Citation Nr: 1806859	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  12-31 785	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Whether the reduction in the disability rating for cervical degenerative joint disease (DJD) from 20 percent to 10 percent was proper.  

2.  Entitlement to a rating in excess of 20 percent for cervical DJD.  

3.  Entitlement to an initial disability rating in excess of 10 percent prior to January 28, 2013 for service-connected depressive disorder, not otherwise specified (NOS).

4.  Entitlement to a disability rating in excess of 50 percent from January 28, 2013 to July 28, 2014 for depressive disorder, NOS. 

4.  Entitlement to a disability rating in excess of 30 percent from July 28, 2014 to August 17, 2017 for depressive disorder, NOS. 

5.  Entitlement to a disability rating in excess of 10 percent from August 17, 2017 and thereafter for depressive disorder, NOS.  

6.  Entitlement to service connection for sleep apnea as secondary to the service-connected disability of nasal septum deviation with nasal congestion and epitaxis.  

7.  Entitlement to service connection for right upper extremity neurological disability, to include radiculopathy as secondary to service-connected cervical DJD.  


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


ATTORNEY FOR THE BOARD

N. Laroche, Associate Counsel


INTRODUCTION

The Veteran served on active duty with the United States Marine Corps from August 1976 to August 1980.  

These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Denver, Colorado Regional Office (RO) of the Department of Veterans Affairs (VA) in which the RO reduced the disability rating for cervical DJD from 20 percent to 10 percent, from January 21, 2011; granted service connection for depressive disorder, NOS and assigned an initial disability rating of 10 percent effective December 23, 2010; denied service connection for sleep apnea as secondary to service-connected nasal septum deviation with nasal congestion and epitaxis; and denied service connection for right upper extremity peripheral neuropathy.  The Veteran timely appealed the reduction, the disability ratings assigned and the service connection denials. 

The Board notes that the September 2011 rating decision which reduced the disability rating for cervical DJD was in response to a December 2010 claim for an increased rating for cervical DJD.  In his October 2011 notice of disagreement (NOD), the Veteran contended that his cervical DJD had not improved and, in fact, had worsened.  In a September 2012 statement of the case (SOC), the agency of original jurisdiction (AOJ) characterized the issue on appeal in terms of the propriety of the rating reduction for cervical DJD, but subsequently addressed the claim for an increased rating for cervical DJD in the November 2017 supplemental SOC (SSOC), including the reasons and bases for the continued denial of the claim.  Hence, the Board characterized the issue on appeal to include the propriety of the reduction from a 20 percent rating to a 10 percent rating, effective January 21, 2011.  As the Board is now restoring the 20 percent rating for cervical DJD and remanding the issue of entitlement to an increased rating for this disability, the cervical DJD issue has been bifurcated, as set forth on the title page.  See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (bifurcation of a claim generally is within VA's discretion).

In his November 2012 substantive appeal, via a VA Form 9, the Veteran requested a Board hearing at a local VA office.  In September 2014, the Veteran requested to withdraw his request for a hearing.  The Board recognizes the withdrawal and will address the claims as set forth below. 

In a November 2017 rating decision, the RO assigned a higher initial evaluation of 50 percent with an effective date of January 28, 2013 for depressive disorder, NOS.   Additionally, the RO assigned an evaluation of 30 percent from July 28, 2014 and an evaluation of 10 percent with an effective date of August 17, 2017 for depressive disorder, NOS. The Veteran has not indicated satisfaction with the increased rating that has been granted and the Board will therefore address these claims.  See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise).

As to the claim for a neurological disability, the Board has characterized the issue more broadly on the title page pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 4-5   (2009) (what constitutes a claim cannot be limited by a Veteran's assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim).  In the decision below, the Board has granted service connection for a neurological disability, upper right extremity radiculopathy.

The issue of entitlement to an increased rating for cervical DJD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The reduction in the disability rating from 20 percent to 10 percent was not based on improvement in the Veteran's ability to function under the ordinary conditions of life and work.

2.  Throughout the entire period on appeal, the symptoms and overall impairment caused by the Veteran's service-connected depressive disorder, NOS have more nearly approximated occupational and social impairment with reduced reliability and productivity, but have not more nearly approximated occupational and social impairment with deficiencies in most areas.

3.  The Veteran's service-connected disabilities, to include nasal septum deviation with nasal congestion and epitaxis, did not cause or aggravate his sleep apnea.  

4.  The evidence is at least evenly balanced as to whether the Veteran's upper right extremity radiculopathy is related to active military service.  


CONCLUSIONS OF LAW

1.  The reduction in the disability rating for cervical DJD from 20 percent to 10 percent was not proper.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105 (e), 3.344 (2017).

2.  The criteria for an initial rating of 50 percent, but not higher, for depressive disorder, NOS, from December 23, 2010, to January 28, 2013 have been met.  38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434 (2017).

3.  The criteria for a rating in excess of 50 percent for depressive disorder, NOS, from January 28, 2013 to July 28, 2014, have not been met.  38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.130, DC 9434 (2017).

4.  The criteria for a disability rating of 50 percent, but not higher, for depressive disorder, NOS, from July 28, 2014 to August 17, 2017 have been met.  38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.130, DC 9434 (2017).

5.  The criteria for a disability rating of 50 percent, but not higher, for depressive disorder, NOS, from August 17, 2017, have been met.  38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.130, DC 9434 (2017).

6.  The criteria for service connection for sleep apnea have not been met on a secondary basis.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).

7.  The criteria for service connection for right upper extremity radiculopathy are met.  38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. § 5103, 5103A; 38 C.F.R. § 3.159. 

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 

Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims.

II. Analysis

A. Increased Rating

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations 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.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

1. Rating Reduction

Where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor.  Additionally, the beneficiary must be given notice that he has 60 days to present additional evidence to show that compensation payments should be continued at the present level.  Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.  38 C.F.R. § 3.105(e).  However, VA's General Counsel has held that the provisions of 38 C.F.R. § 3.105 (e) do not apply where there is no reduction in the overall amount of compensation payable. VAOPGCPREC 71-91 (Nov. 1991); VAOPGCPREC 29- 97 (Aug. 1997).  In this case, no reduction notification procedures were undertaken, but the Board finds that none were required, as the overall compensation paid to the Veteran remained at 30 percent.  See 38 C.F.R. § 3.105 (e); VAOPGCPREC 71-91 (Nov. 1991); 57 Fed. Reg. 2,316 (1992).

The provisions of 38 C.F.R. § 3.344 (a), (b) prescribe additional requirements for rating reductions but only apply to ratings that have continued for long periods at the same level (5 years or more).  They do not apply to disabilities which have not become stabilized and are likely to improve.  Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.  38 C.F.R. § 3.344 (c).

At the time of the September 2011 reduction, the 20 percent rating for the Veteran's cervical DJD had been in effect since January 2008.  Thus, as the rating for cervical DJD had been in effect for less than five years, the provisions of 38 C.F.R. § 3.344  (a), (b), which provide additional regulatory hurdles to rating reductions, do not apply.

Nevertheless, the Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability."  Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13).  With respect to ratings that have been in effect for less than 5 years, as in this case, 38 C.F.R. § 3.344 (c) requires improvement before a rating is reduced.  Implicit in the regulations is that any improvement must be of such a nature as to warrant a change in the rating.  In Brown, the Court articulated three questions that must be addressed in determining whether a rating reduction is warranted by the evidence.  First, a rating reduction case requires ascertaining "whether the evidence reflects an actual change in the disability."  Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations.  Third, it must be determined whether the improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work.  Brown, 5 Vet. App. at 421.

In light of the above evidence, the Board finds that the reduction in the disability rating for the Veteran's cervical DJD was not proper.  The September 2011rating decision which reduced the disability rating demonstrates that the RO appears to have essentially analyzed the issue of reduction of the 20 percent rating in the same manner as it would analyze an increased rating claim.  Specifically, the RO did not address whether there was an "actual improvement in the Veteran's ability to function under the ordinary conditions of life and work."  Id.  Overall, the evidence does not reflect that there was any improvement in the Veteran's ability to function under the ordinary conditions of life and work in light of his cervical DJD at the time of the September 2011 reduction.  Rather, the competent and credible lay statements from the Veteran indicate that the functional impacts of the Veteran's cervical DJD remained the same and potentially worsened.  Additionally, the January 2011 VA examination reflects slight worsening in forward flexion testing.  

The circumstances under which a disability rating may be reduced are specifically limited and carefully circumscribed by regulations promulgated by VA.  See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280 (1992).  The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence.  The Court has stated that both decisions by the RO and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio and will be set aside as not in accordance with the law.  Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown, 5 Vet. App. at 413; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996).  Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

For the foregoing reasons, the reduction in the disability rating for the Veteran's cervical DJD was not proper.  This renders the reduction from 20 percent to 10 percent void ab initio.  Kitchens, 7 Vet. App. at 320; Dofflemeyer, 2 Vet. App. at 277.  Accordingly, under these circumstances, the previously assigned 20 percent rating for the Veteran's cervical DJD must be restored, effective December 23, 2010.


2.  Depressive Disorder, NOS

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity of adjustment during periods of remission.  The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  38 C.F.R. § 4.126(a).  When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment.  38 C.F.R. § 4.126(b).

The Veteran contends that he is entitled to a higher evaluation for his service-connected psychiatric disability.  He is currently rated as 10 percent disabling from December 23, 2010 to January 28, 2013; 50 percent disabling from January 28, 2013 to July 28, 2014; 30 percent disabling from July 28, 2014 to August 17, 2017, and 10 percent disabling thereafter for depressive disorder, NOS under 38 C.F.R. § 4.130, DC 9434-9400.  

Under the General Rating Formula, a 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.  Id.  

A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events).  Id.

A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; in difficulty establishing effective work and social relationships.  Id.

A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.  Id.

A 100 percent rating is warranted when there is evidence of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation or name.  Id.

When determining the appropriate disability rating to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to ward a specific rating.  Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-24 (Fed. Cir. 2004).  Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms.  A veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118.  

The Board has considered the GAF scores assigned during the claim period.  The Global Assessment of Functioning (GAF) is a scale reflecting psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV).  GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serous impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  

In an October 2010 statement, the Veteran's wife reported that she noted that the Veteran had depression and panic or anxiety attacks.  

During an August 2011VA examination, the Veteran demonstrated some difficulty with attention and concentration.  The examiner noted that his affect was normal and his speech had a normal rate, tone, and pressure.  The Veteran's thought process was noted as linear and goal directed.  There was no indication of psychosis with any reported auditory or visual hallucinations.  There were no active suicidal or homicidal thoughts where he was formulating a plan to where he would harm himself.  The Veteran reported that his marriage was going "relatively well" and he is in contact with one of his children.  For leisure, he reported that he likes to play card with his friends and build birdhouses.  He reported difficulty with sleeping and symptoms of depression nearly every day.  He rated his depression as a six or seven out of 10.  He also reported diminished interest in activities that he previously enjoyed.  The examiner noted that the Veteran did not discuss symptoms of anxiety or panic attacks.  The examiner reported that the Veteran's mental disorder signs and symptoms were transient or mild which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress.  Furthermore, the examiner found that the Veteran did not exhibit inappropriate behavior, his thought process and communication were not impaired, his social functioning was not significantly impaired, and employment was not significantly impacted due to his psychological issues.  

In his October 2011 NOD, the Veteran reported that he had depressed mood, mild memory loss, and suspiciousness.  

VA mental health treatment notes from 2012 reflect that the Veteran reported depressed mood many days with "hardly any energy."  Additionally, he reported poor concentration, lack of interest in life, and fair appetite.  He reported that he did not have suicidal ideation.  He also reported frequent irritability, anger outburst, and difficulty sleeping.  He reported low energy and fatigue, feelings of failure and guilt, and down feelings or hopelessness.  

VA mental health treatment notes from 2013 reflect that the Veteran's depression symptoms included irritability, anger, yelling, and throwing things.  He reported anxiety with worry that occurs three to four times a month.  Additionally, he reported panic attacks.  

During an August 2017 VA examination, the Veteran denied suicidal ideations as well as homicidal ideations.  He reported that he had a depressed mood and chronic sleep impairment.  The examiner noted that his thinking was goal-oriented with good ability to abstract.  Additionally, his judgment, reasoning, and logical analysis were noted to appear to be in place.  The examiner reported that there was no evidence of delusional thinking, paranoia, or frank psychosis.  At the time of the examination, his affect was noted as relatively flat.  The examiner found that he was in low risk in terms of being a danger to himself or others.  The Veteran was oriented to date, month, year, day, place, and city.  He reported that his marriage was "good" and his daughter resided with him.  He was at his place of employment at that time for seven years.  He was deemed independent in all activities of daily living.  He reported a depressed mood for most of the day and nearly every day.  He had markedly diminished ability to concentrate, and his depressive symptoms were noted to cause clinically significant distress.  The examiner concluded that it appeared that the Veteran continued to have occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication.  

Upon review of the evidence of record, the Board finds that the Veteran's depressive, NOS symptoms more nearly approximate the criteria required for a 50 percent disability rating, but not higher, from December 23, 2010 and thereafter; the entire period on appeal.  

Throughout the period of appeal, the Veteran has consistently reported consistent and constant feelings of depressed mood; anxiety; irritability; sleep impairment; and panic attacks.  Additionally, the Veteran exhibited flattened affect with difficulty concentrating.  While the August 2011 and August 2017 VA examiner did not find that he had difficulty establishing and maintaining effective work and social relationships, the evidence shows that his irritability was frequent, he had a lack of interest in life, and he had anger outbursts which affect his social relationships.  The findings reflect that the symptoms and overall impairment caused by the Veteran's depressive disorder, NOS more nearly approximate the criteria for a 50 percent disability rating.  

Throughout the period of appeal, the symptoms and overall impairment did not, however, more nearly approximate the criteria for a rating of 70 percent or higher.  As stated above, the Veteran denied suicidal and homicidal ideation.  Furthermore, the VA examiners noted that the Veteran had normal thought process and impulse control, was oriented to time and place, and had normal speech.  The Veteran did not have symptoms or impairment more nearly approximating the inability to establish and maintain effective relationships, as evidenced by his familial relationships and friendships.  He also maintained the ability to perform activities of daily living, including personal appearance and hygiene.  Additionally, the Veteran did not exhibit paranoia, psychosis, delusions, or hallucinations.  

An examiner's characterization of the level of disability is not binding on the Board.  38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination ... so that the current rating may accurately reflect the elements of disability present"); VA Adjudication Procedures Manual, M21-1, Part III, Subpart iv, Chapter 3, Section A.7.i (updated Oct. 28, 2015) ("Do not request a medical authority to make conclusions of law, which is a responsibility inherent to the rating activity").  The above evidence reflects that while the symptoms and overall impairment approximated the criteria for a 50 percent rating, the Veteran did not have the required "sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation."  Vazquez-Claudio, 713 F.3d at 118.

As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria.  Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if "§ 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board"(quoting Dingess v. Nicholson, 19 Vet.App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007)).  

Finally, in this case, the Board notes that the Veteran is employed.  As such, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) based on his service-connected disabilities has not been raised by the evidence of record.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).

For the foregoing reasons, a rating of 50 percent, but no higher, for depressive disorder, NOS, from December 23, 2010 and thereafter, is warranted.  As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.

B. Service connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Service connection also may be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was traceable to a disease or injury incurred or aggravated in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).  The absence of any one element will result in denial of service connection.  Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006).

Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310 (a) (2016).  In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).  38 C.F.R. § 3.310 (b) provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected.  In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury.

1.  Sleep Apnea

In his September 2010 supplemental claim, the Veteran reported that his sleep apnea is related to his service-connected nasal disability.  

In an October 2010 statement from the Veteran's wife, she reported that she noticed that at time during the night, the Veteran would stop breathing, be very congested, and would not sleep at all.  She reported that the Veteran seldom got a full night rest.  

Medical treatment records from July 2010 from Parkview Medical Center reflect a diagnosis of severe obstructive sleep apnea with a component of central apnea.  

The November 2010 VA examiner confirmed the Veteran's diagnosis of severe sleep apnea with combined central and obstructive apnea.  The examiner opined that the Veteran's sleep apnea is not caused by, or the result of, his nasoseptal deviation with associated nasal congestion and epistaxis.  As rationale, she stated that Veteran has a 70 percent nares obstruction, but the right nares is patent.  She reported that he has never required nasoseptal surgery and he has never had an otolaryngology evaluation.  She stated that the examination revealed hypertrophy of the retro-palatal oropharynx region due to his enlarged posterior palate, tongue, and uvula.  She stated that his sleep study was abnormal due to 29 central apneas and 15 obstructive apneas, for an apnea/hypopnea index of 39 (apnea/hypopnea index supine was 43).  She reported that he has a diagnosis of depression and is treated with citalopram and also uses alcohol, which can lead to central apnea.  She stated that he has a body mass index (BMI) of 31, and obesity leads to sleep apnea.  She concluded that he was able to use a nasal continuous positive airway pressure (CPAP) mask with good success.  

In October 2011, the Veteran submitted an article regarding numerous causes for sleep apnea.  The article reported that sleep apnea could occur due to bone deformities, alcohol, obesity, medication, and blockage or narrowing of the airways in the nose, mouth, or throat.  

In August 2017, a medical opinion was provided by a VA physician to determine the etiology of the Veteran's sleep apnea.  The physician opined that the Veteran's sleep apnea was not at least as likely as not aggravated beyond its natural progression by his service-connected nasal disability.  As rationale, the physician reported that the Veteran had mixed sleep apnea with two thirds being central sleep apnea and one third obstructive.  He reported that risk factors for central sleep apnea include increased age, male gender, heart failure, or cerebrovascular disease.  He stated that certain medical conditions, including renal failure and atrial fibrillation, may be associated with central asleep apnea.  He stated that central sleep apnea occurred with increased frequency in individuals who chronically use opioids including methadone.  He reported that nasal congestion or nasal obstruction is not known to cause or aggravate central sleep apnea.  He reported that two thirds of the apneic and hypoxemic episodes in the Veteran's case are centrally mediated and only one third are obstructive in nature.  He explained that obstructive sleep apnea is characterized by recurrent collapse of the pharyngeal airway during sleep, resulting in substantially reduced or complete cessation of airflow despite ongoing breathing efforts.  He reported that this leads to intermittent disturbances in gas exchange and fragmented sleep.  He reported that the severity of sleep apnea in any given individual is likely influenced by a combination of factors, including upper airway anatomy, arousal threshold, body habitus, and stability of the respiratory control system.  He stated that the major risk factor for sleep apnea is obesity.  He stated that the risk for sleep apnea in a male with a BMI greater than 30 is greater than 50 percent.  He stated that at the time of his diagnosis, the Veteran had a BMI of 31, which put him at a significant risk for obstructive sleep apnea.  Additionally, he reported that at the time of his discharge from active duty, his weight was 165 pounds and at the time of his diagnosis, 30 years later, his weight had increased 50 pounds.  He reported that obesity represents the major risk factor or etiological condition for the development of the obstructive component of his sleep apnea.  He stated that age, gender, family history, and certain medical conditions are also risk factors for sleep apnea.  He reported that nasal congestion is considered a minor risk factor for obstructive sleep apnea.  He concluded that in that the Veteran had been successfully treated with CPAP with a nasal mask (not full face mask), the nasal congestion in this case would represent essentially a non-aggravating factor for his sleep apnea.  

In a December 2017 statement, the Veteran reported that his deviated nasal septum was caused by his nose being broken twice in the military.  He stated that he could not smell as well as someone his age should be able to (according to his peers).  He stated that his nasal blockage prevents him from breathing normally and especially while wearing his CPAP.  He stated that his wife complained of excessive noise throughout the night when he was wearing his CPAP and said that it sounded like someone with a severe cold attempting to breathe through their nose. 

Upon review of the evidence above, the Board finds that the Veteran's claim for service connection for sleep apnea on a secondary basis must be denied.

The November 2010 and August 2017 VA medical professionals explained the reasons for their conclusions based on an accurate characterization of the evidence of record, their opinion, addressing both causation and aggravation collectively, is entitled to substantial probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning).  The Board must weigh this opinion against the article submitted by the Veteran.  The Court has indicated that treatise evidence may suffice to establish nexus in instances where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion."  Sacks v. West, 11 Vet. App. 314, 317 (1998).  Significantly however, the Court has also held that treatise materials generally are not specific enough to show nexus, Id. at 317, and that medical opinions directed at specific patients generally are more probative than medical treatises.  Herlehy v. Brown, 4 Vet.App. 122, 123 (1993).

The article submitted by the Veteran correlates with the opinions of the November 2010 and August 2017 medical opinions.  The article and the medical opinions note that some of the causes of sleep apnea are obesity and blockage.  Given the similarities between the article and the medical opinions and the specific, reasoned opinions of the VA medical professionals, the Board finds that the latter is of greater probative weight on the question of whether the Veteran's service-connected nasal disability caused or aggravated by his sleep apnea.  Thus, the preponderance of evidence is against a relationship between the Veteran's service-connected nasal disability and sleep apnea.

To the extent that the Veteran, including through his representative, has opined that his sleep apnea is related to his service connected nasal disability, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In this case, the Veteran's contentions as to the etiology of his sleep apnea relate to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses.  Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (witness capable of diagnosing dislocated shoulder); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer").  The Veteran's statements are therefore not competent in this regard.  To the extent that these lay statements are competent, the Board finds the specific, reasoned opinions of the VA medical professionals to be of greater probative weight than the Veteran's more general lay assertions.  Thus, the preponderance of evidence is against a relationship between the Veteran's sleep disorder and active duty service.

For the foregoing reasons, the Board finds that the Veteran's sleep apnea was neither caused nor aggravated by a service connected disease or injury, to include his service-connected nasal disability.  The preponderance of the evidence is against the claim.  The benefit of the doubt doctrine is therefore not for application.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.


2.  Right Upper Extremity Radiculopathy

During an August 2008 VA examination, the Veteran reported that for the past seven years, he began to have numbness in his right arm and constant pain in his neck and shoulder that radiated to his arm.  Physical examination revealed decreased sensation to all fingertips to filament testing on the right as well as decreased sensation to filament touch on the right dorsal forearm that did not appear to be different in different dermatomes.  

VA medical treatment notes from 2008 reflect complaint of bilateral arm weakens and numbness in right arm.  

In February 2009, the Veteran underwent electromyography (EMG) testing which revealed large motor units in the right dorsal interossesous.

In a March 2010 statement, the Veteran reported that a VA clinic determined that he had neuropathy in his right shoulder that extended to his arm.  

In September 2010, an EMG revealed no evidence of carpal tunnel, ulnar neuropathy, cervical radiculopathy, and normal electroidiagnostic examination.  

During a January 2011 VA examination, the Veteran reported that pain in his neck traveled to his arm and he had numbness in relation to his neck condition.  Upper extremity sensory function testing revealed a pinprick test, temperature test, position sense, vibratory sense, and two point discrimination test that was all normal.  

During an August 2011 VA examination, the Veteran reported that he experienced numbness and tingling in his whole hand about 30 percent of the time.  On examination, the Veteran's muscles were marked as normal.  The examiner noted that Spurling's causes sensation of "water running down arm" into posterior forearm and dorsal wrist on right pinprick subjectively decreased diffusely throughout the whole right arm.  The examiner found that the claimed radiculopathy was at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran's service-connected condition.  As rationale, the examiner reported that the right upper extremity neurological findings are not due to the right shoulder, but it is at least as likely as not that the right upper extremity neurological condition is related to the neck.  The examiner reported that the Veteran had discogenic pain and radicular symptoms which travel into the right upper extremity in a C7 distribution.  She reported that there was no evidence of objective, focal physical examination findings in this distribution other than positive Spurling's, in otherwise, no focal sensory or motor abnormalities on examination, but his complaints on history and with Spurling's are consistent with a "sensory radiculopathy."  The subjective sensory complaints on pinprick examination are diffuse and are not consistent with a focal radiculopathy and strength is full throughout both upper extremities.  She noted that prior EMG, done when the Veteran reported the same symptoms, was negative for radiculopathy.  However, she found that regardless, the Veteran's subjective complaints with a positive Spurling's on examination are at least as like as not due to his neck injury in service.  She found that this was based on the presence of similar complaints at the time of initial injury, degenerative changes on cervical MRI, and patient's report of persistent symptoms since his time in service.       

In a September 2017 VA examination report, the examiner noted that the Veteran did not have a peripheral nerve condition or peripheral neuropathy.  The examiner noted that prior 2009 examination reports reflect possible old evidence for cervical radiculopathy, but found that on examination, the area was normal.  The Veteran reported that he had bilateral upper arm tingling and numbness.  No EMG study was conducted as the examiner found that the EMG done in 2010 was for the same complaints and it did not reveal evidence of peripheral neuropathy or a cervical radiculopathy.  The examiner found that there was insufficient evidence for a current chronic radiculopathy.  The examiner opined that the condition claimed is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected cervical DJD.  As rationale, he reported that there was no focal pattern consistent with right upper extremity neuropathy or radicular pattern consistent with radiculopathy.  He concluded that there was no right upper extremity neuropathy.  He noted that the EMG of 2010 was entirely normal and reported that the Veteran's numbness was positional and did not represent a disease.  He reported that the Veteran's tingling complaint was too diffuse and nonfocal to be either neuropathy or radiculopathy.  

Upon review of the evidence above, the Board finds that the Veteran's claim for service connection for upper right extremity radiculopathy as secondary to service-connected cervical DJD is warranted.  

The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  The Veteran filed his claim for service connection in this case in March 2010.

The Board notes that the medical examinations have conflicting opinions regarding whether the Veteran has had a diagnosis of upper right extremity radiculopathy.  The Board finds that the evidence reflects that the Veteran had a diagnosis of radiculopathy during the period of appeal, although it may have resolved by the September 2017 VA examination.  As noted above, the Veteran filed for his claim in March 2010 and received a diagnosis of radiculopathy in August 2011; thus, during the pendency of the appeal.  Therefore, a current disability has been established.  

The September 2017 VA medical opinion reflects a lack of a relationship between the Veteran's service-connected disabilities and the in-service fall.  Additionally, the examiner did not find a current diagnosis of upper right extremity radiculopathy.  However, the examiner noted that prior examination reports reflected a possibility of old evidence for cervical radiculopathy.  Additionally, the examiner did not fully take into consideration the Veteran's statements.  Specifically, the examiner did not address the years of documented complaints the Veteran had regarding his right arm pain, tingling, and numbness.  As the examiner did not address the Veteran's symptomatology, the opinion is inadequate.  Buchanan, 451 F.3d at 1336 (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence").  

In contrast to the above inadequate opinion, the August 2011 positive medical opinion was based on the Veteran's statements, examinations, and EMG testing results-an entire review of the Veteran's medical history.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).  To be adequate, an examination must take into account an accurate history.  Nieves-Rodriguez v. Nicholson, 22 Vet. App. 295 (2008).  Thus, the Board finds this opinion to be probative.  

Given the adequate positive medical nexus opinion and competent, credible lay statements of the Veteran, the evidence is at least evenly balanced as to whether the Veteran's upper right extremity radiculopathy was caused by his cervical DJD.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for upper right extremity radiculopathy as secondary to service-connected cervical DJD is warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.


ORDER

Restoration of a 20 percent rating for cervical DJD, from December 23, 2010, is granted, subject to controlling regulations governing the payment of monetary awards.  

Entitlement to an initial rating of 50 percent, from December 23, 2010 and thereafter, for service-connected depressive disorder, NOS is granted, subject to the regulations governing the award of monetary benefits.  

Entitlement to service connection for sleep apnea as secondary to the service-connected disability of nasal septum deviation with nasal congestion and epitaxis is denied.  

Entitlement to service connection for right upper extremity radiculopathy as secondary to service-connected cervical DJD is granted.  


REMAND

In his October 2011 NOD, the Veteran indicated that his symptoms of his cervical spine disability have worsened by continual pain on range of motion that radiated.  Additionally, he reported stiffness in his spine which prevent him from turning his head enough to see behind him with cramps and spasms daily.  In a December 2017 statement, the Veteran reported that his neck pain was continuous and disabling.  

VA's duty to assist a Veteran includes providing a thorough and contemporaneous examination when the record does not adequately reveal the current state of the Veteran's disability.  Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124).  The record is inadequate and the need for a contemporaneous examination occurs when the evidence indicates that the current rating may be incorrect due to the passage of time and a possible increase in disability.  Hart, 21 Vet. App. at 508 (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) ("Where the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination").  See also 38 C.F.R. § 3.327 (Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect").  The Veteran's last VA examination was in January 2011.  Since the Veteran is claiming he is experiencing worsening symptoms, and this change in disability would possibly affect his disability rating, the Board finds that a remand is appropriate in order for the Veteran to undergo a new VA examination.  

Accordingly, the claim remaining on appeal is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination to evaluate the current severity of the service-connected cervical DJD.  All indicated tests and studies should be performed and findings reported in detail.  The claims folder must be made available to the examiner for review prior to examination.

The examination should be conducted in accordance with the current disability benefits questionnaire.

2.  After the above development has been completed, readjudicate the claim for entitlement to a disability rating in excess of 20 percent for cervical DJD.  If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.

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). 

The claim must be afforded expeditious treatment.  The law requires that all claims 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 (West 2012).



____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs