Citation Nr: 18158174 Decision Date: 12/18/18 Archive Date: 12/14/18 DOCKET NO. 10-06 900 DATE: December 18, 2018 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a respiratory disorder is denied. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is denied. Entitlement to service connection for a headache disorder is denied. Entitlement to a 40 percent rating for lumbar spine degenerative disc disease is granted for the entire period on appeal. Entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease is denied. REMANDED Entitlement to service connection for a left lower extremity disorder, claimed as radiculopathy, is remanded. Entitlement to a rating in excess of 20 percent for right shoulder chronic dislocation is remanded. Entitlement to a total disability rating due to individual unemployability based on service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s sleep apnea, a respiratory disorder, headaches or residuals of a TBI are not related to a disease or injury incurred in service. 2. The Veteran has not suffered a chronic disabling respiratory disorder resulting in functional impairment during the relevant period on appeal. 3. Throughout the appeal period, the Veteran’s low back disability has more nearly approximated limitation of flexion to no more than 30 degrees when considering additional range of motion lost during flare ups and/or with repeated use over time. 4. The Veteran did not exhibit ankylosis of the thoracolumbar spine or incapacitating episodes at any point during the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have not been satisfied. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for a respiratory disorder have not been satisfied. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for the residuals of a TBI have not been satisfied. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 4. The criteria for entitlement to service connection for a headache disorder have not been satisfied. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 5. The criteria for a 40 percent rating for the lumbar spine are met throughout the appeal period; the criteria for the assignment of a rating in excess of 40 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1976 to December 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia, as well as May 2012 and August 2013 rating decisions from the VA RO in New Orleans, Louisiana. The Veteran presented sworn testimony at a hearing before one of the undersigned Veterans Law Judges in July 2015. In June 2017, he gave testimony at a second hearing before another of the undersigned Veterans Law Judges. At the June 2017 hearing, the Veteran waived his right to testify before a third Veterans Law Judge pursuant to Arneson v. Shinseki, 24 Vet. App. 379 (2011) (a veteran must be provided the opportunity to testify before all members of a Board panel deciding the case). See June 2017 Hearing Tr. at 3. Service Connection The Veteran seeks service connection for a headache disorder, the residuals of a TBI, sleep apnea and a respiratory disorder. He asserts that all of these disorders arise from an explosion he contends he experienced during service. Because the Board finds that the evidence of record does not support the Veteran’s assertion that he was injured as the result of an explosion during service, or that he has suffered from a chronic disabling respiratory disorder during the appeal period, entitlement to service connection is denied. In order to establish service connection for a present disability, the claimant must show the existence of a present disability, an in-service incurrence or aggravation of a disease or injury, and a causal relationship or “nexus” between the present disability and the in-service injury or disease. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303. In this case, the Veteran asserts that he suffers from sleep apnea, a respiratory disorder (other than sleep apnea), and the residuals of a TBI (to include headaches) as the result of an explosion in service. He reports that in early December 1976, while he was in basic training at Fort Dix, an executive officer threw a grenade or other explosive device into his tent. See July 2015 Hearing Tr. at 4-7; June 2016 Army Board of Corrections Record of Proceedings (and undated correspondence of Veteran as referenced therein). He states that he was blinded by the explosion, could not breathe, and lost consciousness. He further stated that the explosion caused lacerations and injuries to his whole body, including the genitals, shoulder, back, neck, head and nose/sinuses. He further reports that he was hospitalized at Walson Army Hospital and in a coma for 3 weeks. He asserts that he woke up in an oxygen tent and his eyes were both swollen and bloodshot. He contends that his hospital records pertaining to this incident were removed or destroyed as part of a cover-up because the father of the officer he asserts was involved in this incident was a high-level officer. See October 2014 VA Mental Health Consult Note. After a review of the lay and medical evidence, the Board finds that it is less likely than not that the Veteran’s claimed disabilities were the result of a disease or injury incurred in service. The Veteran’s service treatment records (STRs) show that he was admitted to Walson Army Hospital in December 1976 with a chief complaint of “chest pain with inspiration.” See December 1976 Nursing Note. It was noted that the Veteran had inflammation of the throat, productive cough and had vomited three times. He was reported to appear extremely tired but alert and oriented. He was given aspirin and Tylenol, and was diagnosed with an upper respiration infection. He was discharged three days after admission and returned to duty. There is no mention in these hospital records of an explosion, head trauma, loss of consciousness, coma or injury to any part of the body, including the head, face, eyes, sinuses, neck, shoulder, back or genitals. The Veteran’s STRs do show injuries to the shoulder, low back and penis in service; however, these injuries were noted to have been incurred after December 1976. On his October 1979 Report of Medical History completed at the time of separation, the Veteran did not report any injuries arising from an explosion incident, having lost consciousness, or having been in a coma during service. He reported that he was hospitalized at Fort Dix for pneumonia, but did not state that was treated for injuries to his head, face, neck, back, eyes or genitals during that admission. The examiner performing the separation examination noted that the Veteran “has [a] long chronic [history] of multi[ple] complaints,” but indicated that at the time of the examination the only continuing medical complaint concerned subluxation of the right shoulder. The examiner noted that all other complaints had “routine sick call treatment.” The October 1979 separation examination was normal except for the noted history of right shoulder subluxation. The Veteran was found medically qualified for release and the separation orders state discharge was not by reason of physical disability. There is no evidence in the Veteran’s STRs to support a finding that the Veteran sustained a loss of consciousness, head trauma, or any other injury as the result of an explosion as he contends. The only evidence of record supporting the Veteran’s contentions are his own lay statements. The Board affords the Veteran’s reports that he sustained injury in service as the result of an explosion no probative weight due to lack of facial plausibility, inconsistency with his prior statements, and inconsistency with the other medical and lay evidence of record. “[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.” Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The credibility of evidence can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, bias, self- interest, malingering, desire for monetary gain and witness demeanor. See Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff’d per curiam, 78 F.3d. 604 (Fed. Cir. 1996); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (noting that interest in the outcome of the proceedings “may affect the credibility of testimony”). As noted above, the Veteran’s reports are not consistent with the reports and medical treatment noted in his STRs. There is no evidence supporting the Veteran’s contention that his medical records were destroyed as the medical records concerning his admission to the hospital in December 1976 have been obtained, and the Board finds it unlikely that the medical records that were kept at the Army Hospital were falsified or destroyed as the Veteran contends. Despite the Veteran’s assertions that his service-connected right shoulder, low back and erectile dysfunction disabilities were determined by VA to be due to the explosion incident as alleged, the record does not support such an argument. The Veteran was found to suffer several right shoulder dislocations during service (none of which was attributed to an injury incurred during an explosion) and he was noted to have suffered a low back injury while weight-lifting and playing football. See September 1991 Rating Decision. The Veteran was ultimately granted service connection for his lumbar spine degenerative disc disease as secondary to his service-connected bilateral pes planus disability. The Veteran’s current reports are also inconsistent with his own statements made at the time of separation from service, prior to the time he applied for VA compensation benefits. On his October 1979 Report of Medical History completed at the time of separation, the Veteran reported numerous ailments, but did specifically checked “No” when asked if he ever had “frequent or severe headache,” “ear, nose or throat trouble,” “head injury,” “loss of memory or amnesia,” and “periods of unconsciousness.” The same form shows that when asked if he had ever been a patient in any type of hospital, the Veteran reported being hospitalized at Fort Dix for pneumonia, having surgery on his penis, and being hospitalized at Baton Rouge General for a broken leg. The Veteran did not report hospitalization for an injury or treatment resulting from an explosion as he currently asserts. The Board affords more probative weight to the Veteran’s statements made on the October 1979 Report of Medical History concerning his injuries and ailments in service as these statements were made closer in time to service. The Board notes that in July 1993, in connection with his claim for compensation benefits for a nervous condition, the Veteran submitted a written statement in which he asserted that an executive officer “threw a certain type of gas in [his] tent” and that he was unconscious for a period of time and hospitalized. He further reported that as a result of that incident he developed a nervous condition and received psychiatric treatment in service. The Veteran’s STRs show that he was treated in February 1979 for a nervous condition and anxiety, but that these symptoms arose from “work-related difficulties” that “came to a head early this month.” The records show that the Veteran’s symptoms had diminished by the time he was treated and that the reduction of his symptoms were “at least partly due to positive measures [the Veteran had] taken to improve his situation.” There was no mention of the Veteran being involved in an explosion or having gas thrown in his tent, or any other incident occurring during basic training in 1976. In sum, the evidence of record does not corroborate the Veteran’s assertions that he was injured as the result of an explosion in service, and the Board does not find the Veteran’s post-service reports credible based on the factors addressed above. Thus, entitlement to service connection for a headache disorder, the residuals of a TBI, sleep apnea and a respiratory disorder is not warranted. No Current Respiratory Disorder Additionally, the Board finds that service connection for a respiratory disorder is not warranted because the evidence of record fails to show that the Veteran has suffered from a chronic respiratory disorder during the appeal period. As noted in a prior remand, the Veteran’s VA medical records show treatment for various respiratory conditions during the appeal period and his STRs show multiple instances of being treated for upper respiratory infections or other breathing issues during service. Nevertheless, the most probative evidence of record shows that the Veteran has not suffered a chronic disabling respiratory disorder during the appeal period for which compensation benefits can be granted. In order to be considered for service connection, a claimant must first have a current disability. See 38 U.S.C. § 1110, 1131; Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The term “disability” refers to a functional impairment that reduces earning capacity. See Saunders, 886 F.3d at 1363. To establish a disability, the claimant’s symptoms must result in “the level of a functional impairment of earning capacity.” Id. at 1367-68 (noting that the policy underlying veterans compensation is to compensate veterans whose ability to earn a living is impaired as a result of their military service). Service connection cannot be granted for injuries or diseases that are acute and transitory in nature, and do not result in residual functional impairment, because such injuries or diseases by definition would not reduce earning capacity. Here, the evidence does not show that the Veteran has suffered from a respiratory disorder resulting in functional impairment that reduces earning capacity during the appeal period. The Veteran underwent a VA examination in November 2016. After examining the Veteran and reviewing the pertinent medical records and lay statements, the examiner opined that the Veteran did not have a current pulmonary diagnosis. The examiner stated that the Veteran was treated for several upper respiratory infections in service, each of which resolved without residuals. The examiner noted that the Veteran did not at the time of the examination have a current respiratory illness and was not prescribed any medication for a respiratory illness. The examiner noted that the Veteran has a history of upper respiratory infections all of which resolved without residuals. The examiner also noted that the Veteran’s chest x-ray and pulmonary function tests were normal. In an April 2018 addendum opinion, the same examiner clarified that the Veteran’s only respiratory diagnosis since 2012 has been acute infection/pneumonia that was treated and resolved without residuals. The Board finds the examiner’s opinion highly probative as it contains clear conclusions with supporting data and a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Thus, entitlement to service connection for a respiratory disorder is not warranted because the Veteran does not have any functional impairment to support a finding that he has suffered from a respiratory disability during the appeal period. Increased Rating for Lumbar Spine Degenerative Disc Disease The Veteran seeks a rating of more than 20 percent for his service-connected low back disability. The Board finds that a 40 percent rating is warranted throughout the appeal period. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Additionally, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran seeks a higher rating for his low back disability, currently rated pursuant to Diagnostic Code (DC) 5243. This diagnostic code directs VA to rate the Veteran under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, DC 5237-5243. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. Higher ratings are available only where there is favorable or unfavorable ankylosis of the spine. Throughout the appeal period, the Veteran’s disability picture has been dominated by complaints of ongoing pain, decreased range of motion, stiffness, fatigue, weakness and spasms. He described his pain as constant and severe. He further reported that his symptoms cause functional loss of decreased mobility, problems with lifting, carrying, bending, climbing and twisting, and being unable to stand, sit or walk for any length of time. The Veteran has reported that during flare ups, he experiences increased functional impairment that prevents him from doing most activities. The Veteran was afforded VA examinations in February 2008, October 2009, July 2014, November 2016 and May 2018. He also underwent examination in connection with his social security disability claim in June 2011. At the February 2008 and October 2009 VA examinations, he exhibited limitation of forward flexion of the thoracolumbar spine to approximately 80 degrees. See February 2008 VA Examination Report (showing forward flexion to 90 degrees with an additional 8 degrees of limitation due to pain); October 2009 VA Examination Report (showing forward flexion to 80 degrees on repeat testing). However, the VA examiners performing these examinations did not address whether the Veteran’s increased functional loss during flare ups resulted in any additional limitation of motion during those periods. Additionally, the Board notes that the Veteran has been taking pain medication for his low back pain throughout the appeal period. The use of pain medication was not considered by any of the VA examiners, and the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Beginning June 2011, the evidence shows that the Veteran’s lumbar spine degenerative disc disease exhibited limitation of forward flexion to 30 degrees or less. See June 2011 Family Medicine Examination; July 2014 VA Examination Report. Thus, after considering the Veteran’s increased functional loss during flare-ups and with repeated use over time, as well as his use of pain medication, the Board finds that the Veteran’s low back disability has more nearly approximated forward flexion of the thoracolumbar spine to no more than 30 degrees throughout the appeal period. Affording the Veteran the benefit of the doubt, the Board finds that a rating of 40 percent for his low back disability is warranted for the entire period on appeal. Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained). A 40 percent disability rating is the highest available for limitation of range of motion of the lumbar spine. Under the General Rating Formula for Diseases and Injuries of the Spine, the criteria for a rating in excess of 40 percent require unfavorable ankylosis. There is no objective medical evidence showing ankylosis of the Veteran’s spine. See February 2008, October 2009, July 2014, November 2016 and May 2018 VA Examination Reports. Hence, a rating in excess of 40 percent is not warranted at any time during the appeal period. The Board also notes that as 40 percent is the highest schedular rating for limitation of motion of the spine, the regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not for application. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). REMANDED ISSUES In the November 2017 remand, the Board directed that a VA examiner address the Veteran’s reports of right shoulder flare ups by obtaining information concerning the flare ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and the extent of functional impairment he experiences during a flare up of symptoms. The May 2018 VA examination does not include this information, and thus a new VA examination should be obtained. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The evidence of record shows that the Veteran has not had left lower extremity radiculopathy or neuropathy during the appeal period; however, the Veteran has consistently complained of left lower extremity numbness and tingling during the appeal period. Service connection is in effect for left knee degenerative joint disease, left ankle sinus tarsitis and bilateral pes planus, and it is unclear whether the Veteran’s symptoms of numbness and tingling are related to any of these service-connected disabilities or are part of a separate disease process that is not related to service. The Veteran should be provided with an appropriate VA examination to address his left lower extremity symptoms and their etiology. Finally, the Veteran asserts that he has been unable to work due to his service-connected disabilities during the appeal period; however, there is conflicting information of record concerning the dates of the Veteran’s employment and whether his employment has been substantially gainful. As the Board cannot make a determination as to entitlement to a TDIU without additional development, the matter is remanded for the Veteran to provide an updated VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability and any additional information concerning the employment history, to include tax returns and/or Social Security earnings statements. The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records and ask the Veteran to provide authorizations for any private medical records he would like considered in connection with his appeal. 2. Ask the Veteran to complete a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. To the extent that the Veteran contends that any employment during the appeal period was marginal or not substantially gainful, the Veteran should be asked to provide information concerning his earnings during such periods, such as tax returns or Social Security income statements. 3. Schedule the Veteran for an appropriate examination to address the current nature and severity of his right shoulder disorder. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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 clearly explain why that is so. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Schedule the Veteran for the appropriate VA examinations to address his symptoms of left lower extremity numbness and tingling and provide an opinion as to their etiology. The examiner should state whether the Veteran’s left lower extremity numbness and tingling are at least as likely as not manifestations of a service-connected disability (such as left knee degenerative joint disease, left ankle sinus tarsitis or bilateral pes planus) or are related to a separate disorder that is related to service, caused by a service-connected disability or aggravated by a service-connected disability. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tracie N. Wesner, Counsel