Citation Nr: 21073825 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 18-29 006 DATE: December 10, 2021 REMANDED Entitlement to service connection for a sleep disorder, other than insomnia but including sleep apnea, is remanded. Entitlement to service connection for a neurological disability manifesting as right leg numbness and weakness is remanded. Entitlement to a rating greater than 30 percent for eczema is remanded. Entitlement to a rating greater than 20 percent for lumbar spasms prior to June 14, 2021 is remanded. Entitlement to a rating greater than 40 percent for lumbar spasms from June 14, 2021 is remanded. Entitlement to a rating greater than 10 percent for transverse myelitis of the left lower extremity prior to March 16, 2018 is remanded. Entitlement to a rating greater than 20 percent for transverse myelitis of the left lower extremity from March 16, 2018 is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) prior to January 29, 2015 is remanded. REASONS FOR REMAND The Veteran had active service from May 2001 to September 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). Remand is warranted for all issues. Outstanding Records By way of background, the Veteran claimed disability compensation (increased ratings and service connection) on January 29, 2015. That claim set in motion the rating decision on appeal and the Board's previous consideration of this matter in April 2019 and September 2020. The claims file contains VA treatment records from VA facilities in Puerto Rico dating from 2011 to the present. However, VA treatment records from 2019 (with the exception of some dated in December 2019) are not included in the claims file. Therefore, the Board finds remand is warranted to attempt to determine if there are outstanding records, and if so, to attempt to obtain them. Sleep Disorder The Veteran claimed service connection for sleep apnea in January 2015. The Board, in 2019, recharacterized the issue as a sleep disorder to include insomnia and/or sleep apnea, and it remanded for a compensation examination. The Board, in 2020, found the AOJ did not complete the development ordered, so it remanded the appeal again. In April 2021, a VA psychiatric examiner found that insomnia was a symptom of the Veteran's service-connected depression. However, the AOJ, did not have the Veteran examined for the sleep apnea component of the claim in violation of the Board's 2019's Remand directive. This error prevents the Board from adjudicating this issue. Remand is therefore warranted for a sleep apnea examination. Right Leg Disorder VA examined the Veteran for his service-connected back disorder in May 2015, March 2018, and June 2021. As it pertains to this claim, none of the examiners diagnosed radiculopathy. Therefore, the AOJ has continued to deny the claim because it has found the Veteran does not have a current disability. However, the AOJ erred by not discussing Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In Saunders, the U.S. Court of Appeals for the Federal Circuit held that "'disability' in [38 U.S.C.] § 1110 refers to the functional impairment of earning capacity" and "pain in the absence of a presently-diagnosed condition can cause functional impairment," en route to its conclusion that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability." 886 F.3d at 1363, 1368, 1369. However, the Federal Circuit also made clear that a veteran cannot "demonstrate service connection simply by asserting subjective painto establish a disability, the veteran's pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that her pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. Thus, even if a veteran's pain is objectively confirmed by a doctor, the pain must functionally impair the veteran to constitute a disability. Id. at 1367-68; see id. at 1362 (dictionary definitions of "disability" relate to "functional incapacitation or impairment"); Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011) ("Pain in... a particular joint may result in functional loss, but only if it limits the ability... of the body." (internal quotation marks omitted)). While pain "can cause functional impairment," its presence does not always "reach [ ] the level of a functional impairment of earning capacity" necessary to "establish the presence of a disability." Saunders, 886 F.3d at 1367-68; see id. at 1364, 1368 (remanding because the Board did not determine "whether Saunders's pain impaired her function"). But see id. at 1364 ("We conclude that pain is an impairment...."), 1365 ("pain is a form of functional impairment"). In determining whether a particular pain reaches the level of "functional impairment of earning capacity," both medical and lay evidence must be considered. 38 C.F.R. § 3.303(a); see also 38 C.F.R. § 4.10 ("Functional impairment") ("The basis of disability evaluations is the ability of the body... to function under the ordinary conditions of daily life including employment."). To be clear, Saunders does not state that medical or "objective" evidence is required to show a functional impairment. Rather, consistent with Federal Circuit precedent, in assessing functional impairment, a veteran's lay assertions may be weighed against contrary medical evidence, but not categorically dismissed. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Here, because the AOJ did not consider Saunders, remand is warranted for a new examination. Eczema The Veteran claimed an increased rating for his eczema on January 29, 2015. VA examined him in May 2015, March 2018, and June 2021. The AOJ increased the Veteran's rating from 0 percent to 30 percent in May 2015, effective January 29, 2015. In August 2018, as this appeal was pending, VA revised the regulations under which it rates skin disorders, to include eczema. Notwithstanding this change, the maximum schedular rating under both the old and new regulations for the Veteran's eczema is 60 percent. In the June 2021 VA examination, the examiner answered all the questions the Board posed to him in its 2019 and 2020 Remands. At this point, the Board finds no additional development is warranted for this issue. However, because of the potential outstanding VA records identified above, it will defer adjudicating this issue until it the AOJ attempts to obtain the potential outstanding records. Lumbar Spasms The Veteran claimed an increased rating for his lumbar spasms on January 29, 2015. VA examined him in May 2015, March 2018, and June 2021. In April 2019, the Board determined that the March 2018 examination did not comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), so it ordered a new examination. In Sharp, the United States Court of Appeals for Veterans Claims held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups or repeated use before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. While the Board did not discuss the May 2015 examination at that time, the Board will discuss it now. At that examination, the examiner noted the Veteran experienced flareups. He also stated that he would have to resort to speculation to determine what impact these flareups had on the Veteran's range of motion. Without more explanation, the examiner's statement violates Sharp. The June 2021 examination, in contrast, complies with Sharp. The AOJ, relying on this examination, increased the Veteran's rating from 20 percent to 40 percent effective the day of the examination. However, because a retrospective opinion is not in the claims file, remand is warranted to determine to what extent, if any, these flareups limited the Veteran's range of motion for his lumbar spams and to ensure Sharp compliance throughout the almost 7-year period on appeal. Transverse Myelitis (TM) The Veteran claimed an increased rating for his lumbar spasms in January 2015. VA examined him in May 2015, March 2018, and June 2021. VA has rated the Veteran's TM under Diagnostic Code (DC) 8521 for impairment of the common peroneal nerve. However, the three examinations show that the TM impairs five of the six nerves that comprise the sciatic nerve branch. The five impaired nerves are the common peroneal, superficial peroneal, deep peroneal, tibial, and posterior tibial. VA rates nerve impairments of the lower extremities based on the nerve brach. This table summarizes those branches. Lower Extremity Nerve Branches Function Sciatic sciatic nerve (DCs 8520, 8620, and 8720) external popliteal nerve (common peroneal) (DCs 8521, 8621, and 8721) musculocutaneous nerve (superficial peroneal) (DCs 8522, 8622, and 8722) anterior tibial nerve (deep peroneal) (DCs 8523, 8623, 8723) internal popliteal nerve (tibial) (DCs 8524, 8624, and 8724), and posterior tibial nerve (DCs 8525, 8625, and 8725). Foot and leg sensory and motor function of the buttock leg knee muscles below knee lower leg fibula foot, muscles of foot, sole of foot, plantar flexion, and toes. Femoral anterior crural nerve (femoral) (DCs 8526, 8626, and 8726), and internal saphenous nerve (DCs 8527, 8627, and 8727). Thigh and leg sensory and motor function of the quadriceps muscle, front of thigh medial calf, and medial malleolus. Obturator (DCs 8528, 8628, and 8728) Motor and sensory function of the hip and muscles of the hip, and medial thigh. External cutaneous nerve of thigh (DCs 8529, 8629, and 8729) Sensory function of the lateral thigh. Illio-inguinal nerve (DCs 8530, 8630, and 8730) Motor and sensory function of the lower abdominal wall thigh scrotum, and labia majora. Unlike the upper extremities, separate evaluations of the lower extremities may be assigned for symptoms that are separate and distinct, do not overlap, and are attributed to different lower extremity nerves. This means that separate evaluations are warranted when symptoms arise from any of the five nerve branches listed in the table. However, if, as with the Veteran's TM, symptoms arise from within the same nerve branch of any of the five individual nerve branches in the lower extremity, assigning separate evaluations for those symptoms are not warranted as this would constitute pyramiding under 38 C.F.R. § 4.14. With that as background, the Board notes that the Veteran, according to VA treatment records added on February 23, 2021 to the claims file, had an electromyography (EMG) test for his TM in January 2021. A summary of the EMG is in the records, but the summary says, "for detailed and official results please refer to VistA Imaging." The Board does not have access to VistA Imaging, so remand is warranted for the AOJ to attempt to obtain these records. TDIU The AOJ awarded a TDIU as of January 29, 2015, the date of the disability claim upon which the TDIU was based. In 2020, the Board remanded this issue, stating that because of 38 C.F.R. § 3.400(o)(2), an earlier effective date prior to January 29, 2015 was possible. This issue is therefore inextricably intertwined with the other issues in this appeal. As such, the Board will defer adjudication. The matters are REMANDED for the following action: 1. Attempt to obtain the Veteran's VA treatment records from the San Juan VA Medical Center and any associated community-based outpatient clinics for the period of January 29, 2014 (1 year prior to the date of claim) to present. While most, but not all, of the records already appear in the file for this time period, it would greatly assist the Board's review if these files were uploaded as a single electronic file into VBMS. In doing so, ensure records from December 7, 2018, to December 19, 2019, are associated with the claims file as no VA records during this period are currently in the claims file. 2. Separate from Directive #1, arrange for the documents related to the Veteran's January 2021 EMG, currently stored in VistA Imaging, to be made viewable in VBMS and/or added as separate files. In short, the Board wants to ensure that it can view all available records, not simply a notation that private records have been scanned into a VHA database to which the Board does not have access. Please print the records from VistA Imaging and then scan the printed records into the VBMS. The Board reminds the AOJ that the Board does not have access to VistA Imaging, so any relevant records contained in VistA must be copied and uploaded/added to the Veteran's VBMS file. 3. Schedule the Veteran for an examination to determine the nature and etiology of his sleep apnea. In addition to reviewing the claims file, to include this Remand, and performing the customary examination, the examiner must answer the following: a) Is it at least as likely as not (50 percent probability) that the Veteran's sleep apnea began during, or was otherwise caused, by service? Why or why not? 4. Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's claimed right leg disorder. In addition to reviewing the claims file, to include this Remand, and performing the customary examination, the examiner must answer: a) Please identify any right leg disability by either (1) diagnosis or (2) functional impairment. b) As to each right leg disability identified, opine whether it is least as likely as not (50 percent probability) that the Veteran's right leg pain began during or was otherwise caused by the Veteran's military service? Why or why not? 5. Schedule the Veteran for a VA examination to determine the nature and severity of his lumbar spasms. To comply with Sharp v. Shulkin, 29 Vet. App. 26, (2017), the examiner is asked to describe whether pain, weakness, fatigue, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain or no limitation of function, note these in the report. The examiner should address if there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. In addition to reviewing the claims file, to include this Remand, and performing the customary examination, the examiner must also address the following: a) For the Sharp element of the examination, the examiner must attempt to estimate the loss in range of motion for the lumbar spasms from January 2015 to present. The Board recognizes that this is retrospective in nature, but that is what is required to adequately rate the Veteran's disability. In doing so, the examiner's opinion should be based on an estimate derived from information procured from relevant sources, including the Veteran's lay statements after he is asked to describe functional limitation, including statements made during the May 2015, March 2018, and June 2021 examinations of record. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.