Citation Nr: 18144522 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 15-35 078 DATE: October 25, 2018 ORDER Entitlement to service connection for sleep apnea syndrome is denied. Restoration of the 40 percent rating for the service-connected back disability is granted for the entire period in appellate status; this results in a 40 percent rating being in effect for the back disability from December 1, 2016 to November 5, 2017; a rating in excess of 40 percent for the service-connected disability is denied. Entitlement to an increased rating for service-connected scars, currently rated as 10 percent disabling, is denied. FINDINGS OF FACT 1. The preponderance of the evidence weighs against a finding that currently diagnosed sleep apnea is attributable to service. 2. The record fails to show that there was an improvement of the back disability following the grant of a 40 percent rating; considering the functional impairment of the disability, range of motion is limited to 30 degrees in flexion or less; the record does not reflect the presence of ankylosis or bed rest prescribed by a physician and treated by a physician; the preponderance of the evidence weighs against a finding of associated neurologic abnormality. 3. The Veteran is service connected for multiple scars; the evidence indicates that no more than two of these scars are painful; the evidence weighs against a finding that any of these scars is both painful and unstable. CONCLUSIONS OF LAW 1. The criteria are not met for service connection for sleep apnea. 38 U.S.C. § 1110, 1131 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.655. 2. The reduction of the rating for the service-connected back disability to 20 percent was invalid; the 40 percent rating is restored; a rating in excess of 40 percent is denied. 38 U.S.C. § 1151, 5107; 38 C.F.R. § 3.105, 3.343, 3.344, 4.71, 4.71a, DC 5235-5243. 3. The criteria for an increased rating for service connected scars, currently rating as 10 percent disabling, are not met. 38 U.S.C. § 1151, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7804 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Service Connection for Sleep Apnea The Veteran contends he has sleep apnea attributable to service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran was not diagnosed as have sleep apnea during service. Service treatment record contain documentation of sleep disturbance in 2012 but do not document an organic sleep disability. The Board notes that service connection is in effect for psychiatric disability, and chronic sleep impairment is a symptom under the General Rating Formula contained in 38 C.F.R. § 4.130. Post-service an April 2016 private sleep study reflects a diagnosis of mild obstructive sleep apnea. The record reflects that the Veteran failed to report to a February 2018 examination in regard to sleep apnea. In the March 2018 SOC, the AOJ detailed that the Veteran failed to report to the scheduled examination without providing good cause. The Veteran has not subsequently indicated any basis for failure to report. In his relevant substantive appeal, the Veteran did not detail a basis of disagreement and did not indicate a reason for failure to report. In this appeal, there is a post-service diagnosis but the evidence does not show an-service diagnosis. Further, VA sought to assist by obtaining a VA examination with opinion, but the Veteran failed to report without providing good cause. 38 C.F.R. § 3.655. This regulation provides that under these circumstances the appeal will be rated based on the evidence of record. 38 C.F.R. § 3.655(b). Here, while the Veteran is competent to detail symptoms in service, he has not provided such details here. Further, the Veteran has not been shown to possess the necessary medical knowledge to link a post-service diagnosis to service. In the Board’s judgment, this is a complex medical question and not capable of lay observation. To the extent that this is a chronic disability as defined by 38 C.F.R. § 3.307, the Veteran has not detailed a continuity of symptomatology nor does the record contain competent evidence of the disability being of a compensable level within a year of separation from active service. Considering the above, the evidence weighs against a finding that sleep apnea began in service or that there is otherwise a nexus between the current diagnosis of sleep apnea and service. On this basis, service connection for sleep apnea is denied.   2. Rating for Service Connected Back Disability In a December 2015 rating decision, the RO granted an increase in the previously service-connected back disability, rating the disability as 40 percent disabling as of April 17, 2015. Two months later, in January 2016, the RO issued a rating decision finding that the grant of 40 percent was a clear and unmistakable error and proposed reducing the rating back to 20 percent, effective December 1, 2016. In a January 2018 rating decision, the AOJ granted an increase to 40 percent for the back disability, effective November 6, 2017. The Veteran’s Notice of Disagreement makes clear that he is seeking a 40 percent for the disability for this period in which a 20 percent rating is currently assigned. Considering this procedural history, the issue is more properly characterized as the propriety of the reduction. As the SOC characterized the issue as entitlement to an increase, the Board will also consider as an increased rating claim. As to claims for increase, disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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). Regarding reduction, here, the rating was reduced based on a finding that the prior increase in rating to 40 percent was clear and unmistakable error (CUE). There are substantive and procedural protection applied prior to a rating being reduced. See 38 C.F.R. § 3.105. It is quite possible that the former rating was overly generous and that the evidence at the time did not justify the rating. VA may not, however, reduce the rating simply because the Veteran actually does not meet the schedular criteria, unless the underlying disorder has shown improvement, or unless CUE is shown in the determination to assign the disability rating. The Board will summarize the relevant VA examination for all period relevant ot the question before the Board. In an August 2013 VA examination, the examiner recorded range in flexion to 70 degrees with painful motion at 60 degrees and 65 degrees after repetitive motion. The examiner found that there were no associated neurologic abnormalities, to include radiculopathy. In a January 2015 VA examination, the examiner reported relevant findings but found certain findings required resorting to speculation. This examination does not fully document functional loss. The examiner found that there were no associated neurologic abnormalities, to include radiculopathy. In a November 2015 VA examination, the examiner found that forward flexion was to 0 degrees, but made comments as to the Veteran’s effort. The examiner found that there were no associated neurologic abnormalities, to include radiculopathy. In a June 2016 examination, the Veteran had forward flexion to 40 degrees, but the examiner was unable to state when pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time or flare-ups without resorting to mere speculation. The examiner found that there were no associated neurologic abnormalities, to include radiculopathy. The examiner wrote that it was “not possible to objectively quantitate symptom or ROM changes associated with repetitive usage over time.” In a November 2017 VAX, with flare-ups, the range of motion was recorded as 30 degrees. The examiner found that there were no associated neurologic abnormalities, to include radiculopathy. As briefly summarized above, the record contains several VA examinations evaluating the Veteran’s spine. These records reflect the challenge in accurately documenting the range of motion measurements considering functional impact, to include during flare-ups and after repetitive motion. The reduction was based on revisiting the results of the one VA examination that reflected very limited range of motion, but also raised questions regarding the Veteran’s effort. The grant and subsequent reduction were based primarily on review of this examination report. Although possibly generous, the Board cannot find that the grant of 40 percent was the product of CUE. This was a weighing of the evidence question and not undebatable as to whether there was 30 degrees or less of range of motion in flexion. Further, as reflected, the AOJ increased the rating back to 40 percent less than a year later. 38 C.F.R. §§ 3.343, 3.44. The Board restores the 40 percent rating for the period from December 1, 2016 to November 6, 2017. As to a rating in excess of 40 percent, a rating increase would require a finding of ankylosis or finding of intervertebral disc syndrome that resulted in incapacitating episodes that require bed rest prescribed by a physician and treatment by a physician of a certain number of weeks. See 38 C.F.R. § 4.71a, DC 5235-5243. Additional separate ratings will be assigned for associated neurologic abnormalities, such as radiculopathies. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Here, the lay and medical evidence does not reflect such findings. The Veteran does not assert any of these bases for increase. The Veteran is in receipt of the highest rating throughout the appellate period based on reduced range of motion. Based on the above, the Board restores the 40 percent rating for the period from December 1, 2016 to November 5, 2017 for the service-connected back disability. The Board denies entitlement to a rating in excess of 40 percent for the spine disability. 3. Rating for Service Connected Scars The Veteran seeks an increase in the service-connected scars, currently rated as 10 percent disabling. The Veteran is service connected for scars from a surgery and as a residual of a spider bite. The Veteran has asserted that he has scars that are both unstable and painful. See for example June 2013and January 2015 Notice of Disagreements. In the November 2015 substantive appeal, the Veteran asserted that the spider bite scar was both painful and unstable. Although the SOC limited the issue as to the spider bite scar, the relevant rating criteria lead to all the service-connected scars being considered. A summary of relevant procedural history will aid in adjudication of this appeal. In a June 2010 decision, the Board granted service connection for a residual cholecystectomy scar and remanded entitlement to residual scar of a spider bite to the right shin. In a July 2010 rating decision, the RO granted entitlement to a 10 percent rating for the residual cholecystectomy scar, effective October 5, 2007. Following additional development, in a February 2013 rating decision, the RO granted a non-compensable rating for residual spider bite of the right shin. Thereafter, the Veteran returned to active duty resulting in discontinuation of compensation payments, as decided in a March 2013 rating decision. The Veteran separated from this last period of service on June 17, 2012. The RO restored the 10 percent rating for service-connected scars from the day following separation from this period of service. The Veteran filed a notice of disagreement to the rating assigned to the scar in this rating decision and subsequently perfected an appeal of this rating decision. Subsequent rating decisions clarified that the 10 percent is for the combined functional impact of the two types of service-connected scars, based on there being one or two painful scars. Although in the relevant series of rating decision and code sheets, there is some ambiguity, considering the relevant law and this procedural history, the Board finds that the issue is entitlement to a rating in excess of 10 percent following this period of active service ending in June 2012. As discussed below, the basis of denial rests on there not being more than two painful scars or a scar that is both painful and unstable. As noted, disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See 38 U.S.C. § 1155. Throughout the appeal period, the rating schedule has provided that one or two scars that are unstable or painful are to be rated as 10 percent disabling. If there are three or four scars that are unstable or painful, the rating is 20 percent. A 30 percent rating is assigned for five or more scars that are unstable or painful. The regulation provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, the schedule provides that a 10 percent rating is added to the evaluation based on the total number of unstable or painful scars. See 38 C.F.R. § 4.118, DC 7804. The schedule provides that scars may also be rated based other functional impact, such as having certain characteristics of disfigurement or the scars being of a certain size. VA treatment records include discussion of the scars. In a November 2012 VA treatment record, the residual spider bite was noted to be “itching” but there was no abnormality on physical examination other than the presence of the scar itself and there was no loss of physical function. An October 2013 VA treatment record reflects that the right shin scar was slightly tender with no redness. In a November 2015 VA examination, the examiner noted that the scars were not of the head, face or neck. The examiner noted that the residual of a spider bite was painful and that there were two scars from the cholecystectomy, and that these itched. The Veteran reported that the spider bite scar gave the Veteran a “lot of trouble,” the examination, however did not reveal a scar that was unstable and painful. The examination report records the size of the scars. The examiner found that the scars did not result in limitation of function. In a September 2017 VA examination, an examiner found that the right shin scar was tender, but found that none of the scars were painful. The examiner found that none of the scar were unstable, and found that that there were no other pertinent physical findings or functional impact. Following this last examination, the AOJ issued a rating decision considering this examination. On this basis, the Board can find no prejudice in considering it, although the AOJ should have issued a Supplemental Statement of the Case. As outlined above, the Veteran has repeatedly indicated that his scars are also unstable, and, in general, of greater severity than contemplated by the current rating. He has not detailed the basis of this assertion or indicated that he is considering the definition of an unstable scar contained in the schedule. The Board finds this assertion is outweighed by the multiple VA examinations of records in which examinations specifically evaluate the size and functional impact of these service-connected scars and find that these scars are well-healed and not unstable and not of a compensable size. The examinations and VA treatment records do not provide a basis for finding that there were more than two painful scars at any time in appellate status. Although there are some subjective references to scars being itchy, the Board cannot find a medical or otherwise competent basis for finding that this is tantamount to a scar being painful. The examination of record well-detail that these scars to not have other functional impact. On this basis, a rating in excess of 10 percent for service-connected scars is denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Yonelle Moore Lee, Associate Counsel