Citation Nr: 1800446 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 13-28 355A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for temporomandibular malfunction of the jaw (TMJ), to include bruxism, to include as due to sleep apnea. 3. Entitlement to a disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Baker, Associate Counsel INTRODUCTION The Veteran had active service from July 1995 to January 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction was subsequently transferred to the RO in St. Petersburg, Florida. These matters were previously before the Board in July 2016, when they were remanded for further development. The matters now return to the Board for appellate consideration. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Here, during a March 2009 VA examination, the Veteran reported that he had last worked two years earlier, and that, because of his lower back symptoms, had become unable to do the amount of bending, twisting, and lifting that is associated with his previous employment of automobile work. He also indicated that he was in receipt of Social Security Administration disability benefits. . As such, the issue of entitlement of entitlement to a TDIU has been raised, and will be addressed by the Board at this time. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The service-connected lumbar spine disability is manifested by pain productive of limitation of motion. 2. The most probative evidence of record does not show that it is at least as likely as not that the Veteran's current TMJ was incurred in, caused by, or aggravated by service, or caused or aggravated by a service-connected disability. 4. The most probative evidence of record does not show that it is at least as likely as not that the Veteran's current sleep apnea was incurred in, caused by, or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for lumbar spine degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(West 2014); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code (DC) 5243 (2017). 2. The criteria for service connection for TMJ, to include as secondary to service-connected disability, are not met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. The criteria for service connection for sleep apnea are not met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Increased Rating- Lumbar Spine The Veteran's claim for an increased rating for his service-connected lumbar spine disability, dated in May 2010, was received in June 2010. As such, the rating period for consideration is from June 2009. The Veteran underwent VA examination of the spine in September 2010 pursuant to the increased rating claim. The examination report noted the Veteran denied having had any prescribed bedrest or treatment for the spine within the past 12 months. He also denied any impediment to his activities of daily living. He reported that his degenerative disc disease of the lumbar spine impeded his ability to work as a diesel mechanic due to pain and stiffness. It was noted that the Veteran used one Lidoderm patch a day for lumbar pain, that he took Hydrocodone as need for lumbar pain, and took Dulcoate and Flexeril twice a day for lumbar pain. He complained of daily and constant back pain of 6-7/10, stiffnes, weakness, lack of endurance, and fatigability. He described the pain as located in the middle of his lower back, and that there was no radiation of the pain. The Veteran denied the need for assistive devises, and did not note flare-ups. He denied having incapacitating episodes requiring prescribed bedrest and treatment. On physical examination, the Veteran was observed to have normal posture and gait. He ambulated unassisted. Neurological examination revealed lower extremity patellar and Achilles reflexes were 1/4. Sensory to light touch pinprick was 2-2. There was no muscle atrophy or loss of tone, and strength testing to gravity and resistance was 5-5. He had normal heel to toe walking. There was no motor apraxia, imbalance, pronator drift, fasiculations spasticity/rigidity, or pathologic reflexes. On active range of motion testing, there was 0 to 65 degrees of forward flexion. There was 0 to 30 degrees of extension, 0 to 30 degrees of right and left lateral flexion, and 0 to 45 degrees of right and left lateral rotation. Range of motion was limited by pain and stiffness. There was no scoliosis, exaggerated kyphosis, and no exaggerated lumbar lordosis. There was no deformity, malalignment, tenderness, edema, redness, heat, spasm, painful motion, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, atrophy, incoordination, instability, or pertinent abnormal weight bearing, except as noted. There was no additional limitation of motion after at least 3 repetitions, except as noted. Additional limitation of motion due to FLARE UPS reportedly could not be determined without resorting to mere speculation. Magnetic Resonance Imaging (MRI) revealed degenerative disc disease of L4-L5, disc bulge at L4-L5, and disc herniation of L5-S1. There was no radiculopathy, and functional limitation was described as minmal. The Veteran underwent VA examination in August 2013. He denied that he had been prescribed bed rest by a doctor or had any period of incapacitation due to the back disability during the past 12 months. He reported he was independent in activities of daily living. On physical examination he was observed to have an erect posture, and normal gait, and walked without assistive devices. There was no loss of function with repetitive use. The examiner reported that more definitive loss of function due to flare-ups could not be determined without resorting to mere speculation. Range of motion obtained based on several measurements, including spontaneous observations, demonstrated discrepancy. The examiner noted that the claims file had been reviewed. It was reported that an MRI on 3/27/2013 showed lower lumbar spine degenerative disc disease (DDD) with less extensive mild disc displacements, mild canal stenosis and degenerative joint disease (DJD). There was a finding of "disk displacement gently effaces the ventral thecal sac without contacting the descending S1 or exiting L5 nerve roots. The midline AP dimenision of the central canal ... is 10 11 mm at the lower 1imits of normal. There s no s gnificant foraminal narrowing." It was reported that, as per above study, no nerve roots compromise or objective basis for radiculopathy. It was also noted that, as per veteran, he has daily, almost constant low back pain. He stated that low back pain goes up to thoracic spine. He also had complaints on the right side of the body, including his arm "feels as numb." With patellar reflexes testing, he complained of some pain in the lower back. He was on pain management and obtained injections for his low back pain with some benefit. The Veteran denied flare-ups impact the function of the thoracolumbar spine. Range of motion testing revealed forward flexion to 85 degrees, with no objective evidence of painful motion. Extension was to 15 degrees, with objective evidence of painful motion beginning at 15 degrees. Right lateral flexion was t0 20 degrees, with no objective evidence of painful motion. Left lateral flexion was to 15 degrees, with no objective evidence of painful motion. Right and left lateral rotation was to 25 degrees, each, with no objective evidence of painful motion. Following repetitive-use testing with 3 repetitions, post-test forward flexion was to 85 degrees, post-test extension was to 15 degrees, post-test right lateral flexion was to 20 degrees, post-test left lateral flexion was to 15 degrees, post-tes right lateral rotation was to 25 degrees, and left lateral rotation was to 25 degrees. There was no additional limitation of range of motion of the thoracolumbar spin following repetitive-use testing. The Veteran's functional loss was described as less movement than normal, and pain on movement. There was localized tenderness or pain to palpationof the joints and/or soft tissue of the thoracolumbar spine. There was no guarding or muscle spasm of the thoracolumbar spine. Sensory testing of the lower extremities was normal. Straight leg raising tests were negative for the right and left legs. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There were no other neurologic abnormalities related to the thoracolumbar spine, to include no bowel or bladder problems or pathologic reflexes. It was reported that the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. He did not require any assistive device for locomotion. Arthritis was documented on X-ray examination. It was opined that the thoracolumbar spine disability did not impact his ability to work. The examiner commented that there was a discrepancy in range of motion obtained based on several measurement, including observations. VA treatment records dated in 2016 reflect the Veteran complained of chronic pain, and was seen for renewal of prescription for pain medication. The Veteran failed to report to his January 2017 examination. A claimant failing to report for a scheduled examination must show good cause for so doing. See 38 C.F.R. § 3.655; Engelke v. Gober, 10 Vet. App. 396, 399 (1997). The Veteran has not alleged that he lacked notice of the examination, or provided any other reason for missing the examination. The Veteran has received notice of missing the examination in a subsequent supplemental statement of the case, and the Veteran's representative acknowledges that the Veteran missed the examination, but has provided no reason. Therefore, the Board finds no evidence that the Veteran did not receive notice of the examination and that the presumption of regularity of the administrative process has not been rebutted by clear and convincing evidence. See Khyn v. Shinseki, 24 Vet. App. 228 (2011) (providing that the presumption of regularity applies to examinations). Therefore, the Board concludes that the Veteran has not shown good cause for his failure to report for the January 2017 examination. See 38 C.F.R. § 3.655. A claimant is responsible for cooperating with VA in the development of his/her claim. 38 U.S.C.A. § 5107 (a); Woods v. Gober, 14 Vet. App. 214, 224 (2000). The Court of Appeals for Veterans Claims has held, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996)." If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 (West 2014). Percentage ratings are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the clinical findings of record do not warrant the assignment of a rating in excess of 10 percent. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The clinical findings do not show forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or ankylosis. The Board considered whether a rating in excess of 10 percent would be warranted on the basis of additional functional impairment and loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the assigned 10 percent rating contemplates the Veteran's disability picture, to include functional impairment and loss due to pain, flare-ups and repetitive use. The Board considered the Veteran's statements concerning his functional limitations including fatigue, stiffness, and decreased motion. However, even considering the Veteran's reports of his symptoms, the competent and probative clinical findings do not indicate that the Veteran's disability, even when considering any such additional functional impairment and loss, has been shown to be comparable to thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Indeed, upon repetitive testing on VA examinations, there was no additional impairment in range of motion. The examiner noted that the joint function of the spine was additionally limited by pain after repetitive use, but not fatigue, weakness, lack of endurance or incoordination. An initial rating in excess of 10 percent is not warranted. Concerning Diagnostic Code 5243, the Veteran has denied incapacitating episodes. Further, there is no competent evidence to reflect incapacitating episodes. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The medical treatment records and VA examination reports do not show that the Veteran was prescribed bed rest by a physician due to intervertebral disc syndrome (IVDS). As a result, a rating in excess of 10 percent is not warranted under Diagnostic Code 5243. In adjudicating a claim, the competence and credibility of the Veteran and other lay persons must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Again, as detailed above, the statements have been considered and the Board finds that the statements are outweighed by the clinical findings of record. The Board assigns greater probative value to the clinical findings in the VA examination reports that were recorded following physical examination of the Veteran, and based on the medical expertise of the examining physician. These are more probative than the Veteran's assertions requesting a higher rating. In sum, there is no identifiable period that would warrant a rating in excess of 10 percent for the Veteran's disability. Staged ratings are not appropriate. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In light of the above, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent. The benefit-of-the-doubt doctrine does not apply and the appeal must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service Connection- TMJ The Veteran also missed a January 2017 VA examination that was intended to determine the etiology of the Veteran's TMJ. As noted above, when entitlement to a benefit cannot be established or confirmed without a current VA examination and the Veteran fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (b) (2015). As described above, the Veteran failed to attend his January 2017 examination to determine the etiology of his TMJ, as such the claim shall be adjudicated based on the evidence of record. Generally, service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). To establish service connection for a disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability which is proximately due to, or chronically aggravated by, a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends that he has TMJ that began during and was caused by military service. Further, the Veteran contends that his TMJ is secondary to sleep apnea. VA treatment records show a complaint of catching in the jaw in July 2010, many years after service. An August 2013 VA examination determined that the Veteran had bruxism, which is not a disability for VA purposes, but may be a symptom of a disability. The examiner noted the Veteran's medical history as being silent for TMJ problems or treatment. The examiner did note a 2001 record indicating the Veteran's use of a mouth piece. The examiner stated that the Veteran's TMJ symptoms are most likely a result of his developmental parafunctional habits, that include bruxism. The examiner indicates that developmental parafunctional habits are not caused by military service. The examiner concluded that the Veteran's bruxism is not a result of or aggravated by his military service. The Board noted in its July 2016 Remand that the Veteran's bruxism could be a symptom of a service connected anxiety disorder, or a yet to be service-connected sleep apnea disability. The Board sought an additional examination to determine whether service connection was warranted on a secondary basis, and the Veteran did not attend. To the extent the Veteran attributes his TMJ to service; the Board affords greater probative weight to the findings of the August 2013 VA examiner, as he applied his medical expertise in making his conclusion. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board finds that the record does not show that it is at least as likely as not that the Veteran has a TMJ disability that is etiologically related to service. As service connection for sleep apnea is denied below, entitlement to service connection for TMJ as secondary to sleep apnea, is denied. In light of the above, the preponderance of the evidence is against service connection for TMJ, to include as secondary to service-connected disability. The benefit-of-the-doubt doctrine does not apply and the appeal must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service Connection- Sleep Apnea The Veteran attended a VA examination in September 2010 that indicated the Veteran was first diagnosed with sleep apnea after service, and that it had its onset after service. A 2001 sleep study showed bruxism, but no diagnosis of sleep apnea. A subsequent sleep study in August 2010, many years after service, showed a diagnosis of severe obstructive sleep apnea. The examiner noted that military records were silent for sleep apnea. The VA obtained an addendum opinion in November 2016. That opinion stated that it is less likely than not that the Veteran's current obstructive sleep apnea is caused by, is etiologically to, or was manifested in service. The examiner provided the rationale that despite some reported symptoms suggestive of obstructive sleep apnea at the time, the 2001 sleep study did not show evidence of sleep apnea and he noted the lack of diagnosis of obstructive sleep apnea in his service treatment records. The examiner further noted that any symptomatology in service is unrelated to the sleep apnea diagnosed in 2010, and that the preponderance of medical evidence suggests that the cause of the Veteran's sleep apnea is a developmentally narrow airway, with the superimposed elevation of body mass index causing encroachment of the airway. The Board gives great probative weight to the findings of the November 2016 VA examiner. While the Veteran may contend that the symptoms he had in service are related to his current obstructive sleep apnea, he is not considered competent to draw an etiological connection, as he does not possess the requisite medical expertise. As the examiner's findings are consistent with the record, the Board finds that it is not at least as likely as not that the Veteran's sleep apnea was caused by or incurred in service. In view of the above, the preponderance of the evidence is against service connection for sleep apnea. The benefit-of-the-doubt doctrine does not apply and the appeal must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to service connection for sleep apnea is denied. ORDER Entitlement to an increased disability rating for service-connected lumbar degenerative disc disease is denied. Entitlement to service connection for TMJ, to include bruxism, to include as due to sleep apnea, is denied. Entitlement to service connection for sleep apnea is denied. REMAND As noted above, during a March 2009 VA examination, the Veteran reported that he had last worked two years earlier, and that, because of his lower back symptoms, had become unable to do the amount of bending, twisting, and lifting that is associated with his previous employment of automobile work. He also indicated that he was in receipt of Social Security Administration disability benefits. . As such, the issue of entitlement of entitlement to a TDIU has been raised. This issue has not been adjudicated by the RO, nor developed for appellate consideration by the Board at this time. As such, it must be remanded to the RO for adjudication prior to Board review. Accordingly, the issue is Remanded to the RO for the following action: 1. Provide the Veteran a VCAA notice letter as to the issue of entitlement to a TDIU, as well as a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for completion and return to VA. 2. Schedule the Veteran for VA medical examination(s) by an appropriate professional with regard to the issue of entitlement to a TDIU. All necessary testing must be accomplished. The entire claims folder must be reviewed by the examiner. The examiner is asked to interview the Veteran as to his employment and education history. Based on the examination and review of the record, the examiner must provide an opinion as to the functional impairment of the Veteran's service-connected disabilities, to include his service-connected back disability, in combination. The examiner is asked to provide an assessment of the functional impairment associated with the Veteran's service-connected disabilities in the aggregate as related to the Veteran's ability to perform activities required in various occupational situations such as walking, standing, and sedentary tasks. The examiner must also provide an opinion from a medical perspective on the impact of functional impairment due to the Veteran's service-connected disabilities in the aggregate on the Veteran's ability to maintain substantially gainful employment given his level of education and occupational history. A complete rationale must be provided for each opinion proffered. If an examiner determines that he/she cannot provide an opinion requested without resorting to speculation, then the examiner should explain the inability to provide the opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). Furthermore, the examiner is asked to comment as to whether the Veteran's subjective complaints are congruent with the objective manifestations of his service-connected disabilities found on examination. 3. After completing the above development, and any other development deemed necessary, adjudicate the issue of entitlement to a TDIU. Notice of the determination and his appellate rights should be provided to the Veteran and his representative. Only if, following receipt of a notice of disagreement, a timely substantive appeal is received after issuance of a statement of the case, the issue should be returned to the Board for appellate consideration The appellant has the right to submit additional evidence and argument on the matter 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 2014). ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs