Citation Nr: 22018046 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 14-19 601 DATE: March 28, 2022 REMANDED The claim for service connection for sleep apnea is remanded. The claim for higher ratings for the Veteran's service-connected left knee disabilities is remanded. The claim for higher ratings for the Veteran's service-connected right knee disabilities is remanded. The claim for a total disability rating based on individual unemployability (TDIU) prior to January 17, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1986 to October 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2011 and June 2011 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in August 2016 and January 2020 and was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. 1. The claim for service connection for sleep apnea is remanded. In a January 2022 brief, the Veteran's representative asserted that the Veteran's sleep apnea may have been caused or aggravated by his service-connected diabetes mellitus and/or hypertension and cited to articles that purportedly support those assertions. Accordingly, the claim is remanded in order to obtain additional medical opinions addressing these new theories of service connection. See 38 C.F.R. § 3.159(c); see also McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). The Veteran is hereby advised that if he wants to have those articles considered in his claim, he should provide actual copies of the articles, not just internet links. See Bowey v. West, 11 Vet. App. 106, 108-09 (1998) (mere reference to non VA documents is insufficient to incorporate them into the record). 2. The claim for higher ratings for the Veteran's service-connected left knee disabilities is remanded. 3. The claim for higher ratings for the Veteran's service-connected right knee disabilities is remanded. In January 2020, the Board remanded the Veteran's claims for higher ratings for his bilateral knee disabilities for a new VA examination because the VA examination reports of record indicated that the Veteran did not report flare-ups of his knee conditions; however, the Veteran has been reporting flare-ups in written correspondence with VA since June 2016. The Board directed the VA examiner to provide range of motion testing with active and passive motion and in weight bearing and non-weight bearing and to estimate additional limitation of motion during flare-ups or explain why such an estimate cannot be provided. The Veteran underwent another VA knee examination in May 2021. The examiner indicated that the Veteran did not report flare-ups, and therefore, the examiner did not provide an estimate of additional limitation of motion during flare-ups. The examiner also indicated that there was evidence of pain with weight-bearing, but did not provide range of motion measurements with weight bearing. Accordingly, the Board finds that a remand is necessary in order to provide the Veteran with another VA examination in accordance with the terms of the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). 4. The claim for TDIU prior to January 17, 2019, is remanded. In the August 2016 remand, the Board determined that a claim for TDIU was raised by the record as part of the Veteran's claim for higher ratings for his service-connected knee disabilities. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran has not submitted an application for TDIU, and treatment records show that the Veteran has consistently reported working throughout the period under review. Nevertheless, the Veteran's representative has asserted that the Veteran is entitled to TDIU during the period on appeal prior to receiving a 100 percent schedular rating. Accordingly, the Veteran should be asked to submit a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) which includes the names and addresses of all employers for whom he worked, both part-time and full-time, from 2011 to the present. Based on his response, VA should request a completed VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) from each employer identified. The matters are REMANDED for the following action: 1. Ask the Veteran to fully complete a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) which includes the names and addresses of all employers for whom he worked, both part-time and full-time, since 2011. Based on his response, VA should request a completed VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) from each employer identified. 2. Obtain another medical opinion pursuant to the Veteran's claim for service connection for obstructive sleep apnea. Do not schedule the Veteran for another examination unless it is deemed necessary by the examiner to respond to the questions presented. After review of the claims file, the examiner should answer the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea was caused by his service-connected diabetes mellitus, type II? Please explain why or why not. (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea was aggravated by his service-connected diabetes mellitus, type II? Please explain why or why not. (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea was caused by his service-connected hypertension? Please explain why or why not. (d.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea was aggravated by his service-connected hypertension? Please explain why or why not. 3. Schedule the Veteran for another VA knee examination. After examination, the examiner must answer the following: (a.) Provide an estimate of additional limitation of motion for each knee during flare-ups based on the Veteran's description of his symptoms during flare-ups provided during the VA examination and in his June 2016 written statement (VBMS Correspondence, received 6/30/16). If it is not possible to provide a specific measurement without resorting to 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). (b.) Is it possible to obtain range of motion measurements in degrees for each knee while in weight bearing? If so, provide such measurements. (c.) If it is not possible to obtain range of motion measurements in degrees for each knee while in weight bearing, the examiner must explain why such testing cannot be performed. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.