Citation Nr: 18123747 Decision Date: 08/02/18 Archive Date: 08/02/18 DOCKET NO. 15-06 597A DATE: August 2, 2018 ORDER An effective date earlier than June 21, 2012, for a higher evaluation for degenerative disc disease (DDD) of the lumbar spine with intervertebral disc syndrome (IVDS) is denied. Service connection for obstructive sleep apnea is denied. Service connection for hypertension is denied. REMANDED Entitlement to service connection for degenerative joint disease (DJD) and sclerosis of the femoral head and neck of right hip is remanded. Entitlement to service connection for DJD, right knee, medial tibial femoral compartment is remanded. FINDING OF FACT 1. The Veteran submitted a claim for a higher evaluation for DDD of the lumbar spine and its manifestations in June 21, 2012. 2. Medical evidence in the one-year period prior to June 21, 2012, did not establish that the Veteran’s back disability warranted a higher evaluation or indicate that a separate evaluation was warranted for bilateral lower extremity radiculopathy. 3. The preponderance of the evidence is against a finding that the Veteran’s current obstructive sleep apnea was incurred in or otherwise the result of his active service. 4. The preponderance of the evidence is against a finding that the Veteran’s current hypertension was incurred in or otherwise the result of his active service CONCLUSION OF LAW 1. The criteria for an effective date earlier than June 21, 2012, for a higher evaluation for DDD of the lumbar spine with IVDS and its manifestations have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.310, 3.400. 2. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103a, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303 (2017). 3. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1973 to January 1976. At an October 2016 videoconference hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. The Veteran was initially service-connected for lumbosacral strain, effective February 1, 1976, and assigned a 10 percent evaluation. He submitted a claim for increased rating in June 2012. In a March 2013 rating decision, the Regional Office (RO) assigned a 20 percent rating for DDD of the lumbar spine, effective June 21, 2012. Another claim for increase was submitted in October 2013 and a January 2014 rating decision assigned a 60 percent rating for DDD of the lumbar spine and IVDS, effective October 11, 2013. That decision also assigned 60 percent evaluations for radiculopathy of the right lower extremity and left lower extremity. The Veteran submitted a notice of disagreement and timely appealed. In March 2014, the Veteran submitted a claim for an earlier effective date for his back disability based on clear and unmistakable error (CUE) in 1976 and 1978 rating actions. A March 2015 rating decision assigned 10 percent ratings for radiculopathy of the right lower and left lower extremities, effective July 16, 2013, and affirmed the 60 percent evaluations from October 11, 2013. That decision also assigned a 40 percent rating for DDD lumbar spine with IVDS, effective July 16, 2013, and affirmed the 60 percent rating from October 11, 2013. The RO has not yet adjudicated the CUE claim in 1976 and 1978 rating actions, therefore it is not before the Board at this time. 1. Earlier Effective Date The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection or for an increase of compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an award of service connection or for increased compensation “will be the date of receipt of the claim or the date entitlement arose, whichever is later.” 38 C.F.R. § 3.400. In addition, several claims at issue are subject to the more specific criteria under 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2). “The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. § 5110(b)(2). The implementing regulation summarizes the criteria for an effective date of an award of increased compensation as the “[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date otherwise, date of receipt of claim.” 38 C.F.R. § 3.400(o)(2). Thus, if a claim is received after a Veteran received treatment for a service-connected disability, and the treatment occurred within the prior one-year period and showed an increase in disability, then the effective date will be assigned as of that date of treatment. The Court has indicated that it is axiomatic that the fact that must be found, in order for entitlement to an increase in disability compensation to arise, is that the service- connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2), which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, “the only cognizable increase for this purpose is one to the next disability level” provided by law for the particular disability). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was “ascertainable.” Id. at 521. However, the Court has clarified that 38 C.F.R. § 3.400(o)(2) is applicable only where an increase in disability precedes a claim for an increased disability rating. In other cases, the general rule of 38 C.F.R. § 3.400(o)(1) applies. See Harper v. Brown, 10 Vet. App. 125 (1997). Section 3.400(o)(2) is intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty and is not intended to cover situations where a disability worsened gradually and imperceptibly over an extended period of time and there is no evidence of entitlement to increased evaluation prior to the date of claim. See VAOPGCPREC 12-98 (Sept. 23, 1998). Thus, the Court and VA’s General Counsel have interpreted the provisions of 38 U.S.C. § 5110 and 38 C.F.R. § 3.400 as meaning that if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. Harper, 10 Vet. App. at 126-27; VAOPGCPREC 12-98 (1998). Any communication or action, indicating an intent to apply for a VA benefit, from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Also, with regard to the terms “application” or “claim,” the Board notes that once a formal claim for compensation has been allowed, the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim, provided such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission. 38 C.F.R. § 3.157(b)(1); see also 38 C.F.R. § 3.155(a). Evidence received from a private physician or layperson will also be accepted as a claim for an increase or to reopen when the evidence is within the competence of the physician or layperson and shows the reasonable probability of entitlement to benefits. The date of receipt of such evidence will be accepted as the date of receipt of the claim. 38 C.F.R. § 3.157(b)(2). In this regard, a “report of examination or hospitalization” under § 3.157(b) should “indicate that [a] Veteran’s service-connected disability [has] worsened since the time it was last evaluated.” Massie v. Shinseki, 25 Vet. App. 123, 134 (2011). Moreover, the term “report of examination” under § 3.157(b) “implies that the medical record in question must describe the results of a specific, particular examination.” A letter may qualify if it, for instance, was “generated in connection with any particular VA medical examination” rather than, for example, a “claim for Social Security disability benefits that was pending at the time it was written.” Massie v. Shinseki, 25 Vet. App. at 133. Other considerations include whether the letter relates “the findings of or treatment provided during a specific VA medical examination, the date of which could possibly serve as the date of an informal claim for increased disability compensation,” rather than “present[ing] a very short summation of [the Veteran’s general condition, as [the physician] had observed it over” time. Id. As noted above, the Veteran submitted his claim for an increased rating in June 2012. There is no other evidence of a claim for increase in the claims file prior to that date. The Veteran submitted a statement in October 2013 that discussed an interruption in his benefits payments for his service-connected back disability. He stated that he submitted for an increase and was reevaluated in 1983 without resolution. There is no evidence of any claim for increase in 1983 or subsequent development in the claims file. There are, however, many documents from that timeframe relevant to other claims, indicating ongoing communication between VA and the Veteran. The Veteran submitted another statement in January 2015 that described seeking an increase for his service-connected back disability in 2002 but being told there was no record of his military service. He argued that if he had been provided with follow-up treatment and care, his benefits would have been recalculated in 1982 and 2002. There are no records in his file of any claims for increase in 2002 or documentation of contact with VA. He has not submitted any further evidence of unresolved claims, as well. The Board finds that the only available evidence of a claim for increase for the service-connected back disability and its manifestations was submitted in June 2012. The Veteran stated at the October 2016 hearing that all relevant records are in VA’s possession and he has not submitted any evidence that earlier claims were made. Further, no medical treatment records or records of hospitalizations have been submitted prior to June 2012. Therefore, the date of claim for increase is June 21, 2012. Thus, according to 38 U.S.C. § 5110 and 38 C.F.R. § 3.400, the earliest effective date for a back disability increase could be June 2011, if factually ascertainable. Although there are indications of radiculopathy in his 1976 and 1978 VA examinations, as noted above, whether a CUE was involved in the original rating of his back disability is not on appeal here. Thus, the Board will consider whether an increase in the Veteran’s back disability or lower extremity radiculopathy was factually ascertainable between June 2011 and June 2012. The July 1976 rating decision granting service connection for lumbosacral strain was rated under the spine regulations that were in effect prior to amendments made in September 23, 2002 (see 67 Fed. Reg. 54,345 (Aug. 22, 2002)) and September 26, 2003 (see 68 Fed. Reg. 51,454 (Aug. 27, 2003)). See also 69 Fed. Reg. 32, 449 (June 10, 2004) (containing a correction to Notes (1) and (2)). Because the current appeal stems from the Veteran’s claim for an increase made in 2012, the Board notes that only the amended regulations are for consideration in adjudicating whether he meets the criteria for a higher rating. As noted above, the Veteran was first separately rated for his bilateral lower extremity radiculopathy in a January 2014 rating decision. However, evaluation of separate ratings for neurological manifestations of the bilateral lower extremities is part and parcel of the underlying June 2012 increased rating claim for a higher rating for the spine and will be considered throughout the entire appeal period. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2017). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disabilities. 38 C.F.R. § 4.14 (2017). It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s back disability was originally rated under 38 C.F.R. § 4.71a, 5295 (effective until September 26, 2003). The pre-amended criteria for spine ratings contemplated both back and associated neurological symptoms in a single rating for the spine. See, e.g., (assigning a 100 percent rating for residuals of a vertebral fracture for symptoms including “cord involvement”), 38 C.F.R. § 4.71a, DC 5285 (2002). Under the amended criteria, the Veteran’s back disability has been rated under 38 C.F.R. § 4.71a, DC 5243, pertaining to IVDS of the spine. From July 16, 2013, his bilateral radiculopathy has been rated under 38 C.F.R. § 4.124a, DC 8520. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula provides for assignment of a 10 percent rating where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is 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 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine at Note (2); see also 38 C.F.R. § 4.71a, Plate V. 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. Id. at Note (5). The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance for rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Alternatively, disability involving disc disease may be rated under the Formula for Rating IVDS Based on Incapacitating Episodes. That formula provides a 10 percent disability rating for 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 for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. 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. Id. at Note (1). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. The Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner’s assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). The Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), also held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The neurologic rating guidelines are found at 38 C.F.R. Part 4; these consider, among other things, complete or partial loss of use of one or more extremities. In rating peripheral nerve injuries, attention should be given to the relative impairment in motor function, trophic changes or sensory disturbances. 38 C.F.R. § 4.120 (2017). For disease of the peripheral nerves, the term “incomplete paralysis” when used with peripheral nerve injuries indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement, when bilateral the ratings are combined with application of the bilateral factor. 38 C.F.R. § 4.124a. DC 8520 provides a 10 percent disability rating for incomplete paralysis of the sciatic nerve that is mild; a 20 percent disability rating for incomplete paralysis of the sciatic nerve that is moderate; a 40 percent disability rating for incomplete paralysis of the sciatic nerve that is moderately severe; and a 60 percent disability rating for severe incomplete paralysis, with marked muscular atrophy. An 80 percent disability rating is provided if there is complete paralysis of the sciatic nerve, where “the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.” Other than his service treatment records (STRs) and June 1976 and June 1978 VA examination reports, there are no private or VA medical treatment records relevant to the Veteran’s increased back claim prior to 2012. In July 2012, he was involved in a motor vehicle accident which caused significant injury to his cervical spine and a cerebral concussion. Treatment records discussed his neck and head injuries, but did not discuss his lumbar spine disability. The Veteran underwent a VA examination in August 2012. His forward flexion was to 50 degrees with pain at 45 degrees; extension was to 0 with pain at 0 degrees; right lateral flexion was to 15 degrees with pain at 15 degrees; left lateral flexion was to 20 degrees with pain at 20 degrees; right lateral rotation was to 20 degrees with pain at 20 degrees; and left lateral rotation was to 20 degrees with pain at 20 degrees. Repetitive use testing yielded similar results. Functional loss was deemed to be less movement than normal and pain on movement. Localized tenderness and pain on palpation was observed, with tenderness radiating to the hip. He had guarding or muscle spasm that resulted in abnormal gait. He described flare-ups with constant and significant pain radiating down to both lower extremities, worse on the hips and sacroiliac joints. He reported that he could not tolerate sitting or standing more than 20 minutes at a time and could not lay on his back. Muscle strength testing, a reflex examination, and a sensory examination yielded normal results. No radiculopathy or other neurologic abnormalities were noted. He did not have IVDS. X-rays revealed minimal spondylosis, L2 to S1, mild disc degeneration at L5-S1, and spina bifida occulta at S1. The examiner noted that his current diagnoses were a progression of the previously established diagnosis of lumbosacral strain. In July 2013, the Veteran submitted a Disability Benefits Questionnaire completed by his private orthopedist. DDD was diagnosed and range-of-motion testing revealed forward flexion to 30 degrees with pain at 15 degrees; extension to 10 degrees with pain at 5 degrees; right lateral flexion to 15 degrees with pain at 10 degrees; left lateral flexion to 15 degrees with pain at 10 degrees; right lateral rotation to 20 degrees with no pain noted; and left lateral rotation to 20 degrees with no pain noted. The Veteran was unable to perform repetitive-use testing due to pain. Functional loss was reported to be less movement than normal, pain on movement, and interference with sitting, standing, and/or weight-bearing. Localized tenderness or pain on palpation was noted and abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis was observed. Muscle strength testing was normal except for active movement against gravity with left great toe extension. Muscle atrophy was recorded, as well. A reflex examination was absent in the left ankle but otherwise normal. A sensory examination revealed decreased sensation to light touch in the bilateral lower leg/ankle and foot/toes. Radiculopathy was found bilaterally, with the left lower extremity gauged as moderate with constant pain and intermittent pain and parasthesia or dysesthesias and mild numbness. The right lower extremity had mild paresthesias or dysesthesias. The clinician described the radiculopathy as intermittent bilateral foot paresthesias of the plantar surface, indicating involvement of the sciatic nerve. The severity of the left lower extremity radiculopathy was deemed to be moderate and there was no selection regarding the right lower extremity. IVDS was diagnosed with at least four weeks but less than six weeks of incapacitating episodes. The same private orthopedist submitted a letter in July 2013 which stated that the Veteran’s back pain had increased and an August 2012 MRI of the lumbar spine disclosed multi-level disc pathology as well as hypertrophic pedicular facets. The pain in his low back was noted to be located at and below the beltline in the midline, radiating to his bilateral buttocks, left greater than right. The pain then reportedly radiated into the posterolateral left thigh, left calf, and sole of the left foot with numbness and tingling in the great toe and the second toe. Pain was reported to increase with coughing, sneezing, and straining, limiting his sitting capacity to 30 minutes or less and his walking capacity to 45 minutes or less. The clinician observed that the Veteran’s lumbosacral spine revealed flattening of the lumbar lordotic curve, normal thoracic kyphotic curve with no evidence of scoliosis and no increased kyphosis, and a straight spine from the occipital process to the gluteal cleft. Another VA examination was conducted in December 2013 which revealed forward flexion to 45 degrees with pain at 45 degrees; extension to 10 degrees with pain at 10 degrees; and right and left lateral flexion and right and left lateral rotation to 10 degrees with pain at 10 degrees. Repetitive use testing revealed similar results. Functional loss was reported to be less movement than normal, weakened movement, excess fatigability, and pain on movement. Stiffness and pain on movement were also noted, with no guarding or muscle spasm, abnormal gait, or abnormal spinal contour observed. The Veteran described flare-ups as difficulty in walking, standing, and prolonged sitting from pain and weakness in the back. Muscle strength testing was normal on the left, with normal results on the right with ankle plantar flexion and dorsiflexion, and active movement against some resistance on the right with hip flexion and knee extension. Muscle atrophy of the left lower thigh was indicated. Reflex examination results were normal and sensory examination results were normal but decreased in the left foot/toes. Moderate radiculopathy was noted on the left with intermittent pain, paresthesias/dysesthesias, and numbness. Moderate radiculopathy was noted on the right with paresthesias/dysesthesias and numbness. Involvement of the sciatic nerve was found bilaterally and found to be severe. IVDS was diagnosed with incapacitating episodes for at least six weeks. It was reported that the Veteran used a cane regularly, as well. The examiner found that the degrees of range-of-motion loss during pain on use or flare-ups would be reduced to 45 degrees on flexion, and 10 degrees on extension, lateral rotations, and lateral flexions. The Board finds that the evidence does not support an evaluation in excess of 10 percent from June 21, 2011, to June 21, 2012, for the service-connected back disability and no medical evidence of bilateral lower extremity radiculopathy from June 21, 2011, to June 21, 2012. After several decisions, the RO has assigned a 20 percent rating from June 21, 2012, a 40 percent rating from July 16, 2013, and a 60 percent rating from October 11, 2013, for his back disability. These awards are consistent with the VA examination results and private DBQ and clinician’s letter. Additionally, bilateral lower extremity radiculopathy was assigned a 10 percent rating from July 16, 2013, and a 60 percent evaluation from October 11, 2013. These ratings are consistent with the medical evidence. Accordingly, an effective date earlier than June 21, 2012, for DDD of the lumbar spine with IVDS and its manifestations is not warranted. 2. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167(Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. at 49. To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). (a.) Obstructive Sleep Apnea The Veteran has contended that two in-service injuries led to his currently diagnosed obstructive sleep apnea. He stated that a December 1974 fall playing basketball which injured his lumbar spine also injured his head, and that a motor vehicle accident in which he was involved in March 1975 also caused a head injury. He has argued that these head injuries resulted in his currently diagnosed sleep apnea. The Veteran’s STRs are negative for any complaints, symptoms, treatment, or diagnosis of sleep apnea or any sleep disorder. His March 1973 entrance examination and January 1976 separation examination are silent as to any relevant complaints or notations. Records from the December 1974 basketball incident chronicle his treatment for a low back strain, and pain in his hip and legs. There are no notations regarding any head injury. Although complete records of his treatment from the March 1975 accident are unavailable, a head x-ray was completed following the accident which revealed a normal skull, with no fracture or bone erosion. The Veteran consulted a neurologist in July 1994 for continued headaches after having meningitis. An MRI and angiogram of the brain were both grossly normal. The Veteran was in another motor vehicle accident in July 2012. Medical treatment records indicated that he suffered a cerebral concussion and post-traumatic head syndrome. An MRI conducted in October 2012 revealed multifocal biparietal and bifrontal deep and subcortical white matter hyperintensities most consistent with chronic microvascular ischemic changes and no evidence of acute intracranial pathology or acute infarct. He reported blurred vision, poor concentration, slow memory, and headaches. Neurological follow-ups in November 2012 and December 2012 discussed the Veteran’s past medical history, noting several head injuries, including the basketball injury in which he noted he could not feel his legs briefly and the March 1975 motor vehicle accident which he reported required time off. The neurologist stated that although he had these prior injuries, he had a full recovery, returned to vigorous mental activities with no cognitive defects, no memory loss, and no problems with attention or concentration. She determined that prior minor head injuries had no head sequelae prior to the July 2012 accident. The Veteran underwent cognitive therapy from February 2013 to May 2013 to address his post-concussive syndrome. Additional neuropsychological consultations were conducted in April 2013 and May 2013 to assess his cognitive strengths and weaknesses. The Veteran’s private neurologist submitted a DBQ in July 2013 which diagnosed obstructive sleep apnea. It was noted that “patient never recovered after head injury,” that he felt weak and tired and had numerous awakenings at night with disorientation. It was noted that a sleep study was conducted in June 2013 that was positive for obstructive sleep apnea and that the Veteran had abnormal brain MRIs and angiograms. The clinician referenced her December 2012 neurological report which discussed the effects of the July 2012 motor vehicle accident only and deemed that he had fully recovered from any prior minor head injuries. The Veteran underwent a VA examination in July 2014 which found that the diagnosed obstructive sleep apnea was less likely than not incurred in or caused by service. The examiner noted that medical treatises confirmed that the single strongest risk factor for sleep apnea was an obese body habitus, which results in an anatomical crowding of the airway due to excess soft tissue from a large neck circumference and that the prevalence of sleep apnea progressively increased as the body mass index (BMI) and associated markers increased. Consistent with that etiology, the Veteran weighed 228 pounds and his BMI was 30, which was medically classified as overweight. The examiner determined that an overweight body habitus was not related to service. A letter from the Veteran’s private orthopedist was submitted in March 2015 which stated that he was suffering from post-concussive sleep apnea. He stated that the findings from the Veteran’s neuropsychologist outlined the connection between head injury and sleep apnea. The Board notes that the neuropsychologist’s findings did not discuss sleep apnea or any connection with head injury. At the October 2016 hearing, the Veteran testified that he had symptoms through the late 1970s and the 1980s and saw a neurologist for headaches in the 1990s. He reported that his private clinicians and VA had established a link between his head injury and sleep apnea. The Board finds that service connection for obstructive sleep apnea is not supported by the evidence. Any injury to the head in the December 1974 basketball incident or March 1975 motor vehicle accident had resolved, as per the Veteran’s neurologist. Additionally, x-ray examinations, MRIs, and angiograms in March 1975 and July 1994 yielded normal results. The Veteran pointed to the July 2013 DBQ results, however, the examining neurologist attributed any link between obstructive sleep apnea and head injury to the July 2012 motor vehicle accident. There is no other relevant medical evidence of record supporting a causative link between the Veteran’s in-service head injuries and his obstructive sleep apnea, first diagnosed in June 2013. Further, there is no evidence of sleep apnea or sleep-related symptoms in service. Finally, the July 2014 VA examiner provided an alternative etiology for the Veteran’s sleep apnea, noting his body habitus and referring to accepted medical knowledge attributing sleep apnea to obesity. Accordingly, the preponderance of the evidence is against granting service connection. The benefit of the doubt doctrine is not applicable in this case as there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 57. (b.) Hypertension The Veteran has asserted that his diagnosed hypertension was due to either the December 1974 basketball incident or the March 1975 motor vehicle accident, causing injury to his head. He contends that the head injuries resulted in his current hypertension. The March 1973 service entrance examination report recorded a blood pressure reading of 120/80. An October 1974 treatment record reported a reading of 114/84. Immediately following the basketball incident in December 1974, his blood pressure was 146/98. Subsequent readings over the following week were 100/50, 110/62, 108/66, 120/54, 104/74, 100/56, and 90/40. His January 1976 separation examination did not contain a blood pressure reading. A July 1976 VA examination done in connection with his back disability recorded a blood pressure reading of 125/80. The Veteran was first diagnosed for hypertension in 1988. In May 2011, he was hospitalized for chest pains and had blood pressure readings of 166/114, 187/68, 144/93, 134/81, 137/93, 125/85, 125/85, 128/89, and 126/88. Treatment records following his July 2012 motor vehicle accident confirmed his diagnosed hypertension and reported that due to medication non-compliance, he suffered light-headedness and headaches. In June 2013, the Veteran’s neuropsychologist noted that he needed to control his hypertension, as uncontrolled hypertension could disrupt the vascular structure within the brain and cause significant harm to the brain. In July 2013, the Veteran’s private orthopedist completed a hypertension DBQ. He diagnosed hypertension and hypertensive heart disease. He noted readings of 156/110 and 130/100 in February 1997, 1166/114 in May 2011, and 144/98, 137/91, and 150/104 in July 2013. Symptoms related to his diagnosis included headaches, blurred vision, tinnitus, chest pain, and dizziness. A VA examination was conducted in July 2014 which diagnosed hypertension and noted that the Veteran had never been hospitalized for high blood pressure. It was reported that he took three prescribed medications to treat his condition daily. A blood pressure reading of 115/84 was recorded. The examiner found that the Veteran’s hypertension was less likely than not incurred or caused in service as he had a diagnosis of essential hypertension which is a multi-factorial disease that could be caused by any number of recognized etiologies. He continued that obesity, high sodium intake, and a sedentary lifestyle are well-recognized major risk factors for hypertension. Consistent with that etiology, the Veteran had long-standing and well-documented issues with obesity with a current BMI of 30, considered medically overweight. Thus, the Veteran’s hypertension was caused by his lifestyle choices and his overweight body habitus was not related to service. The Veteran’s private orthopedist submitted a letter in March 2015 which stated that he suffered from post-concussive hypertension and discussed a connection between post-traumatic stress disorder and hypertension. The Board finds that service connection for hypertension is not supported by the evidence of record. The Veteran did not have hypertensive blood pressure readings in service. Any head injury experienced in December 1974 or March 1975 had fully resolved, per his neurologist. There is no medical opinion of record suggesting that his hypertension was the result of a head injury. Further, the July 2014 VA examiner found that his hypertension was due to an alternative etiology, namely his lifestyle choices and overweight body habitus. As such, the preponderance of the evidence is against a finding that the Veteran’s hypertension is the result of his active service. The benefit of the doubt doctrine is not applicable in this case as there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 57. REASONS FOR REMAND In a March 2015 letter from the Veteran’s private orthopedist, it was suggested that his right hip condition and right knee condition were more likely than not secondary to or aggravated by his service-connected back disability. There was no rationale provided for this conclusion. As there are relevant diagnoses of right hip and right knee conditions and no medical opinion has been sought regarding a secondary theory of causation, remand is needed to seek such an opinion. 1. Ask the Veteran to provide appropriate releases for any private medical treatment records he wants included with in his claims file. 2. Obtain any relevant outstanding VA treatment records, to include records since July 2014. 3. Schedule the Veteran for appropriate VA examinations by qualified clinicians to determine the nature, extent, onset, and etiology of any right hip condition and right knee condition. The contents of the entire claims file should be made available to the examiner, and the examination report should include discussion of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. A complete rationale for all opinions expressed should be provided. The examiner is asked to address the following: (a.) Identify any current right hip diagnoses. (b.) Provide an opinion as to whether it is more likely than not (50 percent or better probability) that any right hip condition originated during the Veteran’s active service, or is otherwise etiologically related to the Veteran’s active service, and the injuries noted therein. (c.) Provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that any right hip condition is proximately due to the Veteran’s service-connected DDD of the lumbar spine with IVDS disability. (d.) Provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that any right hip condition is aggravated by the Veteran’s service-connected DDD of the lumbar spine with IVDS disability. (e.) Identify any current right knee diagnoses. (f.) Provide an opinion as to whether it is more likely than not (50 percent or better probability) that any right knee condition originated during the Veteran’s active service, or is otherwise etiologically related to his active service, and the injuries noted therein. (g.) Provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that any right knee condition is proximately due to the Veteran’s service-connected DDD of the lumbar spine with IVDS disability. (h.) Provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that any right knee condition is aggravated by the Veteran’s service-connected DDD of the lumbar spine with IVDS disability. 4. Thereafter, readjudicate the issues on appeal. If any benefit sought remains denied, issue a Supplemental Statement of the Case to the Veteran and his representative. After allowing an appropriate amount of time for response, return the case to the Board for review. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Jensen