Citation Nr: 21004250 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 11-23 657 DATE: January 26, 2021 ORDER Entitlement to a rating greater than 40 percent for degenerative disc disease (DDD) of the thoracolumbar spine is denied. REMANDED Entitlement to service connection for sleep apnea, as secondary to service-connected posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI), is remanded. Entitlement to a rating greater than 10 percent for TBI from August 10, 2012 to January 2, 2018 is remanded. FINDINGS OF FACT 1. The Veteran does not have ankylosis of the thoracolumbar spine. 2. The Veteran’s intervertebral disc syndrome (IVDS) has not manifested in incapacitating episodes. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for DDD of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Codes 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from February 1974 to February 1978. This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions of November 2007 (sleep apnea), November 2012 (TBI) and January 2017 (back) of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In December 2017, the Board denied the claims for service connection for sleep apnea and for a higher rating for his thoracolumbar spine disability, but this decision was vacated by the Court of Appeals for Veterans Claims in an October 2018 Joint Motion for Remand. For the Veteran’s understanding, the Board, in October 2014, found that a November 2007 rating decision was not final. Specifically, the Board wrote: The Board notes that there were prior denials of service connection claims for a back disorder; sleep apnea, hypertension, and coronary artery disease in a November 2007 rating decision. This rating decision clearly notes that some, but not all, of the service treatment records were available. After that rating decision, the RO received additional service treatment records and service personnel records in 2012. Accordingly, 38 C.F.R, § 3.156(c) applies, and these claims will be reconsidered on the merits. The AOJ, in the January 2017 rating decision on appeal, did not consider this finding when it awarded service connection for the low back disorder, establishing March 23, 2011 as the effective date of the grant. The Veteran may wish to discuss this with his counsel. Issue: Entitlement to a rating greater than 40 percent for DDD of the thoracolumbar spine Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). This does not, however, preclude the assignment of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). Background Law Under the General Rating Formula for Diseases and Injuries of the Spine (Spine Formula), with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area of the spine affected by the residuals of injury or disease, a 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine 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 severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5237. A 40 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. Id. In addition to the Spine Formula, VA's regulations contain a Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). 38 C.F.R. § 4.71a, Diagnostic Code 5243. Ratings under this diagnostic code are assigned according to the duration of “incapacitating episodes” throughout the year due to IVDS. 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. A 20 percent evaluation is warranted 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 evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, a 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. 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, 206-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. Merits The Veteran contends that he is entitled to a rating greater than 40 percent for his DDD of the thoracolumbar spine. The Board has reviewed all of the evidence of record, but finds that the evidence does not indicate that a rating higher than 40 percent is warranted. Pursuant to the Spine Formula and IVDS Formula above, the Veteran would be entitled to an increased rating under two scenarios – 1) ankylosis, or 2) incapacitating episodes having a total duration of at least six weeks during the past 12 months. The Veteran meets neither scenario. VA examined the Veteran twice for rating purposes during the appeal – in January 2017 and July 2020. For the ankylosis question, neither examiner diagnosed the Veteran with ankylosis. For the IVDS question, the January 2017 examiner did not diagnose IVDS, while the July 2020 examiner diagnosed IVDS. However, the July 2020 examiner found the Veteran's IVDS did not manifest in an “incapacitating episode,” as the IVDS Formula defines that term. There is no other medical evidence of record contradicting these findings, and the Veteran has not indicated that he has ever been diagnosed with ankylosis or IVDS, or that he has been prescribed bed rest by a physician. The Board has considered 38 C.F.R. § 4.59 regarding the Veteran’s painful motion. Under 38 C.F.R. § 4.59, actually painful joints are entitled to at least the minimum compensable rating. While the Veteran has reported having severe pain, the Board does not find that this actually constitutes the presence of ankylosis, nor is VA obligated to assign a higher rating based on this additional limitation of motion due to pain. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Ankylosis is a specific medical finding, and the current medical evidence does demonstrate that the Veteran maintains at least some range of motion in his spine, even if there are times when it is extremely painful. The Board also considered the Veteran’s lay statements regarding the functional impact of his service-connected back disability.  He is competent to report his own observations with regard to the severity of his disability, including reports of pain and decreased mobility.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  The Veteran’s statements of having frequent back pain, pain with lifting, and increased pain with standing or sitting for too long are credible and consistent with the ratings assigned.  The occurrence of back pain while performing activities and limitations on movement and activity are the practical effect of the symptoms which have been clinically observed and measured in the Veteran’s examination.  To the extent that the Veteran argues his symptomatology is more severe than shown on evaluation, his statements must be weighed against the other evidence of record.  Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran’s more general lay assertions.   The medical evidence does not show, nor does the Veteran contend, that he meets either scenario under which the Board could award an increased rating. The Veteran has not at any time been found to have ankylosis of the thoracolumbar spine or IVDS which has manifested in incapacitating episodes. As such, the Board will deny the appeal. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against any higher ratings than those now assigned for this period, that doctrine is not applicable.  38 U.S.C. § 5107(b).  REASONS FOR REMAND Remand is warranted for the sleep apnea and TBI issues. Sleep Apnea The Veteran contends that his sleep apnea is secondary to his PTSD or TBI. As the Board will discuss below, the AOJ combined these disabilities as of January 3, 2018. In March 2019, the Board remanded the issue for readjudication pending a decision on the Veteran’s PTSD claim. Once the AOJ awarded service connection for PTSD in April 2020, it sent the sleep apnea issue for a medical opinion. The reviewer, in July 2020, opined: All VBMS/STR/CPRS/clinical entries were reviewed. The current medical literature was also reviewed. A medical opinion will suffice, as an in-person examination will not afford any additional information. The veteran has sleep apnea diagnosed some years ago. The contention is whether his sleep apnea is caused by or aggravated by his PTSD. It is not. A thorough CPRS review was performed, and there was no evidence of PTSD causing or aggravating (beyond normal progression) his sleep apnea. The current medical literature has yet to clearly/formally support PTSD directly causing sleep apnea. The veteran has risk factors for developing sleep apnea, which are clearly noted in his clinical records. PTSD has not been noted by authoritative sources to specifically cause sleep apnea. Therefore, his sleep apnea was not caused by his PTSD, as the literature has yet to support this contention of a cause and effect relationship. Likewise, a review of all clinical records afforded no indication that his sleep apnea was truly aggravated by his PTSD. Reasoning and bases as described. The Board finds it needs the reviewer to clarify his opinion that “the current medical literature has yet to clearly/formally support PTSD directly causing sleep apnea.” Specifically, the Veteran, on December 14, 2012, submitted an October 31, 2010 article entitled “Apnea Elevated in Vets with PTSD” that the reviewer did not address. Additionally, an October 2018 Joint Motion for Remand from the U.S. Court of Appeals for Veterans Claims that precipitated the Board’s March 2019 Remand highlighted this article. As such, the Board will remand for an addendum opinion. TBI The Veteran claimed service connected for TBI on August 10, 2012. The AOJ granted service connection in November 2012, and it rated the disability as 10 percent disabling, effective August 10, 2012. The Veteran appealed the rating the AOJ assigned, and the Board has remanded this matter five previous times. Concurrent with the TBI appeal, the Veteran also claimed service connection for PTSD. As relevant here, the AOJ, after multiple Board Remands, granted service connection for PTSD in April 2020. It rated the PTSD as 30 percent disabling, effective August 10, 2012. In a September 2020 rating decision, the AOJ found clear and unmistakable error in the April 2020 rating decision, concluding that it should have combined the TBI with the PTSD. As such, it combined the disabilities, effective January 3, 2018, rating the combined disability as 50 percent disabling. As one can see from the Codesheet accompanying the September 2020 rating decision, the AOJ ended (not severed) the TBI as a separately compensable disability on January 3, 2018, the date it combined it with PTSD. In October 2020, the Veteran submitted a VA Form 20-0995 Supplemental Claim appealing the April 2020 rating decision under the new framework of the Appeals Modernization Act (AMA). This claim was then addressed in a November 2020 rating decision. The Board therefore finds that because the claim for an increased rating for PTSD with TBI since January 3, 2018 was brought into the AMA appeal system, the Board does not currently have jurisdiction over this stage. The Board has therefore recharacterized the issue to entitlement to a rating greater than 10 percent for TBI from August 10, 2012 to January 2, 2018. It is not clear why the AOJ selected January 3, 2018 as the date upon which it combined the disabilities of PTSD with TBI. Remand is therefore necessary to determine when, if ever, during the aforementioned window the Veteran’s PTSD and TBI should be combined. The answer to this question will dictate how the Board rates the TBI. The matters are REMANDED for the following action: 1. Obtain and addendum opinion from the medical professional who reviewed the Veteran’s sleep apnea claim in July 2020 or a similarly qualified medical professional. Ask the selected person to answer the following: a) Is it at least as likely as not (50 percent probability) that the Veteran's PTSD with TBI CAUSED his sleep apnea? Why or why not? b) Is it at least as likely as not (50 percent probability) that the Veteran’s PTSD with TBI AGGRAVATES his sleep apnea? Why or why not? In answering these questions, expressly address the October 31, 2010 article entitled “Apnea Elevated in Vets with PTSD” that the Veteran submitted on December 14, 2012. 2. Obtain an addendum medical opinion from a qualified medical professional to determine when, if ever, it was possible to differentiate between the Veteran’s TBI symptoms and PTSD symptoms from August 10, 2012 to January 2, 2018. The examiner should specifically indicate which symptoms were attributable to which diagnosis; if this is not possible, he/she should explain why. The Board notes that the Regional Office has already found that the symptoms cannot be differentiated from January 3, 2018, but the Board needs to know about this prior period in order to adequately rate the TBI. Mary E. Rude Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.