Citation Nr: 21009376 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-39 723 DATE: February 22, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for cervical strain is remanded. Entitlement to an initial rating in excess of 10 percent for thoracolumbar strain is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to an initial compensable rating for tinea pedis with mycotic toenails is remanded. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran had active service in the Navy from May 1997 to May 2001 and the Army from July 2003 to June 2015. The appeal originates from January 2017, February 2017, and September 2018 decisions of a Department of Veterans Affairs (VA) Regional Office. In May 2020, the Veteran withdrew her request for a Board hearing contained in the July 2018 and January 2019 appeal forms. 1. Entitlement to an initial rating in excess of 20 percent for cervical strain is remanded. 2. Entitlement to an initial rating in excess of 10 percent for thoracolumbar strain is remanded. The Veteran was afforded VA examinations for the neck and back in September 2016. Since the examinations, however, the Court of Appeals for Veterans Claims (Court) has found that examinations of musculoskeletal disabilities must comply with the language of 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). As a result, examinations must test range of motion in both active and passive motion, and in weight-bearing and nonweight-bearing. The examinations do not comply with Correia because they satisfy some but not all of the noted requirements. In addition, clarification is necessary regarding flareups, as the examiner was unable to describe the Veteran's ranges of motion because she was not experiencing flareups at the examination. However, the examiner did not attempt to estimate her ranges of motion based on her reports of pain and other evidence in the record. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, she should be afforded new examinations. 3. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that she was diagnosed with sleep apnea in service without treatment. See May 2019 CAPRI. VA treatment records note assessment of a sleep disorder in 2017 and a planned sleep study, which does not seem to have been performed. Service treatment records show that the Veteran was seen for sleep problems and prescribed medication for insomnia. As there appear to be indications of a current disability, in-service symptoms, and a link between the two, the Veteran should be afforded an examination. 4. Entitlement to an initial compensable rating for tinea pedis with mycotic toenails is remanded. 5. Entitlement to an initial rating in excess of 50 percent for PTSD is remanded. 6. Entitlement to service connection for residuals of a TBI is remanded. VA treatment records were added to the file following the June and November 2018 statements of the case that bear on the remaining claims, including any extent of involvement or treatment for the skin, the Veteran’s occupational and social functioning, and whether she had a TBI in service. VA sent correspondence to the Veteran in December 2020 requesting clarification as to whether she waived Agency of Original Jurisdiction (AOJ) review of this evidence and was advised that failure to respond within 45 days would result in remand of the appeal. No response has been received. As such, remand is required to afford her due process. With respect to an increased rating for PTSD, a November 2020 private evaluation appears to indicate a worsening of the Veteran’s psychiatric disability. She should be afforded a new examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for neck and back examinations to evaluate the current severity of her disabilities. The examiner must perform appropriate range of motion testing, expressing all findings in degrees and noting the degree where painful motion, if any, is present. Further, note the presence, or absence, of weakened movement, excess fatigability, and incoordination present, to include on repetitive testing. This information must be derived from joint testing for pain on active and passive motion, and in weight-bearing and nonweight-bearing. The examination report must confirm that all such testing has been made and reflect those testing results. The examiner is asked to describe whether pain significantly limits functional ability during flareups, and if so, the examiner must estimate range of motion during flareups, to include a retrospective opinion for the period on appeal. If the examination does not take place during a period of flareup, the examiner should glean information regarding the flareups' severity, frequency, duration, and functional loss manifestations from the Veteran, medical records, and other available sources. Efforts to obtain such information must be documented. If there is no pain and/or no limitation of function, such facts must be noted in the report. 2. Schedule the Veteran for a sleep apnea examination. If the Veteran has a diagnosis of sleep apnea, the examiner is asked to opine whether it is at least as likely as not that sleep apnea had its onset in or is otherwise etiologically 3. Schedule the Veteran for a PTSD examination to evaluate the current severity of her psychiatric disability. 4. Review all evidence received since the June and November 2018 statements of the case and readjudicate the appeal. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alhinnawi 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.