Citation Nr: 21015503 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 09-42 920 DATE: March 17, 2021 ORDER Prior to December 3, 2008, entitlement to a 40 percent rating, but no higher, for lumbar spine disability is granted subject to controlling regulations applicable to the payment of monetary benefits. Effective December 3, 2008, entitlement to a rating in excess of 40 percent for lumbar spine disability is denied. REMANDED Entitlement to service connection, to include on a secondary basis, for bladder condition is remanded. Entitlement to service connection, to include on a secondary basis, for bilateral upper extremity (BUE) condition, to include hand, arm and shoulder, is remanded. Entitlement to service connection for gunshot wound (GSW) to the left leg, claimed as secondary to bilateral hand condition, is remanded. Entitlement to service connection, to include on a secondary basis, for a sleep disorder, to include obstructive sleep apnea (OSA), is remanded. FINDINGS OF FACT 1. Prior to December 3, 2008, the Veteran’s lumbar spine disability was manifested by forward flexion limited to 30 degrees or less. 2. Throughout the entire period on appeal, the lumbar spine disability was not manifested by ankylosis or IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. CONCLUSIONS OF LAW 1. Prior to December 3, 2008, the criteria for a 40 percent rating, but no higher, for lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242. 2. Throughout the appeal period, the criteria for a rating in excess of 40 percent disabling for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from October 1986 to April 1987. He had active duty service from March 1989 to August 1990, and from August 2002 to July 2003, with additional service in the Army National Guard. The Veteran’s DD214 for his period of service from March 1989 to August 1990 shows he received an “other than honorable” discharge. A May 2020Administrative Decision determined that the Veteran’s period of service from March 8, 1989 to August 10, 1990 was dishonorable for VA purposes under the provisions of 38 C.F.R. § 3.12(d)(3) and (4), and that he was entitled to health care benefits under 38 U.S.C. and 38 C.F.R. § 3.360(b) for any disability determined to be service-connected for active service from March 8, 1989 to August 10, 1990. This matter is before the Board of Veterans’ Appeals (Board) on appeal from November 2008 (increased rating claim) and March 2010 (service connection claims) rating decisions by a Department of Veterans Affairs Regional Office (RO). In August 2017, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for a Board hearing. A Travel Board hearing was held in March 2018, and a copy of the transcript has been associated with the claims file. The Board remanded this case again in December 2018, and instructed the Agency of Original Jurisdiction (AOJ) to obtain any outstanding Social Security Administration (SSA) records. The Board additionally remanded the case to obtain VA examinations for the service connection claims for BUE, OSA and bladder conditions, and the increased rating claim for lumbar spine disability. The Board notes that SSA records have been obtained and associated with the claims file. Additionally, the requested VA examinations were obtained. With regard to the issues decided below, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). During the pendency of the appeal, a November 2020 rating decision granted service connection for major depressive disorder, asthma, hepatitis C, bilateral lower extremity (BLE) radiculopathy and TDIU. Therefore, as the AOJ granted the benefits sought on appeal, those issues are no longer before the Board. Shoen v. Brown, 6 Vet. App. 456 (1994). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where functional loss is alleged due to pain upon motion, the function of the musculoskeletal system and movements of joints must still be analyzed. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80 (1997). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Lumbar Spine Disability The Veteran filed an increased rating claim for his service-connected lumbar spine disability in May 2008. As noted above, during the pendency of the appeal, a November 2020 rating decision granted service connection for BLE radiculopathy. Those ratings are not on appeal. The evidence of record includes a July 2007 VA examination during which the Veteran reported continuous low back pain during the past year, with pain rated a 3 on a scale to 10. He also reported periodic flare-ups with pain increasing to 10 with each episode lasting several days. He denied any incapacitating episodes during the past year. Range of motion (ROM) testing revealed forward flexion to 60 degrees with pain at end of ROM, and extension to 10 degrees with pain at end of ROM. Repetitive use testing change did not result in further loss of ROM, fatigue, endurance, coordination or increased pain level. No loss of sensation due to pinprick was found. Reflexes were noted as normal for the right knee and 1+ for the right ankle. No reflexes were found for the left knee or ankle. The Veteran was diagnosed with chronic lumbosacral strain and DJD. In May 2008, the Veteran reported that he reinjured his back resulting in worsening back symptoms with pain going up his back to his shoulders and down his legs. In June 2008, the Veteran reported low back pain that radiated down to his legs and up to his shoulders. See VA Medical Records Received April 2015. The Veteran underwent another VA examination in July 2008. The Veteran reported severe pain. He denied any flare-ups, numbness, or bowel or bladder incontinence. In addition, he denied any incapacitating episodes in the past year. The examiner noted the Veteran utilized a rolling walker and had a flexed gait. Tenderness and paraspinous spasm were noted in the left paraspinous musculature. ROM testing revealed forward flexion to 45 degrees and extension to 5 degrees. Pain was reported throughout all ROM tested. No additional loss of ROM was noted following repetitive use testing, although an increase in pain was found. Reflexes were found normal for the BLE with complaints of pain in his back when reflexes were elicited. Motor strength was also noted as normal, although giving way weakness was noted. Sensation was found decreased in the left S1 dermatome. Finally, the examiner noted incoordination, fatigue, weakness or lack of endurance in spine function. The Veteran was diagnosed with myofascial lumbar syndrome. An August 2008 VA medical record shows the Veteran was significantly limited during a lumbar spine examination. It was noted that ROM testing showed the Veteran was only able to perform forward flexion to approximately 10 degrees and that he complained of pain. Extension was noted to 0 degrees. See VA Medical Records Received March 2010. Additionally, an August 2008 private medical record noted “trunk ROM” including 10 percent of flexion. See Private Medical Records Received February 2009. A September 2009 private medical record noted complaints of back pain. The physician noted that a physical examination of the lower back revealed flexion and extension that appeared to be normal. See Private Medical Records Received September 2009. The Veteran underwent a VA general examination in February 2011. Lumbar spine ROM testing revealed forward flexion to 90 degrees with pain noted to increase at 20 degrees, and extension to 30 degrees with pain increasing at 15 degrees. No further limitation in ROM was noted following three repetitions of movement, nor was any increase in pain, fatigue, incoordination, weakness or lack of endurance. The examiner diagnosed the Veteran with DDD and DJD with bilateral sciatica. At a July 2013 VA examination, the Veteran was diagnosed with lumbosacral strain with DJD/DDD. ROM testing revealed forward flexion to 45 degrees and extension to 5 degrees. No objective evidence of painful motion was found during forward flexion or extension. Repetitive use testing resulted in reduced forward flexion to 40 degrees. The Veteran denied any flare-ups. The examiner found the Veteran had functional loss due to less movement than normal, pain on movement and interference with sitting, standing and/or weightbearing. The Veteran did report experiencing urinary incontinence requiring the use of absorbent pads on his bed. Muscle strength testing was normal. A reflex examination revealed absent reflexes for the bilateral ankle. Additionally, a sensory examination revealed decreased sensation in the right lower leg/ankle and foot/toes. The examiner noted that the lumbar spine disability was not manifested by IVDS. A May 2016 private medical record noted lumbar spine ROM including forward flexion limited to 50 percent. A June 2016 private medical record noted lumbar spine ROM including forward flexion limited to 75 percent. In September 2016, forward flexion was found limited to 75 percent. Thereafter, a September 2017 private medical record noted the Veteran’s lumbar ROM was 50 percent, including forward flexion. See Private Medical Records Received April 2018. At a March 2018 Board hearing, the Veteran testified that he was unable to bend down to tie his shoes. In addition, the Veteran testified that he had been prescribed bed rest by a doctor. The Veteran last underwent a VA lumbar spine examination in December 2019. The examiner noted a diagnosis for lumbosacral strain with DDD and DJD. The Veteran denied any flare-ups. The Veteran did report functional loss in which lower back pain limited his ability to walk and stand for prolonged periods, and numbness and tingling in his arms, hands and feet. ROM testing revealed forward flexion to 30 degrees and extension to 0 degrees. Pain was noted during all ROM that caused functional loss. Repetitive use testing did not result in further loss of ROM, however, the examiner noted that repetitive use did result in additional loss of function. The examiner noted that pain significantly limited functional ability with repeated use over time and estimated further loss of forward flexion to 25 degrees. Guarding was found to result in an abnormal gait and/or abnormal spinal contour. The Veteran’s lumbar spine disability was not found manifested by ankylosis or IVDS. Muscle strength, reflex and sensory testing were normal. The Veteran’s lumbar spine disability has been rated 20 percent disabling prior to December 3, 2008, and 40 percent disabling thereafter, pursuant to 38 C.F.R. § 4.71a, DC 5242. Schedular ratings for disabilities of the spine are provided by application of the General Rating Formula for Diseases or Injuries of the Spine or by application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area affected by residuals of injury or disease. 38 C.F.R. § 4.71a. The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to February 7, 2021, the General Rating Formula for Diseases or Injuries of the Spine pertained to diagnostic codes 5235 to 5243. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine. Under this rating criteria, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral extension are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (2). Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (5). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent rating is assigned where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 20 percent rating is assigned where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 10 percent rating is assigned where there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a; Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Effective February 7, 2021, DC 5242, applies to degenerative arthritis and DDD other than IVDS. DC 5243 applies to IVDS and directs the rater to assign that diagnostic code only when there is disc herniation with compression of the adjacent nerve root, and to assign DC 5242 for all other disc diagnoses. As discussed more fully below, throughout the period on appeal, the Veteran’s lumbar spine disability has not been shown to be manifested by IVDS, or, at the very least, by IVDS that had met the rating criteria for a 60 percent evaluation. Accordingly, the rating criteria pertaining to the Veteran’s service-connected lumbar spine disability has not substantially changed as a result of the February 7, 2021 amendments. After a review of the evidence of record, the Board finds that, prior to December 3, 2008, a 40 percent rating for lumbar spine disability is warranted. Additionally, the Board finds that a rating in excess of 40 percent is not warranted at any time during the period on appeal. In this regard, while the July 2008 VA examination shows the Veteran’s lumbar spine disability manifested by forward flexion limited to 45 degrees, the examiner also noted that repeated use increased pain. However, the examiner did not provide any findings as to whether repeated use over time significantly limited functional ability further reducing ROM. Importantly, shortly after the July 2008 VA examination, an August 2008 VA medical record shows the Veteran’s lumbar spine was limited to 10 degrees. Forward flexion was further shown limited to 10 percent in a subsequent August 2008 private medical record. There are no other records documenting ROM findings during this period on appeal. Accordingly, based on medical evidence showing forward flexion limited to 10 degrees shortly after the Veteran filed his increased rating claim, and in further consideration that the July 2008 VA examiner failed to provide any findings as to whether repeated use over time resulted in further loss of motion despite finding of increased pain, the Board finds that the criteria for an increased staged rating of 40 percent is warranted from May 21, 2008 (the date of claim) to December 8, 2008. As the evidence of record does not include pertinent diagnostic findings relevant to rating the Veteran’s lumbar spine disability within one year prior to filing his claim, the Board finds that assigning the increased rating prior to the date of claim is not warranted. The Board notes that a 40 percent disability rating represents the highest available rating based on limitation of motion under the General Rating Formula for Diseases and Injuries of the Spine. Therefore, based on ROM findings, the Veteran is currently in receipt of the highest rating available throughout the entire period on appeal. The Board has considered higher ratings; however, the evidence of record establishes that the Veteran’s lumbar spine disability has not been manifested by ankylosis. The Board also recognizes the Veteran’s testimony during his March 2018 Board hearing, in which he reported having been prescribed bed rest by a doctor. However, the Board finds more probative the cumulative VA examination reports during the entire period on appeal; all of which found the Veteran’s lumbar spine disability not manifested by IVDS. In any event, the evidence of record does not show, and the Veteran has not reported, that his lumbar spine disability has been manifested by IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Thus, even if the Board were to consider rating the Veteran’s lumbar spine disability under the Formula for Rating Intervertebral Disc Syndrome, the criteria for a 60 percent rating have not been met. Accordingly, the Board finds that a rating in excess of 40 percent is not warranted. The Board has also considered assigning higher disability ratings pursuant to 38 C.F.R. § 4.40 and 4.45. In this regard, the Board acknowledges the Veteran’s reported complaints of pain and painful motion. However, the Veteran’s lumbar spine disability has been rated based on limitation of motion (i.e. functional loss) caused by pain. As such, the Board finds that the currently assigned disability rating takes into account functional limitations based on painful motion and there is no basis for the assignment of additional disability due to pain, weakness, fatigability, or incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Lastly, the Board has considered separate ratings based on associated neurological disabilities other than a bladder condition (addressed below). Initially, the Board notes that the Veteran is already in receipt of separate ratings for BLE radiculopathy, and those ratings are not on appeal. The Board further notes that the evidence of record does not show any other related neurological disability such a bowel condition. Accordingly, a separate rating for a neurological disability, other than a bladder condition, is not warranted. In sum, the Board concludes that prior to December 8, 2008, a staged 40 percent rating, but no higher, is warranted. Throughout the period on appeal, the Board finds that the preponderance of the evidence of record is against a rating in excess of 40 percent. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). REASONS FOR REMAND 1. Bladder Condition The Veteran seeks entitlement to service connection for a bladder condition. Specifically, the Veteran asserts that he developed a bladder condition secondary to his service-connected lumbar spine disability. See February 2009 Letter from the Veteran and March 2018 Board Hearing Transcript. Since filing his claim, the evidence of record includes a March 2009 VA urology clinic record noting urinary retention. The Veteran reported the onset of his urinary condition in 2003 with a gradual increase in symptoms. He reported that when he needed to void, he developed pain in his right inguinal. He also reported that he seldom had urinary incontinence. The Veteran was assessed with “possible UDS due to back injury.” He was prescribed Flomax. See VA Medical Records Received December 2014. A November 2009 urodynamic evaluation shows the Veteran reported feeling that he did not empty well on his own. It was noted that it had been 5 months since the Veteran had been wearing a VA catheter. The urodynamics evaluation revealed urinary retention and incomplete bladder emptying. He was prescribed Levaquin. See VA Private Records Received July 2010. Thereafter, a February 2011 Army Medical Board examination shows the Veteran reported frequent or painful urination. At a July 2013 VA lumbar spine examination, the examiner noted that the Veteran reported urinary incontinence in the evening. In December 2018, this claim was remanded to obtain a VA examination. The requested VA examination was obtained in December 2019. The examiner noted that the Veteran did not have a diagnosed bladder condition. The Veteran reported that he had had trouble urinating, but that after he was given a diuretic, he no longer had any such problems. He denied any injury, trauma, or symptoms related to a bladder condition. The examiner opined that it was “less likely than not (less than 50 percent probability)” that the Veteran had a bladder condition that was proximately due to his lumbar spine disability. In support of this opinion, the examiner noted that the STRs were silent for any treatment related to a bladder condition, including both the July 2003 and August 1990 separation examinations. The examiner further noted that the Veteran did not claim any continuity of care, and that a bladder condition was documented several years after separation from service, which had since resolved. The Board finds the December 2019 VA examination inadequate. In this regard, apart from the examiner’s statement that the bladder condition was not incurred in or caused by the lumbar spine disability, the rationale fails to address this contention. Instead, the rationale only applies to whether the Veteran’s bladder condition was etiologically related to service. The Board also notes that the examiner appears to rely on findings that the Veteran did not currently have a bladder condition. However, the Board notes that during the period on appeal, the Veteran clearly was treated for a bladder condition. For VA purposes, a current disability exists when a claimant has a disability at the time a claim is filed or at some point during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he/she files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim). Accordingly, a remand is necessary to obtain another VA examination to determine the nature and etiology of any bladder condition either currently diagnosed, or diagnosed during the pendency of the appeal. Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. – 3. BUE Condition and GSW Left Leg In December 2018, the Board remanded the Veteran’s service connection claim for a BUE condition in order to obtain a VA examination. A peripheral nerve examination was obtained in December 2019. The examiner noted diagnoses for bilateral carpal tunnel syndrome (CTS). The Veteran reported that his bilateral CTS began as a result of operating tanks during service which required him to repeatedly bend his wrist in a fixed position which caused pain, and that pain had worsened over time. With regard to direct service connection, the examiner opined that the Veteran’s BUE CTS was “less likely than not (less than 50 percent probability)” etiologically related to service. In support of this opinion, the examiner noted that the STRs were silent for any complaints or treatment related to the condition, including the July 2003 and August 1990 separation examinations, and that there was no continuity of care for several years following separation from service. However, as noted in the December 2018 Board Remand, the STRs do document treatment for symptoms related to the Veteran’s BUE. These records include a June 1989 STR showing complaints of left forearm pain due to hitting the arm on a sledgehammer that bounced off a stake he was driving into the ground. The clinician noted some left index finger tingling. A December 2002 STR noted complaints of pain across the Veteran’s elbows. The Veteran further reported numbness in his right arm and the clinician noted repetitive heavy lifting and overhead work. The Veteran was assessed with right shoulder impingement syndrome and bilateral elbow overuse, possibly tendonitis. A May 2003 post deployment health assessment shows the Veteran reported numbness and tingling in his hands. Accordingly, it is unclear whether the VA examiner considered the Veteran’s STRs. The Veteran also underwent a VA elbow and forearm condition examination in October 2020. The Veteran reported that he began having elbow pain in 2006. In addition, the Veteran reported that during combat training, he had a radio on his back, and that his radio hit a tree which jerked his arms and back hurting his elbows. He also reported that he hit the ground while doing a perimeter check in 2003 while getting on a Black Hawk helicopter, and that he was also hit in his elbow on a tank barrel. The Veteran currently reported that he was unable to lift heavy objects. The examiner noted that the Veteran did not have any diagnosed elbow or forearm condition. Based on that finding, the examiner provided negative nexus opinions. However, a review of the claims file shows that in November 2013, a VA X-ray study revealed right elbow osteoarthritis. The physician noted decreased bilateral elbow flexion secondary to pain. See VA Medical Records Received December 2014. Accordingly, the examiner’s finding that the Veteran did not have a diagnosed elbow condition appears to be incorrect. A review of the October 2020 VA examination also shows that diagnostic testing, including imaging studies, was not performed. Therefore, based on VA medical records showing an X-ray study revealing right elbow osteoarthritis, the Board finds that the examiner’s conclusion that there was no evidence of a diagnosed elbow condition is not based on a factual predicate, and is, therefore, inadequate. Lastly, the Board notes that with regard to the Veteran’s service connection claim for left leg self-inflicted GSW, the Veteran asserts that the condition occurred as a result of his RUE condition. Accordingly, the left leg self-inflicted GSW claim is inextricably intertwined with the BUE claims on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the claims should be considered together, it follows that, any Board action on the claim, at this juncture, would be premature. Hence, a remand of this matter is warranted, as well. The Board does note that with regard to GSW claim, a VA examination was obtained in December 2019. However, the examiner opined that it was “less likely as not” that the Veteran’s BUE condition was incurred in or caused by the self-inflicted gunshot wound to the left leg. Accordingly, the examiner opinion clearly does not address the inquiry on appeal. As such, the December 2019 left leg GSW examination report is inadequate. 4. OSA In December 2018, the Board remanded the Veteran’s service connection claim for OSA in order to obtain a VA examination. A VA examination was obtained in December 2019. The examiner noted a diagnosis for OSA. The Veteran reported that he had OSA since 2009, and that he believed the condition was secondary to his back pain. The examiner opined that it was “less likely than not (less than 50 percent probability)” that the Veteran’s OSA was etiologically related to service. In support of this opinion, the examiner noted that the STRs were silent as to any complaints or treatment for OSA, and that the Veteran asserted the condition began several years after service. The examiner further opined that it was “less likely than not (less than 50 percent probability)” that the Veteran’s OSA was proximately due to or the result of the service-connected lumbar spine disability. In addition, the examiner opined that it was not “at least as likely as not” that the Veteran’ s OSA was aggravated beyond its natural progression by his service-connected lumbar spine disability. However, in support of both opinions, the examiner again noted that the STRs were silent as to any complaints or treatment for OSA, and that the Veteran asserted that the condition began several years after service. Accordingly, the examiner’s rationales fail to address the inquiries on appeal as they do not discuss any correlation between the Veteran’s OSA and his lumbar spine disability. In this regard, the Board notes that in his December 2018 notice of disagreement, the Veteran asserted that due to his back pain, he could not sleep at night. In this regard, the Veteran reported that he could not lay down and sleep, and that due to his back pain he got up every 30 minutes to an hour. In addition, as noted in the December 2018 Board Remand, the evidence of record shows that sleep deprivation was noted as a symptom during an October 2009 VA psychiatric examination, and a January 2014 VA mental health record shows the Veteran slept about once every two days. See VA Medical Records Received December 2014. As noted above, since the December 2018 Remand, service connection for major depressive disorder with unspecified anxiety disorder was recently granted in a November 2020 rating decision. Accordingly, in order to properly adjudicate this issue on appeal, a Remand is necessary to obtain another VA examination. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Then, obtain an addendum opinion by an appropriate examiner to determine the nature and etiology of any diagnosed bladder disorder (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). The examiner should provide the following opinions: At any point during the period on appeal, has the Veteran had a bladder disorder that is associated with his service-connected lumbar spine disability? Please explain why or why not. The examiner is asked to consider the March 2009 VA urology clinic record noting urinary retention and “possible UDS secondary to a back injury,” a November 2009 urodynamic evaluation revealing urinary retention and incomplete bladder emptying, and the July 2013 VA lumbar spine examination noting urinary incontinence in the evening. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 3. After the development in #1 has been completed, obtain an addendum opinion by an appropriate examiner to determine the nature and etiology of any diagnosed bilateral upper extremity condition. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosed bilateral upper extremity condition that is etiologically related to his period of service? The examiner is asked to consider the Veteran’s STRs, including a June 1989 record showing complaints of left forearm pain due to hitting the arm on a sledgehammer with findings of left index finger tingling, December 2002 record noting complaints of pain across the elbows, numbness in the right arm, and an assessment for bilateral elbow overuse, and a May 2003 post deployment health assessment shows the Veteran reported numbness and tingling in his hands. (b) The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s self-inflicted gunshot wound to the left leg was caused by any right upper extremity disorder. The examiner is asked to consider the Veteran’s lay statements that he shot himself in his left leg while unloading a pistol when his right hand went dead, and he could not feel his finger on the trigger. The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 4. After the development in #1 has been completed, obtain an appropriate examiner to determine the nature and etiology of any diagnosed sleep disorder, to include OSA. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) the Veteran has a diagnosed sleep disorder that is etiologically related to his period of service? (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed sleep disorder was caused by a service-connected disability, to include lumbar spine disability and a psychiatric disorder, to include medications used to treat those conditions? Please explain why or why not. (c) Is it at least as likely as not (50 percent or greater probability) that any diagnosed sleep disorder was aggravated by a service-connected disability, to include lumbar spine disability and a psychiatric disorder, to include medications used to treat those conditions? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner is asked to consider VA medical records showing sleep deprivation related to a psychiatric disorder (See January 2014 VA Mental Health Record showing the Veteran reported going 2-3 days without sleeping), statements provided by the Veteran that he cannot sleep at night due to back pain that causes him to get up every 30 minutes, and an October 2020 VA medical record noting a potential interrelationship between the Veteran’s pain medication and his sleep medication. (Continued on the next page)   The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.