Citation Nr: 18141748 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-25 707 DATE: October 11, 2018 ORDER Entitlement to a rating in excess of 20 percent for a back disability is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the appeal, the Veteran’s spine exhibited forward flexion greater than 30 degrees, but not greater than 60 degrees, and the combined range of motion of the thoracolumbar spine was greater than 120 degrees. 2. Throughout the appeal, the Veteran’s disability has not resulted in ankylosis. 3. Throughout the appeal, the Veteran has not experienced incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, which required bed rest prescribed by a physician. 4. Throughout the appeal, the Veteran has not experienced incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, which required bed rest prescribed by a physician. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for a back disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5299-5235, 5243 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1985 to June 1985 and from October 1985 to March 1990. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In May 2017, the RO granted service connection for hemorrhoids (claimed as rectal bleeding and gastrointestinal disability). Thus, this issue is no longer on appeal. 1. Entitlement to a rating in excess of 20 percent for a back disability The Veteran contends that his back disability warrants an increased rating throughout the course of the appeal. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran filed a claim for an increased rating that was received by VA in May 2013. The Veteran is in receipt of a 20 percent disability rating according to Diagnostic Codes 5299-5235. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. §4.27 (2017). According to Diagnostic Code 5235, a 20 percent rating is warranted for forward flexion of the lumbar spine greater than 30 degrees but less than 60 degrees, or combined range of motion of the lumbar spine not greater than 120 degrees, or muscle spasm, guarding or localized tenderness resulting in abnormal gait or an abnormal spinal contour. A 40 percent rating is warranted for forward flexion of the lumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent, the maximum available, is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a. These ratings are made with or without 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. Id. Note (2) of the General Rating Formula provides that, 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. 38 C.F.R. § 4.71a, DC 5243. In addition, Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on incapacitating episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS based on incapacitating episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. As to a current diagnosis, the Board notes that the Veteran has been diagnosed with IVDS and a vertebral fracture. Turning to the medical evidence at hand, in January 2014 the Veteran attended a VA examination for his back. At the examination, the Veteran reported that he has chronic intermittent low back pain. Upon examination, the examiner noted that the Veteran reported having flare-ups and the Veteran stated that when these occur he has to “sit or lie down”. In addition, the examiner noted that the Veteran’s forward flexion was 0-80 degrees, extension was 30 degrees or greater, right lateral flexion was 30 degrees or greater, left lateral flexion was 30 degrees or greater, right lateral rotation was 30 degrees or greater, and left lateral rotation was 30 degrees or greater. Moreover, the examiner noted that the Veteran had less movement than normal and pain on movement following repetitive testing. Furthermore, the examiner noted that the Veteran did not have ankylosis or IVDS. Lastly, the examiner noted that the Veteran’s disability does impact his ability to work. See January 2014 VA examination. In January 2014, the Veteran attended an additional examination for this issue. At the examination, the Veteran reported that he does not have flare-ups but has chronic back pain and left leg pain. Upon examination, the examiner noted that the Veteran had forward flexion to 50 degrees, extension to 25 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees. In addition, the examiner noted that the Veteran had pain on weight bearing and he did not have additional loss of function after three repetitions. Moreover, the examiner noted that the Veteran does not have ankylosis, but he does have IVDS. As to the IVDS, the Veteran reported that he required bed rest one time in the past 12 months. Lastly, the examiner noted that the Veteran’s condition does impact his ability to work. See January 2017 VA examination. In addition to the VA examinations, the Board has also reviewed the Veteran’s medical history. The Veteran’s medical history shows that the Veteran has reported back pain and has received periodic treatment for this disability; however, the Veteran’s medical records do not show symptoms reported in these records that demonstrates that his disability is worse than what was reported at his VA examinations. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Board acknowledges that the Veteran reported flare-ups in his 2014 VA examination. However, the Board finds that an additional examination to address the Veteran’s claimed flare-ups will not be necessary. The Board has reached this conclusion because the Veteran did not identify any lost range of motion during a flare-up and at his most recent VA examination, he did not identify any flare-ups at all. Thus, for the above stated reasons, the Board finds that an additional examination to address the Veteran’s report of a flare-up is not required. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) In sum, the Board finds that the Veteran’s condition has remained consistent and an increased rating is not warranted. After a review of the record, the Board finds that the most probative evidence of record are the results of the Veteran’s VA examinations. These examinations did not show that the Veteran had forward flexion of the thoracolumbar spine of 30 degrees or less nor did these examinations show that the Veteran’s spine exhibited any signs of ankylosis. Moreover, the record did not reflect that the Veteran had incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months nor did the Veteran experience incapacitating episodes having a total duration of at least six weeks during the past 12 months. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to a rating in excess of 20 percent for a back disability, must be denied. Extra Considerations. After reviewing the record, the Board has considered other applicable codes which would provide the Veteran with a higher rating. In this regard, the Board notes that the assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). Accordingly, one diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). With the above criteria in mind, the Board notes that Diagnostic Codes 5235 and 5243 specifically deal with the disability at issue and no alternative Diagnostic Codes are applicable in this case. In addition, the Board finds that the Veteran has not raised the matter of an extraschedular rating and that the evidence does not present exceptional or unusual circumstances. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either a Veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). As such, no further action as to this matter is required. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. As to the Veteran’s claim for sleep apnea, the Board notes that the Veteran attended a VA examination for this issue in January 2014, but the Board finds that examination inadequate to decide this case. The Board has reached this conclusion because the Veteran has reported to VA that his sleep apnea began while he was on active duty; however, the VA examiner did not provide a medical opinion and simply stated that “Veteran states that he is not claiming service connection for sleep apnea secondary to or related to the medications he is prescribed by the VA. In addition, he is not taking any medication known to cause sleep apnea.” Since the examiner did not provide a thorough and well-reasoned opinion regarding the nature and etiology of this disability, a remand is required to obtain a more complete medical opinion as to the nature and etiology of the Veteran’s sleep apnea. See 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.310 (2015); 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); Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion without supporting clinical data or other rationale does not provide the required degree of medical certainty). 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. The Board notes that the RO did not furnish the Veteran and his representative with a Statement of the Case (SOC) following his notice of disagreement regarding the March 2017 rating decision that denied his formal claim for TDIU. The Board also notes that following the March 2017 rating decision, the Veteran attended additional VA examinations and was awarded service connection for hemorrhoids and left lower extremity radiculopathy. Moreover, the Board acknowledges that the Veteran’s present claim for an increased rating also contains an implied claim of TDIU according to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also finds that although the Veteran’s claim for TDIU has been raised by the record, a decision by the Board at this time would be premature because this claim is inextricably intertwined with the Veteran’s claim for entitlement to service connection for sleep apnea. Therefore, a final decision on the issue of entitlement to TDIU cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from May 19, 2017, to the present. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran’s sleep apnea. The electronic claims file must be reviewed by the examiner. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. After a review of the claims file, the examiner should provide answers to the following questions: (A). Is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea had its onset in service or is caused by or related at least in part to his active service? (B) Is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was caused or aggravated (worsened beyond natural progression) by his service- connected disabilities? (C). Is it at least as likely as not (50 percent or greater probability) that the Veteran’s medications that are prescribed for his service connected disabilities have caused or aggravated his sleep apnea? The examiner’s opinion should include a discussion regarding the Veteran’s credible assertions that he experienced sleeping disorders while on active duty. See April 2013 Statement in Support of Claim. The examiner’s opinion should also include a discussion regarding the injuries that the Veteran sustained from his motor vehicle accident while on active duty. In providing the requested opinions, the examiner should consider the Veteran’s competent lay claims regarding the observable symptoms he has experienced. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Take all necessary steps to develop and adjudicate the Veteran’s claim for TDIU. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel