Citation Nr: 21024392 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-34 631 DATE: April 22, 2021 ORDER Entitlement to an increased rating for chondromalacia patella of the right knee is dismissed. Entitlement to an increased rating for right knee laxity is dismissed. Entitlement to an increased rating of 40 percent for radiculopathy of the right lower extremity is granted. Entitlement to an earlier effective date for service connection of left knee laxity based on clear and unmistakable error (CUE) is dismissed. Entitlement to an earlier effective date for service connection of left knee flexion based on CUE is dismissed. Entitlement to an earlier effective date for service connection of left knee extension based on CUE is dismissed. Entitlement to total disability based on individual unemployability (TDIU) is granted. New and material evidence having been received within a year of issuance of a September 2009 decision, the claim for service connection for diabetes mellitus type II was not final and remained pending. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. Entitlement to service connection for diabetes mellitus type II is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to an increased rating in excess of 10 percent from September 22, 2011 to March 31, 2015, and in excess of 20 percent thereafter for a lumbar strain is remanded. FINDINGS OF FACT 1. On January 25, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal for increased ratings of right knee laxity and chondromalacia patella was requested. 2. The preponderance of the evidence reflects that the Veteran’s right lower extremity radiculopathy manifests in moderately severe incomplete paralysis throughout the entire appeal period. 3. The March 2003 and November 2005 RO decisions denying service connection for a left knee disability are subsumed by the May 2012 Board decision that also denied service connection for a left knee disability. 4. The evidence establishes that the Veteran’s service-connected disabilities render him unable to secure and follow substantially gainful employment during the applicable appeal period. 5. In a final rating decision issued in September 2009, the Veteran’s claim for service connection for diabetes was denied. New and material evidence was submitted within a year of its issuance. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for increased ratings for chondromalacia patella of the right knee and right knee laxity have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for an evaluation of 40 percent for right lower extremity radiculopathy as of December 6, 2013 have been met. 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, Diagnostic Code 8520. 3. A claim of CUE in the subsumed March 2003 and November 2005 RO decisions regarding service connection for a left knee disability must be dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16. 5. New and material evidence was received prior to the expiration of the appeal period from a September 2009 decision on the merits, rendering the claim for service connection for diabetes non-final. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1983 to November 1987, and from March 1990 to January 1991. These matters are on appeal to the Board of Veterans’ Appeals (Board) from September 2013, January 2015, and April 2017 rating decisions. A hearing was held by the undersigned Veterans Law Judge in January 2021. The Board notes that the Veteran has other issues pending on appeal to the Board under the Appeals Modernization Act (AMA) and, thus, will not be addressed in this decision. 1. Entitlement to an increased rating for chondromalacia patella of the right knee 2. Entitlement to an increased rating for right knee laxity In his January 2021 hearing, the Veteran clearly and unambiguously stated he was withdrawing the above-listed claims. The Veteran was informed that if he withdrew his appeal, the Board would not decide the issues, and, should he choose to pursue the claims again, he would need to file new claims. The Veteran verbally indicated he understood and wished to proceed with the withdrawal. Thus, the claims were not addressed at the hearing. The Board finds that the Veteran withdrew his appeal for the issues of increased ratings for his right knee disabilities at the January 2021 hearing. See Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (an oral withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the Veteran has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of those issues and it is dismissed. 3. Entitlement to an increased rating of 40 percent for radiculopathy of the right lower extremity The Veteran is currently assigned a 10 percent disability rating for his right lower extremity (RLE) radiculopathy from December 6, 2013 to July 6, 2016, and 20 percent thereafter. The Veteran contends that he is entitled to a 40 percent rating for moderately severe incomplete paralysis, as was indicated in his 2014 VA examination. Disability ratings for diseases of the peripheral nerves are based on relative loss of function of the involved extremity with attention to the site and character of the injury, the relative impairment of motor function, trophic changes, or sensory disturbances. See 38 C.F.R. § 4.120. Diagnostic Code (DC) 8520 provides rating criteria for paralysis of the sciatic nerve. Under DC 8520, an 80 percent disability rating is assigned for complete paralysis of the sciatic nerve, demonstrated by foot drop, no active movement possible of the muscles below the knee, and knee flexion that is weakened or (very rarely) lost. Lower disability ratings are provided for incomplete paralysis, defined by the Rating Schedule as “a degree of lost or impaired function substantially less than the type picture for complete paralysis given.” A 60 percent disability rating is assigned for severe, incomplete paralysis, with marked muscular atrophy. A 40 percent disability rating is assigned for moderately severe, incomplete paralysis. A 20 percent disability rating is assigned for moderate, incomplete paralysis. A 10 percent disability rating is assigned for mild, incomplete paralysis. The term “incomplete paralysis” indicates a degree of lost or impaired function less than the type picture for complete paralysis given with each nerve. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Descriptive words such as “slight,” “moderate” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.”38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. In a December 2014 VA examination, the examiner indicated that the Veteran experienced moderate pain and numbness in the RLE. Muscle atrophy was indicated; the Veteran could not exert full strength in the RLE because of sciatic pain. There were no trophic changes noted, his reflexes were normal, and there were no sensory changes. He had an abnormal gait due to favoring the RLE, and regularly used crutches. The examiner indicated the Veteran had moderately severe incomplete paralysis of the right sciatic nerve. He explained that the radiculopathy caused a functional impact as the Veteran stopped working due to the sciatica pain. Thus, his impression was a moderate to severe L5 radiculopathy right side, which was a progression of his lumbosacral strain. In a July 2016 VA examination, the Veteran reported an increase in radicular symptoms since his last examination. He reported constant RLE pain, numbness, and tingling involving the hip, thigh, leg, and foot. He denied any bowel or bladder symptoms. The examiner indicated that the Veteran experienced moderate pain, paresthesias, and numbness. No muscle atrophy was noted; however, the bilateral knees and ankles were hypoactive. There were no trophic changes and sensory examination was normal. The Veteran had an antalgic gait. The examiner indicated the Veteran had moderate incomplete paralysis of the right sciatic nerve. He used a brace and cane regularly. The condition caused a functional impact as prolonged standing and walking, required for his work as a respiratory therapist, exacerbated his symptoms. In his February 2017 DRO hearing, the Veteran endorsed pain and numbness from his buttocks to his right big toe for which he takes pain medications. The pain affects his gait. In his January 2021 hearing, he explained that if he does not take his pain medication, he experiences numbness from his buttocks to his big toe, which causes him to lose his balance. He stated if he stands for more than five minutes he experiences pain and numbness on the right side. Turning to the treatment records, in October 2014, the Veteran attended an orthopedic surgery consultation complaining of persistent radiating RLE pain for the previous five months. He endorsed radiating pain from his hip down the leg to the knee, sometimes going into the foot and feeling like his toes “are on fire.” The pain worsened with standing and sitting and was relieved at times by lying down. Later in October 2014, the Veteran presented to the emergency department at Columbia VAMC complaining of acute back pain with radiation down his right leg to his toes. He stated he had been seen multiple times for it. It was difficult for him to stand due to shooting pain and numbness down his leg, feeling like his toes were on fire. The note reflected that the Veteran was in mild distress and could not sit comfortable or place pressure on the right buttock. During the appointment he had to get up and walk several times to relieve the pain. A November 2014 record notes new symptoms of RLE pain in the great toe which worsens with standing and walking. In the past month, the Veteran had a difficult time getting around and barely left the house. Multiple pain medications had not significantly relieved the pain. He had been unable to work and had significant difficulty with any period of standing. At this visit, he was offered a right sided L5-S1 microdiscectomy. A December 2014 record reflects severe RLE pain and weakness with no bowel or bladder incontinence. In January 2015, the Veteran complained of disabling pain radiating down his RLE to his big toe. The pain caused a limp and he was unable to stand for long. In September 2015, the Veteran complained of ongoing right pain that radiates from the right buttocks to the great toe. His pain medication helped “somewhat.” The record notes that as of May 2014, his motor/strength, sensation, and muscle tone were within normal limits. A July 2016 VA examination for his service-connected back disability noted moderate symptoms of RLE neuropathy. An August 2017 treatment note reflects the Veteran was last seen in March 2015 for follow-up of chronic radicular symptoms since his December 2014 microdiscectomy procedure. The Veteran still reported discomfort in the right buttock region that traversed to his anterior thigh. He still had intermittent discomfort going down his right calf and leg, but it was much improved from his pre-operative conditions. His symptoms were exacerbated by prolonged activity and completely resolved with the use of an oral narcotic analgesic. The treatment record also noted a February 2015 EMG showing subacute right L5 radiculopathy with ongoing denervation. In November 2018, the Veteran reported increasing episodes of low back pain with radiation down the right leg after his 2014 surgery. He was having difficulty standing for long periods of time and eventually stopped working. He stated this had been a progression of pain over time and, at times, his whole leg was affected by feeling numb in the thigh and down to his toes. In a July 2019 physical therapy consultation, he endorsed continuous RLE pain radiating down to his big toe that is worse with weight-bearing or walking. The pain exacerbates if he sits or leans to his right for 3 to 4 minutes, stands, or walks. General balance deficits were noted with decreased senses in the RLE. An August 2019 physical therapy note reflected continuous paresthesia RLE from the buttocks to the right great toe. Upon review, there is some variance in the evidence regarding the severity of the Veteran’s radiculopathy. While the 2014 examination indicated moderately severe incomplete paralysis and muscle atrophy, the 2016 examination showed no muscle atrophy and only moderate incomplete paralysis. Some treatment records reflect an improvement or complete alleviation in symptoms with pain medication, while others reflect little to no improvement with medication. Despite this, the objective evidence does reflect severe, ongoing pain that affects his gait and balance, and his ability to maintain any position for a prolonged period of time. The sciatic nerve pain causes a significant functional impact in his ability to ambulate, resulting in a constant need for assistive devices that ultimately hindered his ability to continue in his previous career as a respiratory therapist. Overall, the Board finds that the preponderance of the evidence reflects moderately severe incomplete paralysis of the right sciatic nerve throughout the entire appeal period, warranting a 40 percent rating under DC 8520. A higher rating is not warranted as the record does not reflect severe incomplete paralysis with marked muscle atrophy, nor does it show evidence of complete paralysis. 4. Entitlement to an earlier effective date for service connection of left knee laxity, left knee flexion, and left knee extension based on CUE The Veteran was initially denied service connection for a left knee disability for lack of aggravation of a pre-existing condition in a March 2003 rating decision. Following the issuance of a September 2003 Statement of Case (SOC), the Veteran took no further action on the appeal, and the March 2003 decision became final. In February 2005, the Veteran filed a claim to reopen. His claim was denied in a November 2005 rating decision finding that no new and material evidence had been received. The Veteran appealed, and a January 2009 Board decision reopened the Veteran’s claim and remanded for further development. A July 2010 Board decision denied the claim on the merits. The Veteran appealed, and pursuant to a Joint Motion for Remand, the Court of Appeals for Veterans Claims (Court) vacated the July 2010 decision and remanded back to the Board in a September 2011 order. In May 2012, the Board denied the Veteran’s claim, finding a lack of aggravation of a pre-existing condition. The Veteran did not file a timely appeal, and the decision became final. The Veteran filed another claim to reopen in July 2014. An April 2015 rating decision denied the claim based on a lack of new and material evidence. In February 2017, the Veteran again filed a claim to reopen, and he was granted service connection in an April 2017 rating decision effective February 16, 2017, the date of the claim to reopen. The Veteran has since appealed the assigned effective date, contending that the appropriate effective date should be 2003 or 2005. The Veteran has raised assertions of CUE under a request for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). A review of the evidence of record shows the Veteran is essentially contending that there was clear and unmistakable error in the 2003 and 2005 decisions for failing to consider evidence that was of record at the time of the decisions. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Once a decision becomes final, it may only be revised by a showing of CUE.  38 C.F.R. §§ 3.104, 3.105. CUE is a very specific and rare kind of “error.”  It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.  Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE.  Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).  In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44.   Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105 (a).  For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id.   CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated”; and (3) the commission of the alleged error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff’d, 642 F. App’x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992).   RO decisions that are appealed to the Board become subsumed by the Board decision issued in that case. See Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000). 38 C.F.R. § 20.1104. RO decisions that are not directly appealed to the Board may be subsumed by a later Board decision that addresses the same issue and the same factual basis (delayed subsuming). Manning v. Principi, 16 Vet. App. 534, 541 (2002) (“[A] later BVA decision's delayed subsuming of an RO decision occurs only where the Board decided the same issue that the RO decided and where the RO decision and BVA review were based on the same factual basis”). The Board finds that the 2003 and 2005 RO rating decisions were both subsumed by the May 2012 Board decision. The 2005 decision was directly appealed to the Board; thus, the decision was directly subsumed. In the 2003 decision, the RO considered the service treatment records and denied service connection as there was no evidence of a permanent worsening or aggravation of a pre-existing condition. In the May 2012 Board decision, the Board considered service treatment records in addition to subsequently added evidence such as treatment records and examination reports and ultimately determined the Veteran’s pre-existing left knee meniscectomy was not aggravated by service (among other theories). Despite the lapse in time between the 2003 and 2012 decisions, the 2012 Board decision addressed the same issue and same factual basis as the 2003 RO decision; thus, the Board finds there was a delayed subsuming of the claim. See Dittrich v. West, 163 F.3d 1349 (Fed. Cir. 1998) (finding that a 1960 RO decision had been subsumed by the Board’s later 1969 decision (called “delayed subsuming”), and that the later Board decision was based upon essentially the same evidentiary record, although “some new and material evidence had been acquired in the interim”). The Board accordingly concludes that, for purposes of the CUE claims which are the subject of the present appeal, the RO’s 2003 and 2005 decisions are subsumed by the May 2012 Board decision. The Veteran is thus legally precluded from claiming CUE in the March 2003 and November 2005 RO decisions. If the Veteran wishes to attack that Board decision, he must file a motion directly with the Board, alleging CUE in that May 2012 Board decision. 38 U.S.C. § 7111; Brown v. West, 203 F.3d 1378 (Fed. Cir. 2000). Such a motion may be filed at any time. Regarding the April 2015 RO decision, the Veteran has not alleged an error of law or fact with sufficient specificity that would allow the Board to consider a claim of CUE. See Simmons v. Principi, 17 Vet. App. 104 (2003). Thus, to the extent the Veteran has also asserted CUE in the April 2015 decision, the claim must be dismissed without prejudice. 5. Entitlement to a TDIU The issue of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU may be assigned where the veteran is unable to secure or follow a substantially gainful occupation as a result of their service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a veteran is unemployed or has difficulty obtaining employment is insufficient for TDIU purposes. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence must show the veteran is incapable of performing the physical and/or mental acts required by employment by reason of their service-connected disabilities. The Court has held the phrase “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components: one economic and the other non-economic. Ray v. Wilkie,31 Vet. App. 58, 73-74 (2019). The economic component contemplates an occupation earning more than marginal income, outside of a protected environment, as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component contemplates the veteran’s ability to follow and secure employment. In this respect, due consideration must be given to their history, education, skill and training; physical ability, both exertional and non-exertional, to perform the types of activities (e.g. sedentary, light, medium, heavy or very heavy) required by the occupation at issue; and mental ability to perform the activities required by the occupation at issue. Given sedentary is defined as “doing or requiring much sitting” the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER’S COLLEGEIATE DICTIONARY 1123 (11th ed.) (2003). In this context, appropriate factors for consideration are the veteran’s employment history, educational and vocational attainment and any other factors bearing on the issue. 38 C.F.R. §§ 3.341, 4.16. However, a veteran’s age or the impairment caused by nonservice-connected disabilities may not be considered.38 C.F.R. §§ 3.341, 4.16, 4.19. As a preliminary matter, for TDIU consideration the veteran must meet the disability rating percentage threshold. 38 U.S.C. § 1155; 38 C.F.R. § 4.16 (a), (b). If a veteran is service connected for only one disability, that disability must be rated at 60 percent disabling or more. 38 C.F.R. §§ 4.16 (a), 4.25. If a veteran is service-connected for two or more disabilities, at least one of the disabilities must be rated at 40 percent disabling or more and the additional service-connected disabilities must bring the combined disability rating to 70 percent or more. Id. The Veteran meets the schedular criteria as of December 12, 2014 and is service connected for the following disabilities in light of this decision: lumbar strain status post microdiscectomy for herniated disk (100 percent as of December 12, 2014, 20 percent from April 5, 2015); radiculopathy of the RLE (40 percent); left knee laxity (20 percent); chondromalacia patella of the right knee (10 percent); arthritis of the first metatarsophalangeal joint and interphalangeal joint of the right foot (10 percent); right knee laxity (10 percent); left knee degenerative joint disease with limitation of extension (10 percent); lumbar spine scar associated with microdiscectomy (0 percent); and left knee degenerative joint disease with limitation of flexion (0 percent). The record is replete with evidence that the Veteran ceased working as a respiratory therapist in 2014 due to his musculoskeletal disabilities. A November 2014 record reflects that due to the new symptom of RLE pain, he had been unable to work due to his difficulty getting around. In fact, he stated he had not left the house in the past month. In March 2015 correspondence, the Veteran stated he had been out of work since October 1, 2014 following surgery for his service-connected back disability. In his 2014 VA examination for his RLE radiculopathy, he reported that he stopped working in October 2014 due to the new onset of sciatica pain. A December 2014 Columbia VAMC treatment record reflects the Veteran is unable to work due to pain. In his July 2017 VA examination for his back disability, the examiner stated that prolonged standing and walking required for his work as a respiratory therapist exacerbate his low back symptoms. A November 2018 medical record reflects that the Veteran began noticing increased episodes of back pain with radiation down the right leg which caused difficulty standing for periods of time at work. Eventually, the Veteran stopped working because of this. A December 2018 record reflects that the Veteran cannot work anymore due to his back surgery. In a November 2019 Motion to Advance on Docket, the Veteran explained that he quit his job as a respiratory therapist due to back surgery and sciatic nerve pain. He stated he had been on oxycodone since December 2014 for pain, which prohibit him to work in his profession, as caring for patients while under the medication would be dangerous. August 2020 correspondence also reflects the Veteran is unemployed and unable to work because of his back surgery. In his hearing, he stated he was unable to work since his back surgery because of his pain medications coupled with the substantial walking his position required. In a February 2021 statement submitted by his wife, she explained that the Veteran’s back and knee pain keeps him from walking distances, requiring him to slow down or rest periodically. The Board acknowledges the evidence of record that the Veteran was reprimanded for interpersonal problems at work several times, leading to his termination of at least one respiratory therapist position. In April 2014, the Veteran reported that he had just finished a degree in Computer Science and wanted to get out of the medical field. A 2019 Vocational Rehabilitation record reflects completion of a certificate in routing and network configuration. While the Veteran may have had multiple reasons for leaving the medical field, the preponderance of the evidence shows that it was his 2014 surgery and sequelae that actually led to his unemployment, and there is no evidence he has been employed since that time. Moreover, while the Veteran has furthered his education in the interim, presumably to eventually seek employment in a new field, the evidence does not reflect that the Veteran has been successful. Even sedentary employment is unlikely feasible, as the medical records reflect prescriptions for multiple heavy narcotics. Altogether, the evidence establishes that the Veteran is unable to work due to his service-connected musculoskeletal disabilities, principally his 2014 back surgery and the resulting symptomatology. Entitlement to a TDIU is granted. 6. New and material evidence for service connection for diabetes The Veteran was initially denied service connection for diabetes in a September 2009 rating decision for lack of a clinical diagnosis. The Veteran filed a new claim in July 2011; a September 2013 rating decision denied the claim, which is the decision on appeal. If new and material evidence is received within one year after the date of mailing of an RO decision, it may be “considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final.” King v. Shinseki, 23 Vet. App. 464, 466-67 (2010). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009). In December 2009, only three months after the issuance of the September 2009 decision, VA treatment records associated with the claims file documented a diagnosis of diabetes. The RO did not issue another decision considering the new evidence. As such, the Board finds that the September 2009 decision did not become final. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD The Veteran’s PTSD claim has been broadened to include any psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. §3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), which requires a diagnosis which conforms to the DSM-5; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). The Veteran claims that he has been diagnosed with PTSD as a result of an in-service motor vehicle accident wherein when he regained consciousness, he was surrounded by Koreans pointing guns at him. He has consistently recalled this stressful incident throughout the appeal period in various correspondence and medical treatment records. While the accident is confirmed in service records, a DPRIS Response was unable to verify the report of Koreans pointing guns at the Veteran. The Veteran has also endorsed experiencing mental health symptoms due to his chronic pain and limited functional ability as a result of his service-connected musculoskeletal disabilities. A January 2016 mental health note from Columbia VAMC showed that the Veteran reported sleep difficulties for approximately 20 years since his truck accident in Korea and being tossed into what may have been enemy territory. He recalled crawling out from under the truck and being surrounded with guns pointed to his head. He stated that he thinks about this often and has difficulty sleeping as a result. He sleeps with lights on and with a hammer or knife by his bed. A February 2016 mental health note reflects that the Veteran was beginning to make connections between his beliefs and experiences in the military. The diagnoses were insomnia and PTSD. In December 2018, the Veteran sought services due to symptoms of depression for chronic pain. The Veteran endorsed feeling depressed because of his limited functional ability. The diagnostic impression was symptoms suggestive of depression. In McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in-service event, injury or disease,” or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board finds the four elements have been met. While it is unclear if the Veteran has a diagnosis of PTSD in accordance with DSM-5, there are notations of PTSD and depression in the medical records that simultaneously mention chronic pain and the consistently reported in-service stressor. Thus, there is evidence of a current disability and an indication that the disability may be related to service or an in-service event. There is also evidence that the in-service event in fact occurred, as the motor vehicle accident is reflected in the service treatment records. Given that none of the VA mental health providers have expressly attributed a mental health diagnosis to service, the Board finds that there is insufficient evidence to decide the case, and remand for a VA examination is necessary. 2. Entitlement to service connection for diabetes mellitus type II 3. Entitlement to service connection for sleep apnea The Veteran contends he was diagnosed with diabetes and sleep apnea as a result of becoming obese due to an inability to exercise due to his chronic pain from his service-connected musculoskeletal disabilities. Alternatively, in his hearing, he contended his sleep apnea is related to service as he recalls being told he snored while he was attending school to become a respiratory therapist in the early 1990’s, and his neck circumference is a risk factor. While obesity itself is ineligible for service connection, it may be an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis. See VA. Off. Gen. Couns. Prec. Op. 1-2017, at 2-3. The pertinent inquiries are (1) whether the service-connected disabilities (in this case, back and knees) caused obesity (or aggravated obesity); (2) whether the obesity or aggravation of obesity as a result of the service-connected disability/disabilities was a substantial factor in causing diabetes and sleep apnea and (3) whether the current diabetes and sleep apnea would not have occurred but for the obesity caused/aggravated by the service-connected disability. Id.; see also Walsh v. Wilkie, 32 Vet. App. 300 (2020). The Board finds the elements of McLendon have been met. The Veteran has current diagnoses of both diabetes and sleep apnea. There are multiple medical treatment records wherein the Veteran complains of an inability to exercise due to chronic pain from his service-connected back and knees, and several treatment records reflect that the Veteran is obese. However, a VA opinion is necessary to determine whether the Veteran’s service-connected back and knees caused or aggravated obesity and, if so, whether the obesity or aggravation of obesity was a substantial factor in causing diabetes and sleep apnea. 4. Entitlement to an increased rating in excess of 10 percent from September 22, 2011 to March 31, 2015, and in excess of 20 percent thereafter for a lumbar strain The Veteran contends he is entitled to an increased rating for his service-connected lumbar strain (back disability). The Veteran last underwent a VA examination in July 2016. The Board notes this examination was conducted prior to the decision in Sharp v. Shulkin and days after the decision in Correia v. McDonald. Upon review, the Board finds the examination was not compliant with Sharp or Correia. In the examination, the Veteran reported flare-ups of increased pain lasting several days. The Veteran was not examined during a flare-up or following testing on repeated use over time. The examiner indicated the examination was medically consistent with the Veteran’s statements describing functional loss during such circumstances and determined that pain significantly limited functional ability during both flare-ups and repeated use over time. However, the examiner was unable to describe the limited functional ability in terms of range of motion, with the rationale that the examination was not performed under those circumstances. Therefore, the Board finds the VA examination to be inadequate because it does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Sharp held that when conducting evaluations for musculoskeletal disabilities, examiners must inquire whether there are periods of flare-ups, and if the answer is “yes”, examiners must state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, according to the veteran, to what extent, if any, they affect functional impairment. See Sharp, 29 Vet. App. at 34-36 (2017). Here, the VA examiner failed to estimate in terms of range of motion that flare-ups or repeated use over time affect functional impairment. Furthermore, the VA examination was not conducted during a flare-up, as directed under Sharp. Under Sharp, an examiner should perform an examination during a flare-up, or provide an adequate explanation for why such an examination was not feasible. See Sharp, 29 Vet. App. 26 (2017). In Correia, the Court mandated new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the right elbow, as in this case) in order to satisfy judicial review in increased rating claims. The Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016); see also 38 C.F.R. § 4.59. The July 2016 examination did not include such testing, and, thus, is inadequate. A new examination is necessary for compliance with both Sharp and Correia. The matters are REMANDED for the following action: 1. Obtain a VA examination for the Veteran’s acquired psychiatric disability claim. The record should be made available to and be reviewed by the examiner. Following a review of the record, the reviewing examiner is asked to furnish an opinion with respect to the following questions: a) Identify all of the Veteran’s acquired psychiatric disorders that meet the criteria for diagnosis under the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5). b) The examiner should specifically indicate whether the Veteran meets the diagnostic criteria for PTSD and whether such diagnosis is the result of the Veteran’s claimed in-service stressors. If the examiner does not find that the Veteran meets the DSM-5’s criteria for PTSD, he or she should explain in detail. c) For each currently diagnosed psychiatric disorder other than PTSD (but not any personality disorders), the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any such disorder is (i) related to the Veteran’s military service or (ii) secondarily caused OR aggravated by the Veteran’s musculoskeletal disabilities. 2. Obtain a VA examination to determine whether the Veteran’s diabetes and sleep apnea is caused or aggravated by his service-connected musculoskeletal disabilities on a theory of obesity as an intermediary step. (a) The examiner is advised that the Veteran claims his currently diagnosed diabetes and sleep apnea is secondary to his musculoskeletal disabilities in that his service-connected musculoskeletal disabilities rendered him unable to exercise, resulting in obesity, which, in turn, resulted in diabetes and sleep apnea. In other words, but for the sedentary lifestyle caused by the Veteran’s severe chronic pain, he would not be obese and would not have diabetes and sleep apnea. VA’s Office of General Counsel has held that a claim for secondary service connection may rest on obesity as an intermediary between the claimed secondary disability and the service-connected primary disability. See VAOPGCPREC 1-2017. The examiner is requested to consider and opine (1) whether the service-connected musculoskeletal disabilities caused the Veteran to become obese/aggravated the Veteran’s obesity; (2) if so, whether the obesity/aggravation of obesity as a result of the service-connected disability was a substantial factor in causing the current diabetes and sleep apnea; and (3) whether the diabetes and sleep apnea would not have occurred but for obesity caused/obesity aggravated by the service-connected musculoskeletal disabilities. (b) The Veteran has also contended that his neck circumference is a risk factor that could have attributed to his sleep apnea. The examiner is asked to consider the Veteran’s statements regarding this theory and address the medical significance of it, if any. (c) The examiner is also requested to opine whether the Veteran’s diabetes and/or sleep apnea are at least as likely than not (50 percent or greater probability) related to service and/or manifest to a compensable degree within one year of discharge from service. In that regard, the examiner is asked to consider the Veteran’s statements that he was told he snored while attending school for respiratory therapy in the early 1990’s. (d) In reaching each conclusion, the examiner is asked to review the medical records, service treatment records, address any relevant evidence, and provide a thorough rationale for his or her opinion. 2. Obtain a new VA examination for the Veteran’s service-connected back disability. (a) Assess the severity of the Veteran’s back disability. (b) With regard to flare-ups, if the examiner is unable to feasibly determine the Veteran’s functional loss during flare-ups, the examiner must explain why such an examination is not feasible. However, before a determination of infeasibility, the examiner must obtain information regarding severity, frequency, duration, precipitating and alleviating factors, and the extent of functional impairment of flares from the Veteran and from any pertinent evidence of record. If the examiner is not able to do so, he or she must provide an explanation for why that is so. (c) The examiner must test and record the range of motion for the back in 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 clearly explain why that is so. Specifically, if the back cannot be tested on “weight-bearing,” then the examiner must indicate that such testing cannot be done. (d) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, Associate 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.