Citation Nr: 19155147 Decision Date: 07/17/19 Archive Date: 07/16/19 DOCKET NO. 17-16 576 DATE: July 17, 2019 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a vagus nerve injury is denied. Entitlement to an effective date prior to April 4, 2015 for the 20 percent disability rating for radiculopathy of the femoral nerve of the right lower extremity is denied. Entitlement to an effective date prior to April 4, 2015 for the 20 percent disability rating for radiculopathy of the sciatic nerve of the right lower extremity is denied. Entitlement to a rating in excess of 20 percent for radiculopathy of the femoral nerve of the right lower extremity is denied. Entitlement to a rating in excess of 20 percent for radiculopathy of the sciatic nerve of the right lower extremity is denied. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for glaucoma with 30 percent vision loss in the left eye is remanded. Entitlement to service connection for left knee instability with subluxation, to include as secondary to degenerative arthritis of the left knee, is remanded. Entitlement to a rating in excess of 20 percent for a lumbar spine disability is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to medication taken for service-connected back and bilateral lower extremity disabilities, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran has an additional qualifying disability of the vagus nerve due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault by VA providers in furnishing surgical and medical treatment. 2. For the entire appeal period, the Veteran has manifested no more than moderate radiculopathy to the femoral nerve of the right lower extremity as a separately ratable neurological manifestation of service-connected lumbar spine disability. 3. For the entire appeal period, the Veteran has manifested no more than moderate radiculopathy to the sciatic nerve of the right lower extremity as a separately ratable neurological manifestation of service-connected lumbar spine disability. 4. A final September 12, 2014 Board decision denied a rating higher than 10 percent for radiculopathy of the femoral nerve of the right lower extremity and granted entitlement to service connection for radiculopathy of the sciatic nerve of the right lower extremity and assigned a 10 percent rating. 5. The Veteran filed for increased ratings for radiculopathy of the femoral and sciatic nerves of the right lower extremity on April 4, 2015, and the evidence of record does not establish that an increase in symptomatology was factually ascertainable within a year prior to the date of the Veteran’s April 4, 2015 claims for an increased rating. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a vagus nerve injury have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.361. 2. The criteria for entitlement to a rating in excess of 20 percent for radiculopathy of the femoral nerve of left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.40, 4.45, 4.71a, 4.124a, Diagnostic Code 8726. 3. The criteria for entitlement to a rating in excess of 20 percent for radiculopathy of the sciatic nerve of left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.40, 4.45, 4.71a, 4.124a, Diagnostic Code 8520. 4. The criteria for entitlement to an effective date prior to April 4, 2015 for the 20 percent rating for radiculopathy of the femoral nerve of the right lower extremity have not been met. 38 U.S.C. §§ 5107, 5110, 7.104(b); 38 C.F.R. §§ 3.102, 3.400, 20.1100. 5. The criteria for entitlement to an effective date prior to April 4, 2015 for the 20 percent rating for radiculopathy of the sciatic nerve of the right lower extremity have not been met. 38 U.S.C. §§ 5107, 5110, 7.104(b); 38 C.F.R. §§ 3.102, 3.400, 20.1100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from September 1969 to November 1973. The Board notes that additional VA and private treatment records have been associated with the claims file since the issuances of the Statements of the Case (SOCs) for the claims adjudicated below; however, these records are not relevant to the outcome of the appeals. Those issues that are directly affected by the additional records are remanded below. 1. Entitlement to compensation under 38 U.S.C. § 1151 for a vagus nerve injury is denied. Under the provisions of 38 U.S.C. § 1151, if VA hospitalization or medical or surgical treatment results in additional disability or death that is not the result of the veteran’s own willful misconduct or failure to follow instructions, compensation is awarded in the same manner as if the additional disability or death were service-connected. See 38 C.F.R. §§ 3.361, 3.800(a). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran’s additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran’s additional disability or death (as explained in 38 C.F.R. § 3.361 (c)); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran’s or, in appropriate cases, the veteran’s representative’s informed consent. 38 C.F.R. § 3.361 (d). To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. Whether the proximate cause of a veteran’s additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of § 17.32 of this chapter. The Veteran underwent hernia surgery in March 2015. He avers that his vagus nerve was nicked during this surgery, resulting in considerable pain that he continues to experience. VA treatment records note that the Veteran experienced a three-month period of intermittent right inguinal pain that increased with walking and activity and was relieved with rest. He later was provided a CT scan that revealed a definite right inguinal hernia. The Veteran went for a surgical consultation in February 2015. There, the VA physician provided a physical examination and reviewed the findings on the CT scan. He instructed the Veteran that, while there was an inguinal hernia present, there was no abdominal wall defect or abnormality of any kind in the right lower quadrant abdominal wall or intra-abdominal where he reported experiencing the most pain. The physician suggested that the Veteran’s pain could be radiating from the hernia. However, he explained that there was some chance that repairing the hernia would not relieve a significant portion of the pain. The physician discussed the outpatient hernia pain procedure and the risks, which included but were not limited to, surgical site infection, bleeding, hematoma, seroma, ischemic orchitis, testicular swelling, continued pain without relief, nerve damage, chronic pain, or recurrence of hernia. He also explained further complications that could result from the use of anesthesia. The physician explained that the Veteran would need a driver following the procedure and would need to limit his activity for six weeks afterwards, not lifting over fifteen pounds, pushing, pulling, straining, or working out during that recovery period. The Veteran explained that he occasionally lifted between fifty to one-hundred pounds at work, and the doctor noted that this would not be permitted for eight weeks post-surgery. The Veteran completed a pre-procedure/informed consent form dated March 11, 2015 for right inguinal hernia repair, which noted that the procedure had been discussed with the patient, and alternatives were discussed, as were major risks and benefits. On March 30, 2015, the Veteran underwent an outpatient right inguinal hernia repair. The post-operative note indicates that the physician repaired the right inguinal hernia with a patch and plug mesh and excised the cord lipoma. The physician found a 0.5 cm direct inguinal hernia, cord lipoma, and no direct hernia. There was minimal blood loss and no transfusions. The only IV fluids used were for anesthesia. There were no drains. There were no complications. The Veteran was stable following the procedure. He was discharged that same day and provided medication and instructions. These instructions reiterated the physical limitations the doctor discussed during the surgical consultation, including no lifting over fifteen pounds, straining, exercising, working out, or jogging for at least three weeks after surgery, or until the doctor directed resuming regular activity. The Veteran was directed to return to the clinic for assessment on April 15, 2015. The Veteran returned to the clinic on April 15, 2015 for his two-week, post-operative appointment. There, the Veteran reported that he immediately returned to work after his procedure where he stands all day long. This caused him to experience pain and swelling at the groin site. After this occurred, the Veteran cut back his work schedule and began improving. He reported no other difficulties, stating that he was eating well and having bowel movements, and had no fevers, chills, sweats, or other systemic symptoms. The Veteran indicated that he had a colonoscopy scheduled in a few days and was instructed to postpone it to avoid additional stress on his hernia so soon after surgery. He was then directed to continue observing lifting and activity restrictions for a total of six weeks postoperatively. Physical examination revealed a healed, oblique surgical scar on the right groin. There was a mild amount of expected firm swelling directly under the incision. There was no erythema, drainage, fluctuance, or any other sign of infection or recurrence of hernia. The doctor noted that he could return to the general surgery clinic as needed. The Veteran returned later that month and received updated instructions. He was told not to work or stand longer than four to five hours at a time until his postoperative swelling resolved. A VA treatment record shows that the Veteran rescheduled his colonoscopy as instructed, undergoing the procedure in June 2015. An August 2015 VA examination revealed radicular nerve pain radiating from the Veteran’s back. There was no specific discussion about a relationship between the Veteran’s radicular pain and the hernia repair; in fact, it was found to be related to his service-connected lumbar spine disability. An October 2015 treatment record indicates that the Veteran complained of mild pain at the right inguinal hernia surgical site without neuritis or referred pain noted. In December 2015, the Veteran sought pain intervention. He reported that his right groin pain began within one month after surgery. The pain was intermittent, sharp, throbbing, stabbing, numbness, and pins and needles in character. He denied pain radiation to the scrotum, penis, or right lower extremity. The Veteran reported that the pain worsened with prolonged standing, walking, and bending. He denied any other alleviating factors other than pain medications. He tried NSAIDs without relief. The Veteran denied that the pain radiated to the thigh or scrotum. The physician reviewed the operative which indicated that the Veteran had a small direct inguinal hernia repaired. There was also a cord lipoma removed, which was confirmed by pathology. The nerves and cord structure were protected throughout the procedure; no neurectomy was performed. Because the Veteran was ill at the time, the administration of a steroid pain injection was postponed. The Veteran went for pain intervention follow-up in January 2016. He stated that he was continuing to experience right groin pain that had not changed or worsened since his last visit. The physician performed a right ilioinguinal/iliohypogastric steroid injection. The Veteran reported almost total pain relief immediately after the procedure. There are additional VA treatment notes, including one in May 2016, which indicates the Veteran’s continuous issues with right groin pain. Section 1151 delineates three prerequisites for obtaining disability compensation. First, a putative claimant must incur a “qualifying additional disability” that was not the result of his own “willful misconduct.” 38 U.S.C. § 1151 (a). Second, that disability must have been “caused by hospital care, medical or surgical treatment, or examination furnished the veteran” by VA or in a VA facility. 38 U.S.C. § 1151 (a)(1). Finally, the “proximate cause” of the veteran’s disability must be “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part” of VA, or “an event not reasonably foreseeable.” 38 U.S.C. §§ 1151 (a)(1)(A), 1151(a)(1)(B). Thus, section 1151 contains two causation elements-a veteran’s disability must not only be “caused by” the hospital care or medical treatment he received from VA, but also must be “proximate[ly] cause[d]” by the VA’s “fault” or an unforeseen “event.” 38 U.S.C. § 1151 (a)(1); Viegas v. Shinseki, No. 2012-7075 (Fed. Cir. Jan. 31, 2013). Initially, the Board observes that the Veteran completed a pre-procedure/informed consent form dated March 11, 2015 for right inguinal hernia repair. Prior to that session during his surgical consultation, as well as during that session, he was informed of the major risks and benefits of the procedure. The Veteran’s consent was obtained freely without fraud, duress, or coercion, and the form was signed and dated by the physician. Further, the Board notes that the Veteran has made no claims regarding the sufficiency of his consent. Instead, the Veteran argues that he incurred an additional qualifying disability when a nerve was nicked during his surgical procedure. In March 2016, a VA examiner reviewed the medical evidence of record and wrote a medical opinion addressing the Veteran’s averments. The examiner notes that there is no indication that anything out of the ordinary occurred during the surgical procedure. The examiner noted that the surgeon performed techniques to protect the nerves involved. The Veteran was also given postoperative instructions following the procedure and discharged without complication or incident. The examiner determined that the Veteran’s post-surgical problems appeared to be due to his engagement in too much physical activity immediately following the procedure as noted in the April 15, 2015 follow-up treatment record and was also a normal risk of surgery as was discussed pre-operatively at the surgical consultation and in the informed consent. The Board finds this medical opinion of high probative value as it evidences a thorough review of the pertinent evidence and contains adequate reasoning in support of the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The record indicates that the Veteran has grappled with pain specifically at the right inguinal hernia surgical site, which has likely caused some degree of functional loss, which would qualify it as a disability under the law. Saunders v. Wilkie, 886 F.3d 1356 (2018). While an additional qualifying disability has been confirmed, the Board finds that there is no evidence this disability was caused by VA surgical treatment, as there is no indication of any complication during the procedure. Medical treatment records and the March 2016 VA examiner observed that the surgeon performed appropriate techniques to protect the nerves involved; there is no indication that any nerves were “nicked” as claimed by the Veteran. Thus, carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part are not shown. Nor, the Board finds, was the additional disability due to any event not reasonably foreseeable. In fact, as noted by the Veteran’s surgeon at his consultation and observed by the VA examiner, continued pain is a normal risk of surgery, which would have been covered by the standard informed consent signed by the Veteran. The Board acknowledges the Veteran’s sincere belief that an additional disability was incurred during his surgical procedure which has resulted in continued issues with pain about the vagus nerve. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran does not have the requisite medical training or expertise to proffer such an opinion. The competent, credible evidence of record does not support this belief. Based on the foregoing, the Board finds the preponderance of evidence is against the appellant’s claim for compensation under the provisions of 38 U.S.C. § 1151 for a vagus nerve injury. In reaching such determination, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant’s claim, the doctrine does not apply, and his claim must be denied. 2. Entitlement to disability ratings in excess of 20 percent for radiculopathy of the femoral and sciatic nerves of the right lower extremity is denied. The Veteran maintains entitlement to disability ratings in excess of 20 percent for radiculopathy affecting the sciatic and femoral nerves of the right lower extremity. As the increased disability claim was received in April 2015, the Board must review all evidence from April 2014 to the present to determine whether increased ratings are warranted. The Veteran’s sciatic nerve disability is rated under Diagnostic Code 8720 and his femoral nerve disability is rated under Diagnostic Code 8726. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10 (2018); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Diagnostic Code 8720 provides ratings for neuralgia of the sciatic nerve and is rated under Diagnostic Code 8520. Under Diagnostic Code 8520, a 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is warranted when there is moderately-severe incomplete paralysis. A 60 percent rating is warranted when there is severe incomplete paralysis, with marked muscular atrophy. Complete paralysis of the sciatic nerve warrants an 80 percent rating. When there is complete paralysis of the sciatic nerve, the foot dangles and drops, there is no active movement possible of muscle below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. Diagnostic Code 8726 provides ratings for the femoral nerve. Under Diagnostic Code 8726, a 20 percent rating is warranted for moderate incomplete paralysis of the femoral nerve. A 30 percent rating is warranted when there is severe incomplete paralysis. A 40 percent rating is warranted when there is complete paralysis of quadriceps extensor muscles. 38 C.F.R. § 4.124a. Under 38 C.F.R. § 4.124 a, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture 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 terms “mild,” “moderate,” and “severe” as used in the Diagnostic Code is not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, VA must evaluate all the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. The Veteran was provided a VA examination in conjunction with his increased rating claims in August 2015. Muscle strength and reflex testing were normal. The sensory examination revealed decreased sensation in the Veteran’s right lower leg/ankle and foot/toes. The straight leg raising test was positive. The examiner noted that the Veteran had radicular symptoms in the right lower extremity, including severe constant pain, moderate paresthesias and/or dysesthesias, and severe numbness. He observed that the femoral and sciatic nerve roots were involved and ultimately determined that the severity of the Veteran’s radiculopathy was moderate. Another VA examination was performed in March 2017. Muscle strength and reflex testing were normal. The sensory examination revealed decreased sensation in the right upper anterior thigh, and thigh and knee. The straight leg raising test was negative. The examiner noted that the Veteran had radicular symptoms in the right lower extremity. Constant pain was not observed. The Veteran reported moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the right lower extremity. Involvement of both the femoral and sciatic nerves was observed. The examiner indicated that the radiculopathy was moderate. Several VA chiropractic records from the months prior to and following this VA examination confirm the absence of radicular pain. After consideration of the medical and lay evidence, the Board finds that the Veteran has shown moderate radiculopathy (sciatic and femoral) of the right lower extremity throughout the appeal period and the current 20 percent disability ratings are appropriate. The Veteran’s individual symptoms were generally described as moderate, with the exception of severe pain and numbness which was reported at the August 2015 examination but did not result in an examiner’s determination that these symptoms warranted an evaluation of the overall radiculopathy as severe at that time. The Veteran’s radicular pain has subsided during the appellate period, and the numbness has most recently been characterized as moderate. The Board notes the Veteran’s sciatic nerve disability does not more nearly approximate a 40 percent rating at any time during the appeal period, nor does the femoral nerve disability more nearly approximate a 30 percent rating at any time during the appeal period. The Veteran’s sciatic nerve radiculopathy of the right lower extremity has not exhibited moderately severe symptoms, and the femoral nerve radiculopathy of the right lower extremity has not exhibited severe symptoms. Muscle strength and reflex testing has been consistently normal. Although examinations throughout the appeal period have reflected pain, paresthesias and/or dysesthesias, numbness, and some decreased sensation, in conjunction with the other findings of record, the Board concludes that such evidence does not more nearly approximate moderately severe incomplete paralysis of the sciatic nerve or severe incomplete paralysis of the femoral nerve. As such, the Veteran is not entitled to a 40 percent rating under Diagnostic Codes 8720 or 8726. The Board has considered whether any staged rating is appropriate and finds that evidence regarding the level of disability is consistent with the assigned ratings. The Board finds that the Veteran’s symptoms have been consistent with the 20 percent ratings throughout the appeal period. The record does not indicate any significant increase or decrease in the Veteran’s symptoms that is not already accounted for by the assigned ratings. Accordingly, staged ratings are not warranted. The Board finds that the Veteran is not entitled to ratings higher than 20 percent for radiculopathy affecting the femoral and sciatic nerves of the right lower extremity, during the entire appeal period. In reaching this determination, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant’s claims, the doctrine does not apply, and his claim must be denied. 3. Entitlement to effective dates prior to April 4, 2015 for the current 20 percent disability ratings for radiculopathy of the femoral and sciatic nerves of the right lower extremity. The Veteran maintains entitlement to an effective date prior to April 4, 2015 for the current 20 percent disability ratings for radiculopathy of the femoral and sciatic nerves of the right lower extremity. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110 (a). The effective date of a grant of an increased rating is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within a year from that date. Otherwise, the effective date is the later of the date of increase in disability or the date of receipt of the claim. 38 U.S.C. § 5110 (b)(2) (2012); 38 C.F.R. § 3.400 (o)(2) (2017); Harper v. Brown, 10 Vet. App. 125 (1997). However, 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2) are applicable only where the increase precedes the claim, provided also that the claim is received within one year after the increase. In those cases, the Board must determine under the evidence of record the earliest date that the increased rating was ascertainable. Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (1998), 63 Fed. Reg. 56705 (1998). A claim is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). The Board notes that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. In a September 12, 2014 decision, the Board denied entitlement to a rating in excess of 10 percent for radiculopathy of the femoral nerve of the right lower extremity. In that same decision, the Board granted entitlement to service connection for radiculopathy of the sciatic nerve of the right lower extremity and assigned a 10 percent rating. A Board decision becomes final on the date stamped on the face of the decision. 38 U.S.C. § 7104 (b); 38 C.F.R. § 20.1100. The Veteran had 120 days from the date of that decision to appeal the decisions rendered therein; however, the Veteran did not do so. As such, that Board decision is final. The Veteran filed a claim for increased ratings for both radiculopathy of the femoral and sciatic nerves of the right lower extremity on April 4, 2015. He was awarded increased 20 percent disability ratings for each disability, with an effective date of April 4, 2015, the date of the new claim. The Board has considered the application of 38 C.F.R. § 3.400 (o)(2). In this case, because the Veteran filed his claims for increase in April 2015, the earliest possible effective date for his 20 percent ratings would be in April 2014 if it is factually ascertainable that increases in his disability occurred as of this date. As discussed previously, under Diagnostic Code 8520, a 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. Under Diagnostic Code 8726, a 20 percent rating is warranted for moderate incomplete paralysis of the femoral nerve. The evidence from April 2014 to April 2015 does not show that factually ascertainable increases in symptomatology occurred for his radiculopathy of the femoral and sciatic nerves of the right lower extremity. At a May 2014 VA peripheral nerves examination, the femoral nerve of the right lower extremity was found to be normal. The examiner also found mild incomplete paralysis of the sciatic nerve. The Veteran reported mild constant pain and mild intermittent pain in the right lower extremity. He denied paresthesias and/or dysesthesias or numbness. Muscle strength testing was normal, and there was no muscle atrophy. Reflex examination was normal. There was decreased sensation to light touch in the right upper thigh/knee and lower leg/ankle, but there was otherwise normal sensation. The Board finds that the evidence during this period demonstrates that the Veteran’s radiculopathy of the femoral and sciatic nerves of the right lower extremity was no more than mild in severity. Under 38 C.F.R. § 3.400, the effective date for a grant of a claim for increase is the date the claim was received or the date entitlement arose, whichever is later. Moreover, the medical evidence of record does not show an increase of symptomatology within the year prior to the April 4, 2015 claim. As such, the RO assigned the earliest possible effective date for its grants of increase of the claims, which was determined to be April 4, 2015, the date of the Veteran’s claims for increase. Accordingly, an effective date prior to the date of the Veteran’s claims for increase on April 4, 2015 is not warranted. REASONS FOR REMAND 1. Entitlement to compensation under 38 U.S.C. § 1151 for glaucoma with 30 percent vision loss in left eye is remanded. The Veteran maintains that he was provided inadequate eye health care at a VA facility which resulted in untreated glaucoma and the loss of thirty percent of his peripheral vision in his left eye. He was provided a VA examination in October 2015, and a VA examiner raised concerns regarding whether an appropriate decision to start the Veteran’s glaucoma treatment could have been made earlier. However, despite this finding, at the time of the examination there was no evidence of the Veteran’s claimed resultant vision loss. Since this examination, as well as since the January 2018 issuance of an SOC, additional pertinent ophthalmological VA treatment records have been associated with the claims file. As this evidence has been identified since the issuance of the SOC and has the potential to reveal an additional vision disability, the Board finds that this issue must be remanded for initial regional office consideration. 2. Entitlement to service connection for left knee instability with subluxation, to include as secondary to degenerative arthritis of the left knee, is remanded. The Veteran was issued an SOC regarding his claim of entitlement to service connection for left knee instability with subluxation in February 2017. Since that time, additional private and VA treatment records, including an additional VA examination, have been associated with the claims file. Regarding the private treatment records, the Board notes that they are not relevant to this specific issue. Further, as the Veteran’s substantive appeal for this issue was received after February 2, 2013, an automatic waiver of review of this new private evidence is presumed. However, the automatic waiver has not been found to apply to VA relevant treatment records and examinations. Thus, the Board finds that a Supplemental Statement of the Case (SSOC) must be issued that considers the additional VA evidence that has been associated with the claims file since the February 2017 SOC, including the new VA examination. 3. Entitlement to a rating in excess of 20 percent for a lumbar spine disability is remanded. The Veteran was issued an SOC regarding his claim of entitlement to service connection for a lumbar spine disability in January 2018. Since that time, additional VA and private treatment records have been associated with the claims file. Regarding the private treatment records, the Board notes that they are not relevant to this specific issue. Further, as the Veteran’s substantive appeal for this issue was received after February 2, 2013, an automatic waiver of review of this new private evidence is presumed. However, the automatic waiver has not been found to apply to VA relevant treatment records, such as VA treatment records recording increased back pain with requests to begin physical therapy and an updated MRI of the Veteran’s lumbar spine. As these records are relevant to the current severity of the Veteran’s lumbar spine disability and have not been considered by the regional office, an SSOC must be issued that considers this additional VA evidence. 4. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. Since the issuance of the SOC in January 2018 regarding the Veteran’s claim of entitlement to service connection for sleep apnea, additional relevant VA treatment records have been associated with the claims file, including treatment records that reveal a current diagnosis of sleep apnea. As the Veteran now has a current diagnosis for the claimed disability, the Board finds that he must be afforded a VA examination to determine its etiology, after which he and his representative should be furnished an SSOC. 5. Entitlement to service connection for GERD, to include as secondary to medication taken for service-connected back and bilateral lower extremity disabilities, is remanded. The Veteran maintains entitlement to service connection for his currently diagnosed GERD, as he believes that it is related to medications, specifically Ibuprofen, that he has been taking for treatment of his service-connected back and bilateral lower extremity disabilities. The Veteran underwent a VA examination in February 2016. His diagnosis was confirmed, and the examiner found that his claimed disability was not related to the medications taken for his back and knees. However, the examiner did not address whether the Veteran’s GERD was aggravated by the medications used to treat the Veteran’s service-connected disabilities. As such, the Board finds that an addendum opinion must be rendered that discusses this possibility. The matter is REMANDED for the following action: 1. Obtain the Veteran’s updated VA treatment records and any private medical records identified as pertinent to the claims. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s claimed sleep apnea. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The Veteran is also asked to opine whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by any of his service-connected disabilities. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s claimed GERD is at least as likely as not aggravated beyond its natural progression by medication taken for his service-connected back and bilateral lower extremity disabilities. 4. Following any additional development warranted by the foregoing, the regional office must issue a SSOC to the Veteran and his representative. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Bush The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.