Citation Nr: 18158153 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-45 486 DATE: December 14, 2018 ORDER Prior to June 27, 2018, a disability rating in excess of 10 percent for lumbar sprain with degenerative disc disease is denied. Since June 27, 2018, a 20 percent disability rating, but no higher, the lumbar sprain with degenerative disc disease, is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. For the period of the claim prior to June 27, 2018, the Veteran’s lumbar sprain with degenerative disc disease was manifested by no worse than limitation of flexion to 65 degrees and a combined range of motion of greater than 120 degrees; no muscle spasm or guarding resulting in abnormal gait or spinal curvature, or incapacitating episodes have been demonstrated. 2. Since June 27, 2018, the Veteran’s lumbar sprain with degenerative disc disease has been manifested by no worse than limitation of flexion to 40 degrees and a combined range of motion of 130 degrees; no ankylosis or incapacitating episodes have been demonstrated. CONCLUSIONS OF LAW 1. Prior to June 27, 2018, the criteria for a rating in excess of 10 percent for the lumbar sprain with degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2018). 2. Since June 27, 2018, the criteria for a rating of 20 percent, but no higher, for the lumbar sprain with degenerative disc disease have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1990 to June 1991 and from March 1992 to September 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. §20.900(c) (2018). 38 U.S.C. § 7107(a)(2) (2012). 1. Entitlement to an increased disability rating in excess of 10 percent for the service-connected lumbar sprain with degenerative disc disease Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2018); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2018); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2018); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10 (2018). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found—a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2018). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Service connection for lumbar sprain with degenerative disc disease was established in a November 2011 rating decision wherein the RO assigned a 10 percent evaluation, effective from October 01, 2011. The Veteran filed a claim for an increased rating for his lumbar sprain with degenerative disc disease in March 2016. The September 2016 rating decision that is the subject of this appeal continued the 10 percent rating assigned to the lumbar spine disability under Diagnostic Code 5242 pursuant to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. In rating the lumbar spine disability, either of two sets of criteria may be applied. The disc disease may be rated based on the cumulative amount of time in which the condition was incapacitating over the prior 12 months, or based upon the degree of limitation of motion. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a 20 percent rating. Intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months is assigned a 40 percent rating. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a. An “incapacitating episode” is defined as 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. See 38 C.F.R. § 4.71a, Note (1). The Veteran has not reported being incapacitated and there is no record of any order or directive from a doctor requiring bed rest. Post-service treatment records reflect no periods of bed rest or total incapacitation. Evaluation under these criteria is therefore not appropriate, but instead evaluation under the General Rating Formula for Diseases and Injuries of the Spine is proper. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the disability is evaluated 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, and they “are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine.” 68 Fed. Reg. 51,454 (Aug. 27, 2003). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). The General Rating Formula provides a 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; when muscle spasm, guarding, or localized tenderness do not result in either an abnormal gait or abnormal spinal contour; or, when there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation requires either that forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or that favorable ankylosis of the entire thoracolumbar spine is shown. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, normal left and right lateral rotation is zero to 30 degrees, and normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Note (2). Further, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Note (4). Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is 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; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. 38 C.F.R. § 4.71a, Note (5). VA and private treatment records indicate that the Veteran reported chronic low back pain. Further, treatment has included steroid injections and various medications and manipulations, including exercise and stretching. At the August 2016 VA examination, the Veteran reported that he continues to have pain in his lower back. He reported using a TENS unit and receiving steroid injections. Range of motion testing reflected forward flexion to 80 degrees with pain, extension to 20 degrees with pain, right and left lateral rotation to 30 degrees with pain, and right and left lateral flexion to 30 degrees with pain. The combined range of motion was equivalent to 220 degrees. The examiner noted that while pain was noted on examination, it did not result in/cause functional loss. There was no evidence of pain with weight bearing and no evidence of localized tenderness or pain on palpation. However, the Veteran was unable to perform repetitive testing with at least three repetitions. No guarding or muscle spasm, additional factors contributing to the disability, or muscle atrophy were noted. There was no ankylosis of the spine. The Veteran was noted to use a back brace constantly for stability needed for his condition. He did not have a thoracic vertebral fracture with loss of 50 percent or more of height. The functional impact on his ability to work as a result of his disability included pain with walking, bending, and lifting heavy objects while at work. A September 2016 VA urgent care note regarding the Veteran’s complaint of low back pain contained range of motion testing reflecting forward flexion to “65 degrees; back remains symmetrically flat as concave curve of lumbar spine becomes convex with forward flexion; hyperextension to 10 degrees with reversal of lumbar curve; lateral bending to 20 degrees; and rotation to 30 degree right rotation forward and backward, 10 degree rotation forward and backward.” The combined range of motion was equivalent to greater than 120 degrees. At a June 27, 2018 VA examination, the Veteran reported increasing pain and stiffness to the lower back, which includes muscle spasms and his back locking up. He reported multiple steroid injections and multiple radio frequency ablation. The Veteran also reported flare-ups, described as increasing pain with prolonged sitting and standing, including increasing pain in the early morning due to lying down all night. In addition, he reported functional loss which included the inability to run, bend down, or lift heavy furniture. Range of motion testing reflected forward flexion to 40 degrees with pain, extension to 10 degrees with pain, right lateral flexion to 20 degrees with pain, left lateral flexion to 15 degrees with pain, right lateral rotation to 25 degrees with pain, and left lateral rotation to 20 degrees with pain. The combined range of motion was equivalent to 130 degrees. Pain was noted to contribute to functional loss; there was objective evidence of localized tenderness and pain on palpation; and there was pain on weight-bearing. There was no additional loss of function or range of motion after three repetitions. No guarding of the thoracolumbar spine was noted; however, muscle spasms resulting in abnormal gait or abnormal spine contour was noted. There were no additional factors contributing to the disability nor was there muscle atrophy noted. There was no ankylosis of the spine. The Veteran was noted as using a brace on occasion for his back. Arthritis was noted as having been documented on imaging studies. He did not have a thoracic vertebral fracture with loss of 50 percent or more of height. The functional impact on his ability to work as a result of his disability included the inability to sit or stand for long periods of time and he reported zero to one week of time lost from work in the last 12 months. Upon review of the evidence of record, the Board finds that prior to June 27, 2018, forward flexion is demonstrated to be greater than 60 degrees, even considering pain, and a combined range of motion is shown to be greater than 120 degrees. These findings are consistent with a 10 percent disability rating, not a rating in excess of 10 percent for the period prior to June 27, 2018 because no abnormal spinal curvature was shown nor was abnormal gait. Since the June 27, 2018 VA examination, the Board finds that the criteria for the assignment of a 20 percent rating have bene met. The Board acknowledges that at this time, his combined range of motion of the thoracolumbar spine was, at worst, 130 degrees. However, forward flexion of the thoracolumbar spine was limited to 40 degrees and spasms were noted. The Veteran also reported during the June 2018 VA examination that he had flare ups in the form of increased pain. The Board finds the Veteran’s subjective complaints, when coupled with the objective findings on examination and during treatment, reveal low back symptomatology that more nearly approximates the 20 percent rating criteria under the General Rating Formula during the period of this claim since June 27, 2018. A higher rating is not warranted during the period on appeal as the evidence does not show forward flexion limited to 30 degrees or less at any time, even considering the subjective complaints and the functional impairment. Nor is a higher rating warranted under the IVDS Formula as there is no evidence of incapacitating episodes. In this regard, the August 2016 and June 2018 VA examiners indicated that there was no IVDS. In addition, none of the private or VA treatment records during the appeal period reveal that any bed rest was prescribed. Thus, a rating in excess of 20 percent is not warranted during the entire period on appeal. The Veteran is already separately rated for sciatic nerve radiculopathy associated with lumbar sprain with degenerative disc disease. The Veteran did not appeal the decision granting that condition, and that issue is not presently before the Board. No other neurological disabilities associated with his lumbar spine disability have been shown. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. VA treatment records show that the Veteran was diagnosed with obstructive sleep apnea (OSA) in May 2016. The Veteran underwent VA examination in August 2016 and the examiner provided a negative nexus opinion. The examiner noted that the Veteran had reports of snoring while on active duty. He also reported that he underwent a sleep study in 2005 which did not show OSA; however, while on active duty, he also reported that he had a uvulopalatopharyngoplasty (UPPP) which is a procedure that removes excess tissue in the throat to make the airway wider. This sometimes can allow air to move through the throat more easily when you breathe. The examiner stated that based on the Veteran’s lay statement, he was never treated for OSA while on active duty. The examiner stated that the evidence and Veteran’s lay statement of no OSA treatment in the form of a CPAP machine during active duty signifies that a diagnosis of OSA was not identified during that time. The examiner also explained that sleep apnea is a disorder characterized by abnormal pauses in breathing or instances of abnormally low breathing during sleep. OSA is caused by a blockage of the airway usually when the soft tissue in the back of the throat collapses during sleep. The examiner stated risk factors for developing OSA and reported that the Veteran had all of the above risk factors which contributed to his diagnosis of OSA. Despite the fact that the Veteran was not diagnosed with OSA, the Board notes that per the 2005 sleep study, findings included “intermittent significant snoring, 1 central apnea and 7 hypopneas with apnea/hypopnea index of 1.3 per hour and oxygen saturation in upper 90s.” In light of the above, an addendum opinion should be obtained on remand to address the significance, if any, of the findings from the 2005 sleep study. The matter is REMANDED for the following actions: 1. Provide the claims file to the VA examiner who rendered the August 2016 medical opinion, if available, to obtain another opinion with respect to the Veteran’s service-connection claim for OSA. Another equally qualified medical professional may be consulted if that examiner is not available. If an examination is deemed necessary to respond the question, one should be scheduled. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current OSA arose during service or is otherwise related to service. A rationale for all opinions expressed should be provided, to include explaining the significance, if any, of the in-service 2005 sleep study revealing findings of central apnea and hypopnea. 2. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issue. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Medina, Associate Counsel