Citation Nr: 21025008 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-50 597 DATE: April 27, 2021 ORDER Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to a rating greater than 10 percent for a right hip contusion is remanded. Entitlement to a compensable rating for right hip contusion, limitation of flexion, before and after September 27, 2019 is remanded. Entitlement a compensable rating for right hip contusion, thigh impairment, before and after September 27, 2019 is remanded. FINDING OF FACT The Veteran’s sleep apnea disability was incurred in or related to military service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1987 to December 2011. These claims were most recently before the Board in November 2018 when it was remanded for additional development. The Board is satisfied that there has been substantial compliance with the November 2018 remand directives pertaining to the issue of service connection for sleep apnea and the Board may proceed with review on that issue. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for sleep apnea The Veteran was diagnosed with obstructive sleep apnea in July 2013. The question for the Board is whether his sleep apnea either began during active service or is etiologically related to an in-service disease or injury. The Board finds that there is relevant competent and probative evidence that the Veteran’s current obstructive sleep apnea began during service. Service connection is warranted. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). During the Veteran’s November 2011 retirement examination, he contemporaneously reported to the examiner that his wife complained that he snored while sleeping and requested a sleep study. The examiner referred the Veteran for a sleep that was deferred until after the Veteran moved to Florida. The Veteran was given a VA examination in January 2021 for sleep apnea. The examiner reviewed the Veteran’s medical records and statements of snoring during service and the referral for a sleep study during service that was not completed until after the Veteran retired. The examiner opined that there is a nexus between the Veteran’s inservice complaints of snoring and his subsequent obstructive sleep apnea diagnosis. Additionally the examiner noted that the during the Veteran’s November 2011 retirement examination, the examiner stated the Veteran’s sleep apnea referral was appropriate because sleep apnea is related hypertension which the Veteran had a hypertension history and was subsequently service-connected for hypertension as well. Accordingly, the credible, competent, and probative evidence supports the Veteran’s claim that his obstructive sleep apnea began during service. Service-connection for sleep apnea must be granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a rating greater than 10 percent for a right hip contusion 2. Entitlement to a compensable rating for right hip contusion, limitation of flexion, before and after September 27, 2019 3 .Entitlement a compensable rating for right hip contusion, thigh impairment, before and after September 27, 2019 After the prior remand, the Agency of Original Jurisdiction (AOJ) awarded separate noncompensable ratings for right hip limitation of flexion and thigh impairment, effective September 27, 2019. See February 2021 rating decision. Although the Veteran did not separately appeal those decisions, they are part of the claim on appeal for entitlement to an increased rating for right hip contusion. Those claims are also before the Board and are as noted on the title page. The Board is unable to make an informed decision on increased rating claims for the Veteran’s right hip because the October 2019 VA examination did not substantially comply with the Board’s November 2018 remand directions. The Board’s remand directives stated that the VA examiner “must estimate any functional loss in terms of additional degrees of limited motion of the right hip during flare-ups and repetitive use over time.” The October 2019 VA examiner did not provide estimated range of motion (ROM) in degrees during flare-ups. Instead, the examiner stated “[a]fter further review of the order request, DBQ, physical exam, reported history and subjective complaints, relevant evidence of record and using my medical knowledge and expertise, there remains no basis to offer additional losses of function or motion when it comes to flare ups.” The examiner did not state it would be mere speculation to estimate additional loss of ROM, the examiner did not provide an adequate reason, as requested in the November 2018 remand directive, as to what additional information would permit an examiner to provide an estimate of ROM loss during flare-ups. As such, the examination is inadequate for rating purposes and a new medical opinion must be obtained. The matters are REMANDED for the following action: 1. Schedule the Veteran for the appropriate VA examination to assess the severity of his service-connected right hip disability: right hip contusion, limitation of flexion and impairment of the thigh. Copies of all pertinent medical records should be made available to the examiner for review. All necessary diagnostic testing should be performed using the appropriate DBQ if available. If the Veteran reports flare-ups, the examiner should ask the Veteran to describe the factors that precipitate a flare-up and the frequency, duration, and severity of any flare-ups. The examiner should use that information to comment on the functional limitations caused by pain and any other associated symptoms. Such comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. 2. Confirm that the VA medical opinion provided comports with this remand, specifically that the examiner provides an estimate in degrees of loss of motion, if any, the Veteran may experience during flare-ups or provides a statement as to why the estimate of loss of motion cannot be provided. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.