Citation Nr: 20003585 Decision Date: 01/15/20 Archive Date: 01/15/20 DOCKET NO. 15-25 701 DATE: January 15, 2020 ORDER Entitlement to an evaluation in excess of 40 percent for degenerative disc disease, lumbar spine, with spondylolistheses is denied. Entitlement to an initial evaluation in excess of 40 percent for peripheral neuropathy, right lower extremity is denied. Entitlement to an initial evaluation of 40 percent for peripheral neuropathy, left lower extremity is granted. Entitlement to service connection for hypertension is denied. Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for a left hip disorder, to include as secondary to service-connected disease or injury is remanded. FINDINGS OF FACT 1. The Veteran’s degenerative disc disease, lumbar spine, with spondylolistheses is manifested by pain and limited motion with forward flexion less than 30 degrees. There is no evidence of ankylosis. 2. For the entire period on appeal, peripheral neuropathy, right lower extremity (sciatic nerve) manifested in moderately severe incomplete paralysis, but not severe incomplete paralysis with marked muscular atrophy. 3. For the entire period on appeal, peripheral neuropathy, left lower extremity (sciatic nerve) manifested in moderately severe incomplete paralysis, but not severe incomplete paralysis with marked muscular atrophy. 4. The Veteran does not have hypertension in accordance with VA regulation. 5. Obstructive sleep apnea did not manifest in service and is unrelated to service. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for degenerative disc disease, lumbar spine, with spondylolistheses have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2019). 2. The criteria for an initial evaluation in excess of 40 percent for peripheral neuropathy, right lower extremity (sciatic nerve) are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520 (2019). 3. The criteria for an initial evaluation of 40 percent for peripheral neuropathy, left lower extremity (sciatic nerve) are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520 (2019). 4. Hypertension was not incurred in or aggravated by service, nor can hypertension be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 5. Obstructive sleep apnea was not incurred in or aggravated by service. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1990 to August 1993. These matters were remanded by the Board in September 2018 for evidentiary development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an evaluation in excess of 40 percent for degenerative disc disease, lumbar spine, with spondylolistheses When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Currently the Veteran’s degenerative disc disease, lumbar spine, with spondylolistheses is evaluated as 40 percent disabling under Diagnostic Code 5242, effective April 27, 2011, the date of the Veteran’s increased rating claim. As explained below, the Board has determined that the current uniform evaluation is appropriate. See Hart, supra; Fenderson, supra. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. Under the General Rating Formula, a 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. The rating criteria further explain under Note (1), that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. The Veteran has separate evaluations for his associated neurological disabilities of the lower extremities which will be addressed below. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (in pertinent part), a 10 percent evaluation is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) for purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The RO granted an evaluation of 40 percent for this time period due to range of motion findings of forward flexion limited to 30 degrees or less. During the period on appeal, there are VA examinations from May 2011, August 2011, July 2013, and April 2019. After reviewing these examinations and all other treatment records, there is no evidence of ankylosis of the entire thoracolumbar spine. As such, an increased schedular evaluation is not warranted under the General Rating Formula. The May 2011 VA examiner did not report IVDS. The August 2011 VA examiner indicated that the Veteran had IVDS which had resulted in incapacitating episodes over the previous 12 months lasting at least 6 weeks. The July 2013 VA examiner documented IVDS which had resulted in incapacitating episodes over the previous 12 months of less than 1 week. The April 2019 VA examiner documented IVDS which had not resulted in incapacitating episodes over the previous 12 months. The Board notes that the duration of incapacitating episodes stemming from IVDS documented at the August 2011 VA examination match the criteria for a 60 percent evaluation under the applicable rating criteria. However, when reviewing the entirety of the evidence of record, to include the VA examination 3 months prior, subsequent VA examinations, and additional treatment records, the Veteran’s degenerative disc disease, lumbar spine, with spondylolistheses has more closely approximated a 40 percent disability evaluation for limitation of motion during the entire period on appeal. This is consistent with VA’s determination to handle cases affected by change in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. See 38 C.F.R. § 3.344 (a). 2. Entitlement to an initial evaluation in excess of 40 percent for peripheral neuropathy, right lower extremity As will be explained below, the Board has determined that uniform 40 percent evaluations are warranted for each lower extremity for the entire period on appeal. See Hart, supra; see also Fenderson, supra. The Veteran’s peripheral neuropathy of the right lower extremity specific to the sciatic nerve is evaluated as 40 percent disabling under Diagnostic Code 8520. The Veteran has challenged the initial evaluation, effective April 27, 2011. Under Diagnostic Code 8520, paralysis of the sciatic nerve: a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, a 40 percent rating is warranted for moderately severe incomplete paralysis, and a 60 percent rating is warranted for severe incomplete paralysis with evidence of marked muscular atrophy. 38 C.F.R. § 4.124a. Complete paralysis will be evaluated as 80 percent disabling for such symptoms as foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. The terms “slight,” “moderate,” and “severe” are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124 (a). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated at a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. At a May 2011 VA spine examination, the examiner documented significant neuropathy in the lower extremities. There was no evidence of muscle atrophy. At an August 2011 peripheral nerves examination and accompanying spine examination, reflexes were normal. Sensory examination was normal, but there was dysesthesias bilaterally. Strength was normal bilaterally. Muscle tone was normal and there was no muscle atrophy. The examiner noted great difficulty walking a straight line, balancing, and ambulating due to pain and numbness in the bilateral lower extremities. The examiner reported symptoms in the right leg as no constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and no numbness. The left leg had no constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and no numbness. The examiner indicated that the sciatic nerve was involved bilaterally, with documented severity of “severe” in the right leg and “moderate” in the left leg. At a July 2013 spine examination, strength was 4/5 bilaterally throughout the lower extremities. There was no muscle atrophy. Reflexes in the knees and ankles were hypoactive bilaterally. Sensory examination resulted in normal sensation in both upper anterior thighs and decreased sensation in the bilateral thigh/knee, lower leg/ankle, and foot/toes. The examiner reported symptoms in the right leg as mild constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and moderate numbness. The left leg had mild constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and moderate numbness. The examiner indicated that the sciatic nerve was involved bilaterally, with severe manifestation bilaterally. At an April 2019 spine examination, strength was 4/5 bilaterally throughout the lower extremities. There was no muscle atrophy. Reflexes were normal in the knees and hypoactive in the ankles. Sensory examination was normal throughout the lower extremities. The examiner reported symptoms in the right leg as no constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and moderate numbness. The left leg had no constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The examiner indicated that the sciatic nerve was involved bilaterally, with moderate severity. A review of additional evidence during the period on appeal does not reveal any medical or lay evidence contradicting these findings. Objective medical findings are consistent with the current 40 percent evaluation for the right lower extremity during the entire period on appeal. The Board notes that symptoms fluctuated, as documented during numerous examinations. However, there is no evidence of muscle atrophy as needed for an evaluation of 60 percent and no evidence of complete paralysis. When considering the entire disability picture, the Board finds that the objective medical evidence indicates moderately severe incomplete paralysis of the right lower extremity for the entire period. See 38 C.F.R. § 3.344 (a). The Board has not overlooked the statements by the Veteran with regard to the severity of his disability during the period on appeal. The Board has considered these reports along with the medical evidence of record. Here, the most probative evidence consists of the VA examinations. A review of this evidence makes clear that an evaluation in excess of 40 percent for peripheral neuropathy of right lower extremity specific to the sciatic nerve is not warranted. 3. Entitlement to an initial evaluation of 40 percent for peripheral neuropathy, left lower extremity Referring to the objective medical findings documented above, they are consistent with an initial 40 percent evaluation for the left lower extremity. The Board notes that symptoms fluctuated, as documented during numerous examinations. However, when considering the entire disability picture, the Board finds that the objective medical evidence indicates moderately severe incomplete paralysis of the left lower extremity specific to the sciatic nerve for the entire period. See 38 C.F.R. § 3.344 (a). However, there is no evidence of muscle atrophy as needed for an evaluation of 60 percent and no evidence of complete paralysis. Again, the Board has not overlooked the statements by the Veteran with regard to the severity of his disability during the period on appeal. The Board has considered these reports along with the medical evidence of record. Here, the most probative evidence consists of the VA examinations. A review of this evidence makes clear that an initial evaluation of 40 percent is warranted, but an evaluation in excess of 40 percent for peripheral neuropathy of left lower extremity is not warranted for any period on appeal. Service Connection Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service -the so-called ‘nexus’ requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 4. Entitlement to service connection for hypertension Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. 38 U.S.C. § 1110; see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, where competent medical evidence indicates that the appellant does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). It should be noted at the outset that for VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with diastolic blood pressure less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101. It must be confirmed by readings taken two or more times on at least three different days. Id. A review of service treatment records shows no relevant complaints, objective findings, treatment, diagnosis, or any other manifestations of hypertension. There were multiple blood pressure readings during service. The Board notes blood pressure readings of 132/90 and 136/92 taken on January 21, 1992. Consistent with Diagnostic Code 7101, these two isolated readings do not amount to a diagnosis of hypertension. At no other time was the Veteran’s blood pressure consistent with hypertension under 38 C.F.R. § 4.104, Diagnostic Code 7101. The Veteran was afforded an April 2019 VA examination. The examiner concluded that there was no current evidence of hypertension. Blood pressure reading upon examination was 130/83. The examiner documented additional blood pressure readings of record and explained that the two isolated in-service elevated readings did not amount to a diagnosis. As such, chronic disease did not manifest in service pursuant to section 3.303(b). Having reviewed the medical evidence of record, the Board finds that the Veteran does not have hypertension and has not had such a diagnosis or disability at any time during the claims period. McClain, supra. In the absence of a disability, compensation may not be awarded. In the absence of evidence of a current disability, there can be no grant of service connection under the law. See Brammer, supra. The Veteran is competent to report that which he has been told. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, such an assertion is outweighed by the medical determination of the VA examiner and the clinical evidence of record. The preponderance of the evidence establishes that the Veteran does not have hypertension and has not had such a disorder at any time during the pendency of this claim. The preponderance of the evidence is against the claim and it must be denied. 5. Entitlement to service connection for sleep apnea The Veteran asserts that his sleep apnea is related to service. A review of service treatment records shows no relevant complaints, objective findings, treatment, diagnosis, or any other manifestations of sleep apnea. The Veteran did report having insomnia. An April 2019 VA examiner confirmed a diagnosis of mild obstructive sleep apnea. Ultimately, the examiner concluded that the Veteran’s sleep apnea was less likely than not related to his military service. She explained that the in-service insomnia is distinct from sleep apnea, and that there is no evidence of obstructive sleep apnea manifesting in service or being otherwise related to service. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the April 2019 VA examiner’s opinion that the Veteran’s obstructive sleep apnea is less likely than not related to his service as highly probative medical evidence on this point. The Board notes that the examiner rendered her opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). To the extent that the Veteran asserts that his sleep apnea is directly related to service, the Board finds these statements are far less probative than the opinion of the VA medical professional, as it is far more detailed and reasoned. The Board finds that the probative value of the lay assertions is outweighed by the clinical evidence of record. The evidence of record suggests that the Veteran was not diagnosed with sleep apnea until 2016, approximately 23 years after separation. Nothing at that time suggested a history dating back to service. There is no medical evidence of record documenting manifestations of obstructive sleep apnea or any other relevant disorders in service (the medical evidence distinguishes manifestations of sleep apnea from insomnia). The Board finds that the contemporaneous medical records outweigh the post-service lay statements of the Veteran with respect to a direct link between his sleep apnea and active service. The medical evidence of record is afforded greater probative value than the more general after-the-fact lay assertions of the Veteran. In sum, there is insufficient competent and probative evidence linking the Veteran’s obstructive sleep apnea to service. The contemporaneous records establish that relevant systems were normal throughout service. The more probative evidence establishes that the Veteran did not have obstructive sleep apnea during service, that such disorder is not related to any event in service, and that it is otherwise unrelated to service. The evidence establishes that the remote onset of obstructive sleep apnea is unrelated to service. The preponderance of the evidence is against the claim of entitlement to service connection for obstructive sleep apnea. The claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected disease or injury is remanded. The Board’s September 2018 Remand directed the RO to obtain a medical opinion addressing both direct service connection and the Veteran’s contention that his claimed left hip disorder is secondary to a service-connected disease or injury. The examiner issued an opinion specific to direct service connection and separately opined that the Veteran’s “left hip pain is less likely as not aggravated beyond it’s natural progression.” The examiner provided no further context to what the aggravation opinion was referring. The examiner did not refer to the potential relationship between the left hip and a service-connected disease or injury. As such, the Board finds that the September 2018 Remand directives were not complied with. Stegall v. West, 11 Vet. App. 268, 271 (1998). Remand is necessary. The matters are REMANDED for the following action: Return the claims file to an examiner of appropriate expertise to issue an addendum medical opinion regarding the etiology of the Veteran’s left hip disorder. Based on a review of the record, the examiner should: Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the claimed left hip disorder was caused by, or is aggravated by a service-connected disease or injury. If a service-connected disease or injury aggravates a left hip disorder, the examiner should identify the percentage of disability which is attributable to the aggravation. 38 C.F.R. § 3.310. A complete rationale for any opinion expressed should be provided in a report. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. R. Stephens, Counsel 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.