Citation Nr: 18150030 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-27 742 DATE: November 14, 2018 ORDER The petition to reopen the claim for service connection for gastroesophageal reflux disease is denied. The petition to reopen the claim for service connection for headaches is granted. Service connection for sleep apnea is denied. A compensable rating for left varicocele is denied. A rating in excess of 40 percent for recurrent low back strain with mechanical low back pain and lumbar spasm is denied. A rating higher than 20 percent for left lower extremity radiculopathy is denied. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to a rating higher than 40 percent for right lower extremity radiculopathy is remanded. Entitlement to an increased rating in excess of 10 percent for right shoulder impingement syndrome is remanded. FINDINGS OF FACT 1. An unappealed February 2010 rating decision last denied the service connection claim for gastroesophageal reflux disease. 2. Additional evidence received since the February 2010 rating decision is cumulative or redundant of the evidence previously of record, does not relate to an unestablished fact, and does not raise a reasonable possibility of substantiating the service connection claim for gastroesophageal reflux disease. 3. An unappealed February 2010 rating decision last denied the service connection claim for a headache condition 4. Additional evidence received since the February 2010 rating decision is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the service connection claim for a headache condition. 5. The Veteran has not been diagnosed with sleep apnea during the pendency of this claim. 6. The Veteran’s left testicle varicocele is not manifested by complete atrophy or removal of the testicle, voiding dysfunction, or erectile dysfunction. 7. The Veteran’s radiculopathy of the left lower extremity is manifested by moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The February 2010 rating decision, which denied service connection for gastroesophageal reflux disease, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. Since the February 2010 rating decision, new and material evidence has not been submitted to reopen the service connection claim for a gastroesophageal reflux disease. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The February 2010 rating decision, which denied service connection for a headache condition, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 4. Since the February 2010 rating decision, new and material evidence has been submitted to reopen the service connection claim for a headache condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The criteria for entitlement to service connection for sleep apnea have not been satisfied. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, (2017). 6. The criteria for a compensable rating for a left testicle varicocele, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.350, 4.3, 4.115b (2017). 7. The criteria for a rating higher than 40 percent for recurrent low back strain with mechanical low back pain and lumbar spasm are not satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Code 5242 (2017). 8. The criteria for a rating in excess of 20 percent for radiculopathy of the left lower extremity have not been satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.321, 4.3, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1982 to November 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. New and Material Under 38 U.S.C. § 5108, VA may reopen a previously and finally disallowed claim when “new and material” evidence is presented or secured with respect to that claim. This requires a review of all evidence submitted by or on behalf of a claimant since the last final denial, regardless of the basis for that denial, to determine whether a claim may be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). VA regulation defines “new and material evidence” as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “material evidence” means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). In order to warrant reopening, the new evidence must neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a “low threshold” for reopening). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Gastroesophageal Reflux Disease The service connection claim for gastroesophageal reflux disease was denied in the February 2010 rating decision as the December 2009 examiner found the Veteran’s condition was caused by his age and obesity. Additional medical evidence added to the file since the February 2010 rating decision is new, but is not material as it does not relate to an unestablished fact necessary to support the claim, namely whether it is related to active service or secondary to a service-connected disability. Further, a negative opinion provided in a 2013 VA examination report does not raise a reasonable possibility of substantiating the claim. Accordingly, new and material evidence has not been submitted. Consequently, the claim for service connection for gastroesophageal reflux disease is not reopened. See 38 C.F.R. § 3.156 (a). Headache Condition The Veteran petitions to reopen the previously denied claim of entitlement to service connection for a headache condition. For the following reasons, the Board finds that reopening is warranted. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001) (holding that the Board must determine independently whether new and material evidence has been presented to reopen the claim as a jurisdictional matter, irrespective of the decision of the RO). The service connection claim for a headache condition was denied in the February 2010 rating decision as it found that the Veteran did not have a diagnosis of a headache condition and there was no evidence relating it to service. The relevant evidence submitted since the February 2010 rating decision consists of a diagnosis of migraines, additional medical treatment records, and a VA examination. This evidence was not previously submitted to decision makers and relates to an unestablished fact necessary to support the claim. The Board also finds that it raises a reasonable possibility of substantiating the claim. Accordingly, new and material evidence has been submitted. See 38 C.F.R. § 3.156(a). Because the Board finds that new and material evidence has been submitted, the claim for service connection for a headache condition is reopened. See id. Service Connection Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Sleep Apnea The preponderance of the evidence shows that the Veteran does not have a diagnosis of sleep apnea during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran’s medical treatment records show that he was being observed for sleep apnea. See September 2013 Neurosurgery Note (reflecting the Veteran snores loudly but denied sleep apnea); August 2014 Primary Care Note (reflecting apnea was observed by the Veteran’s wife). However, upon examination, the Veteran was not found to have a diagnosis of sleep apnea. See September 2014 Sleep Medicine Diagnostic Study Report (reflecting the Veteran’s recording is not remarkable for sleep apnea); September 2014 Administrative Note (reporting the overnight pulse oximetry is ok and there is no sleep apnea). The Veteran’s statement that he currently has sleep apnea is not competent evidence, and thus is not probative. The issue of whether he had sleep apnea is medically complex and thus requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In this regard, the above records show that the diagnosis is made based on results a sleep study. The Veteran is a layperson in the field of medicine, and thus not shown to possess appropriate expertise. Consequently, the Board finds that the medical findings that he does not have sleep apnea outweigh his lay statements on this issue. In the absence of a current disability, service connection cannot be established. See Holton, 557 F.3d at 1366 (establishing service connection requires evidence of a current disability); Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (upholding VA’s interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“In the absence of proof of present disability there can be no valid claim”) (citation omitted). Because the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2012). Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower ratings for segments of time during the period on appeal in accordance with such variations, if such is supported by the evidence of record. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (holding that staged ratings may be warranted in initial rating cases). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Left Varicocele The Veteran’s left varicocele condition is evaluated under DC 7523 which relates to atrophy of the testis. DC 7523 provides for a noncompensable (zero percent) evaluation for complete atrophy of one testis and a 20 percent evaluation for complete atrophy of both testis. 38 C.F.R. § 4.115b, DC 7523 (2017). An accompanying note states that, in cases of the removal of one testis as the result of a service-incurred injury or disease, other than an undescended or congenitally undeveloped testis, with the absence or nonfunctioning of the other testis unrelated to service, an evaluation of 30 percent will be assigned for the service-connected testicular loss. The note also provides that a testis which is undescended or congenitally undeveloped is not a ratable disability. A footnote following DC 7523 provides that review should be conducted for entitlement to special monthly compensation (SMC) under § 3.350 of this chapter. 38 C.F.R. § 4.115b, DC 7523. The Veteran was afforded a VA examination in October 2015. The Veteran noted that his scrotal began swelling in 1988 and the condition has worsened. There was no evidence of renal dysfunction, voiding dysfunction, or chronic epididymitis. While the Veteran was reported to have a varicocele abnormality in the left testicle, no problems were noted with his right testicle. The Board finds that a compensable rating is not warranted under DC 7523 because there is no indication of testicular atrophy. Even if the Veteran’s left testicle varicocele were analogous to atrophy, the evidence does not show complete atrophy or an equivalent condition. Moreover, even if such were found, a 0 percent rating would still be warranted under DC 7523 as the right testicle is normal. See 38 C.F.R. § 4.115b. The Board has considered all potentially applicable DCs, and finds no basis upon which to assign a compensable rating for the Veteran’s left varicocele under any alternate code. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (all potential applicable DCs, whether or not raised by a claimant, must be acknowledged and considered by the Board). As part of the relevant DC (DC 7523) and request for an increase in benefits involving a creative organ, the Board has also considered whether the Veteran’s disability warrants entitlement to SMC for loss of use of a creative organ. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); 38 C.F.R. § 4.115b, fn. 1. As is relevant here, loss of use of a creative organ will be shown by the acquired absence of one or both testicles (other than undescended testicles) or ovaries or other creative organ. 38 C.F.R. § 3.350 (a)(1) (2017). (a)(1)(i). Loss of use of one testicle will be established when one of the following is shown: (a) The diameters of the affected testicle are reduced to one-third of the corresponding diameters of the paired normal testicle; (b) the diameters of the affected testicle are reduced to one-half or less of the corresponding normal testicle, and there is alteration of consistency so that the affected testicle is considerably harder or softer than the corresponding normal testicle; (c) when a biopsy recommended by a board including a genito-urologist and accepted by the veteran, establishes the absence of spermatozoa. Id. Here, the evidence does not show that the Veteran’s varicocele of the left testicle is manifested by any of the above conditions for SMC. Further, the medical evidence did not reveal erectile dysfunction or testicular atrophy. Therefore, in view of the above, SMC for loss of use of a creative organ is also not warranted. Accordingly, the criteria for a compensable rating for left testicle varicocele are not satisfied. Because the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. 2. Low Back Disability The Veteran’s low back strain with mechanical low back pain and lumbar spasm has been assigned 40 percent rating under 38 C.F.R. § 4.71a, DC 5242. This is the maximum rating that may be assigned based on limitation of motion of the thoracolumbar spine. Accordingly, the issue of whether there is additional loss of motion during a flare up is moot. The evidence does not show that he has ankylosis of the spine, favorable or unfavorable. Accordingly, the criteria for a rating higher than 40 percent under the General Rating Formula for Diseases and Injuries of the Spine are not satisfied. See id. Because the Veteran has not been found to have intervertebral disc syndrome (IVDS), the criteria under the Formula for Rating IDVS Based on Incapacitating Episodes are not applicable. See 38 C.F.R. § 4.71a, DC 5243. Because the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. 3. Left Lower Extremity Radiculopathy The Veteran’s left lower extremity radiculopathy has been rated under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520, which pertains to paralysis of the sciatic nerve. DC 8520 provides ratings based on paralysis of the sciatic nerve. The minimum 10 percent rating is warranted for incomplete mild paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. The maximum 80 percent rating is warranted for complete paralysis, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520 (2017). The terms “mild”, “moderate”, and “severe” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The term “incomplete paralysis,” with sciatic nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a; Note prefacing DC’s 8510 through 8730. The October 2015 VA examination report reflects that the Veteran has pain in his back resulting in limitations in sitting, bending, lifting, and standing. The examination reflects moderate paresthesia and/or dysesthesias, numbness, constant pain, and intermittent pain in the left lower extremity. On examination, the Veteran displayed decreased sensitivity in the thigh/knee and foot/toes. The Veteran’s reflexes and muscle strength were normal. There was no muscle atrophy. The examiner reported that overall, the severity of the Veteran’s left lower extremity radiculopathy symptoms was moderate. The preponderance of the evidence weighs against a rating in excess of 20 percent for radiculopathy of left lower extremity. The VA examination reports show that the Veteran’s left lower extremity radiculopathy is manifested by moderate symptoms of paresthesia and/or dysesthesias, numbness, and pain with normal strength and reflexes. The Veteran’s moderate symptoms more nearly approximate the criteria for a 20 percent rating, absent any other objective findings and with normal reflexes and muscle strength. Although there may have been fluctuations in severity of the Veteran’s left lower extremity radiculopathy during the pendency of this claim, it has not met or more nearly approximated the criteria for a higher rating at any point during the period under review, for the reasons discussed above. See Hart v. Mansfield, 21 Vet. App. 505, 509- 10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Because the preponderance of the evidence weighs against a higher rating, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Headaches A VA medical opinion is warranted as to the likelihood that the Veteran has a headache disorder related to his in-service headaches. 2. Right Lower Extremity Radiculopathy A November 2015 rating decision granted a 40 percent rating for the Veteran’s right lower extremity radiculopathy. He submitted a timely notice of disagreement in February 2016. In a statement submitted in June 2016, the Veteran’s representative noted that this issue was appealed in February 2016 and was not included on the March 2016 Statement of the Case (SOC) along with the Veteran’s other claimed issues. See June 2016 Third Party Correspondence. An SOC was provided for this issue in November 2016. However, a September 2018 letter from the Veteran’s representative states that neither she nor the Veteran received it. Because the Veteran has submitted a timely NOD, and there is credible evidence that the SOC was never received by the Veteran or his representative, the Board will take jurisdiction for the purpose of remanding for reissuance of the SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 3. Right Shoulder The October 2015 VA examination report does not contain the testing required by Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). It also does not provide an estimate of additional loss of motion during a flare-up, or explain why such an estimate cannot be provided, as required by Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, a new VA examination is warranted. The matters are REMANDED for the following action: 1. Add to the file the Veteran’s outstanding VA treatment records, if any, dated since October 2016. 2. Re-send to the Veteran and his representative the November 2016 SOC addressing the evaluation of his right lower extremity radiculopathy. He should be provided another 60 days from the date of mailing of the SOC to file a substantive appeal. 3. Obtain a VA medical opinion as to whether it is at least as likely as not (50% probability or more) that the Veteran has a headache disorder linked to the headaches he reported in service, and shortly after service separation. The examiner should consider that a February 1992 VA examination report shows that the Veteran reported frequent left-sided headaches radiating behind his eyes. The Veteran has stated that he began having headaches during service when an air cylinder exploded, and has continued to get headaches. See November 2015 VA Examination Report. 4. Arrange for a VA examination to assess the current severity of the Veteran’s right shoulder disability. All pertinent findings must be recorded in the examination report. To the extent possible, the examiner should test for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, test the range of motion of the left shoulder. If the examiner finds that such testing is not possible or not warranted, the examiner should so state and provide an explanation. If the Veteran endorses flare-ups, the examiner must obtain as much information as possible from the Veteran as to the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. The examiner must then provide an estimate of additional loss of range of motion, if any, during a flare-up or on repeated use over time. (Continued on next page)   If the examiner is unable to provide such an estimate, the examiner must explain why the available information, including the Veteran’s own statements, is not sufficient for that purpose. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel