Citation Nr: 21042824 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 07-26 499 DATE: July 13, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected left elbow limitation of flexion for the period prior to May 3, 2012, is remanded. Entitlement to a disability rating in excess of 20 percent for the Veteran's service-connected left elbow limitation of flexion for the period from May 3, 2012 to June 7, 2018, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to the Veteran's service-connected psychiatric disorder, is remanded. Entitlement to service connection for type II diabetes mellitus, to include as secondary to the Veteran's service-connected psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1980 to July 1983 and from December 1990 to May 1991. The Veteran had additional service with the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2006 and May 2013 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). Transcripts from the hearing are associated with the claims file. The Board hearing was before a now-retired VLJ. In a May 2021 correspondence, the Veteran was given the opportunity to request another hearing. The Veteran responded to this letter within thirty days and indicated that he does not want another hearing. The Board previously denied the Veteran's above claims in a January 2020 decision. The Veteran then appealed to the United States Court of Appeals for Veteran's Claims (CAVC), and in November 2020 CAVC vacated the January 2020 Board decision, granted a joint motion for remand, and returned the case to the Board for action consistent with the joint motion for remand. As part of CAVC's decision, the Veteran's claims for service connection for erectile dysfunction; a disability rating in excess of 50 percent for limitation of left elbow flexion from June 7, 2018; a disability rating in excess of 10 percent for supination of the left forearm; and a rating in excess of 10 percent for the Veteran's left wrist were dismissed as the Veteran no longer wished to pursue them. As such, those claims are not before the Board and will not be addressed. Left Elbow Prior to May 3, 2012 While the Veteran was provided with June 2001, November 2005, and October 2007 VA examinations regarding his left elbow disability, these examinations are inadequate for rating purposes. In proffering their opinions, the VA examiners did not adequately assess the Veteran's functional loss of his left elbow disability in compliance with the holding in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). Specifically, the examiners did not adequately address the Veteran's range of motion during active and passive motion and in weight-bearing and non-weightbearing. Therefore, the Board finds an additional examination and retrospective opinion is required to adequately assess the Veteran's left elbow disability. Left Elbow from May 3, 2012 to June 7, 2018 While the Veteran was provided with a May 2012 VA examination regarding his left elbow disability, this examination is inadequate for rating purposes. In proffering their opinion, the examiner did not adequately assess the Veteran's functional loss of his left elbow disability in compliance with the holdings in DeLuca v. Brown, 8 Vet. App. 202, 206 (1995), Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016), and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Therefore, the Board finds an additional examination and retrospective opinion is required to adequately assess the Veteran's left elbow disability. Sleep Apnea and Diabetes Mellitus While there are July 2019 VA opinions in the record for the Veteran's claimed sleep apnea and diabetes disabilities, the Board finds them to be inadequate. In proffering their opinions, the examiner did not comment on whether the Veteran's sleep apnea or diabetes were aggravated by his service-connected psychiatric disability. Of note, secondary service connection is warranted for a current disability that is either proximately caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.301(a), (b); Allen v. Brown, 7 Vet. App. 439 (1995). As such, the Board finds that the examiners secondary service connection opinions are inadequate because they fail to address aggravation. Atencio v. O'Rouke, 30 Vet. App. 74, 91 (2018). Further, the July 2019 sleep apnea opinion was specifically instructed to address the findings of the October 2010 VA examiner and the October 2014 private physician but failed to do so. When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, the VA examiners noted the Veteran's obesity is a factor in his diabetes and sleep apnea but did not opine whether the obesity was an intermediate step between his current obstructive sleep apnea and diabetes and his service-connected psychiatric disorder. See Walsh v. Wilkie, 32 Vet. App. 300, 306-07 (2020) (holding that obesity as an "intermediate step" in a causal chain for service connection can be established on either a causal or aggravation basis). Therefore, the VA examiner did not adequately assess whether the Veteran's diabetes and sleep apnea disabilities were etiologically related to, secondary to, or aggravated by, his service-connected disabilities. As such, the Board finds additional examinations are required to determine the etiology of the Veteran's sleep apnea and diabetes disabilities. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, with an examiner who has yet to examine the Veteran, to determine the current nature and severity of his left elbow. The claims file should be made available to and reviewed by the examiner, including a copy of this remand and the November 2020 joint motion for remand, and all necessary tests should be performed (a.) The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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. 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. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (b.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If the Veteran is not currently experiencing a flare-up, then based on relevant information elicited from the Veteran, a review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] (c.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the left elbow disabilities and comment on the effect of these disabilities on any occupational functioning and activities of daily living. (d.) Additionally, if possible, based on the Veteran's lay statements, the prior VA examinations, and the other evidence of record, the examiner is instructed to provide a retrospective opinion estimating the severity of the Veteran's left elbow disability and any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time for the period prior to May 3, 2012, and the period from May 3, 2012 to June 7, 2018. (e.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without 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). The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 2. Then, afford the Veteran VA examinations by an examiner(s), who has not examined the Veteran before, with sufficient expertise to address the etiology of the Veteran's claimed sleep apnea and diabetes mellitus disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner, including a copy of this remand and the November 2020 joint motion for partial remand. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner(s) should state whether the Veteran's claimed disabilities at least as likely as not (a 50 percent probability or greater): are etiologically related to the Veteran's active duty service. The examiner(s) must also opine on whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's diabetes mellitus and obstructive sleep apnea are proximately due to, or aggravated by, his service-connected psychiatric disability. The Board notes that aggravation need not be a permanent worsening of the disability. A temporary worsening of a disability may constitute aggravation. Finally, the examiner(s) must opine whether the Veteran's obesity was an intermediate step between his current sleep apnea/diabetes and his service-connected psychiatric disability. The examiner should specifically state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's psychiatric disability caused the Veteran to become obese or aggravated his obesity. If so, the examiner must then opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's obesity, or the aggravation of the obesity, as a result of either the Veteran's service-connected disabilities was a substantial factor in causing the Veteran's sleep apnea and/or diabetes, and whether the Veteran's sleep apnea and/or diabetes would not have occurred but for the obesity caused or aggravated by the service connected disabilities. With regard to the sleep apnea etiology opinion, the examiner must comment on the article Diabetes and Psychiatric Disorders noted in the November 2020 joint motion for partial remand. Additionally, the examiner must address the October 2010 VA examination and the October 2014 private physician's opinion. For purposes of these opinions, the examiner(s) should assume that the Veteran is a reliable historian and must not ignore the Veteran's competent reports of in-service injuries, or of symptoms experienced during active service and since. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. The examiner(s) must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.