Citation Nr: 21006287 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-10 503 DATE: February 3, 2021 REMANDED Entitlement to an initial evaluation for a back disability in excess of 20 percent disabling, prior to October 11, 2018, is remanded. Entitlement to service connection for sleep apnea as secondary to a back disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability as secondary to a left ankle disability and a right knee disability is remanded. REASONS FOR REMAND The Veteran had active duty service from April 1977 to March 1982. For the period of service from April 11, 1977 to April 10, 1980, the Veteran’s discharge was characterized as honorable. For the period of service from April 11, 1980 to March 12, 1982, his discharge was characterized as under other than honorable conditions. Despite the latter, in a June 2018 decision, the Board found that the character of the Veteran’s discharge for the period of service from April 11, 1980, to March 12, 1982, was not a bar to the receipt of VA benefits. This appeal comes to the Board of Veterans’ Appeals (Board) from rating decisions, dated October 2013 and February 2018, issued by a Department of Veterans Affairs (VA) Regional Office (RO). In its October 2013 rating decision, the RO granted service connection for degenerative disc disease of the thoracolumbar spine with an evaluation of 20 percent, denied service connection for degenerative joint disease of the right knee, and denied service connection for a left knee condition. In its February 2018 rating decision, the RO denied service connection for a sleeping disorder. The Veteran timely appealed both decisions. In August 2019, the Board denied all four issues on appeal. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Partial Remand (JMPR), vacating and remanding the portion of the August 2019 Board decision that denied entitlement to service connection for a sleep disorder, a left knee disability, and a right knee disability, and an initial evaluation in excess of 20 percent disabling for the lumbar spine prior to October 11, 2018. The issues have now been returned to the Board for adjudication. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to an initial evaluation for a back disability in excess of 20 percent disabling, prior to October 11, 2018, is remanded. In October 2013, the RO granted entitlement to service connection for degenerative disc disease of the thoracolumbar spine and assigned a 20 percent rating effective August 13, 2012. The Veteran disagreed with the rating and perfected this appeal. In May 2020, the RO increased the Veteran’s evaluation of degenerative disc disease of the thoracolumbar spine to 40 percent effective October 11, 2018. As noted in the August 2020 JMPR, the Veteran is not challenging the part of the Board’s August 2019 decision that denied an increased evaluation for a back disability in excess of 40 percent disabling from October 11, 2018. Therefore, the Board will only proceed to adjudicate the Veteran’s claim of entitlement to an initial evaluation for a back disability in excess of 20 percent disabling prior to October 11, 2018. The Veteran generally contends that the assigned rating prior to October 11, 2018 does not adequately reflect the severity of his disability. The Veteran underwent a VA back examination in October 2013. The Veteran reported flare ups which he described as the spine feeling stiff all the time, pain running up and down the spine, and an inability to sleep at night. The examiner did not provide any opinion as to whether there was additional functional limitation in terms of limitation of motion during flare-ups. The Veteran underwent another VA back examination in July 2014. The Veteran reported flare ups which he described as radiation of pain down his left leg and gradual left lower extremity paresis. The examiner did not provide any opinion as to whether there was additional functional limitation in terms of limitation of motion during flare-ups. The Veteran underwent a VA back examination in July 2016. The Veteran reported flare ups which he described as generalized weakness with stiffness and pain all the time rated as seven out of 10. The examiner reported that he was unable to opine without mere speculation as to whether there was additional functional limitation in terms of range of motion during flare-ups because an “actual joint examination and measurement is warranted during flare-up to provide functional impairment.” In August 2020, the JMPR found that the Board failed to provide an adequate statement of reasons and bases as to whether the October 2013 and July 2016 VA examinations were adequate for rating purposes in terms of compliance with Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (holding that the examiner must estimate the functional loss that would occur during flare-ups and must name the precipitating and alleviating factors for the flare and estimate “per the Veteran” the extent to which flares affect functional impairment). While the record contains three VA examinations regarding the Veteran’s back disability, the examinations do not comply with the requirements in Sharp, 29 Vet. App. at 34-36. The September 2013 and July 2014 examiners did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. Additionally, while the July 2016 examiner stated that an opinion could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. Therefore, the Board finds that a remand is warranted in order to obtain a medical opinion that complies with the requirements articulated in Sharp. 2. Entitlement to service connection for sleep apnea as secondary to a back disability is remanded. The Veteran has claimed entitlement to service connection for sleep apnea as secondary to his service-connected back disability. He contends that his sleep is interrupted by leg spasms and pain. See Notice of Disagreement (NOD) dated March 2018. The Veteran, his representative, and the record raise no other theory of service connection. As a result, the Board will limit its analysis to the theory advanced by the Veteran. Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008). In a November 2017 VA examination request, VA requested that an examiner provide a medical opinion as to whether the Veteran’s sleep apnea was secondary to his service-connected degenerative disc disease of the thoracolumbar spine. Thereafter, in a November 2017 VA examination for mental disorders, the examiner determined that the claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition. She wrote, “The veteran has a current diagnosis of Depressive Disorder due to a medical condition: Degenerative Disc Disease. The Insomnia is a symptom of the Depressive Disorder due to a medical condition: Degenerative Disc Disease.” In a January 2018 addendum opinion, the same VA examiner wrote, “The Veteran’s depressive disorder is due to the back.” In the JMPR, the Court directed the Board to “assess whether a VA examination is warranted as to Appellant’s claim of sleep apnea, to include as secondary to his service-connected thoracolumbar spine disability.” The Board finds that the November 2017 VA examination for mental disorders is inadequate for rating purposes for the Veteran’s sleep apnea claim. The Board acknowledges that while the symptom of sleep impairment may be contemplated in the psychiatric rating criteria for his service-connected psychiatric disability, sleep impairment due to a psychiatric disability is not the same disability as sleep apnea. The opinion provided did not answer the question of whether sleep apnea is secondary to degenerative disc disease of the thoracolumbar spine. Therefore, the Board finds that a remand is necessary in order to obtain a medical opinion to determine whether the Veteran’s sleep apnea is caused or aggravated by his service-connected back disability. 3. Entitlement to service connection for a right knee disability is remanded. The Veteran contends that his right knee disability is due to his service. While in service, he was assessed for subpatellar tendonitis in his right knee. He contends that he has had chronic pain in his right knee ever since. The Veteran underwent a VA examination for his knees in October 2013. The examiner concluded that his right knee disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. She reasoned, In response, unable to definitively state that the claimant’s right knee DJD was incurred during military service. Medical records indicate that the claimant was treated for one occurrence of subpatellar tendonitis in 1977 without in further complaints of knee pain noted. It would be pure speculation to conclude that tendonitis noted in 1977 with any evidence of treatment after that is the etiology of current DJD. In the August 2020 JMR, the Board was directed to afford the Veteran a new VA examination, because the examiner’s rationale did not address evidence of record reflecting the Veteran’s reports of a chronic knee pain since 1979. Therefore, the Board remands this issue in order to obtain a new VA examination. 4. Entitlement to service connection for a left knee disability as secondary to a left ankle disability and a right knee disability is remanded. In a November 2013 letter, the Veteran’s attorney indicated the Veteran believed his left knee was injured as a result of overcompensating for his left ankle and right knee injuries. The Veteran, his representative, and the record raise no other theory of service connection. As a result, the Board will limit its analysis to the theory advanced by the Veteran. Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008). As the Veteran has asserted, in relevant part, that his left knee disability is due to his right knee disability, and the right knee disability is being remanded, the Board finds that these issues are inextricably intertwined. The Board also finds that secondary service connection opinions will be helpful to the adjudication of this issue. Accordingly, the matters are REMANDED for the following action: 1. Obtain a retrospective medical opinion by an appropriate clinician to address the severity of degenerative disc disease of the thoracolumbar spine from August 13, 2012 to October 10, 2018. Any interview portion of the examination may be conducted via tele-health given pandemic precautions. Based on a review of the medical and lay evidence of record, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups from August 13, 2012 to October 10, 2018. If it is not possible to provide a specific measurement based on review of the record and interview with the Veteran, the examiner should provide an estimate, to the extent possible, of the additional impairment due to flare-ups during from August 13, 2012 to October 10, 2018. If it is not possible to provide a specific measurement without speculation, the examiner must explain why: 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). 2. Request a medical opinion addressing the Veteran’s claimed sleep apnea disability. In-person examination is not required unless deemed necessary by the examiner. Based upon a review of the entirety of the claims file, the examiner is requested to provide an opinion as to the following questions: (a.) Please identify any sleep apnea present at any time since the date the Veteran filed his claim (August 25, 2017). To the extent possible, please distinguish the Veteran’s sleep apnea from any other sleep impairment symptoms experienced by the Veteran. (b.) Is it at least as likely as not (probability of 50 percent or greater) that the Veteran’s back disability caused his sleep apnea? (c.) Is it at least as likely as not (probability of 50 percent or greater) that the Veteran’s back disability aggravated (worsened beyond the natural progression) his sleep apnea? 3. Request a medical opinion addressing the Veteran’s claimed right and left knee disabilities. In-person examination is not required unless deemed necessary by the examiner. Based upon a review of the entirety of the claims file, the examiner is requested to provide an opinion as to the following questions: (a.) Please identify any right knee disability present at any time since the date the Veteran filed his claim (July 26, 2012). (b.) For each right knee disability identified, is it at least as likely as not (i.e. probability of 50 percent or greater) that the disability was incurred during the Veteran’s active military service or is otherwise related to his service, to include his reports of a chronic knee pain since 1979? (c.) Please identify any left knee disability present at any time since the date the Veteran filed his claim (July 26, 2012). (d.) For each left knee disability, is it at least as likely as not (probability of 50 percent or greater) that: 1. the Veteran’s left ankle disability caused his left knee disability? 2. the Veteran’s left ankle disability aggravated (worsened beyond the natural progression) his left knee disability? 3. the Veteran’s right knee disability caused his left knee disability? 4. the Veteran’s right knee disability aggravated (worsened beyond the natural progression) his left knee disability? Explanations for all opinions must be provided. In providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran’s statements regarding the onset of his symptoms. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bristor 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.