Citation Nr: 21000758 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-14 220 DATE: January 6, 2021 REMANDED Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a disability rating exceeding 10 percent for a left ankle disability is remanded. Entitlement to a disability rating exceeding 10 percent for a right ankle disability is remanded. Entitlement to a disability rating exceeding 10 percent for a lumbar spine disability is remanded. Entitlement to a disability rating exceeding 10 percent for right lower extremity radiculopathy is remanded. Entitlement to a disability rating exceeding 10 percent for left lower extremity radiculopathy is remanded.   REASONS FOR REMAND The Veteran served on active duty from July 1967 to July 1988. This appeal comes to the Board of Veterans’ Appeals (Board) from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2019 decision, the Board denied the Veteran’s claims for increased disability ratings for the ankles and for service connection for an acquired psychiatric disorder, a sleep disorder, and a left knee disability. The Board remanded the issue of entitlement to a higher disability rating for the Veteran’s lumbar spine disability to the Agency of Original Jurisdiction (AOJ) for additional development including reevaluating the Veteran’s claim based on additional evidence of a worsening disability picture. The Veteran appealed the denied claims to the United States Court of Appeals for Veterans Claims (CAVC). In a July 2020 rating decision, the AOJ granted the Veteran separate compensable disability ratings for radiculopathy of the lower extremities associated with the Veteran’s lumbar spine disability. However, the AOJ otherwise denied the Veteran’s claim for an increased rating for the lumbar spine. See July 2020 Supplemental Statement of the Case. In a May 2020 memorandum decision, CAVC vacated the Board’s decision and remanded the previously denied claims to the Board for reconsideration and additional evidentiary development. CAVC found that the VA examinations the Board cited in support of the its decisions were inadequate. Regarding the Veteran’s left knee claim, CAVC noted that the Board relied on a September 2014 VA examiner’s opinion, which in turn relied on the passage of time between the Veteran’s service and the 2012 diagnosis of arthritis. CAVC noted that the Veteran reported in October 2008 that left knee numbness began four or five years earlier. CAVC noted that the examiner did not address the possibility that relevant left knee symptoms began in approximately 2003 or 2004. Consequently, the Board was not adequately informed as to the examiner’s judgment on that medical question. Therefore, CAVC found both the Board’s reasons and bases and the underlying medical examination on which it relied are inadequate. Regarding the Veteran’s mental disability claim, CAVC noted that the Veteran asserted the August 2014 examiner failed to address the April 2010 report that the Veteran’s anxiety sometimes interfered with sleeping. CAVC noted that the VA Secretary did not address the Veteran’s assertion that the examiner should have addressed the April 2010 report but generally argued that the examiner adequately explained that the Veteran does not have clinically significant anxiety symptoms or a diagnosed psychiatric condition. CAVC agreed with the Veteran. In regard to the Veteran’s sleep disorder claim, CAVC observed that the December 2016 VA Sleep Apnea examiner explained that snoring and sleep trouble were nonspecific symptoms and not necessarily related to sleep apnea. However, in so doing, CAVC noted that the examiner acknowledged that snoring and sleep trouble can be signs or symptoms of sleep apnea without adequately explaining why they were not evidence of in-service manifestation in this case. Instead, CAVC noted the examiner stated that a sleep apnea diagnosis requires objective testing and that no such diagnosis was rendered during service. CAVC found that it is unclear to what extent the examiner’s opinion—that the Veteran’s sleep apnea was linked to post service obesity—took into consideration the Veteran’s snoring and sleep trouble in 1980 or whether it was based solely on the lack of an in-service diagnosis. In regard to the Veteran’s ankles, CAVC noted the Veteran asserts the VA examiner failed to adequately explain why it was not feasible to estimate additional range of motion loss during flare-ups. While the VA Secretary disputed this contention and asserted that the examiner’s opinion should be interpreted to read that the additional pain and stiffness associated with flare-ups do not result in additional limitation of motion, CAVC agreed with the Veteran. On remand, the AOJ should afford the Veteran additional VA examinations addressing the deficiencies noted by CAVC in its decision. In addition to the deficiencies noted by CAVC, the Boards finds the AOJ should also conduct additional development to address deficiencies in the recent October 2019 VA lumbar spine examination. The Board observes that the examination contains inconsistent findings concerning the Veteran’s flare-ups, which warrants additional clarification. In pertinent part, the VA examiner opined that the Veteran would experience additional functional loss due to flare-ups including trouble bending and lifting. However, under the section involving range of motion estimates, the examiner indicated that it was not possible to provide an estimate of functional loss due to flare-ups without examining the Veteran during a flare-up. The examiner did not adequately explain why she was able to estimate functional loss in terms of activities of daily living and occupational functioning but not approximate functional loss as a reduction of range of motion. Moreover, it is not clear from the opinion whether additional evidentiary development may allow the examiner to provide a more complete account of functional loss due to flare-ups. In addition to the deficiency regarding flare-ups, the examiner indicated that the Veteran did not suffer from abnormal spinal contour (e.g. kyphosis) without addressing favorable evidence in the treatment records that the Veteran has suffered from kyphosis during the period at issue. See, e.g., July 2019 treatment notes from J.C., PA-C (noting the Veteran suffers from mild segmental kyphosis). On remand, the AOJ should obtain a current examination of the Veteran’s lumbar spine that addresses these concerns and provides an explanation for any inconsistencies in the opinion or between the opinion and conflicting evidence in the record (e.g. evidence that the Veteran has kyphosis). The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all identified outstanding relevant evidence with the Veterans claims file, the AOJ should schedule the Veteran for additional examinations by an appropriate clinician to determine the severity of his service-connected bilateral ankle and lumbar spine disabilities during the period at issue to include during flare-ups. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, 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. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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. The AOJ should review the ankle and lumbar spine examination opinions and obtain addendum opinions as needed to address any pertinent internal inconsistencies in the examination opinions or between the opinions in the examinations and other evidence in the record. For example, while the October 2019 VA back examiner indicated the Veteran did not suffer from kyphosis, other evidence in the record explicitly indicates the Veteran did have kyphosis during the period at issue. See, e.g., July 2019 treatment notes from J.C., PA-C (noting the Veteran suffers from mild segmental kyphosis). The AOJ should ensure the examiners explain any difference in their findings or opinions between their examinations and prior VA examinations or opinions from the Veteran’s treatment providers in the record. 4. After associating all identified outstanding relevant evidence with the Veterans claims file including the current examinations of the Veteran’s ankles and lumbar spine, the AOJ should obtain addendum opinions from appropriate medical professionals for the purpose of clarifying where it is at least as likely as not that the Veteran’s left knee disabilities, sleep disorders, and psychiatric disorders manifested in or were otherwise caused by his military service or caused or aggravated by a service-connected disability. The AOJ should also ensure that the VA examiners address the following concerns: (a.) The AOJ and the VA examiners should take note of the concerns raised by United States Court of Appeals for Veterans Claims (CAVC) in its May 2020 decision about deficiencies in the prior VA examinations and ensure that the examiners’ opinions adequately discuss and consider the Veteran’s lay statements and third party statements (e.g. from the Veteran’s spouse) about the continuity of pertinent symptoms from the time of his military service through the present. (b.) The VA examiners should identify all left knee disabilities, sleep disorders (e.g. obstructive sleep apnea), and psychiatric disorders (under the DSM-IV and DSM-5) that the Veteran has suffered from during the period at issue based on a review of the claims file and an examination of the Veteran if necessary (if the Veteran is willing and able to attend). (c.) In regard to each left knee disability, sleep disorder, and psychiatric disorder identified by the examiners, the examiners should opine whether it is at least as likely as not (50 percent or greater probability) that the disability manifested during the Veteran’s military service or was otherwise caused by events during the Veteran’s military service. (d.) In the case of arthritis of the left knee, the VA examiner should opine whether it is at least as likely as not that the Veteran’s arthritis manifested to a compensable degree (e.g. any limitation of motion due to pain) within one year of the Veteran’s separation from military service. (e.) In regard to each left knee disability, sleep disorder, and mental disability identified by the examiners, the examiners should opine whether the disability is at least as likely as not caused or aggravated (permanently or temporarily) by other medical conditions that the Veteran suffers from. For example, the examiners’ opinions should clarify whether the Veteran’s psychiatric disorders have at times temporarily worsened his sleep disorder symptoms or vice versa. The examiners should also opine whether the Veteran’s current service-connected disabilities (e.g. the Veteran’s ankle and back disabilities) have caused or aggravated (permanently or temporarily) his knee disabilities, sleep disorders, and mental disabilities as a result of symptoms including pain, altered biomechanics, or side effects of medications (if applicable). (f.) If an examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion 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). 5. After completing the above action and any other necessary development, the claims must be readjudicated. If a claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.