Citation Nr: 21032012 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 18-00 843 DATE: May 25, 2021 REMANDED Entitlement to service connection for right leg sciatica is remanded. Entitlement to service connection for left leg sciatica is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from January 1972 to December 1973, from February 1974 to February 1976, and from March 1979 to March 1985. In June 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board most recently considered these issues in January 2021 when it remanded them for further development. The Board also remanded the issue of entitlement to service connection for a low back disability in January 2021. An April 2021 rating decision granted entitlement to service connection thoracolumbar spine degenerative disc disease, spinal stenosis, and spondylolisthesis. As this represents a total grant of the benefit sought on appeal with respect to that issue, the issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). 1. Entitlement to service connection for right leg sciatica is remanded. 2. Entitlement to service connection for left leg sciatica is remanded. There is conflicting evidence of record as to whether the Veteran has a neurological abnormality manifested by radiating pain, such as sciatica, that may be secondary to his service-connected thoracolumbar spine disability. Specifically, a January 2014 VA examiner indicated that the Veteran had symptoms attributable to radiculopathy, but also indicated that neither the right side nor the left side was affected by radiculopathy. A March 2021 VA examiner indicated that the Veteran does not have radiculopathy or any other neurological abnormality associated with his service-connected thoracolumbar spine disability. The medical treatment records show that the Veteran has peripheral neuropathy of the bilateral lower extremities that causes pain, numbness, and tingling and that is caused by nonservice-connected diabetes mellitus type II and by chemotherapy the Veteran underwent to treat nonservice-connected colon cancer. Although the Veteran has told his medical treatment providers that his low back pain radiates to the legs, he has not been diagnosed with radiculopathy or another neurological abnormality associated with his service-connected thoracolumbar spine. However, a recent VA treatment note dated in March 2021 states, "Likely the lower back pain is sciatica." Given the unclear nature of the medical evidence of record, the Board finds that the issues of entitlement to service connection for right leg sciatica and entitlement to service connection for left leg sciatica must be remanded for an examination to determine whether the Veteran has sciatica or another neurological condition caused or aggravated by his service-connected thoracolumbar spine disability. 3. Entitlement to service connection for sleep apnea is remanded. The January 2021 Board remand asked that an opinion be obtained in consideration of statements from the Veteran's brother and sister received in August 2017. The remand explained that the Veteran's brother stated the Veteran would fall asleep during the day, snore loudly while sleeping, and stop breathing while sleeping during his active service and after separation from active service and that his sister similarly stated that, during his active service, the Veteran had daytime sleepiness and would snore, choke, and stop breathing while sleeping. The Board asked that the examiner discuss whether such symptoms indicate that the Veteran's current sleep apnea had its onset during his active service. In March 2021, a VA examiner opined that it is less likely than not that the Veteran's sleep apnea was incurred in or due to his active service, explaining that "there is no objective evidence that this condition began during service. Furthermore, although his brother and sister stated that this began during service, based on the veteran history, it was only brought to his attention afterward and he was not diagnosed with sleep apnea until 2011. The noted statements from family from August 2017 do not support any sleep apnea condition occurring during/being due to service as these statements were also many years after leaving service." The examiner did not explain why the statements from the Veteran's brother and sister do not constitute "objective evidence" of an in-service onset or why they do not establish an in-service onset simply because they were provided many years after the Veteran's separation from service and because the Veteran was not diagnosed with sleep apnea until 2011. The Board therefore finds that the opinion is not supported by adequate rationale and that the issue must be remanded for an addendum opinion. 4. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to a TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed sciatica of the left and right legs. The examiner must review the claims file. The examiner must address the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran has sciatica of the left and/or right leg, or another neurological disability manifested by pain that radiates to the bilateral lower extremities, that is proximately due to his service-connected thoracolumbar spine degenerative disc disease, spinal stenosis, and spondylolisthesis? If not, is it at least as likely as not that the Veteran has sciatica of the left and/or right leg, or another neurological disability manifested by pain that radiates to the bilateral lower extremities, that is aggravated, i.e., worsened beyond its natural progression, by his service-connected thoracolumbar spine degenerative disc disease, spinal stenosis, and spondylolisthesis? The opinion should make clear whether the Veteran has radiating pain or other neurological symptoms of the bilateral lower extremities that may be attributable to the Veteran's service-connected thoracolumbar spine disability as opposed to his nonservice-connected diabetic neuropathy and nonservice-connected peripheral neuropathy caused by chemotherapy for colon cancer. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's sleep apnea at least as likely as not (50 percent probability or greater) had its onset during his active service or is related to an in-service event, injury, or disease. Provide a rationale to support the opinion. The opinion must discuss the statements from the Veteran's brother and sister received in August 2017. The Veteran's brother states that the Veteran would fall asleep during the day, snore loudly while sleeping, and stop breathing while sleeping during his active service and after separation from active service. His sister similarly states that, during his active service, the Veteran had daytime sleepiness and would snore, choke, and stop breathing while sleeping. The examiner should discuss whether such symptoms indicate that the Veteran's current sleep apnea had its onset during his active service. If such symptoms alone are not indicative of an in-service onset of sleep apnea, then the examiner should clearly state that opinion and provide supporting rationale for the opinion. The examiner must accept as true the statements from the Veteran's brother and sister as to signs and symptoms that they witnessed during the Veteran's active service unless the examiner determines that the statements are not credible. In considering the statements, the clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible, but may be considered in conjunction with other factors in determining the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Therefore, the fact that there are no contemporaneous medical treatment records documenting the in-service signs and symptoms does not, by itself, render the statements from the Veteran's brother and sister not credible. In addition, the fact that the statements were provided many years after the Veteran's separation from active service does not render them not credible or not relevant to the issue of whether the Veteran's current sleep apnea had its onset during his active service. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.