Citation Nr: 21013487 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 18-33 944 DATE: March 9, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression with sleep problems, is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to an increased rating in excess of 10 percent for a right knee disability is remanded. Entitlement to a total disability rating based on individual unemployment (TDIU) prior to December 11, 2017 is remanded.   REASONS FOR REMAND The Veteran had active service from February 1973 to August 1975. The Veteran had a hearing before the undersigned Veterans Law Judge in February 2020. A transcript has been associated with the file. The Board notes the Veteran has been in receipt of a TDIU since December 11, 2017. The scope of the Veteran’s claim of service connection for an acquired psychiatric disorder includes depression, sleep problems, and PTSD. The Board has separately listed (but not bifurcated) the claim of service connection for PTSD, as such a claim presents different legal and factual questions. See 38 C.F.R. §§ 3.304(f); 4.125(a). The issues remain intertwined. 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression with sleep problems, is remanded. 2. Entitlement to service connection for PTSD is remanded. 3. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his psychiatric disorders, to include depression and PTSD were incurred in and due to his time in service, to include witnessing traumatic grenade accidents while in boot camp. The Veteran also has asserted that his sleep apnea was diagnosed approximately a decade after his time in service and he experienced symptoms around the same time, but he also had trouble with symptoms in service, which included snoring and coughing when waking. (See e.g. February 2020 hearing transcript.) The Veteran also contends his sleep apnea may be due to to his service-connected disabilities, the water at Camp Lejeune (though not on a presumptive bassis), and that his heart symptoms demonstrated on physical testing while in service and the National Guard may have been symptoms of undiagnosed sleep apnea. In addition to this theory of entitlement on a direct basis, the Veteran has also said that his mental health conditions may be secondary to his sleep apnea, hearing loss, and other physical disabilities. Lastly, the Veteran states his sleep apnea may be due to weight gain due to the lack of activity caused by his service-connected physical disabilities. The Veteran has not been afforded an examination for his acquired psychiatric disorder or his sleep apnea that fully addresses all of the above theories of entitlement and therefore, the Board finds a remand is warranted. 4. Entitlement to a compensable rating for bilateral hearing loss is remanded The Veteran last had an examination for his bilateral hearing loss disabiltiy in April 2018. In his February 2020 hearing, the Veteran said his hearing had gotten worse since that time. The Board finds a contemporaneous examination is needed in order to make a determination as to the current severeity of the Vetearn’s bilateral hearing loss disabitliy. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 5. Entitlement to an increased rating in excess of 10 percent for a right knee disabiltiy In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59 (2017). The final sentence of section 38 C.F.R. § 4.59 (2017) directs that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Additionally, a recent Court decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017). In Sharp, the Court 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 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. The Veteran had an examination for his knees most recently in February 2020. While this examination was primarily for the Vetearn’s left knee, this examination did involve testing for the Veteran’s right knee. However, this testing did not comply with the directive above and therefore, another examniation is necessary. 6. Entitlement to a total disability rating based on individual unemployment (TDIU) prior to December 11, 2017 Because the above-listed conditions are being remanded, the outcomes may impact whether the Veteran’s service-connected disabilities rendered him unemployable prior to December 11, 2017 and the matter of a TDIU is inextricably intertwined with the Vetearn’s other claims. Therefore, the matter will be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private (non-VA) providers or facilities who may have additional medical records. This includes records from VA as well as from Duke University, Medical College of Virginia, and VCU (Virginia Commonwealth University). Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s outstanding VA treatment records, including records of all treatment obtained through VA’s Choice program and all records scanned into his electronic health record. 3. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any psychiatric disorder. (a.) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. (b.) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. (c.) Whether the current condition is at least as likely as not (1) proximately due to or (2) aggravated beyond its natural progression by a different medical condition, hearing loss (which leads to isolation), sleep apnea, or his physical disabilities (which lead to inactivity and weight gain). If so, the examiner is asked to identify the primary medical condition. 4. Schedule the Veteran for an appropriate examination to address the etiology of his sleep apnea. (a.) Whether the diagnosis is at least as likely as not related to an in-service injury, event, or disease, including complaints of snoring and coughing. (b.) Whether it is at least as likely as not that sleep apnea was caused by contaminated water at Camp Lejeune. The examiner should address an article submitted in March 2020 stating that exposure to organic solvents can cause sleep apnea. (c.) Whether the current condition is at least as likely as not (1) proximately due to or (2) aggravated beyond its natural progression by a different medical condition. If so, the examiner is asked to identify the primary medical condition. This should include consideration of whether sleep apnea was caused by weight gain due to inactivity because of his service-connected disabilities. The examiner should address the article submitted in February 2020 discussing this issue. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 6. Schedule the Veteran for a VA examination to assess the severity of his right knee disability. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (b.) In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). (c.) 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. 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). Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Snoparsky 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.