Citation Nr: 21006629 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 15-03 851A DATE: February 4, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a bilateral visual disability is remanded. Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to a service-connected low back disability, is remanded. Entitlement to a rating in excess of 70 percent for a psychiatric disability is remanded. Entitlement to a rating in excess of 10 percent for a low back disability is remanded. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran claims that he has experienced obstructive sleep apnea symptomatology since service. The Veteran has reported snoring during service and has introduced written statements from fellow service members, indicating that he choked and gagged in his sleep. The Veteran separated from service in May 2004. Post-service VA treatment records indicate that the Veteran was diagnosed with sleep apnea in June 2009. In an August 2013 private sleep study, a private examiner confirmed the sleep apnea diagnosis. In December 2018, the Board remanded the claim to schedule a VA examination to determine the etiology of sleep apnea. In an August 2019 VA medical examination report and opinion, a VA examiner opined that the Veteran's sleep apnea was not at least likely as not related to service. In explaining the opinion, the examiner stated that the service medical records were negative for symptoms or complaints of obstructive sleep apnea. The examiner noted that the Veteran was diagnosed with sleep apnea in 2010 and a sleep study was not done until 2013. The examiner stated that obstructive sleep apnea disability diagnosed nine years after the separation from service would be less likely than not related to service. Although the examiner stated that the Veteran's sleep apnea was first diagnosed in 2010, the VA treatment records include a sleep apnea diagnosis dated in July 2009. A sleep study confirmed that diagnosis in August 2013. Therefore, the August 2019 VA examiner’s opinion, based, in part, on a reported nine-year gap between the Veteran's May 2004 discharge and the diagnosis of the disability, appears to be based on an incorrect premise the diagnosis was made in July 2009, approximately five years after separation from service, and was subsequently confirmed by sleep study. Remand is necessary to schedule an additional examination. 2. Entitlement to service connection for a visual disability is remanded. A VA treatment record currently in evidence contains a notation indicating that a VA employee scanned a medical record, specifically a record from Jacksonville Vision Care, into a VA hospital's imaging system, but do not contain any copies of the scanned record. Any treatment records scanned into a VA hospital's imaging system are within VA's constructive possession and are considered potentially relevant to the issues on appeal. Remand is required to allow VA to obtain that record. 3. Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to a service-connected low back disability, is remanded. 4. Entitlement to a rating in excess of 10 percent for a low back disability. The Veteran reports that he has radicular symptoms related to a service-connected low back disability. The Veteran has stated that the symptoms include burning pain and an occasional giving way of the leg while walking. In December 2018, the Board remanded the claim to obtain additional private medical records and to schedule a VA examination to determine the severity of a low back disability, to include any possible radicular symptoms. In an October 2019 VA medical examination report, provided in compliance with the Board's remand request, a VA examiner reported finding no signs of left lower extremity radicular symptoms during that examination. In an accompanying VA medical opinion, the examiner stated that the claimed left lower extremity radiculopathy was not at least as likely as not related to service. In explaining the opinion, the examiner stated that a 2003 MRI report found mild left posterolateral protrusion of the annulus at the L5-S1 level. The examiner stated that an impingement at that level would be less than likely the source of the subjective radicular symptoms. The examiner indicated that there were no objective findings on the examination to support a diagnosis. Subsequently, in May 2020, in compliance with the Board's request to procure additional private medical records, VA obtained a copy of a July 2016 private nerve conduction study. In that study, the Veteran stated that he had experienced burning pain in the bilateral lower extremities, left greater than right, radiating from his low back to his left groin region and then down to his calves and feet. The Veteran described the sensation as mostly burning, with some numbness in a vague pattern along the left thigh and leg. The Veteran also reported experiencing some intermittent weakness in the left lower extremity, particularly while walking, and an occasional feeling that his leg was giving out on him. After neurological testing, the July 2016 private examiner indicated that the study was mildly abnormal, because the electrophysical findings were consistent with mild, chronic, left L5-S1 root irritation. The examiner found no evidence of a generalized polyneuropathy affecting large-diameter nerve fibers or right lumbosacral radiculopathy. The Board notes that, in the October 2019 VA examination report and opinion, the VA examiner, having reviewed a 2003 MRI, stated that the Veteran’s low back disability would less likely than not have caused his reported radicular symptoms. However, the examiner did not have the opportunity to review the July 2016 private examiner’s study which is suggestive of neurological symptoms related to the low back disability. Remand is necessary to schedule an additional examination to determine the etiology of the claimed neurological disability. Because the Veteran claims that the service-connected low back disability caused left lower extremity radiculopathy disability, the claims are inextricably intertwined. The examination of the low back will include an opinion as to whether there is radiculopathy related to the low back disability. Because those disabilities may potentially affect the rating of one another, the claims should be remanded to be adjudicated together. 5. Entitlement to a higher rating in excess of 70 percent for a psychiatric disability is remanded. In a July 2019 letter, a private examiner reported that the examiner’s practice, Psychological Services of Jacksonville, had provided the Veteran with biweekly treatment for a service-connected psychiatric disability since May 2009. The earliest record from that facility currently in evidence is dated in May 3, 2019. Remand is necessary to attempt to obtain any additional private treatment records from that practice. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. Specifically, obtain the most recent VA treatment records not included in the record of evidence and the record noted as having been scanned into the Vista imaging system by VA Medical Center personnel, as noted in the VA treatment record in evidence, dated December 17, 2018. 2. Ask the Veteran to complete a VA Form 21-4142 for Psychological Services of Jacksonville, to particularly include records dated prior to May 3, 2019. Make two requests for the authorized records from that facility, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a VA examination with a VA medical doctor examiner to assist in determining the nature and etiology of any identified sleep disability. The examiner must review the record and should note that review in the report. The examiner should note the service medical records; the post-service medical records, to include the VA records indicating a diagnosis for sleep apnea in 2009 and the 2013 private sleep study; and the lay evidence, to include the lay accounts of the Veteran's reported in-service sleep apnea symptomatology. A rationale for all opinions should be provided. (a.) Diagnose all sleep disabilities found and specifically state whether a diagnosis of sleep apnea is warranted. (b.) Opine as to whether it is at least as likely as not (50 percent probability or greater) that any identified sleep disability, to include sleep apnea, had its onset during active service or is related to any incident of service. Reconcile the opinion with the competent and credible lay testimony and statements of record as to the Veteran’s in-service sleep impairment including snoring, gagging, choking, and insomnia. Discuss the significance of the lay statements of symptomatology in service and the diagnosis of sleep apnea in July 2009. 4. Schedule the Veteran for a VA examination with a VA orthopedist to assist in determining the current severity of a low back disability, and the nature and etiology of any identified left lower extremity radiculopathy disability. The examiner should review the claims file, to include the service medical records; the post-service treatment records, to specifically include the July 2016 private nerve conduction study; and the lay evidence, to include the Veteran's statements. Regarding the lumbar spine, the examiner should provide ranges of motion for passive and active motion and for weight-bearing and nonweight-bearing. The examiner should state whether there is any additional loss of lumbar spine function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. The examiner should indicate whether, and to what extent, the Veteran experiences functional loss of the lumbar spine due to pain or any other symptoms during flare ups or with repeated use. After a review of the claims file, an interview with the Veteran, and the examination, the examiner should also provide the following opinions: (a.) State whether there is any neurologic disability of the left lower extremity. (b.) Is it at least as likely as not (50 percent probability or greater) that any left lower extremity neurological disability had its onset during active service or is related to any incident of service? (c.) Is it at least as likely as not that any left lower extremity neurological disability (1) began during active service, (2) manifested within one year after the Veteran’s May 2004 separation from active service, or (3) was noted during service with continuity of the same symptomatology since service? (d.) Is it at least as likely as not (50 percent probability or greater) that any left lower extremity neurological disability is due to or the result of the service-connected low back disability? (e.) Is it at least as likely as not (50 percent probability or greater) that any left lower extremity neurological disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by the service-connected low back disability? Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.M. Gillett 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.