Citation Nr: 1805007	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  14-00 726	)	DATE
	)
	)

On appeal received from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1. Entitlement to service connection for sleep apnea.

2. Entitlement to a rating in excess of 10 percent for a low back disability.


REPRESENTATION

Veteran represented by:	James G. Fausone, Attorney


ATTORNEY FOR THE BOARD

W.V. Walker, Associate Counsel





INTRODUCTION

The Veteran served on active duty from August 1986 to August 1990, November 1990 to November 1994, and July 1999 to June 2002.

The matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The Veteran's low back disability claim was initially granted and assigned a noncompensable rating in a July 2007 rating decision.  The Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period; thus, the decision became final. See 38 U.S.C. §§ 5103, 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2017).  The Veteran filed an increased rating claim for his low back disability in February 2010.  The Veteran's claim was denied in the November 2010 rating decision and the Veteran disagreed in June 2011.  The Agency of Original Jurisdiction (AOJ) never issued a statement of the case in response to the June 2011 notice of disagreement.  In a November 2013 correspondence from the Veteran's representative, the Veteran once again requested an increased rating for his low back disability.  In September 2014, the AOJ awarded a 10 percent rating which was given an effective date of November 25, 2013.  The Veteran disagreed with both the rating and the effective date in his September 2015 notice of disagreement.  In January 2016, the AOJ found that a clear and unmistakable error was committed in the initial evaluation of the low back disability and granted an effective date of December 21, 2006 for the 10 percent rating.  The AOJ grant of an earlier effective date for the 10 percent evaluation effectively amends the July 2007 rating decision, but does not reopen the earlier appeal period. See 38 C.F.R. § 3.105(a) (2017).  However, the February 2010 application for an increased rating started a new appeal period which is ongoing.  Thus, the Board's evaluation of the increased rating claim for a low back disability is limited to the appeal period beginning February 11, 2010.  

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 AOJ.  VA will notify the Veteran if further action is required.


FINDINGS OF FACT

1. For the period prior to November 25, 2013, the Veteran did not present any medical evidence of a low back disability that was characterized by forward flexion of the thoracolumbar spine of 60 degrees or less; 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

2. For the period starting November 25, 2013, the Veteran's low back disability has been characterized by forward flexion limited to 70 degrees with objective evidence of painful motion beginning at 60 degrees. 


CONCLUSIONS OF LAW

1. For the period prior to November 25, 2013, the criteria for a rating in excess of 10 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5242 (2017).

2. For the period starting November 25, 2013, the criteria for a rating of 20 percent, but no higher, for a low back disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5242 (2017).





REASONS AND BASES FOR FINDINGS AND CONCLUSION

Applicable Law

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7.  The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1995).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.  
 
Pyramiding under different diagnostic codes is to be avoided. 38 C.F.R. § 4.14 (the evaluation of the same disability under various diagnoses is to be avoided).
 
The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In this case, the Veteran's low back disability has significantly changed over the course of the appeal period; thus, staged ratings have been assigned accordingly.

The Veteran's service-connected low back disability has been rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242.  Under DC 5242, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or, localized tenderness not resulting in abnormal gait or abnormal spinal contour.

A 20 percent rating is assigned for 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.

A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.

A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent rating is assigned for unfavorable ankylosis of the entire spine.

Analysis 

The Veteran contends that he is entitled to an increased rating for his low back disability because the current assigned 10 percent rating does not adequately represent the severity of his condition.  The Board finds that there is insufficient evidence to grant an increased evaluation for the period prior to November 25, 2013.  In response to his February 2010 claim for an increased rating, the Veteran was scheduled for a VA examination in March 2010.  He was unable to attend because of work but indicated that he would contact VA when he was able to take time off from work to attend an examination.  The Veteran did not have further communication with VA about his low back disability until his November 2013 correspondence.  The Veteran has not submitted any medical evidence that demonstrates a worsening of his condition for the period prior to November 25, 2013; thus, an increased rating for this period is not warranted. 

For the period starting November 25, 2013, the Board finds that the evidence demonstrates entitlement to a rating in excess of 10 percent.  In connection with his increased rating claim, the Veteran underwent a VA examination in July 2014.  His forward flexion was to 70 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees and left lateral rotation to 30 degrees.  There was objective evidence of painful motion on forward flexion at 60 degrees, on extension at 20 degrees, on right lateral flexion at 30 degrees, on left lateral flexion at 30 degrees, on right lateral rotation at 30 degrees and on left lateral rotation at 30 degrees.  

After repetitive use testing, the Veteran's forward flexion was to 75 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees and left lateral rotation to 30 degrees.  The examiner noted that there was functional loss and impairment of back due to less movement than normal, painful movement and interference with sitting, standing and weight-bearing.  The examiner also observed mild to moderate tenderness of the lumbosacral paraspinous muscles; muscle spasms that did not result in abnormal gait or spinal contour; and, no guarding.  Muscle strength testing, deep tendon reflexes and sensory examinations were all normal.  There was no ankylosis.

The Veteran underwent a second VA examination in July 2016.  The Veteran reported experiencing flare-ups and occasional increases in severity of his low back disability symptoms.  On range of motion testing, the Veteran's forward flexion was to 80 degrees, extension to 20 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 25 degrees and left lateral rotation to 25 degrees.  The examiner noted pain on extension which caused functional loss; however, the examiner did not indicate at which degree objective evidence of pain was observed.  There was also evidence of pain on weight-bearing, and objective evidence of localized tenderness or pain on palpation of joints or associated soft tissue over the midline and the left sacroiliac joint.  There was no ankylosis.

The Veteran was able to perform repetitive testing with at least three repetitions with no additional loss of function or range of motion.  The examiner noted that the examination was not conducted during a flare-up but that it was medically consistent with the Veteran's statements describing his functional loss during flare-ups.  During flare-ups, the Veteran's functional ability is limited by pain and fatigue and the resultant limitation cannot be described in terms of range of motion-just severe increased pain.  Muscle strength testing, deep tendon reflexes and sensory examinations were all normal; the Veteran's muscle spasms did not result in abnormal gait or spinal contour; and, there was no guarding.

In light of the evidence, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's disability picture more closely approximates the picture contemplated at the 20 percent rating for the period starting November 25, 2013. The Board finds, however, that the Veteran's symptomatology has not approximated that required for a 40 percent rating.  Specifically, the evidence does not demonstrate forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  Both the July 2014 and July 2016 VA examiners observed forward flexion to a greater degree than 30 and also noted that there was no ankylosis.  The July 2014 examiner noted that there was objective evidence of painful motion on flexion at 60 degrees.  The July 2016 examiner observed pain on extension but did not indicate the degree at which pain began.  The examiner further noted that the examination was not being conducted during a flare-up and that pain and fatigue present during flare-ups significantly limited functional ability.  The Board acknowledges the Veteran's reports of pain and functional impairment, but finds that these symptoms are specifically contemplated by the 20 percent rating.  Resolving any doubt in the Veteran's favor, the Board concludes that the weight of the evidence preponderates in favor of a finding of entitlement to a rating of 20 percent, but no higher. 


ORDER

For the period prior to November 25, 2013, an rating in excess of 10 percent for a low back disability is denied.

For the period starting November 25, 2013, an increased rating of 20 percent, and no higher, for a low back disability is granted.




REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2016).

The Veteran underwent a VA examination for his sleep apnea claim in August 2016.  The examiner concluded that the Veteran's sleep apnea condition was not caused by his service or service-connected psychiatric condition and had not undergone an increase in severity.  However, the examiner failed to provide a supporting rationale for either conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  In addressing the Veteran's claim that his sleep apnea was aggravated by weight gain caused by medication for his service-connected psychiatric condition, the examiner also did not accurately recount the Veteran's treatment history for his psychiatric condition.  Thus, on remand, the AOJ should obtain a new opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also Nieves-Rodriguez, 22 Vet. App. at 304.

Accordingly, the case is REMANDED for the following action:

1. Obtain all updated treatment records, to include any records from the Loma Linda VA Medical Center from November 2016 to the present, and associate them with the claims file or virtual record.

2. Obtain a new VA examination that addresses the nature and etiology of the Veteran's sleep apnea.  Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished.  The entire claims file, to include a complete copy of this REMAND, should also be made available to the examiner designated to provide an opinion.  The examination report should include a discussion of the Veteran's documented medical history and assertions.  

The examiner should offer comments, an opinion and a supporting rationale for each of the following:

(a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea is etiologically related to his active duty service.

(b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was caused by or aggravated by (i.e., underwent a permanent worsening) his service-connected psychiatric disability.  In providing this opinion, please specifically address the Veteran's contention that citalopram caused him to gain weight which caused him to develop sleep apnea. See May 2010 Correspondence; February 2012 Buddy Statement.

(c) If the examiner opines that the Veteran's sleep apnea was aggravated by his service-connected psychiatric disability, please provide an opinion as to the degree of aggravation.  In providing this opinion, the examiner should identify a baseline manifestation of the Veteran's sleep apnea and describe the increased impairment that is due to the psychiatric disability and related medication treatment.

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered.  If the examiner rejects the Veteran's reports, the examiner must provide a reason or doing so.

3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated.  If the claim is not granted in full, the Veteran must be provided a supplemental statement of the case.  An appropriate period of time must be allowed for response.  Thereafter, if indicated, the case must be returned to the Board for an appellate decision.

The Veteran has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012).




____________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs