Citation Nr: 21062855 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-55 389 DATE: October 12, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for sleep apnea is reopened. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a disability rating in excess of 20 percent for thoracolumbar strain is remanded. FINDINGS OF FACT 1. An April 2009 rating decision denied the Veteran's claim for service connection for sleep apnea. The Veteran was notified of this decision and of his appellate rights by a letter dated April 28, 2009. He did not appeal. 2. Additional evidence received since the April 2009 rating decision is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the Veteran's claim for service connection for sleep apnea. 3. The Veteran's sleep apnea had its onset during his active service. 4. The Veteran has a diagnosis of PTSD that is related to an in-service stressor. CONCLUSIONS OF LAW 1. The April 2009 rating decision is final regarding the Veteran's claim for service connection for sleep apnea. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been submitted to reopen the claim for service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1979 to February 1999. For the Veteran's service, he was awarded a Bronze Star. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision. In March 2017, a new VA Form 21-22a, Appointment of Individual as Claimant's Representative, was received at the Agency of Original Jurisdiction (AOJ) appointing the attorney listed on the title page above. The Board recognizes this change in representation. In July 2021, the Veteran and his spouse, D.D., testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. In the January 2015 rating decision, the AOJ denied the Veteran's claim for service connection for sleep apnea on the basis that new and material evidence had not been submitted and on the merits. The September 2016 statement of the case denied the Veteran's claim on the basis that new and material evidence had not been submitted. The Board must determine of its own accord whether new and material evidence is of record to reopen the claim before it may consider it on the merits. Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). 1. New and material evidence having been received, the claim for entitlement to service connection for sleep apnea is reopened. A determination on a claim by the AOJ of which the claimant is properly notified is final if no notice of disagreement is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 20.302. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.302 (setting forth requirements and timeframe for initiating and perfecting an appeal). To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996) (holding that § 5108 requires a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened). VA regulation defines "new and material evidence" as follows: "New evidence" means evidence not previously submitted to agency decision makers, and "material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a), Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). To warrant reopening, the new evidence must neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); see Shade, 24 Vet. App. at 117 (holding that there is a "low threshold" for reopening). When determining whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). If new and material evidence is received within one year after the date of mailing of a decision by the AOJ, it prevents that decision from becoming final and will be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period." 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of a decision by the AOJ prevents that decision from becoming final); 38 C.F.R. § 3.400(q) (providing that, as to new and material evidence received within appeal period, "effective date will be as though the former decision had not been rendered"). An April 2009 rating decision denied the Veteran's claim for service connection for sleep apnea. The Veteran was notified of this decision and of his appellate rights by a letter dated April 28, 2009. New and material evidence was not received within one year after the date of mailing of a decision by the AOJ. Accordingly, the April 2009 rating decision is final concerning this claim. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran submitted a petition to reopen his claim for service connection in July 2014. See VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. A July 2019 Sleep Apnea Disability Benefits Questionnaire completed by a private physician, L.Y.C., M.D., F.C.C.P., demonstrates that the Veteran has a diagnosis of obstructive sleep apnea. Further, the corresponding private medical opinion links the Veteran's obstructive sleep apnea to his active service. This evidence was not of record at the time of the April 2009 rating decision and relates to unestablished facts necessary to support the claim for service connection, namely a diagnosis of obstructive sleep apnea and a nexus between the Veteran's sleep apnea and his active service. Thus, the Board finds the evidence is both new and material. See 38 C.F.R. § 3.156(a); see also 38 C.F.R. § 3.303; Shade, 24 Vet. App. at 122. Therefore, the claim for service connection for sleep apnea is reopened. Service Connection Service connection means that a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see 38 C.F.R. § 3.303(a). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 2. Entitlement to service connection for sleep apnea is granted. The Veteran maintains that his current sleep apnea began during his active service. For the reasons discussed below, the Board finds that service connection is warranted. A private physician, L.Y.C., M.D., F.C.C.P., diagnosed the Veteran with obstructive sleep apnea. See July 2019 Sleep Apnea Disability Benefits Questionnaire. Further, the Veteran's VA treatment records demonstrate that he has a diagnosis of obstructive sleep apnea. Thus, the requirement that the Veteran have a current disability, has been met. The Veteran and his spouse, D.D., have advised in statements and testimony obtained throughout the pendency of his claim that his sleep apnea began in service and has continued since that time. During the July 2021 hearing, the Veteran stated that he had difficulty sleeping during his active service. He provided he was tired during the day and napped during his lunch break. He recollected that he stopped breathing at night and D.D. woke him so he would begin breathing. In a May 2018 written statement, D.D. stated that the Veteran's sleep-related symptoms began during his active service. She saw the Veteran coughing after returning from Saudi Arabia. Further, she advised that the Veteran snored very loudly and stopped breathing on a nightly basis. D.D. was forced to shake him when he stopped breathing during sleep, and he had difficulty falling back asleep. The Veteran was tired in the mornings and often napped midday. Because the Veteran and D.D. are not shown to have a medical background or expertise, they are considered laypeople in the field of medicine. Lay testimony is competent as to matters capable of lay observation or within a person's first-hand experience and may be competent evidence with respect to both the diagnosis of a medical condition and its etiology or cause. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). However, lay testimony is not competent with respect to determinations that cannot be made based on lay observation alone due to their medical or scientific complexity. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). The Board must determine on a case-by-case basis whether lay testimony is competent on the matter at issue, or whether medical evidence is required. See Davidson, 581 F.3d at 1316 (holding that it was error to reject categorically lay statements on the issue of medical nexus, or to make a categorical finding that a medical opinion was required); Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without assessing its competence). The Board finds that the Veteran and D.D. are competent to report the onset of his symptoms including cessation of breathing, loud snoring, difficulty falling back asleep, and daytime sleepiness during his active service as these symptoms are capable of lay observation within a person's first-hand experience. Additionally, the Veteran and D.D. are credible in their reports of the onset of his sleep-related symptoms and their continuity from his active service to the present. See Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). In support, a Report of Medical History from the Veteran's active service demonstrates that he complained of frequent trouble sleeping. Concerning the causal relationship or "medical nexus" between the Veteran's current sleep apnea and his active service, his claims folder contains a July 2019 private medical opinion from L.Y.C., M.D., F.C.C.P., that finds his obstructive sleep apnea is at least as likely as not related to his active service. The medical opinion provides that the Veteran has a diagnosis of obstructive sleep apnea syndrome determined in approximately 2002 according to the Veteran's recollection. The medical opinion states that the Veteran advised of a history of exposure to exhaust fumes from burning oil fields in Iraq during the Gulf War. The medical opinion states that the Veteran had an overnight polysomnography from July 2013 that showed a split night polysomnography evaluation. The Veteran's respiratory disturbance index was 55.6/hour. There was hypoxemia level going down to a nadir of 85 percent. With treatment, there was good suppression of sleep-disordered breathing events and positive air pressure therapy was recommended from that sleep study. The Veteran's VA treatment records confirm that he underwent a sleep study at Florida Sleep Institute at this time. Concerning sleep-related symptomatology, the medical opinion states that the Veteran and D.D. advised that he had loud snoring that began in the mid-1990s, particularly during the Gulf War. He had snoring prior to that time, including in the 1980s, but it increased in intensity during the 1990s. He also had pauses in his respirations during sleep in the 1980s that continued into the 1990s. D.D. confirmed these pauses and stated that she was forced to wake him while he was sleeping to ensure he resumed breathing. During the Veteran's active service, he had restless sleep, daytime sleepiness, fatigue, and grogginess that required naps during his lunch break. The medical opinion states that the Veteran currently uses a CPAP machine while sleeping and that its use has lessened his snoring and nearly eliminated pauses in his respirations. He also advised of less sleepiness, daytime somnolence, and fatigue due to the use of a CPAP machine. The medical opinion concludes that the description of the Veteran's sleep apnea, provided by him and D.D., appears to have been present during his active service as he had typical symptoms and signs associated with obstructive sleep apnea. He had loud snoring, frank witnessed apneic pauses in respirations while asleep, and excessive daytime somnolence. The Veteran's diagnosis of obstructive sleep apnea has been confirmed by objective testing on polysomnographic evaluation that showed obstructive sleep apnea syndrome associated with nocturnal hypoxemia. The objective confirmation and correlation with subjective clinical information provided by the Veteran and D.D. is consistent with the finding that he had obstructive sleep apnea during his active service. Therefore, the Veteran's sleep apnea had its onset during his active service. The Board finds that the July 2019 private medical opinion to be especially probative as it represents the informed conclusion of a medical professional supported by a thorough explanation and is based on a review of the Veteran's medical history, clinical findings contained in his claims folder, and the symptomatology reflected in the medical and lay evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran's claims folder does not contain evidence of a medical opinion disassociating his sleep apnea from his active service. Thus, given the positive nexus to service established by the July 2019 private medical opinion, considering the competent and credible lay statements by the Veteran and D.D. of the onset and continuity of symptoms during and since his active service, and in light of the absence of any probative evidence to the contrary, the Board the preponderance of the evidence is in favor of the award of service connection for sleep apnea and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App.at 55. 3. Entitlement to service connection for PTSD is granted. The Veteran maintains that his current PTSD is related to his active service. Specifically, the Veteran relates his PTSD to an in-service event in Doja, Saudi Arabia when several explosions occurred while he was standing guard. See August 2014 VA Form 21-0781, Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD). The Veteran left his crew to investigate and report the explosion when a second explosion occurred that propelled him against a wall. Id. He evacuated the building around the motor pool, but the explosion eventually rendered him unconscious. See September 2015 VA Form 21-4138, Statement in Support of Claim. He awoke over an hour later at a United Nations compound. See August 2014 VA Form 21-0781. Additionally, the Veteran advised that his PTSD was worsened by a post-service back surgery. See July 2021 Hearing Transcript. For the reasons discussed below, the Board finds that service connection is warranted. Establishing service connection for PTSD specifically requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). Concerning the requirement that there be credible supporting evidence that the claimed in-service stressor occurred, section 3.304(f) sets forth circumstances that are exceptions to this rule and allow a claimant's lay testimony, alone, to establish the occurrence of the alleged stressor. In the first circumstance, if the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided the stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1). In the second circumstance, if the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided the stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). In the third circumstance, if a stressor claimed by a veteran is related to his "fear of hostile military or terrorist activity" and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). For purposes of the relaxed evidentiary standard set forth in 38 C.F.R. § 3.304(f)(3), "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. In the fourth circumstance, if the evidence establishes the Veteran was a prisoner-of-war (POW) under the provisions of section 3.1(y) of the regulations, and the claimed stressor is related to that POW experience, in the absence of clear and convincing evidence to the contrary, and provided the stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(4). If one of the above exceptions does not apply, then the Veteran's statements alone will not be sufficient to establish an in-service stressor, but must be corroborated by credible supporting evidence. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); accord Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996); see also Cohen v. Brown, 10 Vet. App. 128, 146-47 (1997). The available evidentiary sources for corroboration of a claimed stressor are not limited to service records (as required prior to the adoption of 38 C.F.R. § 3.304(f)) but may also include other sources of evidence. See Cohen, 10 Vet. App. at 143. Corroboration of every detail of the stressor is not required. Pentecost v. Principi, 16 Vet. App. 124, 128 (2002). Moreover, a Veteran's actual presence during the stressor event need not be specifically corroborated if the evidence shows that he was assigned to and stationed with a unit that was present when a reported event that has otherwise been verified occurred; such evidence strongly suggests actual exposure to the stressor event. Id. In general, except for stressors based on personal assault, "after-the-fact medical nexus evidence," such as a VA examiner's finding that a claimant's PTSD was caused by the alleged in-service stressor, cannot by itself serve as credible supporting evidence of the claimed in-service stressor. See Moreau, 9 Vet. App. at 396. The Board concludes that the Veteran has a current a current diagnosis of PTSD under 38 C.F.R. § 4.125(a). The July 2018 Review Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire demonstrates that the Veteran has a diagnosis of PTSD, generalized anxiety disorder, major depression, and dependent personality disorder. Thus, the Veteran has a current diagnosis of PTSD. The Veteran's VA treatment records also indicate that he has a current diagnosis of PTSD. Further, the corresponding private July 2018 medical opinion completed by F.J.S., Ph.D., provides that the Veteran's PTSD, which meets the DSM-5 criteria, is related to his in-service stressor. The medical opinion explains that the Veteran reported experiencing several explosions during his service in the Gulf War. Because of this stressor, the Veteran experiences flashbacks, nightmares, psychological distress because of fireworks, and re-experiencing the stressor. The July 2018 medical opinion states that the Veteran endorsed symptoms of distressing and intrusive thoughts, flashback memories, startle response, emotional numbness, anger, difficulty with sleep and concentration, psychological distress with exposure to people, places, or events that symbolize or resemble some aspect of the traumatic events. Regarding the Veteran's medical history, he had surgeries on his left wrist, left knee, appendix, and back. The medical opinion states that it is not uncommon for PTSD to be manifested years after an incident and after surgery, which is trauma to the body and also the other incident where his suspiciousness surfaces. The Veteran appeared to be functional for many years, but the past traumatic events during his active service and subsequent traumas have taken a toll. The Board finds that the July 2018 private medical opinion to be especially probative as it represents the informed conclusion of a medical professional supported by a thorough explanation and is based on a review of the Veteran's medical history, clinical findings contained in his claims folder, and the symptomatology reflected in the medical and lay evidence of record. See Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. The exception outlined in 38 C.F.R. § 3.304(f)(3) has been satisfied in this case to demonstrate an in-service stressor occurred. The November 2014 VA Initial Post Posttraumatic Stress Disorder (PTSD) Disability Benefits Questionnaire states that the Veteran's claimed in-service stressor is adequate to support a diagnosis of PTSD. Further, the July 2018 medical opinion provides that the Veteran's symptoms are related to the claimed stressor. Lastly, the stressor is consistent with the places, types, and circumstances of the Veteran's service as the evidence shows that he was involved with multiple explosions while serving in Saudi Arabia from June 11, 1991, to August 20, 1991 and was awarded a Bronze Star as a result. The Veteran received this award for meritorious service in support of military operations against a hostile force. Despite many adversities associated with a combat environment, the Veteran served in a resolute manner against a tenacious enemy. The Veteran's claims folder also contains a report from the Associated Press detailing explosions that occurred at Blackhorse Camp in Doha and that the United States Embassy ruled out sabotage. At least 50 United States soldiers were injured according to Central Command based on Tampa, Florida. Lastly, there is no clear and convincing evidence to the contrary. Thus, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, and the Board finds that his lay statements are sufficient to establish that his claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f)(3) The Board acknowledges that a November 2014 VA Initial Post Posttraumatic Stress Disorder (PTSD) Disability Benefits Questionnaire found that the Veteran has a diagnosis of unspecified anxiety disorder and did not meet the full criteria for a diagnosis of PTSD. The examination report states that the Veteran does not meet the Criterion B: Intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) or Criterion D: Negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred. The corresponding medical opinion states that the Veteran denied the presence of any symptoms during the 22-year period between the reported trauma that occurred during his deployment to Saudi Arabia in support of Operation Desert Storm in 1991 and January 2013 when he advised he first had symptoms. The medical opinion indicates that a systematic review of delayed-onset PTSD shows that there is "no consensus emerging as to its prevalence" and that studies demonstrating delayed-onset PTSD in the absence of prior symptoms are quite rare. The medical opinion concludes that even if the Veteran met the full criteria for PTSD, the likelihood of such an extensive delayed-onset of symptoms is extremely low, if not non-existent. The Board finds the November 2014 VA medical opinion is inadequate and thus declines to accept it. See Barr, 21 Vet. App. at 312 (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The medical opinion fails to state which studies referenced by the examiner support the conclusion that delayed-onset PTSD is rare. Further, the fact that delayed-onset PTSD is rare is not a sufficient reason to deny service connection for PTSD in this specific matter. See Wilson v. Derwinski, 2 Vet. App. 614 (1992) (reflecting that the Board is free to assess medical evidence and is not obligated to accept a physician's opinion). For these reasons, the Board finds that service connection for PTSD is warranted. Because the preponderance of the evidence is in favor of the award of service connection for PTSD, the benefit of the doubt doctrine is not applicable in the instant appeal and service connection is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App.at 55. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for thoracolumbar strain is remanded. The Veteran was afforded a VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire in December 2014. A new VA examination is warranted because the December 2014 examination does not comply with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The United States Court of Appeals for Veterans Claims (the Court), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weightbearing and non-weightbearing and, if possible, with range of motion measurements of the opposite undamaged joint, or an explanation as to why such testing is not warranted or not possible. See Correia, 28 Vet. App. at 158. The December 2014 examination report does not specify that passive and non-weightbearing range of motion testing was performed, or whether such testing was considered not warranted or not possible. Additionally, VA examiners are required to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. Sharp, 29 Vet. App. at 32. VA examiners are also required to estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran's own statements. Id. at 34-35. If an estimate cannot be provided without resort to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large, or insufficient knowledge of the specific examiner. Id. at 36. The examination report notes that the Veteran reported flare-ups as pain causes decreased movement. He has severe flare-ups that occur two times per week, last for three hours at a time, are precipitated by walking, prolonged sitting, driving, lifting, and rotational movements, and are alleviated by use of a TENs unite, ice and heat, and rest. The examination report states that the examination was not being performed during a flare-up. The examination report notes in the absence of a current flare-up, there is not a current scientific way that a clinician is able to objectively measure or evaluate the degree of additional range of motion due to pain on use or during flare-ups. In the absence of a flare-up, any attempt to provide this data would be mere speculation and therefore not useable for rating purposes according to the examination report. The examiner failed to provide an estimate of the additional loss of range of motion on repeated use over time or during a flare-up. It is not apparent why the examiner could not estimate additional functional loss or additional loss of range of motion based on the Veteran's statements describing the flare-ups, or why the available information in the file was not sufficient to permit such an estimate. Should the new VA examination be conducted while the Veteran is not experiencing a flare-up of his thoracolumbar strain, the estimation of additional functional loss and additional loss of range of motion during a flare-up must be made after obtaining information concerning the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors. Because the December 2014 examination report failed to estimate the additional loss of range of motion during a flare-up, a retrospective medical opinion is necessary to capture the severity of the Veteran's thoracolumbar strain for the appropriate time period. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). The matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from January 2017 to the present. 2. After the above development is completed, schedule the Veteran for an examination of the current severity of his service-connected thoracolumbar strain. (a.) The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. (b.) 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. (c.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's thoracolumbar strain on any occupational functioning and activities of daily living. 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). (d.) The examiner must provide a retrospective medical opinion, as best as can be ascertained from the Veteran's self-reports as well as from clinical records and other evidence, including VA examination reports. The retrospective opinion must estimate any additional degrees of limited motion caused by functional loss during a flare-up. The Veteran reported flare-ups of his thoracolumbar strain at the December 2014 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. 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). P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.