from his primary care provider (PCP) in December 2019 discussing how the Veteran’s sleep apnea was caused by obesity that developed because his service-connected back disability required the use of opioids. The PCP further explained chronic opioid use causes hypogonadism, thus causing lower intrinsic testosterone levels, which led to his obesity. However, the Veteran is not service-connected for hypogonadism and it is unclear from the opinion whether obesity or other causes to include nonservice-connected hypogonadism was the intermediary step between the Veteran’s sleep apnea and his service-connected back disability. On remand, the Veteran should be given a VA examination that discusses the intermediary effects of whether the Veteran’s opioid use or hypogonadism caused the Veteran’s obesity. 3. Entitlement to a rating greater than 20 percent for a back disability is remanded. 4. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is remanded. 5. Entitlement to a compensable rating prior to March 7, 2017 and excess of 10 percent from that date, for right lower extremity radiculopathy is remanded. During the course of the appeal, service connection was granted, and a separate 10 percent rating assigned for right lower extremity radiculopathy, effective March 7, 2017. See March 2017 rating decision. The rating for that disability is part of the increased rating claim for the back and is before the Board. The back and radiculopathy claims must be remanded for new examinations to determine the current severity of the disabilities. A November 2019 DBQ completed by the Veteran’s PCP documented that the Veteran’s thoracolumbar forward flexion range of motion (ROM) was limited to 30 degrees. The 30 degrees documented is an apparent correction made by the PCP from 60 degrees during forward flexion. However, within the same DBQ, the PCP documented that painful motion does not begin until 60 degrees during forward flexion. The examination on remand should also clarify the nature and extent of the lower extremity radiculopathies. Service connection has been granted for both lower extremities but examination findings to date are inconsistent. A February 2015 VA examiner noted radicular pain but did not provide a related diagnosis. A May 2015 PCP report included a diagnosis, but a November 2019 report did not. 6. Entitlement to a TDIU is remanded. The Veteran contends that he is unable to find substantially gainful employment since November 2012, due to his service-connected disabilities. The claim for TDIU being inextricably intertwined with issues on remand requiring the TDIU decision to be deferred until the remanded issues are adjudicated. On remand, the Veteran should be asked to update his application for TDIU (Form 21-8940). In his previous application submitted in March 2016, the Veteran reported he last worked in November 2012. However, during his March 2017 VA examination, the Veteran reported to the examiner that he works as the manager for a business that restores old cars. The matters are REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940, Application for TDIU and request that he submit the completed form, with all appropriate information. Thereafter, take all appropriate action on the TDIU claim. 2. After completion of the above, schedule the Veteran for a VA examination with an appropriate VA examiner, to determine the nature and likely etiology of any diagnosed left shoulder disability. Copies of all pertinent records must be made available to the examiner. Based on the examination and review of the record, the examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently diagnosed left shoulder condition was incurred in or is otherwise related to service? (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed left shoulder condition has been (i) caused or (ii) aggravated by (defined as any increase in disability) any of the Veteran’s service-connected disabilities? A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to 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) and note what, if any, additional evidence would permit such an opinion to be made. 3. Schedule the Veteran for a VA examination with an appropriate VA examiner, to determine service connection for his sleep apnea condition. Copies of all pertinent records must be made available to the examiner. After reviewing the claims file, the examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently diagnosed sleep was incurred in or is otherwise related to service? The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed sleep apnea condition has been (i) caused or (ii) aggravated by (defined as any increase in disability) any of the Veteran’s service-connected disabilities? In answering this question, the examiner should review and discuss the December 2019 PCP opinion that the Veteran’s opioid treatment for his service-connected back disability caused hypogonadism which in turned caused his obesity. Thus, causing his sleep apnea. The examiner should specifically address the following: (1) whether the Veteran’s service-connected back disability caused the Veteran to become obese; (2) if so, whether the obesity as a result of his back disability was a substantial factor in causing sleep apnea; and (3) whether the sleep apnea would not have occurred but for obesity caused by his back disability. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to 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) and note what, if any, additional evidence would permit such an opinion to be made. 4. Schedule the Veteran for the appropriate VA examination to assess the severity of his service-connected back disability to include any associated lower extremity radiculopathy. Copies of all pertinent records should be made available to the examiner for review. All necessary diagnostic testing should be performed. The examiner must make determinations regarding range of motion, including any additional functional impairment. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.