Citation Nr: 1805061 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-23 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected adjustment disorder. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected adjustment disorder. 3. Entitlement to an initial rating in excess of 20 percent for degenerative arthritis and anterolisthesis of the cervical spine. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1972. This matter comes before the Board of Veterans Appeals (Board) on appeal from May 2013 and January 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The service connection issues were remanded by the Board in November 2015 for further evidentiary development. In the same decision, the Board granted service connection for degenerative arthritis of the cervical spine, which was effected in the January 2016 rating decision with a 10 percent evaluation. The Veteran has perfected an appeal with respect to the initial evaluation, which has since been increased to 20 percent in a February 2017 rating decision. FINDINGS OF FACT 1. Obstructive sleep apnea was not manifest in service and is not attributable to service. 2. Obstructive sleep apnea is not shown to be caused or aggravated beyond its natural progression by a service-connected disease or injury. 3. Erectile dysfunction was not manifest in service and is not attributable to service. 4. Erectile dysfunction is not shown to be caused or aggravated beyond its natural progression by a service-connected disease or injury. 5. For the entire period, the Veteran's degenerative arthritis and anterolisthesis of the cervical spine manifested with functional forward flexion of the cervical spine not greater than 30 degrees; but not forward flexion of 15 degrees or less, or unfavorable ankylosis of the entire cervical spine; or any incapacitating episodes. CONCLUSIONS OF LAW 1. Obstructive sleep apnea was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. Obstructive sleep apnea is not proximately due to or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b) (2014); 38 C.F.R. §§ 3.102, 3.310 (2017). 3. Erectile dysfunction was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 4. Erectile dysfunction is not proximately due to or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b) (2014); 38 C.F.R. §§ 3.102, 3.310 (2017). 5. The criteria for an initial rating in excess of 20 percent for degenerative arthritis and anterolisthesis of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist The Board notes that in the representative's September 2017 statement, he asserts that the May 2017 VA examiner should have discussed whether the Veteran's obstructive sleep apnea and erectile dysfunction are secondary to his service-connected cervical spine disorder. Specifically, the representative notes that the examiner's assertion that the Veteran's sleep apnea is the result of his post-service weight gain, and suggests that the Veteran's weight gain is the result of his service-connected cervical spine disorder. Having carefully reviewed the record, the Board has determined that this bare assertion of a relationship between the Veteran's cervical spine disorder and the service connected issues raised on appeal does not warrant a new VA medical opinion or render the May 2017 VA opinions inadequate to any degree. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran and his representative have provided no evidence in support of such contention. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Service Connection Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a 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 -the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Obstructive sleep apnea and erectile dysfunction are not identified as "chronic" diseases under 38 U.S.C §1101 and 38 C.F.R. § 3.309(a). As a result, the provisions of 38 CFR 3.303 (b) are not applicable. Service connection is warranted on a secondary basis for "disability which is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310 (a). Secondary service connection is also warranted for "[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease." 38 C.F.R. § 3.310 (b). The Board notes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310 (b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. Direct Service Connection The Veteran reports that obstructive sleep apnea was diagnosed in 2010 and was verified upon July 2014 sleep testing. Erectile dysfunction was diagnosed in 2008. The Veteran asserts that he had difficulty sleeping in service. He has not provided a specific assertion as to how his erectile dysfunction is directly related to service. A review of service treatment records shows no relevant complaints, objective findings, treatment, diagnosis, or any other manifestations of sleep apnea or erectile dysfunction. At the Veteran's February 1972 separation examination, physical examination revealed the relevant systems as normal and did not document any difficulty sleeping or symptoms relevant to erectile dysfunction. The May 2017 VA examiner opined that it was less likely than not that the Veteran's obstructive sleep apnea is directly related to his service. The examiner explained that obstructive sleep apnea was not apparent in service. The Veteran was approximately 60 pounds lighter upon separation than his present weight. The examiner determined that the Veteran's obstructive sleep apnea is the result of his current obesity. The same May 2017 VA examiner determined that there was a clear association between the Veteran's obstructive sleep apnea and erectile dysfunction, concluding that it is "more likely than not that the [erectile dysfunction] is caused by [obstructive sleep apnea]." In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the May 2017 VA examiner's opinion that the Veteran's obstructive sleep apnea is less likely than not related to his service as highly probative medical evidence on this point. The Board notes that the examiner rendered his opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran's pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens, 11 Vet. App. at 383; Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). To the extent that the Veteran asserts that his sleep apnea and erectile dysfunction are directly related to service, the Board finds these statements are far less probative than the opinions of the VA medical professional, as they are far more detailed and reasoned. The Board finds that the probative value of the general lay assertions is outweighed by the clinical evidence of record. Physical examination upon separation from service revealed that relevant systems were normal and service treatment records are void of any relevant complaints, symptoms, treatment, diagnosis, or other manifestations. As previously noted, the evidence of record suggests that the Veteran was not identified with sleep apnea until approximately 2010 and erectile dysfunction until 2008, over 35 years after separation. There is no medical evidence of record documenting manifestations of sleep apnea, erectile dysfunction, or any other relevant disorders in service. The Board finds that the contemporaneous medical records outweigh the post-service lay statements of the Veteran with respect to a direct link between the Veteran's sleep apnea or erectile dysfunction and military service. The medical evidence of record is afforded greater probative value than the more general lay assertions of the Veteran. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); see also Jandreau, supra. In sum, there is insufficient competent, credible and probative evidence linking the Veteran's obstructive sleep apnea or erectile dysfunction to service. The contemporaneous records establish that relevant systems were normal at separation and service treatment records do not document any relevant notations. The more probative evidence establishes that the Veteran did not have obstructive sleep apnea or erectile dysfunction during service, that such disorders are not related to any event in service, and instead the Veteran's erectile dysfunction is the result of his sleep apnea, which is due to post-service weight gain. The evidence establishes that the remote onset of obstructive sleep apnea and erectile dysfunction is unrelated to service. For all of these reasons, service connection on a direct basis is not warranted for obstructive sleep apnea or erectile dysfunction. Secondary Service Connection Alternatively, the Veteran asserts that his obstructive sleep apnea and erectile dysfunction are secondary to service-connected adjustment disorder. The Board also notes that in the representative's most recent communication in September 2017, he suggests that the aforementioned weight gain is due to the Veteran's service-connected cervical spine disorder, and as a result, the Veteran's sleep apnea and erectile dysfunction are secondary to the cervical spine. In a June 2017 addendum opinion, the VA examiner opined that it was less likely than not that the Veteran's sleep apnea is proximately due to or the result of his service-connected adjustment disorder. The examiner also opined that the Veteran's psychiatric disorder did not aggravate the Veteran's sleep apnea. He explained that the Veteran's sleep apnea is not central, but obstructive, meaning that it is "caused by anatomic airway mechanical obstruction, not a physiologic reaction to any emotional etiology." In a separate opinion, the examiner opined that the Veteran's erectile dysfunction is less likely than not related to his service-connected adjustment disorder. He explained that the Veteran began experiencing symptoms of erectile dysfunction around the time of his sleep apnea diagnosis, with an initial response to sildenafil. The examiner notes that there is a clear association between the Veteran's obstructive sleep apnea and his erectile dysfunction, and thus it is "more likely than not that the [erectile dysfunction] is caused by [obstructive sleep apnea], rather than depression." With respect to the contention by the Veteran's representative that the service-connected cervical spine disorder caused the Veteran's weight gain, and as a result, is the cause of his sleep apnea and erectile dysfunction, the Veteran and his representative have provided no evidence beyond a bare assertion. VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board again acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., an injury during his active military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Buchanan, supra; Jandreau, supra. However, as a layperson, it is not shown that the Veteran possesses the medical expertise to provide a medical opinion linking his diagnosed obstructive sleep apnea or erectile dysfunction to his service-connected adjustment disorder or cervical spine disorder. The medical opinions of record link the Veteran's sleep apnea to post-service weight gain and the Veteran's erectile dysfunction to his sleep apnea. There is no medical or competent lay evidence showing that the Veteran's sleep apnea or erectile dysfunction are caused by or aggravated by a service-connected disability. No competent medical opinions appropriately linking his sleep apnea and erectile dysfunction to a service-connected disability have been presented. The Board finds that the lay statements of record are outweighed by the VA examiner's opinions. The preponderance of the evidence is against a finding that the Veteran's currently diagnosed obstructive sleep apnea is directly related to service, or in the alternative, secondary to a service-connected adjustment disorder or other service-connected disability, and the claim must be denied. Similarly, the preponderance of the evidence is against a finding that the Veteran's currently diagnosed erectile dysfunction is directly related to service, or in the alternative, secondary to a service-connected adjustment disorder or other service-connected disability, and the claim must be denied. III. Increased Rating Cervical Spine Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. Staged ratings are appropriate for a rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here the disability has not significantly changed and a uniform evaluation is warranted. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Veteran is in receipt of a 20 percent evaluation for degenerative arthritis and anterolisthesis of the cervical spine under Diagnostic Code 5242, effective April 28, 2009. The Veteran has challenged the initial evaluation. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher rating. There has been no documentation of incapacitating episodes or IVDS, and as a result, an evaluation will be made under the General Rating Formula. Under the General Rating Formula, a cervical spine injury is rated as follows: A 20 percent evaluation is warranted where forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine is not greater than 170 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 30 percent evaluation is warranted for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is provided for unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a. The rating criteria further explain under Note (1), that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. At a February 2009 VA examination, relevant range of motion testing was not performed. There was no ankylosis. At a December 2016 VA examination, forward flexion was 30 degrees. The combined range of motion was 250 degrees. There was pain on extension which did not result in functional loss. There was not pain on flexion. There was no pain on weight bearing. Testing after repetitive use did not result in additional limitation of range of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. There was muscle spasm, but not resulting in abnormal gait or abnormal spinal contour. There were no neurological abnormalities. There was not ankylosis. There was not IVDS. The examiner determined that the Veteran's cervical spine disorder did not impact his ability to work. Based on the evidence of record, the Board finds that an evaluation in excess of 20 percent is not warranted. Objective medical findings are consistent with a 20 percent evaluation. There is no evidence of the Veteran's cervical spine disability manifesting in functional limitation equivalent to forward flexion of 15 degrees or less, or of ankylosis of the cervical spine. With respect to the provisions of 38 C.F.R. §§ 4.40, 4.45 and DeLuca consideration, the Veteran's range of motion was not limited upon repetitive motion testing. The Veteran did not exhibit any further loss of motion due to pain, fatigue, weakness, lack of endurance, or incoordination upon repetitive motion testing. Pain was noted at times during the examinations. However, even with pain, there is no indication that the Veteran's flexion was limited to 15 degrees or less. There is also no evidence of ankylosis. The Board has not overlooked the statements by the Veteran with regard to the severity of his disability. The Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing pain; and the Board finds that the Veteran's reports have been credible. See Jandreau, supra; Washington, supra. The Board has considered the Veteran's reports along with the medical evidence of record. Here, the most probative evidence consists of the VA examinations prepared by competent providers. ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to an initial rating in excess of 20 percent for degenerative arthritis and anterolisthesis of the cervical spine is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs