Citation Nr: 1325467 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 06-24 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to an increased rating greater than 10 percent for herniated nucleus pulposus L3-L4 with degenerative joint disease L4-L5 and L5-S1. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from April 1978 to April 1981 and from January 1988 to January 1992, with service in Southwest Asia from January 24, 1991 to April 1, 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the claims on appeal. A videoconference hearing was held in July 2009 before the undersigned Veterans Law Judge (VLJ). A transcript of the proceeding has been associated with the claims file. The Veteran's case was remanded by the Board for additional development in September 2009 and February 2012. The case is once again before the Board. In May 2013, the Board requested a Veterans Health Administration (VHA) expert medical opinion on the issue of entitlement to service connection for sleep apnea. On July 9, 2013, the Board received the VHA expert medical opinion report. Given the decision below, the Veteran and his representative are not prejudiced by the lack of 60 days notice of the opinion. Bernard v. Brown, 4 Vet. App. 384 (1993). FINDINGS OF FACT 1. There is clear and unmistakable evidence that the sleep apnea preexisted his first period of active duty. 2. The record does not show by clear and unmistakable evidence that the pre-existing sleep apnea was not aggravated during his two periods of military service. 3. The preponderance of competent and credible evidence reflects that the herniated nucleus pulposus at L3-L4 and degenerative joint disease of L4-L5 and L5-S1 were not productive of thoracolumbar forward flexion not greater than 60 degrees; a combined range of thoracolumbar motion not greater than 120 degrees; muscle spasm, guarding, or localized tenderness severe enough to cause an abnormal gait or abnormal spinal contour; or incapacitating episodes of intervertebral disc syndrome. CONCLUSIONS OF LAW 1. Sleep apnea was incurred in service. 38 U.S.C.A. §§ 101, 1110, 1111, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306 (2012). 2. The service-connected herniated nucleus pulposus at L3-L4 and degenerative joint disease of L4-L5 and L5-S1 does not meet the criteria for an evaluation in excess of 10 percent. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2001 & Supp. 2012); 38 C.F.R. §§ 3.102. 3.159, 3.321, 4.71a, Diagnostic Codes 5242-5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to service connection for sleep apnea The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the decision below, a detailed explanation of how VA complied with the Act is unnecessary. Governing Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3- 2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based on "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof." 38 C.F.R. § 3.304(b)(1). Analysis The Veteran argues that his sleep apnea began during his second period of active service. VA treatment records reflect that sleep apnea was diagnosed based on a March 2000 sleep study and that the appellant had complained about a history of chronic fatigue starting at an April 1995 Persian Gulf Registry examination. As noted in the Introduction, the Veteran had two periods of active duty. At the March 1978 entrance examination for his first period, the Veteran denied any history of frequent trouble sleeping. Neither sleep apnea nor any other sleep disorder was noted in the March 1978 entrance examination report. Thus, sleep apnea was not noted on entrance into service and the appellant is entitled to the presumption of soundness as to his sleep apnea. The record reflects that a December 2009 VA examiner indicated that the sleep apnea began in approximately 1992. However, an April 2012 VA examiner stated that it appears that the Veteran's sleep problems predated his first period of active duty. In a December 2012 addendum to the April 2012 VA examination report, the examiner stated that the sleep apnea clearly and unmistakably preexisted the Veteran's active service. Similarly, the July 2013 VHA expert stated that the sleep apnea clearly and unmistakably preexisted the Veteran's active service. These conclusions appear to be based primarily on statements made by the Veteran regarding his history of symptoms, to include the observations of his spouse. The earlier December 2009, however, appears to be based on incomplete knowledge regarding his history. In light of the latter two opinions, the Board concludes that there is clear and unmistakable evidence that the sleep apnea preexisting his first period of active duty. Having found that the claimed disability preexisted his entry into service, the Board notes that the crux of this case thus revolves around whether there is clear and unmistakable evidence that the Veteran's sleep apnea was not aggravated during service. See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this regard, the April 2012 VA examiner opined that the sleep apnea was clearly and unmistakably not aggravated beyond its natural progression during service. The VA examiner noted that the Veteran was snoring prior to service and during his time in service and that nothing medically plausible from a physiological perspective happened to him during his time in service to cause worsening of his sleep apnea. However, the examiner also noted that weight gain was a factor in the development of sleep apnea, and did not distinguish between the impact of weight gain that is documented during both periods of service, as opposed to weight gain that occurred while not on active duty. The July 2013 VHA medical expert opined that there was no evidence that the sleep apnea clearly and unmistakably underwent a permanent increase in severity as result of either period of military service. The VHA medical expert noted that while there was progression of the disease with age, there did not seem to be an extraordinary worsening of his sleep apnea. The Board is concerned by the use of the term "extraordinary," which suggests a higher evidentiary threshold than required under applicable law. While it is true that the applicable statute and regulations do not provide for service connection if any in-service worsening was not beyond the natural progress of the disease, the regulations do not require that only an extraordinary worsening need be established to show that the disorder worsened beyond the natural progress. In fact, the burden is to the contrary, in that it must be shown by clear and unmistakable evidence that any worsening occurred was no more than would occur naturally. Given these concerns, the Board does not consider these opinions to be clear and unmistakable evidence to rebut the statutory presumption of aggravation. In light of the above, the Board reaches the conclusion that the record, viewed as a whole, does not show by clear and unmistakable evidence that the Veteran's pre-existing sleep apnea was not aggravated during service. Thus, service connection is warranted. The benefit sought on appeal is accordingly granted. Entitlement to an increased rating greater than 10 percent for herniated nucleus pulposus L3-L4 with degenerative joint disease L4-L5 and L5-S1 Veterans Claims Assistance Act of 2000 The requirements of the 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in November 2004, October 2008, October 2009, and February 2012 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. In the October 2008 letter, VA notified the appellant of how VA determines the disability rating and effective date. The claim was most recently readjudicated in a January 2013 supplemental statement of the case. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording a VA examination. The RO and Appeals Management Center (AMC) obtained the service and VA treatment records, to include VA treatment records pursuant to the September 2009 Board remand, and afforded the appellant VA examinations pursuant to both remands. The Veteran submitted private treatment records as to his lumbar spine disability. The Board notes that the VA examinations provided sufficient clinical findings so as to allow the Board to evaluate the severity of his service-connected disability. Therefore, the Board finds that these examinations are adequate on which to base a decision. In short, the AMC fully complied with the directives of the two Board remands. Stegall v. West, 11 Vet. App. 268 (1998). Governing Law and Regulations Historically, a May 1992 rating decision granted entitlement to service connection for the herniated nucleus pulposus at L3-L4 and degenerative joint disease of L4-L5 and L5-S1 and assigned an initial rating of 10 percent under the Diagnostic Code 5293, then in effect. His current claim was received in November 2004. In a June 2005 rating decision, the RO denied a rating in excess of 10 percent under Diagnostic Code 5242-5243. In a March 2011 rating decision, the AMC granted service connection for bilateral radiculopathy of the lower extremities and assigned two 10 percent disabilities ratings effective November 10, 2004. In a July 2012 rating decision, the AMC assigned a 20 percent disability rating for right lower extremity radiculopathy effective April 10, 2012. Under 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010, traumatic arthritis is rated as degenerative arthritis that in turn is rated based upon the nature and extent of any limitation of motion. If the limitation of motion of the joint involved is noncompensable, a rating of 10 percent is applicable. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. With any form of arthritis, painful motion is an important factor. It is the intent of the rating schedule to recognize actually painful, unstable or mal-aligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less, or where there is favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is not greater 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. Note (1): VA evaluates any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012). The rating schedule further provides that an intervertebral disc syndrome (preoperatively or postoperatively) is rated under either the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under 38 C.F.R. § 4.71a, Diagnostic Code 5243, a 60 percent is in order for an Intervertebral Disc Syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is assigned when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is assigned when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Finally, a 10 percent evaluation is assigned when there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months Note (1): For purposes of evaluations under Diagnostic Code 5243, 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Analysis A review of the VA examination reports and VA and private treatment records reflects that the herniated nucleus pulposus at L3-L4 and degenerative joint disease of L4-L5 and L5-S1 were not productive of thoracolumbar forward flexion not greater than 60 degrees; a combined range of thoracolumbar motion not greater than 120 degrees; muscle spasm, guarding, or localized tenderness severe enough to cause an abnormal gait or abnormal spinal contour; or incapacitating episodes of intervertebral disc syndrome. A June 2005 VA examination report shows that forward flexion was 108 degrees. After repetitive-motion testing, the Veteran had the following range of motion: forward flexion was to 111 degrees, extension was to 24 degrees, right lateral bending was to 28 degrees, left lateral bending was to 30 degrees, and rotation was to 45 degrees bilaterally. The combined range of thoracolumbar motion with consideration of forward flexion before repetitive-motion testing and the other planes of motion after repetitive-motion testing was 280 degrees. There was no palpable paraspinous muscle spasm over the lumbar spine. There were no obvious postural defects, and heel and toe walking were intact. A December 2009 VA examination report shows the following range of motion: forward flexion was to 90 degrees, extension was to 30 degrees, lateral flexion was to 30 degrees bilaterally, and rotation was to 30 degrees bilaterally. The combined range of thoracolumbar motion was 240 degrees. The gait was normal. There was no gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis, or thoracolumbar ankylosis. The gait was normal. There was spasm and guarding on the right and left sides of the lumbar spine, but no tenderness on either side. There was no muscle spasm, localized tenderness, or guarding severe enough to be responsible for an abnormal gait or spinal contour. There were no incapacitating episodes of spinal disease. An April 2012 VA examination report shows the following range of motion: forward flexion was to 90 degrees, extension was to 20 degrees, lateral flexion was to 20 degrees bilaterally, right lateral rotation was to 20 degrees, and left lateral rotation was to 10 degrees. The combined range of thoracolumbar motion was 180 degrees. There was localized tenderness or pain to palpation for the joints or soft tissues of the thoracolumbar spine, but there was no guarding or muscle spasm of the thoracolumbar spine. There was no indication that the localized tenderness or pain to palpation was severe enough to result in an abnormal gait or abnormal spine contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. The Veteran has intervertebral disc syndrome of the thoracolumbar spine, but he did not have an incapacitating episodes over the past 12 months due to the intervertebral disc syndrome. The Board has considered the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995) and 38 C.F.R. §§ 4.40, 4.45, and 4.59, but finds that a schedular evaluation in excess of 10 percent is not warranted. In this respect, under the general rating formula for diseases and injuries of the spine the criteria are controlling regardless of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. At the June 2005 VA examination after repetitive-motion testing, the Veteran had the following range of motion: forward flexion was to 111 degrees, extension was to 24 degrees, right lateral bending was to 28 degrees, left lateral bending was to 30 degrees, and rotation was to 45 degrees bilaterally. The combined range of thoracolumbar motion was 283 degrees, and no fatigability or incoordination was noted. At the December 2009 VA examination, there was objective evidence of pain following repetitive motion. The thoracolumbar spine had the following range of motion: forward flexion was to 70 degrees, extension was to 20 degrees, lateral flexion was to 25 degrees bilaterally, and rotation was to 20 degrees bilaterally. The combined range of thoracolumbar motion was 180 degrees. the April 2012 VA examination report shows the objective evidence of painful range of motion began at the following: 90 degrees of forward flexion to resumption of the upright position, zero degrees of extension, no objective evidence of painful right lateral flexion, 20 degrees of left lateral flexion, 20 degrees of right lateral rotation, and 10 degrees of left lateral rotation. The Veteran was able to perform repetitive-use testing with three repetitions and there was no additional limitation in range of motion following such testing (the combined rating of thoracolumbar motion was still 180 degrees) nor was there any functional loss or impairment. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether a veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected lumbar spine disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability - limitation of motion of the lumbar spine - with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The December 2009 VA examination report shows that the Veteran had decreased mobility, problems with lifting and carrying, difficulty reaching, and pain. The April 2012 VA examination report reflects that his lumbar spine disability affected his ability to work in the following ways: missed work, delegating work, and avoiding using riding mowers. There is no evidence in the medical records of an exceptional or unusual clinical picture. In denying the Veteran's claim for an increased rating, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (the Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the appellant or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the evidence of record does not show, and the claimant has not asserted, that his lumbar spine disability rendered him unable to maintain substantially gainful employment since November 2003. The Veteran is currently working as a grounds maintenance laborer. Accordingly, the Board concludes that the issue of TDIU has not been raised in this case. Since the preponderance of competent and credible evidence reflects that the herniated nucleus pulposus at L3-L4 and degenerative joint disease of L4-L5 and L5-S1 were not productive of thoracolumbar forward flexion not greater than 60 degrees; a combined range of thoracolumbar motion not greater than 120 degrees; muscle spasm, guarding, or localized tenderness severe enough to cause an abnormal gait or abnormal spinal contour, a higher rating for the orthopedic manifestations of the lumbar spine disability alone is not warranted. Since the preponderance of competent and credible evidence reveals no incapacitating episodes of intervertebral disc syndrome, a higher rating under Diagnostic Code 5243 for the combined orthopedic and neurological manifestations of the lumbar spine disability, to include the separately rated bilateral peripheral neuropathy of the lower extremities, is not warranted. In summary, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against finding that to a rating in excess of 10 percent for the herniated nucleus pulposus at L3-L4 and degenerative joint disease of L4-L5 and L5-S1 is warranted. Therefore, the preponderance of the evidence is against the claim, and it is denied. ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to a rating in excess of 10 percent for the herniated nucleus pulposus at L3-L4 and degenerative joint disease of L4-L5 and L5-S1 is denied. ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs