Citation Nr: 21024070 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-06 654 DATE: April 22, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to an initial evaluation in excess of 10 percent for degenerative disk disease of the lumbosacral spine prior to January 21, 2015, is remanded. Entitlement to an initial evaluation in excess of 20 percent for degenerative disk disease of the lumbosacral spine on or after January 21, 2015, is remanded. Entitlement to an initial evaluation in excess of 10 percent for sciatic radiculopathy of the left lower extremity prior to January 21, 2015, is remanded. Entitlement to an initial evaluation in excess of 40 percent for sciatic radiculopathy of the left lower extremity on or after January 21, 2015, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1984 to September 2005. This case comes before the Board of Veterans’ Appeals (Board) on appeal from December 2010 and October 2015 rating decisions by the Department of Veterans Affairs (VA). An informal conference was held before a Decision Review Officer (DRO) of the agency of original jurisdiction (AOJ) in December 2014 for the increased evaluation claims. A hearing was held before the undersigned Veterans Law Judge in February 2018. An informal conference report and transcript of the Board hearing are of record. In a February 2015 rating decision, the AOJ increased the evaluations for the Veteran’s lumbosacral spine and left lower extremity disabilities to 20 percent and 40 percent, respectively, effective from January 21, 2015. Because these evaluations do not represent the highest possible benefit, the issues are in appellate status and have been recharacterized as stated above. AB v. Brown, 6 Vet. App. 35 (1993). In a September 2018 decision, the Board reopened the claim for service connection for sleep apnea and remanded the above claims for further development. While the case was in remand status, the AOJ granted service connection for scars associated with the Veteran’s lumbosacral spine disability in a July 2020 rating decision; however, the Veteran has not expressed disagreement with any aspect of that determination. The case has since returned to the Board for appellate review. Upon review, the Board finds that additional development is needed prior to adjudication of the appeal. Regarding the claim for service connection for sleep apnea, the August 2019 VA examiner determined that it was less likely as not that the Veteran’s sleep apnea manifested in or is otherwise related to his military service. In so finding, the examiner indicated that disorder was most likely caused by the Veteran’s established risk factors of age, body mass index (BMI) greater than 25 (noted as overweight with obesity as the strongest risk factor), and gender. He also explained why the in-service symptoms could not be evidence of early manifestations of the disorder. However, in the December 2020 written appellate brief, the Veteran’s representative requested that VA obtain another medical opinion to address the contributing effect the Veteran’s disabilities have had on his weight gain, ultimately affecting his sleep apnea. Based on the foregoing, an additional VA medical opinion is needed to address this causal theory. See Walsh v. Wilkie, 32 Vet. App. 300 (2020). Regarding the claim for an increased evaluation for the Veteran’s service-connected lumbosacral spine disability, the Board requested a new VA examination because the most recent prior VA examination did not satisfy the requirements under Correia v. McDonald, 28 Vet. App. 158 (2016) (concluding that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive range of motion, as well as with weight-bearing and nonweight-bearing). The examiner was also asked to determine if it was possible to provide a retrospective medical opinion as to such findings for the other VA examination conducted during appeal period where not actually measured. An August 2019 VA examiner determined that passive and nonweight-bearing range of motion testing could not be performed or was not medically appropriate. Specifically, the examiner indicated that such testing was not practicable because a relatively weight-free environment, such as a pool, would be required, and that the determination applied to the current examination as well as any prior examination by a different examiner. The AOJ requested an additional VA medical opinion to address the Correia factors. In a July 2020 medical opinion, another VA examiner indicated that passive and nonweight-bearing range of motion testing would not provide additional accurate information any more than active range of motion. However, it is unclear from this statement as to whether the examiner was indicating that active and passive range of motion testing would yield the same results. The examiner also indicated that it may not be in the best interest of the Veteran or safe to conduct such testing. However, this statement was made generally and did not specifically address the facts of this case. The Board acknowledges the concerns raised by the VA examiners; however, an examination containing the necessary joint testing, or an opinion specific to the Veteran’s case as to why such testing should not be performed, is needed to be compliant with Correia. Regarding the issue of entitlement to an increased evaluation for left lower extremity sciatic radiculopathy, the August 2019 VA examination report for the lumbosacral spine includes neurological findings referrable to the left lower extremity, as well as an opinion from the examiner as to any atrophy. However, the examination report specific to the peripheral nerves was not completed by the examiner, and such action is necessary to ensure compliance with the prior remand. See July 2019 VA examination request. In addition, the new VA examination for the lumbosacral spine could include findings referable to the left lower extremity radiculopathy. The AOJ will also have another opportunity to consider whether service connection for any right lower extremity neurological manifestation is warranted as part of the increased evaluation claim for the service-connected lumbosacral spine disability on appeal, as it does not appear that the AOJ fully completed this action as requested in the prior remand. The case is REMANDED for the following actions: 1. The AOJ should refer the Veteran’s claims file to a VA examiner for a clarifying opinion as to the nature and etiology of his sleep apnea. An additional physical examination of the Veteran should only be performed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment and personnel records, post-service medical records, and statements, as well as the August 2019 VA examination report. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should address whether the Veteran’s weight gain or obesity was an intermediate step between his service-connected lumbosacral spine disability and/or associated complications and his sleep apnea. In so doing, the examiner should state whether the Veteran’s service-connected lumbosacral spine disability and/or associated complications caused or aggravated his obesity. If so, the examiner should provide an opinion as to whether the obesity was a substantial factor in causing the Veteran’s sleep apnea. He or she should also provide an opinion as to whether the sleep apnea would not have occurred but for the obesity caused by or aggravated by his service-connected disabilities. In providing this opinion, the examiner should address the argument from the Veteran’s representative that these service-connected disabilities have severely impacted his ability to work out and stay in shape, ultimately affecting his sleep apnea. See December 2020 written appellate brief; see also, e.g., VA back examinations from September 2010 and August 2019; VA treatment records from August 2016, December 2017, January 2019, and February 2020 (noted BMI greater than 24.99 and more recent weight); private treatment records from August 2010 (Veteran reported exercise tolerance significantly limited as a result of left lower extremity pain and weight at that time), December 2011 and December 2014 sleep studies (records contained in December 2011, February 2012, and February 2015 VBMS entries). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected degenerative disk disease of the lumbosacral spine. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s lumbosacral spine disability under the rating criteria. In particular, the examiner should provide the range of motion of the thoracolumbar spine in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should provide an explanation for this determination in the report based on the specific facts and circumstances of this Veteran’s case (e.g. why it would be unsafe to perform such testing for this Veteran). If he or she finds that passive range of motion would be the same or greater than active motion, the examiner should so state. The examiner should state whether there is any form of ankylosis. He or she should also state the total duration of any incapacitating episodes over the past 12 months and identify any neurological manifestations of the disability. It is noted that the Veteran is separately service-connected for atonic urinary bladder and sciatic radiculopathy of the left lower extremity associated with the lumbosacral spine disability. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability (including any additional limitation of motion) due to these factors. In addition, the examiner should address whether range of motion measurements on active motion, passive motion, weight-bearing, and nonweight-bearing can be estimated where not actually measured for the other VA examinations conducted during the appeal period in 2010 and 2015. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should provide an explanation for this determination in the report based on the specific facts and circumstances of this Veteran’s case. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected sciatic radiculopathy of the left lower extremity. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s service-connected disability under the rating criteria using the appropriate examination form specific to the peripheral nerves. In particular, the examiner should indicate whether the Veteran has incomplete paralysis that is mild, moderate, moderately severe, or severe with marked muscular atrophy. He or she should also state whether the Veteran has complete paralysis where the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. In addressing the relevant clinical findings, the examiner should note the location and severity of any neurological symptoms and the nerve groups involved. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the case should be readjudicated by the AOJ on the basis of additional evidence, including consideration of whether service connection for any right lower extremity neurological manifestation is warranted as part of the increased evaluation claim for the service-connected lumbosacral spine disability on appeal. See February 2015 deferral (suggests that issue would be treated as a separate claim). It does not appear that this action was fully contemplated in the July 2020 supplemental statement of the case. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Postek, 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.