Citation Nr: 21002118 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 07-34 738 DATE: January 12, 2021 REMANDED The claim for service connection for obstructive sleep apnea is remanded. The claim for an initial disability rating in excess of 10 percent prior to June 28, 2012, for lumbar stenosis is remanded. The claim for an initial disability rating in excess of 40 percent beginning June 28, 2012, for lumbar stenosis is remanded. The claim for an initial disability rating in excess of 40 percent for right knee sciatic radiculopathy is remanded. The claim for an initial disability rating in excess of 10 percent for left knee sciatic radiculopathy prior to October 3, 2015, is remanded. The claim for an initial disability rating in excess of 40 percent for left knee sciatic radiculopathy beginning October 3, 2015, is remanded. The claim for a total disability rating based on individual unemployability (TDIU) prior to October 3, 2015, is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2003 to April 2004 and from July 2005 to May 2006, including service in Kuwait/Iraq from April 2003 to February 2004, and service in Afghanistan from August 2005 to April 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal from November 2006, May 2009, September 2010, May 2013, June 2013, and January 2016 rating decisions. The Veteran testified before an Acting Veterans Law Judge (VLJ) in August 2009. The VLJ who conducted the hearing is no longer at the Board, and in March 2011, the Veteran was advised that the VLJ who took his testimony was no longer employed by the Board, and advised him that he had 30 days to request a new hearing. He did not respond. These matters were again remanded by the Board in February 2013 and June 2018 for additional development. Unfortunately, there has not been substantial compliance with the Board’s remand order, and it must be remanded again. REASON FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea Upon remand in 2018, the Veteran was provided with a VA examination in August 2020. The examiner concluded that obstructive sleep apnea is a diagnosable chronic multi-symptom illness with a partially explained etiology and stated that it is “due to airway obstruction and less likely than not related to exposure or event in Southwest Asia.” However, the examiner did not explain the rationale behind each conclusion. In addition, the Board requested that the examiner opine as to whether obstructive sleep apnea began during service, given his reports of in-service symptomatology, such as snoring and waking up gasping for air. However, this opinion was not provided. As such, the VA opinion obtained is inadequate and the issue must be remanded to obtain the opinions requested. 2. Entitlement to an initial disability rating in excess of 10 percent prior to June 28, 2012, for lumbar stenosis 3. Entitlement to an initial disability rating in excess of 40 percent beginning June 28, 2012, for lumbar stenosis 4. Entitlement to an initial disability rating in excess of 40 percent for right knee sciatic radiculopathy 5. Entitlement to an initial disability rating in excess of 10 percent for left knee sciatic radiculopathy prior to October 3, 2015 6. Entitlement to an initial disability rating in excess of 40 percent for left knee sciatic radiculopathy beginning October 3, 2015 7. Entitlement a total disability rating based on individual unemployability (TDIU) prior to October 3, 2015 The 2018 Board remand requested that several medical opinions be obtained in order to adjudicate the above listed issues. The Board finds that the VA examination and opinion is inadequate for several reasons. First, the Board remand requested that a VA examiner provide a retrospective opinion, as best as can be ascertained from the Veteran’s reports during the examination and in treatment records as well as the medical findings throughout treatment records, as to the severity of the Veteran’s lumbar spine disability, including the right and left lower extremity radiculopathy disabilities back to February 2007, the new effective dates for the benefits. The August 2020 VA examiner did not mention or provide the retrospective opinions as requested by the Board. In addition, the Board remand requested that a VA examiner opine as to any neurologic impairment related to the lumbar spine disability given the Veteran’s reports of such symptoms and a January 2016 VA examination noting voiding and bowel dysfunction. The 2020 VA examiner did not note or discuss the evidence demonstrating or suggesting such additional impairment, but simply checked the box that there were no other neurologic abnormalities or findings related to the lumbar spine disability. Given the evidence, specific discussion and opinion of whether additional neurologic impairment such as urinary and bowel impairment is present and, if so, the severity, is required. In addition, the Veteran has reported that his lumbar spine and lower extremity disabilities are so severe that he frequently must stay in bed or in a reclined position, unable to leave his home, due to the symptoms. For these reasons, the Board finds that the issue of entitlement to an extraschedular rating is raised. As the Board itself cannot assign an extraschedular rating in the first instance pursuant to 38 C.F.R. § 3.321 (b), it must specifically adjudicate whether to refer a case to the Director of Compensation and Pension Service for an extra-schedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director determines that an extra-schedular evaluation is not warranted, does the Board then have jurisdiction to decide the extra-schedular claim on the merits. In fact, the Court held that although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director of C&P determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); see also Floyd, 9 Vet. App. at 96-97 (stating that once Board properly refers an extraschedular rating issue to Director of C&P for review, appellant may "continue[ ] to appeal the extraschedular rating aspect of this claim"); see also 38 U.S.C.A. §§ 511 (a), 7104(a) ("All questions in a matter... subject to decision by the Secretary shall be subject to one review on appeal to the... Board."). Therefore, in this claim, the Board finds that referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service (C&P) for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating, is warranted. Finally, the issue of TDIU prior to October 3, 2015, is intertwined with the claim for increased ratings for the right and left lower extremity disabilities, as the opinions obtained in the requested examinations and the subsequent rating awarded may impact the decision regarding TDIU for that period. As such, the issues must be remanded and adjudicated together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). All outstanding records of ongoing VA treatment should be obtained. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Obtain a VA opinion addendum by the 2020 VA examiner regarding obstructive sleep apnea. The examiner must specifically consider the Veteran’s reports regarding urinary and bowel impairment and the June 2015 examiner’s findings of such impairment. Such evidence must be discussed when the examiner opines whether it is at least as likely as not (50 percent probability or greater) that any diagnosed sleeping disorder had its onset directly during the Veteran’s service or is it otherwise causally related to any event or circumstance of service. The examiner must also further opine and explain the rationale behind the opinion that the Veteran’s sleep apnea is a diagnosable chronic multi-symptom illness with a partially explained etiology and that it is “due to airway obstruction and less likely than not related to exposure or event in Southwest Asia.” If the 2020 VA examiner finds that further examination of the Veteran in person is required, such examination should be scheduled and conducted. If the same 2020 VA examiner is unavailable, a new VA examination and opinion that addressed the full 2018 Board remand must be provided. 3. Schedule the Veteran for a VA examination to determine the current nature and severity of his lumbar spine disability. The claims file should be made available to and be reviewed by the examiner. All appropriate tests should be conducted, to include active and passive range of motion studies, and in weightbearing and nonweight-bearing, expressed in degrees and in related to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. If possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran’s back (i.e., the extent of his pain-free motion). The examiner should also express an opinion as to whether pain in the lumbar spine could significantly limit functional ability during flare-ups or during periods of repeated use, noting, if feasible, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. The examiner should also identify any neurologic impairment related to his lumbar spine disability, to specifically include the nature and severity of any bowel or bladder dysfunction. In this matter, the examiner is directed to the January 2016 VA back conditions examination report. The examiner should also provide a retrospective opinion, as best as can be ascertained from the Veteran’s self-reports as well as from clinical records and other evidence, as to the severity of the Veteran’s radiculopathy left lower extremity from February 13, 2007, through June 28, 2012, and as to the severity of the Veteran’s radiculopathy right lower extremity from February 13, 2007, through October 3, 2015. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.B., 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.