Citation Nr: 21025670 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-19 585 DATE: April 28, 2021 ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to an initial disability rating in excess of 10 percent prior to February 5, 2015, for right ankle sprain, and in excess of 20 percent thereafter. 3. Entitlement to a total disability rating based upon individual unemployability due to service connected disabilities (TDIU). REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to February 5, 2015, for right ankle sprain, and in excess of 20 percent thereafter is remanded. Entitlement to a TDIU is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1974 to March 1975. The Veteran also had many years of service in the Army National Guard. These matters are on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Subsequently, in an April 2016 rating decision, the evaluation for right ankle sprain was increased to 20 percent effective February 5, 2015. This did not satisfy the Veteran’s appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board also notes that in a November 2017 rating decision, a temporary evaluation of 100 percent for the right ankle sprain was increased to 100 percent effective August 1, 2017, based on surgical or other treatment necessitating convalescence. An evaluation of 20 percent was assigned from October 1, 2018. Such period of a temporary 100 percent rating is a full grant of the benefits sought, and therefore, this period is not before the Board on appeal. The Veteran testified before a decision review officer (DRO) at the RO in December 2015 and testified before the undersigned during a videoconference hearing in June 2019; copies of the transcripts are of record. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. The Veteran has raised the issue of TDIU; therefore, the issue of entitlement to TDIU is before the Board. When this case was previously before the Board in October 2019, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. The Board finds that additional evidentiary development is required before the issues on appeal are adjudicated. The Veteran asserts that service connection is warranted for sleep apnea. VA and private treatment records show diagnoses of sleep apnea. The Veteran testified before the undersigned that he had symptoms of sleep apnea while on active duty in the Army National Guard and that he had 24 years of service in the Army National Guard. To this point, there is a notation of “frequent trouble sleeping” in a January 1994 report of medical history. As such, the Board found in the October 2019 remand that the RO should verify the Veteran’s dates of active duty training (ACDUTRA) and inactive duty training (INACDUTRA). These dates were to be compiled in a memorandum. Moreover, the Board found that the Veteran should be afforded a VA examination on remand to address the etiology of the diagnosed sleep apnea. At the outset, the Board notes that Veteran’s dates of ACDUTRA and INACDUTRA have not been compiled in a memorandum; as such, this directive should be completed on remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers a right on a claimant to compliance with the remand order). In response to the Board’s remand, the Veteran was afforded a VA-contracted examination in January 2020 in which the examiner stated that it was less likely as not that the current sleep apnea was related to active duty service, ACDUTRA, or INACDUTRA or was otherwise etiologically related to service. The examiner stated that sleep apnea tended to be multifactorial in nature, including genetic factors, environmental factors, drug abuse, lifestyles, body habitus, sinus conditions, upper respiratory conditions, neurological deficit and/or idiopathic. The examiner stated that there were no medical records showing diagnosis, treatment for the sleep apnea condition, or any related sleep apnea condition while the Veteran was still in service. The Board notes that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Moreover, as noted above, there was a notation of “frequent trouble sleeping” in a January 1994 report of medical history. As such, the Board finds that an addendum opinion should be sought on remand. As to the issue of entitlement to an increased rating for right ankle sprain, in response to the Board’s remand, the Veteran was afforded a VA-contracted examination in January 2020 in which he reported flare-ups of the right ankle that occurred daily, were severe, lasted all day, were precipitated by walking and standing, and were alleviated by elevation and rest. Physical examination showed pain in dorsiflexion, plantar flexion, in weight-bearing, on passive range of motion testing, and on non-weight-bearing testing; however, range of motion in degrees was not provided. In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) noted the final sentence of § 4.59, which states “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” The Court found this sentence to be ambiguous because the regulation, considered as a whole, is meant to guide adjudicators in determining the proper level of disability of joints, and if the range of motion testing listed in the last sentence is not required, it is unclear how an adjudicator could adequately rate a claimant’s joint disability and account for painful motion. However, compelled by § 4.59’s place in the regulatory scheme (it preceded the disability rating schedule), the Court held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. As also relevant, a more recent Court decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id.  As the January 2020 examination report did not provide all of the information specified by Correia and Sharp, the Board finds that the claim must be remanded for new VA examination to obtain the information necessary to properly adjudicate the claim. The issue of entitlement to a TDIU is intertwined with the claims being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Verify through the appropriate agencies the Veteran’s specific dates of ACDUTRA or INACDUTRA. The RO should prepare a summary of such dates, or document for the record why the production of a summary of service dates is not possible. 2. After the above development has been completed, provide access to the electronic claims file to the January 2020 examiner, or appropriate substitute if this examiner is not available, to provide an addendum opinion regarding the Veteran’s sleep apnea.  The electronic claims files, to include a copy of this remand and a list of all periods of ACDUTRA and INACDUTRA service, must be made available to and be reviewed by the examiner in conjunction with the examination.  An examination should be performed if deemed necessary by the examiner providing the requested opinion. The examiner should opine whether it is at least as likely as not (a 50 percent or greater possibility) that any sleep apnea diagnosed during the pendency of this appeal had onset in service (active duty service, ACDUTRA, or INACDUTRA) or is otherwise etiologically related to service. The examiner should address the notation of “frequent trouble sleeping” in a January 1994 report of medical history. The examiner is reminded that absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford, 3 Vet. App. 87, 89. A detailed rationale must be provided for any opinion expressed. 3. The Veteran should be afforded a VA examination by an examiner with appropriate expertise to determine the current degree of severity of the service-connected right ankle sprain. The electronic claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. All testing deemed necessary must be conducted and results reported in detail. The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran’s disabilities, i.e., the extent of the Veteran’s pain-free motion. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on “weight-bearing,” please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is “yes,” the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner must ALSO name the precipitating and alleviating factors. The examiner must ALSO estimate, “per [the] veteran,” to what extent, if any, they affect functional impairment. A full and complete rationale for any opinions expressed is required. 4. Then, after undertaking any additional development that is deemed warranted, readjudicate the claims on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.