Citation Nr: 21028182 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 20-11 161 DATE: May 10, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to March 31, 2017, and in excess of 40 percent therefrom, for thoracolumbar spine disability is remanded. Entitlement to a rating in excess of 10 percent prior to March 31, 2017, and in excess of 20 percent therefrom, for cervical spine disability is remanded. Entitlement to a separate rating for bilateral lower extremity radiculopathy due to service-connected thoracolumbar spine disability is remanded. Entitlement to service connection for obstructive sleep apnea, claimed as secondary to service-connected disability and as due to obesity as an intermediary step, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Entitlement to special monthly compensation based on the need for regular aid and attendance from another person (SMC-AA) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2001 to June 2001 in the United States National Guard, and from January 2002 to October 2002, from February 2003 to February 2004 and from April 2010 to May 2011 in the United States Army. She served in Southwest Asia in support of the Gulf War. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In remanding the below matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to a rating in excess of 10 percent prior to March 31, 2017, and in excess of 40 percent therefrom, for thoracolumbar spine disability is remanded. 2. Entitlement to a rating in excess of 10 percent prior to March 31, 2017, and in excess of 20 percent therefrom, for cervical spine disability is remanded. The Veteran, and her representative, contends that a higher rating is warranted for thoracolumbar and cervical spine disabilities. See Medical Treatment Record-Non-Governmental (December 2020). Regarding the Veteran's back disability, the representative notes that the Veteran has back symptoms that are productive of neurological pain and require assistance from another person for dressing and toileting. Regarding the cervical spine, the representative notes that the Veteran has neck symptoms that are productive of neurological pain and require assistance from another person for dressing and toileting. While the record contains a March 2017 VA examination of the Veteran's cervical spine, it does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The March 2017 examination does not contain passive range of motion measurements. See C&P Exam (March 2017). Furthermore, the March 2017 examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not attempt to elicit relevant information regarding the description of the Veteran's neck flare-ups and any additional functional loss suffered during flare-ups. In this regard, the examiner did not attempt to provide an estimate of functional loss (e.g. limitation of motion), due to flare-ups based on the other evidence of record and the Veteran's statements. Further, although the examiner stated, that it is not possible to provide a specific measurement without speculation, the examiner did not 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); but rather, the examiner declined as it could not be done based on direct observation or notation in the record. Also, while the record contains a March 2017 and July 2018 VA examinations of the Veteran's thoracolumbar spine, these examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The March 2017 and July 2018 examinations do not contain passive range of motion measurements. See C&P Exam (March 2017), see also C&P Exam (July 2018). Furthermore, the March 2017 examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The March 2017 VA examiner did not attempt to elicit relevant information regarding the description of the Veteran's neck flare-ups and any additional functional loss suffered during flare-ups. In this regard, the examiner did not attempt to provide an estimate of functional loss (e.g. limitation of motion), due to flare-ups based on the other evidence of record and the Veteran's statements. The July 2018 VA examiner noted the Veteran reported flare-ups in the back "daily, lasting a few hours, resulting in functional loss with ambulation and standing tolerance." The examiner noted that pain, weakness, fatigability, and/or incoordination significantly limit the Veteran's functional ability. He added that pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time; however based on no observed flare-up on examination, he concluded that there is no evidence of fatigability, incoordination, muscle weakness or pain. He concluded that he was unable to determine limitation of motion in degrees due to pain on flare-up without resorting to speculation noting that the Veteran was not exhibiting flare-up during examination. Although the examiner stated, that it is not possible to provide a specific measurement without speculation, the examiner did not 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); but rather, the examiner declined as it could not be done based on direct observation or notation in the record. The Board notes VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App. 119 (1999). Here, the Veteran's neck and back disabilities manifest with "staged ratings" since the effective date of her disability. As such, VA must assess the Veteran's neck and back disabilities, as per Sharp and Correia guidelines, over the entire period on appeal and determine if different ratings are warranted based on the Veteran's symptomatology and functional loss. Given the above, remand is warranted for retrospective findings that fully satisfy the requirements of Sharp and Correia. See Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008) (discussing situations when it may be necessary to obtain a "retrospective" medical opinion to determine the date of onset or severity of a condition in years past); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). 3. Entitlement to a separate evaluation for bilateral lower extremity radiculopathy due to service-connected thoracolumbar spine disability. The Veteran's representative argues that a separate compensable rating is warranted for the bilateral lower extremity radiculopathy associated with the Veteran's service-connected thoracolumbar spine disability. See Medical Treatment Record-Non-Governmental (December 2020). Given the Veteran's attorney's argument, and to ensure due process of law, the Board finds that remand is necessary so the AOJ can adjudicate the claim of entitlement to a separate evaluation for bilateral lower extremity radiculopathy associated with service-connected thoracolumbar spine disability in the first instance. 4. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran's representative argues that service connection is warranted for OSA to include as secondary to service connected disabilities including thoracolumbar spine, cervical spine, right hip, left ankle, and tinnitus. See Medical Treatment Record-Non-Governmental (December 2020). Also, the Veteran has raised the theory of secondary service connection with obesity as an "intermediate step" between her service-connected musculoskeletal/neurological disabilities and her nonservice-connected OSA. See Robinson v. Peake, 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) ("The Board commits error . . . in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record."); see also VA Gen. Coun. Prec. 1-2017, at *9-10 (Jan. 6, 2017) (obesity may qualify as an "intermediate step" between a service-connected disability and another current disability). Here, the Veteran's service treatment records reveal that, on an April 2011 post-deployment questionnaire, she checked that she presented to sick call for "sleep problems" that are still bothering her. See STR at 95 (March 2017). Obstructive sleep apnea is first documented in a June 2016 private sleep study. See Medical Treatment Record Non-Governmental (July 2018). To ensure that VA has met its duty to assist remand is necessary to obtain an adequate medical opinion in this matter. The Board acknowledged that the Veteran's representative obtained a December 2020 medical opinion from M. Shoag, M.D., in this matter. However, it is inadequate for adjudicative purposes. Hayes v. Brown, 5 Vet. App. 60, 69 (1993). An adequate medical opinion must be "accurate and fully descriptive," 38 C.F.R. § 4.1, and based on an accurate factual premise and consideration of a veteran's prior medical history, Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In addition, an opinion must support its conclusions with an analysis and sufficient reasoning. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"). Further, an adequate medical examination report or opinion must also "sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). In sum, although an examiner need not discuss all potentially favorable or unfavorable evidence in order to render an adequate opinion, see Monzingo, 26 Vet. App. at 105, it must be clear that the examiner was "informed of sufficient facts upon which to base an opinion relevant to the problem at hand." Nieves-Rodriguez, 22 Vet. App. at 303. The December 2020 private medical opinion is inadequate because, among other reasons, it found that sleep apnea began in service based on reports of the Veteran snoring, and having other symptoms, in service without explaining why this was dispositive of the onset of the condition. A "medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22Vet. App.295, 301 (2008). In this case, the opinion does not provide a medical explanation connecting the lay reported symptoms in service with the conclusion reached. Similarly, the opinion does not provide a medical explanation connecting the Veteran's chronic pain to the development or aggravation of sleep apnea. In this regard, it discussed largely studies of those with tinnitus and sleep problems, then appeared to extrapolate that sleep problems and difficulty reaching REM phase supported a link between tinnitus and OSA, but did not provide any clear discussion of medical literature vis-à-vis the Veteran's service-connected disabilities and her nonservice-connected OSA. Also, the opinion reflects that "Tinnitus may cause obstructive sleep apnea and sleep apnea may aggravate tinnitus. Simply stated, they are etiologically related." The conclusion here is too speculative to provide the degree of certainty required for medical nexus evidence. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical statement using the term "could," "may," or "possibly," without supporting clinical data or other rationale, is too speculative to provide the degree of certainty required for medical nexus evidence). Notwithstanding, the Board finds VA's duty to obtain and examination and opinion have been triggered as to this matter. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4)(i). 5. Entitlement to TDIU is remanded. 6. Entitlement to SMC-AA is remanded. The Veteran's representative argues that Veteran's service connected disabilities require assistance from another person for dressing and toileting. See Medical Treatment -Non-Governmental (December 2020). TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Roberson v. Principi, 253 F.3d 1378, 1384 (Fed. Cir. 2001). In other words, the claim to a TDIU can be part and parcel of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice, 22 Vet. App. 477 (2009). Similarly, a claim for SMC-AA or at the homebound level is part and parcel of any pending claim seeking an increased evaluation. Hurd v. West, 13 Vet. App. 449 (2000); Akles v. Derwinski, 1 Vet. App. 118 (1991). The filing of a formal claim for SMC is not necessary if such is being sought as part and parcel of a pending claim for an increased evaluation, as the former is an ancillary benefit of the latter. See Payne v. Wilkie, 31 Vet. App. 373, 385-91 (2019). Given the above, and after careful review of the record and pleadings, the Board finds that TDIU and SMC-AA have been reasonably raised. To ensure due process of law, these matters are remanded for development and consideration in the first instance by the originating agency. These matters are REMANDED for the following action(s): 1. Ask the Veteran to complete a TDIU claim form and conduct any development deemed necessary. 2. Obtain the Veteran's VA treatment records for the period from March 2020 to the present. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected lumbar spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. NOTE(1): If it is not possible to provide a specific measurement without speculation, the clinician 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 clinician (does not have the knowledge or training). NOTE (2): In rendering the below, the clinician should estimate the effective range of motion (ROM) for the disability and present the results of ROM tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the ROM test results for both active and passive motion, and in weightbearing and non-weightbearing. NOTE (3): The report should describe objective evidence of painful motion, if any, during EACH test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER WAS PRESENT DURING ONE OF THE REQUIRED ROM TESTS. If any of these findings are not possible, please provide an explanation. Current Findings (a) Test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing.). (b) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. Note: If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced ROM during flares or repetitive use. (c) Clearly indicate whether the Veteran has radiculopathy of either lower extremity associated with her service-connected lumbar spine disability and, if so, when it is first shown. Retrospective Findings (d) Provide an addendum retrospective opinion for the Veteran's service-connected lumbar spine disability to supplement the March 2017 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. (ii) Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. (e) Provide an addendum retrospective opinion for the Veteran's service-connected lumbar spine disability to supplement the July 2018 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain on both active and passive motion based on the evidence of record and the Veteran's statements. (ii) Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. For TDIU purposes (f) Elicit from the Veteran her complete educational, vocational, and employment history. (g) Ask the Veteran to describe in her own words the functional impact of her lumbar spine disability on her ability to perform the physical and mental acts required for substantially gainful work. The Veteran's response should be recorded in the examination report. (h) Indicate the objective functional effects of the Veteran's lumbar spine disability on his ability to perform the physical acts (e.g., walking, sitting, standing, bending) and mental acts (e.g., concentration, focus, attention, and memory) required for employment. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected cervical spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. NOTE (1): If it is not possible to provide a specific measurement without speculation, the clinician 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 clinician (does not have the knowledge or training). NOTE (2): In rendering the below, the clinician should estimate the effective range of motion (ROM) for the disability and present the results of ROM tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the ROM test results for both active and passive motion, and in weightbearing and non-weightbearing. NOTE (3): The report should describe objective evidence of painful motion, if any, during EACH test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER WAS PRESENT DURING ONE OF THE REQUIRED ROM TESTS. If any of these findings are not possible, please provide an explanation. Current Findings (a) Test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing.). (b) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. Note: If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced ROM during flares or repetitive use. Retrospective Findings (c) Provide an addendum retrospective opinion for the Veteran's service-connected cervical spine disability to supplement the March 2017 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain on both active and passive motion based on the evidence of record and the Veteran's statements. (ii) Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. For TDIU purposes (d) Elicit from the Veteran her complete educational, vocational, and employment history. (e) Ask the Veteran to describe in her own words the functional impact of his cervical spine disability on her ability to perform the physical and mental acts required for substantially gainful work. The Veteran's response should be recorded in the examination report. (f) Indicate the objective functional effects of the Veteran's cervical spine disability on her ability to perform the physical acts (e.g., walking, sitting, standing, bending) and mental acts (e.g., concentration, focus, attention, and memory) required for employment. 5. Schedule the Veteran for a VA examination to address the nature and etiology of her claimed obstructive sleep apnea (OSA) disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record and interview of the Veteran, detail the Veteran's reported symptoms in service and thereafter, including the nature, onset, progression and severity of any symptom consistent with OSA. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate medical opinion may not be predicated solely on the absence of medical literature supporting causation without discussing the facts specific to the Veteran vis-à-vis the research or literature. The clinician must opine on: Direct Service Connection (a) Whether the Veteran's OSA at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address whether symptoms as shown by the lay evidence (e.g. in-service snoring, gasping, daytime sleepiness) demonstrate the onset of OSA in service and indicate whether such symptoms may be due to other causes. Explain. Secondary Service Connection (b) Whether the Veteran's OSA is at least as likely as not (1) proximately due to service-connected disability (or medication taken therefor), or (2) aggravated beyond its natural progression by service-connected disability (or medication taken therefor). Consider service-connected pain associated with thoracolumbar spine, cervical spine, right hip, and left ankle disabilities, and tinnitus. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. Indirect Secondary Service Connection - Obesity as an "Intermediary Step" (c) Is it at least as likely as not that the Veteran's service-connected disabilities, alone or collectively, (1) caused or (2) aggravated the Veteran's obesity? Provide a rationale that deals with causation and aggravation as independent concepts. Explain. (d) If so, was the resulting obesity a substantial factor in causing the Veteran's OSA? Explain. (e) If yes, but for the Veteran's obesity, would the Veteran have developed OSA? Explain. 6. Schedule the Veteran for an examination to assess her need for the regular aid and attendance of another person due to service-connected disability. 7. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. A. Macek, 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.