Citation Nr: 1806699 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-23 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to an initial rating in excess of 10 percent for cervical strain, for the period prior to August 15, 2013. REPRESENTATION The Veteran represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD K. Foster, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1984 to February 1986. He also served in the Army National Guard of Virginia from March 1997 to March 2000, and September 2002 to September 2005. In addition, the Veteran served in the Air Force National Guard from December 2007 to September 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the January 2012 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Roanoke, Virginia. In this decision, the RO granted service connection for the cervical spine disorder, and evaluated it as 10 percent disabling, and further denied service connection for sleep apnea. The Veteran filed a notice of disagreement (NOD) with this decision in March 2012, and a Statement of the Case (SOC) was thereafter issued in May 2013. The Veteran perfected a timely appeal of these decisions in June 2013. In the November 2014 rating decision, the Veteran was granted an increased rating to 20 percent, effective August 15, 2013 for his cervical spine disorder. The November 2014 rating decision also assigned a separate 20 percent rating for radiculopathy of the right upper extremity associated with the cervical spine disorder. In the May 2015 decision, the Board denied the Veteran's claim for an initial rating in excess of 10 percent for his cervical spine disorder for the period prior to August 15, 2013, and in excess of 20 percent for the period on and after August 15, 2013. The Board also denied the claims for a rating in excess of 20 percent for radiculopathy of the right upper extremity, and remanded the claim for service connection for obstructive sleep apnea for additional evidentiary development. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2016, the Court granted a joint motion for remand (Joint Motion) of the Veteran and the Secretary of Veterans Affairs (the Parties), vacated the portion of the May 2015 Board decision which denied an initial evaluation in excess of 10 percent for the period prior to August 15, 2013, and remanded the matter to the Board for development consistent with the terms of the Joint Motion. In July 2016, the Veteran submitted a retrospective medical opinion from the Veteran's private physician, J.S., M.D. and, through his attorney, requested that the matter be remanded to the Agency of Original Jurisdiction (AOJ) for initial consideration if the benefit on appeal could not be granted in full by the Board. In the August 2016 decision, the Board, pursuant to the Veteran's attorney's request, remanded the claim to the AOJ for initial consideration of this evidence. The AOJ considered this evidence, and readjudicated the claim by way of the October 2016 Supplemental Statement of the Case (SSOC). This case was before the Board in April 2017, at which time the Board again denied the Veteran's appeal for entitlement to an initial evaluation in excess of 10 percent for cervical strain for the period prior to August 15, 2013, as well as denied entitlement to service connection for sleep apnea. The Veteran appealed the Board's decision to the Court. In October 2017, the Court granted a Joint Motion of the Parties, and vacated the April 2017 Board decision, with the exception of the portion denying entitlement to a higher rating for the Veteran's cervical spine condition prior to August 15, 2013 on an extraschedular basis. The matter was then remanded to the Board for development consistent with the terms of the Joint Motion. The Veteran's claim file has since been returned to the Board. The issue of entitlement to service connection for obstructive sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT For the period prior to August 15, 2013, the cervical strain resulted in flare-ups restricting forward flexion to 15 degrees or less. CONCLUSION OF LAW For the period prior to August 15, 2013, the criteria for an initial evaluation of 30 for cervical strain have been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veteran's claim for an initial rating in excess of 10 percent for cervical strain, for the period prior to August 15, 2013 is being granted herein. As such, the Board finds that any error related to the VCAA with regard to this claim is moot. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Analysis The Veteran seeks entitlement to an initial rating in excess of 10 percent for cervical strain, for the period prior to August 15, 2013. For the reasons set forth below, the Board finds that the Veteran's appeal is granted. Criteria for increased ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 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. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999) In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Where the question of functional loss due to pain upon motion is raised, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). On September 26, 2003, revisions to the VA rating schedule established a General Rating Formula for Diseases and Injuries of the Spine and a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 68 Fed. Reg. 51454 -51458 (August 27, 2003). With respect to the cervical spine, under the General Rating Formula for Diseases and Injuries of the Spine, an evaluation of 20 percent is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the cervical spine not greater than 170 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 30 percent is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. An evaluation of 40 percent is warranted for unfavorable ankylosis of the entire cervical spine. An evaluation of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires 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 evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar 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 cervical spine is 340 degrees and of the thoracolumbar 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): 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): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar 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. The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also diagnostic code 5003); 5243 Intervertebral disc syndrome. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 10 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order. Finally, a maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) to the formula for rating intervertebral disc syndrome specifies 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. DC 5003, for degenerative arthritis provides that degenerative arthritis, established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200, etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5003. Procedural overview A historical overview of the claim reflects that the AOJ granted service connection for a cervical strain and evaluated it as 10 percent disabling, effective September 12, 2010, pursuant to 38 C.F.R. § Diagnostic Code 5237. Following additional evidentiary development, to include the August 2013 VA examination, in the November 2014 rating decision, the RO increased the disability rating for the service-connected cervical spine disability to 20 percent, effective August 15, 2013. The AOJ also recharacterized the Veteran's cervical spine disability from cervical strain to degenerative disk disease and spinal stenosis of the cervical spine, and evaluated it under 38 C.F.R. § Diagnostic Code 5243. In a statement dated in December 2014, the Veteran, through his attorney, contended that the 20 percent rating should have been effective from the date service connection was initially granted for the cervical spine disability (September 12, 2010). According to the Veteran, the examination conducted prior to August 2013 did not address functional loss during his painful flare-ups and is thus inadequate. In the May 2015 decision, the Board denied the claims for a rating in excess of 10 percent for the cervical spine disability for the period prior to August 15, 2013, and further denied a rating in excess of 20 percent for the period on and after August 15, 2013. The Veteran appealed this decision to the Court and in the March 2016 Joint Motion the Court vacated the portion of the May 2015 Board decision which denied an initial evaluation in excess of 10 percent for the period prior to August 15, 2013, and remanded the matter to the Board for development consistent with the terms of the Joint Motion. The Court specifically indicated that when discussing the December 2010 VA examination, the Board did not discuss the evidence of functional impairment during flare-ups identified during that examination, and should have considered this evidence when rendering its decision. In the April 2017 decision, the Board again denied the Veteran's appeal for entitlement to an initial evaluation in excess of 10 percent for cervical strain for the period prior to August 15, 2013. The Veteran again appealed the Board's decision to the Court and in a October 2017 Joint Motion, vacated the April 2017 Board decision, with the exception of the portion denying entitlement to a higher rating for the Veteran's cervical spine condition prior to August 15, 2013 on an extraschedular basis. In the October 2017 Joint Remand, the Parties agreed that the Board's April 2017 statement of reasons or bases with respect to its determination that an increased rating for cervical strain is not warranted was inadequate because the Board did not adequately address the evidence of flare-ups in the record. In particular, the Parties agreed that the Board failed to provide discussion of its basis for treating a repetitive motion examination and a flare-up examination as interchangeable, particularly where the November 2010 examination itself also noted that "[d]uring the flare-ups [the Veteran] experiences functional impairment which is described as unable [sic] to turn head at times and limitation of motion of the joint which is described as quick movement creates extreme pain." Additionally, the Board also provided insufficient additional rationale, apart from this discussion of the November 2010 examination, to support its conclusion with respect to flare-ups. Analysis The Board has considered the relevant evidence and finds that an initial evaluation of 30 percent disabling is warranted for the period prior to August 15, 2013. Specifically, the Board points to the June 2016 retrospective opinion from the Veteran's private physician, Dr. S. In this letter, Dr. S. described flare-up symptoms in the Veteran, during the period on appeal, that were frequent - occurring every few (2-3) weeks, lasting 1-2 days - and resulted in a "charley horse" like pain in the muscles of the neck and decreased mobility making the Veteran unable to bend or turn his neck. Based on the Veteran's descriptions, Dr. S provided the following estimated range of motion during a flare-up: 0 to 15 degrees forward flexion. Such limited motion is consistent with a 30 percent rating under the applicable rating criteria. Therefore, with resolution of any reasonable doubt in the Veteran's favor, entitlement to an initial rating of 30 percent for the period prior to August 15, 2013 is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to an initial evaluation of 30 percent for cervical strain for the period prior to August 15, 2013 is granted. REMAND Regarding the remaining issue on appeal, the Board finds that additional development is needed in order to comply with the Court remand. In the October 2017 Joint Motion, the Parties agreed that, with respect to the Veteran's sleep apnea claim, the April 2013 medical opinion should have considered certain evidence of symptomatology, including the Veteran's February 2012 lay statement, the corroborating lay statement from the Veteran's witness, and the Mayo Clinic medical treatise submitted by the Veteran or the symptomatology of sleep apnea listed therein. Therefore, the Board will remand in order to afford the Veteran a new examination that addresses this evidence. Accordingly, the appeal is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to his claim for entitlement to service connection for obstructive sleep apnea. Attempts to obtain such records should be documented in the claim file. If identified records could not be obtained, this should be noted in the claim file. 2. Schedule the Veteran for the appropriate examination in order to address the etiology of the Veteran's claimed obstructive sleep apnea disability. Consistent with the October 2017 Court remand, the examiner is asked to specifically address the February 2012 lay evidence from the Veteran, the February 2012 lay evidence from the Veteran's witness, and the Mayo Clinic medical treatise evidence. The examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability was caused by his active duty service or, if preexisting service, was aggravated therein. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all issues that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs