Citation Nr: 1313010 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 09-29 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 40 percent for thoracolumbar myositis and lumbosacral disc disease with a bulging disc at L5-S1. 2. Entitlement to service connection for sleep apnea as secondary to service-connected disabilities. ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1993 to July 1994 and from December 2003 to February 2005. This case initially came to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The issues of entitlement to an increased rating for thoracolumbar myositis and lumbosacral disc disease with a bulging disc at L5-S1 and entitlement to service connection for sleep apnea were before the Board in July 2012, at which time they were remanded for further development. As noted in the previous remand, in a June 2010 statement, the appellant specifically limited his appeal of the denial of service connection for sleep apnea to the question of whether his sleep apnea is secondary to his service-connected disabilities, to particularly include his medication for those disabilities, including oxycodone and hydromorphone. The Board has reviewed the Veteran's Virtual VA electronic file, which contains significant records relevant to his claims, in conjunction with this adjudication. During the course of the appeal a total rating based on individual unemployability was granted effective in August 2008. No disagreement with that action has been recorded and it is not before the Board. The Veteran has also complained of sexual dysfunction which he appears to attribute to his back pathology. If he desires to raise a specific claim for benefits, he should do so with the RO. The issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's spine disability, manifested by thoracolumbar myositis and lumbosacral disc disease with a bulging disc at L5-S1, is not productive of unfavorable ankylosis of the entire thoracolumbar spine, and has not produced incapacitating episodes having a total duration of six weeks or more during any one-year period. Radiculopathy has not been clinically established; electronic testing has been negative. CONCLUSION OF LAW The criteria for rating in excess of 40 percent for thoracolumbar myositis and lumbosacral disc disease with a bulging disc at L5-S1 are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Here, the Veteran was sent a letter in August 2008 that fully addressed all VCAA notice elements for increased rating claims and was issued prior to the initial RO decision in this matter. 38 C.F.R. § 3.159(b)(1). Accordingly, no further development is required with respect to the duty to notify. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file (including the Veteran's Virtual VA electronic file) contains the Veteran's service treatment records, post-service reports of VA and private treatment and examination, and Social Security Administration records. Moreover, the Veteran's statements in support of the claim are of record. The Board remanded the issue of entitlement to service connection for thoracolumbar myositis and lumbosacral disc disease with a bulging disc at L5-S1 in July 2012 to obtain treatment records and to provide an examination to determine the current severity of the disability. The RO obtained the relevant treatment records, which are associated with the Veteran's Virtual VA file, and provided him with an examination that fully addressed his current spine symptomatology. 38 C.F.R. § 3.159(c)(4). As such, VA adequately complied with the Board's remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Disability Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In claims for increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function, however, will be expected in all instances. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Where there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may favor one medical opinion over by providing an adequate statement of reasons or bases. See Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making all determinations, the Board must also fully consider the lay assertions of record. Buchanan, 451 F.3d at 1335. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is in receipt of a 40 percent rating for his thoracolumbar myositis and lumbosacral disc disease with a bulging disc at L5-S1. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Disabilities of the spine are rated under the General Rating Formula for Evaluating Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, and normal extension is zero to 30 degrees. Id., General Formula, Note (2). As the Veteran is assigned a 40 percent rating throughout the period on appeal, in order to warrant a higher, 50 percent rating, the Veteran's disability would have to manifest itself in unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Formula. A 100 percent rating would require unfavorable ankylosis of the entire spine. VA defines unfavorable ankylosis as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id., General Formula, Note (5). The Veteran has very limited range of motion of the thoracolumbar spine, but he has never been diagnosed with ankylosis. Per the most recent examination, which occurred in August 2012, the Veteran's range of forward flexion of the thoracolumbar spine was 10 degrees, with objective evidence of painful motion beginning at 5 degrees. He had extension to 5 degrees, with pain beginning at that point. Previously, a March 2008 spine examination showed forward flexion to 19 degrees, and extension to 7 degrees. Notably, a September 2007 private treatment note from Dr. E.R.L. indicates that the Veteran had "painful and non-functional trunk motions;" he was not diagnosed with unfavorable ankylosis, however. The records demonstrate that the Veteran has not been diagnosed with unfavorable ankylosis of the thoracolumbar spine. His symptoms are fully addressed by the 40 percent rating, which applies to spine disabilities causing limitation of forward flexion of the thoracolumbar spine to 30 degrees or less, or even favorable ankylosis. Id. As such, a rating higher than 50 percent under the General Formula is not warranted. Id. The Veteran has been diagnosed with intervertebral disc syndrome (IVDS), and thus, the Veteran could also warrant a higher, 60 percent rating if he experienced incapacitating episodes having a total duration of at least six weeks during any twelve-month period. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). For purposes of rating IVDS under the IVDS Formula, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician, and treatment by a physician. Id. at Note (1). During the period on appeal, the Veteran has not been prescribed six weeks of bed rest during any twelve-month period. In 2007, prior to his claim for an increased rating, the Veteran was variously prescribed "convalescence" and bed rest following treatment for back pain. The periods of convalescence from 2007 totaled approximately eleven days (May 2007, five days; July 2007, two periods of two days; December 2007, two days). Additionally, a psychiatrist prescribed the Veteran two weeks of bed rest to address his back symptoms and his mood, in September 2007. At the March 2008 examination, the Veteran reported three weeks of physician-prescribed bed rest during the preceding year. The August 2012 examiner noted that he had been prescribed at least two weeks of bed rest, but less than four weeks, during the preceding year; it is not clear whether the examiner relied on the Veteran's statements for that total, but it is apparent that the treatment records do not reflect that amount of prescribed bed rest. Although the treatment records do not support the Veteran's assertions, even if VA took those assertions as fact, the Veteran still would not meet the criteria for a 60 percent rating, as he does not indicate that he required more than six weeks of prescribed bed rest. As such, a higher rating under the IVDS formula is not warranted. Id. Separate ratings could be warranted for objectively-demonstrated neurologic abnormalities, such as bowel or bladder impairment, or radiculopathy of the extremities. See 38 C.F.R. § 4.71a, General Formula, Note (1). The Veteran does not have bowel or bladder problems, per the August 2012 examination report, and thus a separate rating is not warranted for bowel or bladder disabilities. The Board has also considered whether an evaluation for radiculopathy is warranted. The Board first notes that there is some suggestion in the record of radiculopathy symptoms. First, the Veteran repeatedly complained of pain radiating from his lower back down into his extremities. Radiating pain, however, is not sufficient for a separate rating; the General Formula applies with or without radiating pain. 38 C.F.R. § 4.71a, General Formula. There are also various treatment reports that suggest possible radiculopathy. An August 2007 VA treatment note indicated "suspected neuropathic/radiculopathy pain." Per a March 2008 treatment record from private physician Dr. E.R.L., the Veteran had a positive straight leg test on the right, which was the basis of a lumbosacral radiculopathy diagnosis. The radiation was primarily into the buttock, which does not warrant a separate compensable rating. Further, a September 2008 VA treatment note associated with an epidural steroid injection indicated a diagnosis of lumbar radiculopathy, but did not provide a clinical basis for that diagnosis. Despite this record, the Board finds that the weight of the evidence is against a finding that he has a radiculopathy disability during the period on appeal. Prior to and throughout the course of the appeal, the Veteran has been provided numerous electromyography (EMG) tests (September 2007, March 2008, April 2010); all tests have shown normal results, and included findings that the Veteran did not have radiculopathy. The September 2007 EMG report, provided to determine the etiology of radiating right lower extremity pain, indicated that there was no electrodiagnostic evidence of right lumbosacral radiculopathy, and no evidence of neuropathy. A February 2008 neurology consult showed negative straight leg raises for radiculopathy, although there was some muscle weakness in the lower extremities. The March 2008 EMG report (addressed in the March 2008 VA examination report), specifically addressed the fact that the Veteran had received a radiculopathy diagnosis from a private physician; the EMG report, and the examination report, included findings that the Veteran did not have radiculopathy in either lower extremity, and that there was no evidence of peripheral neuropathy. Another EMG was performed in April 2010, and the report indicated that the test was a "normal study," with no abnormal spontaneous activity in the muscles, and without evidence of bilateral lumbar radiculopathy or neuropathy. A February 2011 Gulf War illness examination found that the Veteran had normal muscle strength in the bilateral lower extremities. Most recently, the August 2012 VA examination report indicated that the Veteran had 5/5 muscle strength throughout the lower extremities, no muscle atrophy, normal reflexes bilaterally, and normal light touch sensation throughout his lower extremities. A straight leg raising test was performed, and was negative for the right and left legs. The examiner found that the Veteran did not have radicular pain, or any other signs or symptoms of radiculopathy. Weighing the evidence, the Board finds it overwhelmingly clear that the Veteran does not have a radiculopathy disability, or of any other disability of the lower extremities related to his spine disability. While the Veteran does have pain in the lower extremities, and apparently had one positive straight leg raise test in March 2008, the Board finds the numerous negative findings, both through EMG testing and straight leg raising tests, outweigh that one objective finding of a positive test. The Board also notes that the Veteran's leg pain has been associated with his service-connected fibromyalgia, for which he is receiving compensation. Throughout the appeal, the Veteran has received regular EMG testing, and all of those reports have been negative for radiculopathy symptoms. Therefore, a separate rating for radiculopathy is not warranted. Id., General Formula, Note (1) In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 55-57. The Board has also considered whether the Veteran's thoracolumbar myositis and lumbosacral disc disease with a bulging disc at L5-S1 presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case there are no exceptional or unusual factors with regard to the Veteran's spine disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (holding that the "rating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. While the Veteran has required medical treatment for his disability, there is no suggestion that he has required periods of hospitalization. To the extent that the Veteran's employment is negatively affected by his spine disability, he is in receipt of a total disability rating based on individual unemployability beginning August 8, 2008, and the issue of entitlement to a TDIU prior to that date is being remanded for development and adjudication. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. ORDER Entitlement to a rating in excess of 40 percent for thoracolumbar myositis and lumbosacral disc disease with a bulging disc at L5-S1 is denied. REMAND The issue of entitlement to service connection for sleep apnea must be remanded for a clarification of the opinion included in the August 2012 sleep apnea examination report. The Board previously remanded the Veteran's claim for service connection for sleep apnea, as secondary to his service-connected disabilities, to obtain an examination report addressing that disability's etiology. Although VA provided the Veteran with an examination, the examiner merely stated that the sleep apnea was not caused or aggravated by any of his service-connected disabilities, or the medications he takes for those disabilities. The examiner provided no medical analyses in support of her opinion. As such, the examination report is inadequate for rating purposes. See Nieves-Rodriguez, 22 Vet. App. at 302 (2008) (holding that a medical opinion that is not factually accurate, fully articulated, or based on sound reasoning, is not probative). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who performed the August 2012 sleep apnea examination for an addendum opinion regarding the etiology of the Veteran's sleep apnea. If the August 2012 examiner is no longer available, VA should determine whether a new examination is necessary, or whether a medical opinion without a new examination would address the questions presented. If a new examination is necessary, then one should be provided. The examiner should review the claims file and all relevant records associated with the Veteran's Virtual VA electronic file. The addendum should indicate that this review occurred. The examiner should opine whether it is at least as likely as not (a 50 percent chance or greater) that the sleep apnea is caused or aggravated (permanently made worse) by the service-connected thoracolumbar myositis and lumbosacral disc disease with a bulging disc at L5-S1, fibromyalgia, major depressive disorder, or irritable bowel syndrome, to include any medications taken for these disorders. The examiner should specifically address the types of side effects of the Veteran's prescription medication regimen and otherwise provide the medical bases for any opinion entered. 2. The RO should review the examination report to ensure that it is adequate and comply with the directives contained in this remand. If the report is inadequate in any manner, the RO should take immediate corrective action. 3. After completion of the above and any additional development deemed necessary, the issues on appeal must be reviewed with consideration of all applicable laws and regulations. If any claim is not granted to the Veteran's satisfaction, send him a Supplemental Statement of the Case concerning this claim and give him time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs