Citation Nr: 18156794 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-62 179 DATE: December 11, 2018 ORDER Service connection for tail bone disorder is denied. Service connection for obstructive sleep apnea (OSA) is denied. A higher initial rating in excess of 10 percent for lumbar spondylosis (lumbar spine disability) is denied. A separate 10 percent disability rating for left lower extremity lumbar radiculopathy from July 18, 2016, is granted. A separate 10 percent disability rating for right lower extremity lumbar radiculopathy from July 18, 2016, is granted. FINDINGS OF FACT 1. The Veteran is not currently diagnosed with a tail bone disorder. 2. The Veteran is currently diagnosed with obstructive sleep apnea (OSA); the currently diagnosed OSA did not have its onset during, and is not otherwise etiologically related to active service. 3. For the entire initial rating period on appeal from February 26, 2015, the lumbar spine disability has been manifested by pain and limitation of forward flexion greater than 60 degrees, without ankylosis, limitation of forward flexion to 60 degrees or less, a combined range of motion in the thoracolumbar spine less than 120 degrees, or incapacitating episodes requiring physician ordered bed rest having a total duration of at least two weeks during a 12 month period. 4. For the period from July 18, 2016, the lumbar spine disability has resulted in mild incomplete paralysis of the sciatic nerve in both the left and right lower extremity. CONCLUSIONS OF LAW 1. The criteria for service connection for tail bone disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 3. The criteria for a higher initial disability rating for the service-connected lumbar spine disability in excess of 10 percent from February 26, 2015, have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 4. Resolving reasonable doubt in favor of the Veteran, for the period from July 18, 2016, the criteria for a separate rating of 10 percent for mild incomplete paralysis of the sciatic nerve in the left lower extremity have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 5. Resolving reasonable doubt in favor of the Veteran, for the period from July 18, 2016, the criteria for a separate rating of 10 percent for mild incomplete paralysis of the sciatic nerve in the left lower extremity have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from November 1985 to November 2005. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Veteran is currently diagnosed with obstructive sleep apnea, which is not listed as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post service symptoms do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Service connection for tail bone disorder The Veteran generally asserts that a tail bone disorder is the result of military service. See April 2015 Claim. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a currently diagnosed tail bone disorder. Private treatment records throughout the relevant claim period on appeal do not reflect any complaints, treatment, or diagnosis for a tail bone disorder. Instead, a June 2015 VA examination report reflects the Veteran was examined, but the examiner did not find a current tail bone disorder. Because the weight of the evidence demonstrates the Veteran is not currently diagnosed with a tail bone disorder, the claim for service connection for a tail bone disorder must be denied. 2. Service connection for obstructive sleep apnea The Veteran asserts that OSA developed during military service and that he exhibited symptoms of OSA during service. See December 2016 VA Form 9. Initially, the Board finds that the Veteran is currently diagnosed with OSA. See August 2011 private treatment record. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence shows that the current OSA did not have its onset during service, and is not otherwise etiologically related to service. Service treatment records do not reflect any complaints, symptoms, or diagnosis for OSA or any other sleep-related issues or symptoms. The earliest evidence of OSA appears in a post-service July 2009 private treatment record wherein the Veteran reported fatigue and malaise; the July 2009 private provider noted that the symptoms may be OSA and ordered a polysomnography examination. The earliest evidence of a sleep apnea diagnosis confirmed by a sleep study was shown in 2011, approximately 6 years after service separation in 2005. Additionally, a July 2011 private treatment record reflects the Veteran reported symptoms such as snoring and excessive daytime sleepiness had a gradual onset four years ago, or post-service in 2007. Considered together with the lay and medical evidence contemporaneous to service showing no sleep apnea symptoms, the approximate 2-year period between service separation in 2005 and the onset of sleep apnea symptoms approximately in 2007 is an additional factor that weighs against service incurrence. The Board has considered the Veteran’s competent lay account of OSA symptoms during and since service; however, because the accounts are inconsistent with, and outweighed by, the lay and medical evidence contemporaneous to service showing no OSA or sleep-related symptoms or diagnosis during service, and post-service lay and medical evidence showing an onset of sleep apnea in 2007 at the earliest, approximately 2 years after service, it is not deemed credible, so is of no probative value. For these reasons, the Board finds that the preponderance of the evidence demonstrates that the criteria for service connection for OSA have not been met. 3. A higher initial rating for a lumbar disability 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. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. The Veteran is in receipt of an initial 10 percent disability rating for the lumbar spine disability from February 26, 2015 forward under the General Rating Formula. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Veteran contends that a higher initial disability rating for the lumbar spine disability is warranted due to constant pain and range of motion issues. See December 2016 VA Form 9. 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 rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula). Ratings under the General Rating Formula 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 General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 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 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for 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 rated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar 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 lumbar spine is 240 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. Note (3) provides that, in exceptional cases, an examiner may state, that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Under Diagnostic Code 5243 (Intervertebral Disc Syndrome), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 weeks but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned 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 assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher rating for that segment. After a review of all the evidence, lay and medical, the Board finds that for the rating period on appeal from February 26, 2015, the criteria for a higher initial rating in excess of 10 percent for the lumbar spine disability have not been met or more nearly approximated. Throughout the rating period on appeal from February 26, 2015, the lumbar spine disability has been manifested by pain and limitation of forward flexion greater than 60 degrees, without ankylosis (criteria for a 40 percent rating), limitation of forward flexion to 60 degrees or less (criteria for a 20 percent rating), a combined range of motion in the thoracolumbar spine less than 120 degrees (criteria for a 20 percent rating), or incapacitating episodes requiring physician ordered bed rest having a total duration of at least two weeks during a 12 month period (criteria for a 20 percent rating). A June 2015 VA examination report reflects forward flexion of the thoracolumbar spine was limited to 90 degrees at most, with objective evidence of painful motion, even when considering additional functional limitation following repetitive use. During the June 2015 VA examination, the Veteran endorsed episodes of flare ups, but reported that he is able to continue work and maintain daily activities during such episodes. Additionally, the June 2015 VA examination report shows the combined range of motion in the thoracolumbar spine was measured to 230 degrees, and reflects negative findings for ankylosis, IVDS, or any incapacitating episodes of lower back pain requiring bed rest. Based on the foregoing, the Board finds that the preponderance of the evidence is against the appeal for a higher initial rating for the lumbar spine disability in excess of 10 percent for any period. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7. 4. Separate Ratings for Bilateral Lower Extremity Radiculopathy The Board has also considered whether there are any objective neurologic abnormalities associated with the service-connected lumbar spine disability that warrant a separate rating. See 38 C.F.R. §§ 4.14, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. Under the Diagnostic Code 8520 criteria, disability ratings of 10, 20, 40, and 60 are warranted, respectively, for mild, moderate, and moderately severe, and severe (with marked muscular atrophy) incomplete paralysis of the sciatic nerve. A disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or lost. 38 C.F.R. § 4.124a. 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. When the involvement is wholly sensory, the rating should be for the mild or at most, the moderate degree. See 38 C.F.R. § 4.124a. Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding assignment of a disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. A July 2016 private treatment record reflects the Veteran complained of lower back pain and numbness, weakness, and tingling in both legs. Upon examination of the lower extremities, the July 2016 private provider noted full strength in all motor groups and that sensation was intact in the lower extremities. The July 2016 private provider assessed lower extremity lumbar radiculopathy. Resolving reasonable doubt in favor of the Veteran, separate initial ratings of 10 percent under Diagnostic Code 8520 for mild incomplete paralysis of the sciatic nerve for both the left and right lower extremity from July 18, 2016 are warranted. 38 C.F.R. §§ 4.3, 4.7. The Board further finds that higher ratings in excess of 10 percent for the left and right lower extremity radiculopathies are not warranted for any part of the rating period on appeal. The weight of the lay and medical evidence demonstrates that the left and right lower extremity radiculopathies have not more nearly approximated moderate incomplete paralysis of the sciatic nerve (the criteria for a 20 percent rating). Although the Veteran complained of weakness in the lower extremities, the July 2016 private treatment record discussed above and an August 2016 private treatment record show examination of the lower extremities revealed full muscle strength in all motor groups. For these reasons, the Board finds that a disability rating in excess of 10 percent is not warranted under Diagnostic Code 8520 for the left or right lower extremity radiculopathies from July 18, 2016. 38 C.F.R. §§ 4.3, 4.7. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel