Citation Nr: 22014167 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 18-54 902 DATE: March 11, 2022 REMANDED Entitlement to service connection, to include on a secondary basis, for obstructive sleep apnea (OSA) is remanded. Entitlement to a rating in excess of 30 percent disabling for posttraumatic stress disorder (PTSD) prior to November 16, 2017, and in excess of 50 percent disabling thereafter, is remanded. Entitlement to a rating in excess of 20 percent disabling for lumbar spine disability is remanded. Entitlement to a rating in excess of 10 percent disabling for left lower extremity (LLE) radiculopathy prior to December 1, 2017, and in excess of 20 percent disabling thereafter, is remanded. Entitlement to a rating in excess of 10 percent disabling for right lower extremity (RLE) radiculopathy prior to November 17, 2014, and in excess of 40 percent disabling thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 2004 to May 2013. This matter is before the Board of Veterans' Appeals (Board) on appeal from April 2015 (increased rating claims) and December 2017 (OSA and TDIU) rating decisions by a Department of Veterans Affairs Regional Office (RO). In June 2021, the Veteran testified at a Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The Board held the record open for 90 days for the Veteran to submit additional relevant evidence. With regard to the April 2015 rating decision, the Board notes that the decision granted service connection for left lower extremity (LLE) in addition to right lower extremity (RLE) radiculopathy. In September 2015, the Veteran filed a notice of disagreement (NOD) with all issued decided in the April 2015 rating decision. However, a review of the November 2018 statement of the case (SOC) shows that the increased rating claim for RLE radiculopathy was not addressed. As a SOC has not been issued with respect to the RLE radiculopathy claim, the Board is required to remand that matter for such action. Manlincon v. West, 12 Vet. App. 238 (1999). The Board also notes that during the Board hearing, the representative asserted that the original service connection claim for lumbar spine disability should have been interpreted to include a service connection claim for cervical spine disability. The Board disagrees. A review of the July 2012 VA/DOD Joint Disability Evaluation Board Claim shows that the Veteran listed "degenerative disc disease of lumbar spine" as a medical condition to be considered. Other conditions listed included restless leg syndrome, right hip condition and PTSD. There is no indication that he intended to submit a claim for a cervical spine disability. In this regard, despite the representative's assertion, the lumbar spine and cervical spine are not the same, as evidenced by the rating criteria. Therefore, the Board finds that the original service connection claim for lumbar spine disability did not include a separate claim for cervical spine disability. If the Veteran wishes to file such a claim, he is free to do so. Initially, the Board notes that during the June 2021 Board hearing, the Veteran reported that he had applied for Social Security Administration (SSA) benefits in 2016, but that his claim had been denied. A review of the claims file shows that attempts have not been made to obtain and associate with the claims file any such SSA records. Accordingly, in order to properly adjudicate the issues on appeal, efforts should be made to obtain any SSA records. Service Connection - OSA The Veteran seeks entitlement to service connection for OSA. Specifically, he asserts that he first began experiencing symptoms during service, including snoring and moving around during the night, and that his symptoms had worsened since that time. Alternatively, he asserts that his OSA is secondary to his service-connected PTSD and lumbar spine disabilities. See June 2021 Board Hearing Transcript. He underwent a VA sleep apnea examination in December 2017. The examiner noted a diagnosis for OSA and that the Veteran reported that he began having sleep problems during his first deployment. During that time period, he reported that his sleep was constantly disrupted at night with problems returning to sleep. A December 2009 sleep study was noted to reveal a diagnosis for unspecified sleep disorder, but not consistent with OSA. Periodic leg movements during sleep were also found. A March 2017 sleep study revealed a diagnosis for OSA and insomnia. The examiner opined that it was "less likely as not (50/50) that the Veteran's sleep apnea was caused by military service." In support of this opinion, the examiner pointed to the 2009 sleep study that was negative for sleep apnea. An addendum VA examination report was obtained in September 2018. The examiner opined that the OSA was "not likely proximately due to or the result of" PTSD with dyssomnia. In support of this opinion, the examiner noted a review of submitted medical article, but found no medical evidence showing a relationship between the Veteran's OSA and his PTSD. With regard to the submitted medical article, the examiner stated that it was not peer reviewed medical literature. Additionally, the examiner opined that medical literature did not state that there was a causative connection between PTSD and OSA, and that a recent article had suggested the opposite; that the causative relationship was between OSA and PTSD. Accordingly, the examiner concluded that it was not generally accepted that OSA was caused or worsened by PTSD. More recently, in June 2021, the Veteran submitted medical literature in support of his claim of secondary service connection. The submitted medical literature includes peer reviewed studies, including a study titled, "Sleep Disordered Breathing in Chronic Spinal Cord Injuries." The representative additionally raised a new theory of entitlement to service connection as secondary to the service-connected lumbar spine disability based on this study. During the June 2021 Board hearing, the Veteran testified that he first began experiencing significant sleep problems after his first deployment, including snoring and moving around during the night. He further testified that the 2009 sleep study occurred following his first deployment, but that his symptoms had worsened following his second deployment. After a review of the record, the Board finds that another VA examination is necessary to properly adjudicate this issue on appeal. First, a review of the September 2018 VA examination report shows that the examiner based a negative nexus opinion, in part, on the fact that the 2009 sleep study was negative for sleep apnea. However, a review of that study shows that the Veteran was diagnosed with an unspecified sleep disorder. As the Veteran has reported that his symptoms worsened following his second deployment, the Board finds inadequate the examiner's reliance on the fact that a prior sleep study was negative for sleep apnea. Therefore, another VA examination should address the Veteran's lay statements as to reported worsening symptoms. Second, the submitted medical literature appears to contradict the rationale contained in the September 2018 VA examination addendum report. Specifically, that there is a lack of peer review studies. Third, as no examiner has addressed whether the OSA is secondary to his service-connected lumbar spine disability, and in consideration that the Veteran has submitted medical literature in support of that claim, a Remand is necessary to address that theory of service connection. Increased Rating - PTSD The Veteran last underwent a VA PTSD examination in November 2017. The Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity. He denied any prior in-patient hospitalizations. His PTSD was manifested by the following symptoms: anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; avoidance; hypervigilance; exaggerated startle response; and, disturbances of motivation and mood. There was no impairment in thought processes, delusions or hallucinations. Since that time, he submitted an April 2020 in-patient psychiatric evaluation discharge record noting that he was admitted under an ex parte petition for involuntary examination that was filed by his former spouse based on worsening depression with suicidal ideation. The record noted that the Veteran entered his former spouse's yard at all hours and threatened her, her family and guests on a daily basis. She stated that he was delusional and believed everyone was out to get him. She further stated that she observed the Veteran acting erratically with worsening paranoia. See Private Medical Records Received February 2021. At a June 2021 Board hearing, the Veteran testified having regular suicidal ideation. He also testified that while driving, he had regular thoughts of ramming cars that abruptly changed lanes, or running them off the road and causing an accident, but that he had no intention to do that. He also testified that he experienced impaired impulse control that occurred when he came under stress which caused him to snap at coworkers, and that he would have to leave those situations, sit down and relax. He further reported experiencing hallucinations, and stated that he sometimes thought he saw and heard things. He reported experiencing audio and visual hallucinations 2 to 3 times per week. The evidence of record shows worsening symptoms related to the service-connected PTSD, including a hospitalization, and reported suicidal ideation, hallucinations and paranoia. Evidence of a change in the condition or allegation of worsening of the condition renders an examination inadequate for rating purposes. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); see also Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Accordingly, as the record contains evidence that the Veteran's PTSD symptoms have worsened since his last VA examination, including recently added medical records, a remand is warranted for a new VA examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Increased Rating - Lumbar Spine Disability and LLE Radiculopathy The Veteran last underwent a VA lumbar spine examination in December 2017. He was diagnosed with degenerative arthritis and IVDS. He reported flare-ups with each episode lasting approximately 12 hours. Pain was described as dull, throbbing or stabbing depending on activity level. Walking aggravated his pain as did lifting anything over 15 pounds. ROM testing revealed forward flexion to 50 degrees, and contributed to functional loss due to interference with squatting, kneeling, bending or lifting. The examiner stated that the Veteran was not being examined following repetitive use over time or during a flare-up, and that it would require mere speculation to opine whether pain, weakness, fatigability or incoordination during such episodes caused further functional loss. The Board finds the December 2017 VA examination inadequate. In this regard, the examiner's rationale, or lack thereof, for an inability to express an opinion as to any additional loss of motion during a flare-up or following repeated use over time does not comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that such measurements are required, and examiners need to estimate functional loss that would occur during flare-ups or following repeated use over time. In this regard, the Court clarified that direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion as such information may also be gleaned from medical records or other sources available to the examiner. Id. at 35. Lastly, with regard to the increased rating claim for LLE radiculopathy, as noted above, that claim is being remanded to obtain any outstanding SSA records. Additionally, the Board notes that any further VA lumbar spine examination will necessarily provide important information as to the current severity of the service-connected LLE radiculopathy. Therefore, both claims on appeal are intertwined. TDIU The record shows that the Veteran is currently employed. During the June 2021 Board hearing, the Veteran and his representative asserted that his employer provided him with accommodations pursuant to the Family Medical Leave Act (FMLA), based on both his PTSD and lumbar spine disability. In this regard, he stated that his PTSD accommodations included being allowed to leave work and that would not get in trouble for poor attendance or missing too many days. He testified that without his accommodations, he would not be able to maintain his current employment. Accordingly, the Veteran and his representative assert that he is employed in a protected work environment. The record includes a February 2018 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, which shows that he began his current employment in September 2017. The record also includes a November 2018 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, completed by his employer. A review of that form shows that his employer indicated "N/A" as to whether any concessions were made to the Veteran by reason of any disability. Accordingly, the statements provided by the Veteran and his representative appear to be contradicted by the employment information provided by his employer. The Board is cognizant that statements provided during the Board hearing occurred after his employer had completed VA Form 21-4192. Therefore, further development of the TDIU claim is necessary to adequately adjudicate this issue on appeal. The Veteran should be afforded another opportunity to furnish information about his employment history during the period on appeal to include income he earned or currently earns from any such employment, the number of hours worked and any special circumstances (i.e., protected environment such as a family business or sheltered workshop). It is additionally important that efforts be made to obtain an updated VA Form 21-4192 from the Veteran's employer so that the Board may make a determination about whether this employment constitutes a sheltered work environment for VA purposes. The matters are REMANDED for the following action: 1. Issue a SOC to the Veteran for his increased rating claim for RLE radiculopathy. The Veteran should be given the appropriate opportunity to respond to the SOC. The AOJ should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of that claim following the issuance of the SOC unless he perfects his appeal. 2. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from his VA treatment facilities, and all private treatment records not already associated with the file. 3. Identify and obtain any outstanding SSA records that are not already associated with the record. If these records are unavailable, a written statement to this effect must also be incorporated into the claims file. 4. Then, obtain an addendum opinion by an appropriate examiner to determine the nature and etiology of his diagnosed OSA. An in-person examination should be scheduled if determined necessary by the examiner. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed OSA is etiologically related to his period of service? Please explain why or why not. The examiner is asked to consider the Veteran's lay statements that his symptoms worsened following his second deployment which occurred after the 2009 sleep study. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed OSA was caused by his service-connected PTSD and lumbar spine disabilities? Please explain why or why not. The examiner is asked to consider the submitted medical literature. (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed OSA was aggravated by his service-connected PTSD and lumbar spine disabilities? Please explain why or why not. The examiner is asked to consider the submitted medical literature. 5. After the development in #2 and #3 is completed, schedule the Veteran for a VA examination to determine the current severity of his service-connected PTSD. The examiner should review the evidence associated with the record. The examiner should identify the nature, frequency, and severity of all current manifestations of the Veteran's PTSD and specify the degree of occupational or social impairment. 6. After the development in #2 and #3 is completed, schedule the Veteran for a VA examination to determine the current severity of his service-connected lumbar spine disability and associated lower extremity radiculopathy. 7. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, with instructions to complete and return the form as to the period of time to the present the Veteran has been working. The Veteran should be specifically requested to provide information as to the income earned from his employment, specify the number of hours per week for any part-time employment, and any special circumstances attendant to such employment. 8. With any necessary identification of sources by the Veteran, obtain VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, from his current employer. The employer should be requested to provide any special circumstances attendant to such employment, to include accommodations provided, including those under the FMLA as reported by the Veteran. 9. Then, the AOJ must readjudicate the remaining issues on appeal. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.