Citation Nr: 18142239 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-58 884 DATE: October 15, 2018 ORDER The claim for entitlement to service connection for an obstructive sleep apnea disability is reopened. The claim for entitlement to service connection for a headache disability is reopened. A rating of 30 percent, but no higher, for the service-connected cervical spine disability is granted. A separate 30 percent rating, but no higher, for moderate radiculopathy of the right upper extremity secondary to the service-connected cervical spine disability are met. A separate 20 percent rating, but no higher, for moderate radiculopathy of the left upper extremity secondary to the service-connected cervical spine disability are met. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a headache disability is granted. Entitlement to a rating higher than 10 percent for the right knee disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection to fibromyalgia is remanded. FINDINGS OF FACT 1. An unappealed January 2013 rating decision that denied service connection for the sleep apnea disability is final. 2. New evidence received since the January 2013 final rating decision raises a reasonable possibility of substantiating the service connection claim for the sleep apnea disability. 3. An unappealed December 1997 rating decision denied service connection for the headache disability is final. 4. New evidence received since the final December 1997 final rating decision raises a reasonable possibility of substantiating the service connection claim for a headache disability. 5. For the rating period on appeal, with consideration of additional limitation of motion and function of the cervical spine during flare ups, the cervical spine more nearly approximated forward flexion of the cervical spine not greater than 5 degrees. 6. Resolving any doubt in the Veteran’s favor, beginning December 16, 2002, his cervical spine disability has been productive of a neurological impairment of the right and left upper extremities that results in a disability analogous to moderate incomplete paralysis of the median nerve. CONCLUSIONS OF LAW 1. The January 2013 rating decision that denied service connection for the sleep apnea disability is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.1103 (2017). 2. Evidence received after the last final January 2013 rating decision is new and material to the claim for service connection for the sleep apnea disability and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The December 1997 rating decision that denied the Veteran’s claim for service connection for a headache disability is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 4. Evidence received after the last final December 1997 rating decision is new and material to the claim for service connection for the headache disability and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. Resolving reasonable doubt in the Veteran’s favor, the criteria for a 30 percent rating, but not higher, for the cervical spine disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017). 6. For the entire period on appeal, the criteria for a separate 20 percent rating, but no higher, for moderate radiculopathy of the right (minor) upper extremity secondary to service-connected cervical spine disability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DC 8515 (2017). 7. For the entire period on appeal, the criteria for a separate 30 percent rating, but no higher, for moderate radiculopathy of the left (major) upper extremity secondary to service-connected cervical spine disability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DC 8515 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1979 to May 1980, November 1990 to April 1991, January 2001 to May 2001, October 2003 to August 2004, and December 2008 to February 2010 and subsequently retired from the Army National Guard. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from October 2014 and April 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran waived a hearing before the Board in his December 2016 substantive appeal, via a VA Form 9, except as to the issues of service connection for a psychiatric disorder and fibromyalgia. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Pertinent Laws and Regulations for Claims to Reopen Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2017). An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).   1. New and material evidence has been received; thus, entitlement to service connection for obstructive sleep apnea is reopened. The RO initially denied service connection for sleep apnea in a January 2013 rating decision, finding that there was no evidence of a nexus between the sleep apnea disability and service. The evidence considered at the time included service treatment records, a VA examination, and VA treatment records. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the January 2013 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Evidence received since the January 2013 final denial of the claim includes private treatment records, VA treatment records, a June 2014 VA examination, military Physical Evaluation Board (PEB) and Medical Examination Board (MEB) records and examinations, and statements from the Veteran and his representative. The Veteran, in the June 2015 NOD, asserts a new theory of entitlement, specifically one of secondary service connection. Generally, a new theory of entitlement alone is not enough to reopen a previously denied claim under 38 U.S.C. § 7104(b); however, if there is evidence supporting a new theory of entitlement and it constitutes new and material evidence, then VA must reopen the claim under 38 U.S.C. § 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). After the January 2013 rating decision was issued, the Veteran has been service connected for GERD and a cervical spine disorder. New November 2014 VA treatment records indicated that the Veteran’s ability to sleep is affected by the pain associated with his service-connected disabilities. Thus, this additional evidence received since the January 2013 final denial is new and material and supports a new theory of entitlement. The criteria for reopening the claim for service connection for sleep apnea are therefore met.   2. New and material evidence has been received and entitlement to service connection for a headache disorder is reopened. As to the service connection claim for a headache disability, the RO denied service connection for a headache disability in a December 1997 rating decision, finding that there was no evidence of a nexus between a headache disability and service. The evidence considered at the time included service treatment records and a VA Gulf War examination. The Veteran did not appeal the decision, and new and material evidence was not received within one year. Thus, the December 1997 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond, 659 F.3d at 1362; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The Veteran’s request to reopen the service connection claim for a headache disability was denied in a June 2014 rating decision. However, the RO reopened the claim for service connection for headaches but continued the denial of service connection in a subsequent April 2015 rating decision. The Veteran filed a timely June 2015 NOD and this appeal ensued. Evidence received since the December 1997 final denial of the claim includes private treatment records, VA treatment records, a December 2014 VA examination, military PEB/MEB records and examinations, and statements from the Veteran and his representative. This evidence, specifically a computerized July 2004 post-deployment health questionnaire, indicated the Veteran had onset or experienced headaches during an active duty related deployment from October 2003 to July 2004. Thus, this additional evidence received since the December 1997 final denial is new and material. Thus, the criteria for reopening the claim for service connection for a headache disability are therefore met. Pertinent Increased Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, 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 conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. A rating of 30 percent for the service-connected cervical spine disability is granted. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine 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. The Veteran’s cervical spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243. Under Diagnostic Code 5237, a 10 percent disability rating is assigned when there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or a combined range of motion of the cervical spine greater than 170 but no greater than 335; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. A 20 percent disability rating is for assignment when there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; a combined range of motion of the cervical spine 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 disability rating is assigned where there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned where there is unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned where there is unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (see also Plate V) provides that, for VA compensation purposes, normal cervical motion is forward flexion, extension, and lateral flexion from zero to 45 degrees. Normal left and right rotation is from zero to 80 degrees. The normal combined range of motion for the cervical spine is 340 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. Alternatively, intervertebral disc syndrome (IVDS) can be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). However, the Board finds that the Veteran has not been diagnosed with IVDS, and he has not reported any incapacitating episodes requiring physician prescribed bed rest during the last 12 months. Accordingly, the Board finds that consideration for a higher rating pursuant to Diagnostic Code 5243 is not warranted. Cervical Spine Disability Rating Analysis The Veteran is currently in receipt of a 20 percent rating for his cervical spine disability pursuant to DC 5237, effective from June 6, 2013 the date the Veteran submitted his claim for service connection. After review of all the evidence, both lay and medical, the Board finds that beginning June 6, 2012, one year before the Veteran submitted his claim for service connection, with consideration of additional limitation of motion and function of the cervical spine during flare ups, the cervical spine disability more nearly approximated forward flexion not greater than 5 degrees, which approximates the criteria for a 30 percent disability rating. VA treatment records dated September 2012 note the Veteran’s range of motion was intact with muscle tone slightly increased at the trapezius muscles, but no deformity was found. The Veteran’s neck pain was noted to be chronic. The Veteran underwent a December 2013 MRI which showed evidence of moderate osteoarthritis at C3-C4 and C7 with minimal disk herniation centrally at C5-C6 with minimal stenosis of the spinal cord and at the lateral recesses at C5-C6. The Veteran submitted a February 2014 disabilities questionnaire (DBQ) for peripheral nerve conditions in March 2014 from Dr. R.R.M., a private neurosurgeon. Dr. R.R.M. diagnosed the Veteran with a cervical spine disability with bilateral upper extremity radiculopathy. However, Dr. R.R.M. did not provide range of motion measurements for the cervical spine. The Veteran was afforded a VA cervical spine examination in June 2014. The examiner, a physician, diagnosed the Veteran with degenerative disc disease and disc bulges at C4-C5, C5-C6, C6-C7, and cervical herniation at C4-C5 by MRI. The Veteran reported having pain, usually between an 8 and 9 on a 10-point scale, with 10 being the most painful. He also reported numbness and cramping of his hands, as well as a sharp pain in his left elbow. He had been in bed for the previous four to six months due to neck pain. The Veteran reported flare ups of his cervical spine when he walked long distances. Walking caused cramping in his neck muscles and required him to sit and rest. Initial range of motion measurements indicated the Veteran had forward flexion and extension of the cervical spine to 20 degrees each with objective evidence of pain at 5 degrees. The Veteran exhibited right and left lateral flexion and right and left lateral rotation to 20 degrees with objective evidence of pain at 5 degrees. The Veteran did not have any additional loss of range of motion after repetitive use testing with three repetitions. The examiner noted the Veteran experienced additional functional loss of the cervical spine, including less movement than normal and pain. He had localized tenderness or pain to palpation in the joints and/or soft tissues of the cervical spine, but no muscle spasms or guarding were observed. No ankylosis of the spine, other neurologic abnormalities other than the bilateral radiculopathy of the upper extremities, or intravertebral disc syndrome were found. The Veteran used a Canadian crutch for ambulation and a cervical pillow for sleep constantly. The June 2014 VA examiner noted MRI studies had been performed in January 2014; however, they did not show arthritis in the cervical spine or vertebral fracture with height loss of 50 percent or more. The Veteran was treated at VA in November 2014. The physician noted that he was unable to move his neck because he experienced electric pain when he did. No Hoffman’s sign was observed, and deep tendon reflexes were normal. The physician reviewed the cervical MRI from January 2014 and noted he had spondylitic changes at C4-C5 and C5-C5. The Veteran was noted to have an abnormal pain reaction to the skin on his shoulder, neck and right side of face and mandible. He was referred to pain management. The Veteran reported sharp chronic pain in his neck that was intermittent, relieved with medication, and made worse by walking, bending the neck, and rotation in a December 2014 VA treatment record. A March 2015 memorandum for the MEB reported that the Veteran received a permanent profile in March 2014 due to his cervical spine disability. A VA treatment record dated May 2015 noted the Veteran had a flare up of his neck disability for the previous two weeks which resulted in a 10 on the pain scale, where 10 represents the most pain. Physical examination of the Veteran also showed a decreased range of motion due to chronic pain and muscle spasm. Muscle tone was increased at the trapezius and paraspinal muscle with no deformity. See also February 2016 VA treatment records. After a review of the evidence, both lay and medical, the Board finds that the June 2014 VA examination to be the most probative evidence of record. It noted forward flexion to 20 degrees with objective evidence of pain at 5 degrees. Notably, the Veteran has also credibly reported flare-ups and functional loss after repeated use over a period of time, which was not taken into consideration by the RO in determining whether there was additional loss of motion as a result. Given the Veteran’s reports of functional impairment due to flare-ups and repeated use over time, the competent medical evidence showing that the Veteran’s cervical spine disability manifested as muscle spasms and increased muscle tone in the trapezius and paraspinal muscles during a flare up, and, the objective evidence shows pain at flexion to only 5 degrees. Thus, the Board finds that, the range of motion more nearly approximates forward flexion of the cervical spine to 5 degrees, which warrants a 30 percent disability rating. Additionally, despite the September 2012 VA treatment record that reported normal range of motion for the cervical spine, the Veteran’s range of motion during a flare up was not addressed and he had already showed signs of increased muscle tone at the trapezius muscles. It is also unlikely that the Veteran’s range of motion increased in severity the day of the June 2014 examination. Thus, applying the benefit of the doubt in the Veteran’s favor, and considering the additional functional loss from the Veteran’s flare ups, a 30 percent rating will apply for the entire period on appeal beginning June 6, 2012, one year before the Veteran submitted his claim. As discussed above, there is no evidence the Veteran has IVDS, and the medical evidence does not report unfavorable ankylosis of the entire cervical spine to warrant a higher rating than 30 percent. Based on the foregoing and resolving reasonable doubt in the Veteran’s favor, the Board finds that the cervical spine disability more nearly approximates the criteria for a 30 percent disability rating for the entire rating period on appeal beginning June 6, 2012. Other Considerations In addition to consideration of the orthopedic manifestations of the cervical spine disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (1). The competent evidence indicates the Veteran has radiculopathy of the bilateral upper extremities due to the cervical spine disability. Additionally, the Veteran experiences bladder incontinence according to VA treatment records; however, the competent medical evidence of record does not associate the bladder incontinence, or any other objective neurologic abnormalities, with the cervical spine disability. Thus, no additional separate ratings, not already granted herein, are warranted. Finally, the Board notes that neither the Veteran nor his representative raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). 4. & 5. A separate 20 percent rating is assigned for the right upper extremity radiculopathy and a separate 30 percent rating is assigned for the left upper extremity radiculopathy, both associated with the service-connected cervical spine disability. In addition to consideration of the orthopedic manifestations of the service-connected cervical spine disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. The evidence here suggests that the Veteran has incomplete paralysis of the ulnar and median nerves. Incomplete and complete paralysis, neuritis, and neuralgia of other nerves of the upper extremities are addressed by Diagnostic Codes 8510 through 8512, 8514 through 8519, 8610 through 8612, 8614 through 8619, 8710 through 8712, and 8714 through 8719. The Veteran is left-handed; therefore, a rating assigned to his left upper extremity are those of the major extremity and a rating assigned to his right upper extremity are those of the minor extremity. See March 1991 and December 2000 Reports of Medical History. The regulations describe incomplete and complete paralysis for each radicular group. For the upper radicular group, complete paralysis is established where all shoulder and elbow movements are lost or severely affected, but hand and wrist movements are not affected. See 38 C.F.R. § 4.124a, DC 8510. For the middle radicular group, complete paralysis is established where adduction, abduction and rotation of arm, flexion of elbow, and extension of wrist are lost or severely affected. See 38 C.F.R. § 4.124a, DC 8511. For the lower radicular group, complete paralysis is established where all intrinsic muscles of hand, and some or all of flexors of wrist and fingers, are paralyzed (substantial loss of use of hand). See 38 C.F.R. § 4.124a, DC 8512. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The words “mild,” “moderate,” and “severe,” as used in the various diagnostic codes, are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to ensure that its decisions are “equitable and just.” 38 C.F.R. § 4.6. VA treatment records dated September 2012 show that the Veteran reported upper back pain and cramping hands. The Veteran sought treatment from a private medical clinic in December 2013. The patient screening sheet showed the Veteran had cramps in his hands for the previous two months. The pertinent discharge diagnoses from the emergency room were neck pain, suspected radiculopathy, and clinical muscle spasm. In treatment records dated February 2013, the Veteran reported cramping in his hands for the previous two months. January 2014 medical records noted the Veteran reported numbness and cramping in his hands and a sharp pain at his left elbow associated with his neck pain. Private treatment records from Dr. I.A.H. noted that the Veteran underwent EMG and NCV studies on the bilateral upper extremities in January 2014. The EMG and NCV findings show the right and left ulnar motor nerves had decreased conduction velocity, but all remaining nerves were within normal limits. The impression was that the EDX study was compatible with bilateral nerve entrapment neuropathy across the elbow. No electrodiagnostic evidence of cervical radiculopathy or peripheral neuropathy was indicated. In March 2014, the Veteran submitted a February 2014 DBQ for a peripheral nerve disability from Dr. R.R.M., a private neurosurgeon. Dr. R.R.M. diagnosed the Veteran with a cervical spine disability with associated bilateral upper extremity radiculopathy. Dr. R.R.M. indicated that the Veteran had constant moderate pain, moderate paresthesias and/or dysesthesias, and moderated numbness of the bilateral upper extremities. The Veteran had reduced muscle strength testing, bilaterally, on elbow flexion at 4 out of 5, elbow extension at 3 out of 5, wrist flexion at 3 out of 5, grip at 3 out of 5, and pinch of thumb to finger at 3 out of 5. The Veteran had muscle atrophy in the bilateral biceps. The Veteran also exhibited hyperactive deep tendon reflexes without clonus in the bilateral biceps, triceps, and brachioradialis. Additionally, he had decreased sensation testing for light touch in the bilateral shoulders, bilateral inner and outer forearms, and left hand and fingers. Dr. R.R.M. noted trophic changes in the bilateral shoulders and arms. The Veteran exhibited a positive Phalen’s and Tinel’s sign, bilaterally. Dr. R.R.M. indicated that there was moderate incomplete paralysis of the median and ulnar nerves bilaterally. An EMG study was noted to have been performed previously with abnormal results. The Veteran was afforded a VA cervical spine examination in June 2014. The examiner, a physician, diagnosed the Veteran with degenerative disc disease and disc bulges at C4-C5, C5-C6, C6-C7, and cervical herniation at C4-C5 by MRI. The Veteran reported having pain, usually between an 8 and 9 on a 10-point pain scale, with 10 being the most painful. He also reported numbness and cramping of his hands, as well as a sharp pain in his left elbow. He had been in bed for the previous four to six months due to neck pain. On examination, muscle strength, deep tendon reflexes, and sensation to light touch (dermatomes) testing were normal. The Veteran exhibited severe intermittent radicular pain, severe paresthesias and/or dysesthesias, and severe numbness in the bilateral upper extremities. The Veteran had no other signs and symptoms of radiculopathy, and the examiner did not identify which nerve roots were involved. A September 2014 EMG study, conducted by Dr. J.F.M., produced abnormal results. The interpretation of the study was that electrodiagnostic evidence showed moderate sensorimotor median nerve entrapment neuropathy at both wrists consistent with bilateral carpal tunnel syndrome. The electrophysiological findings were also consistent with mild to moderate ongoing right C-7 and left C5-C6 radiculopathies. Further, there were signs of ongoing membrane instability and reinnervation. No electrophysiologic evidence of suprascapular neuropathy, peripheral neuropathy, plexopathy, or myopathy were found. The medical evidence of record indicates the Veteran experienced radicular pain in his right and left upper extremities during the pendency of the appeal. He is competent to report pain, as it is observable by a layperson. The competent medical evidence diagnosed the Veteran with bilateral radiculopathy stemming from his cervical spine disability that manifests as pain, numbness, paresthesias and/or dysaesthesia, and hand cramping. In addition to the Veteran’s competent and credible lay statements of having radicular pain, the February 2012 private DBQ and June 2014 VA examination note the presence of neurologic impairment. As such, the Board finds that the medical evidence supports that the Veteran has neurological manifestations in his arms and hands secondary to his service-connected cervical spine disability. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that, based on the lay and medical evidence, the Veteran has had neurologic impairment in his right and left arm associated with his cervical spine disability beginning June 6, 2012. His right and left arm symptoms are analogous to moderate, at worst, radiculopathy of the median nerves. As such, the Board concludes that the evidence supports a separate 20 percent rating for the right (minor) upper extremity and a separate 30 percent rating for the left (major) upper extremity under Diagnostic Code 8515 for radiculopathy of the right and left upper extremity as associated with the cervical spine disability. However, an even higher rating of 40 percent is not warranted for the right upper extremity radiculopathy and an even higher rating of 50 percent is not warranted for the left upper extremity radiculopathy under DC 8515, as the Veteran’s neurologic symptoms are only intermittent. See 38 C.F.R. § 4.124a. Furthermore, the Board notes that while the June 2014 VA examination indicated the Veteran’s bilateral upper extremity radiculopathy was severe, the September 2014 EMG results indicate the cervical radiculopathy was mild to moderate at most, and the private February 2014 DBQ indicated the Veteran’s radiculopathy was moderate. Thus, the evidence suggests that the severity of the Veteran’s radiculopathy symptoms waxes and wanes intermittently and manifests most often as a moderate impairment. See 38 C.F.R. § 4.2. Additionally, the Board recognizes that both the Veteran’s median and ulnar nerves are affected; however, a separate rating for each nerve is prohibited as impermissible pyramiding. 38 C.F.R. § 4.14. As diagnostic code 8515 and 8516 rate moderate impairment of the nerve the same, application of one code over the other is not more or less favorable to the Veteran at this time. Thus, resolving any reasonable doubt in favor of the Veteran, the Board finds that the disability picture more closely approximates moderate incomplete paralysis of the right and left upper extremities under Diagnostic Code 8515, and the criteria for a rating of 20 percent for the right upper extremity and 30 percent for the left upper extremity, but no higher, has been approximated for the entire rating period. 38 C.F.R. §§ 4.3, 4.7. Finally, the Board notes that neither the Veteran nor his representative raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea. In the June 2015 notice of disagreement, the Veteran asserted that his sleep apnea is related to service or to his service-connected disabilities. The Veteran was afforded a VA examination for the sleep apnea during the appellate period in June 2014. A VA treatment record dated November 2014 indicated that the Veteran’s sleep was aggravated by pain experienced from his service-connected disabilities. However, no etiology opinion was provided for direct service connection or for secondary service connection. Thus, a remand is warranted to obtain an etiology opinion for the sleep apnea disability. 2. Entitlement to service connection for a headache disability. The Veteran was afforded a VA examination for the headache disability in December 2014, during the appellate period. However, no etiology opinion as to the headache disability was rendered. Thus, a remand is warranted to obtain an addendum opinion as to the nature and etiology of the headache disability. 3. Entitlement to a rating higher than 10 percent for the right knee disability is remanded. The Veteran was afforded a VA examination in April 2014 and December 2014 for the right knee; however, the examinations are inadequate in their current form. A remand is necessary to obtain an adequate VA examination. In the April 2014 VA examination, the Veteran reported moderate weekly flare ups of the right knee disability associated with prolonged walking, standing, and climbing stairs relieved by rest and pain medications. The examiner, a fee basis physician, noted the Veteran experienced flare ups and that the Veteran experienced additional functional loss or impairment generally, but the examiner did not estimate the effect of such functional loss by quantifying it as additional loss of motion (stated in degrees) in flexion or extension. The most recent VA examination of record for the knees was administered in December 2014. The Veteran reported that he experienced flare ups of the right knee disability, which caused him to stay home for a few days until the flare up resolved. The examiner concluded that because the Veteran’s right knee was not being examined after repetitive use over time or during a flare up, it would be mere speculation to determine if pain, weakness, fatigability, or incoordination would significantly limit the functional ability of the Veteran over time or during a flare up. However, the Court has held that “before the Board can accept an examiner’s statement that an opinion cannot be provided without resorting to speculation, it must be clear that this is predicated on a lack of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the specific examiner.” See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). As these requirements were not met in the April 2014 or December 2014 VA examinations, the newly requested examination should also comply with the requirements under Sharp. As such a remand is warranted. 4. & 5. Entitlement to service connection for a psychiatric disorder and entitlement to service connection for fibromyalgia are remanded. As a procedural history, the RO denied a claim for service connection for posttraumatic stress disorder (PTSD) in a June 2014 rating decision. Within one year of the June 2014 rating decision, new VA treatment records were submitted, via the IDES program, showing the Veteran was being treated at VA for an Axis I diagnosis of depressive disorder and dysthymia. The RO issued a rating decision in October 2014 denying, in part, service connection for PTSD, depressive disorder, and fibromyalgia. The Veteran submitted a timely June 2015 notice of disagreement, within one year of the October 2014 rating decision, in which he specifically appealed the denial of service connection for PTSD, a depressive disorder, and fibromyalgia. However, the RO has not yet issued a statement of the case (SOC) regarding these issues. Thus, this claim must be remanded for the RO to issue a SOC for the service connection claim for a psychiatric disorder and for fibromyalgia. Manlincon v. West, 12 Vet. App. 238 (1999). Additionally, as reflected above, the Board broadened the service connection claim for PTSD and depression to one of service connection for an acquired psychiatric disorder, to include depressive disorder, PTSD, dysthymia, or however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The matter is REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate with the claims file. 2. Then, obtain an addendum opinion as to the nature and etiology of the sleep apnea disability, to include as secondary to the Veteran’s service-connected disabilities, to include the cervical spine disability and the GERD disability. Whether a physical examination is required is left to the discretion of the examiner. However, all the Veteran’s contentions should be considered. After a thorough review of the claims file, the examiner should address the following: (a) Provide an opinion as to whether the Veteran’s sleep apnea had its onset or was otherwise related to service? (b) Provide an opinion as to whether the Veteran’s sleep apnea was proximately caused by or is aggravated by a service-connected disability, including but not limited to GERD and the cervical spine disabilities. See June 2015 NOD and October 2014 VA treatment records. 3. Obtain an addendum opinion as to the nature and etiology of the headache disability, to include as secondary to the Veteran’s service-connected disabilities. Whether a physical examination is required is left to the discretion of the examiner. All the Veteran’s contentions should be considered. After a thorough review of the claims file, the examiner should address the following: (a) Provide an opinion as to whether the Veteran’s headache disability had onset or was otherwise related to service? (b) Provide an opinion as to whether the Veteran’s headache disability was proximately caused by or is aggravated by a service-connected disability. 4. Schedule the Veteran for an additional VA examination with an appropriate clinician to determine the nature and severity for the service-connected right knee disabilities. All studies, tests, and evaluations deemed necessary by the examiner should be performed. After a thorough review of the claims file, the examiner should discuss the following: (a) Report all signs and symptoms necessary for evaluating the Veteran’s service-connected right knee disability and right knee scar(s) under the appropriate rating criteria. (b) Provide the range of motion of the right and left knees in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should provide an explanation for this determination in the report. (d) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. *If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). (g) Identify and describe any surgical scars related to the Veteran’s right knee disability and provide the findings necessary under the appropriate rating criteria for scars. *A clear rationale for each conclusion is required. 5. Readjudicate the remanded claims on appeal. 6. Issue a statement of the case for the issues of entitlement to service connection for an acquired psychiatric disorder and entitlement to service connection for fibromyalgia. See June 2015 NOD to October 2014 and April 2015 rating decisions. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Harper, Associate Counsel