Citation Nr: 21005048 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 13-12 170 DATE: January 28, 2021 ORDER Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbosacral spine (also claimed as pinched nerve) is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDING OF FACT During the period on appeal, the Veteran’s lumbosacral spine disability did not manifest in forward flexion of the spine to 30 degrees or less or ankylosis. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbosacral spine (also claimed as pinched nerve) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5010-5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July to November 1991 and from August 1992 to July 1995. He served honorably in the U.S. Army, including service in Korea. The Board thanks the Veteran for his service to our country. The issues of service connection for obstructive sleep apnea and an increased rating for the lumbosacral spine disability were previously before the Board in October 2017 and May 2018, respectively, when the Board denied the appeals. The Veteran appealed the Board’s decisions to the U.S. Court of Appeals for Veterans Claims (Court). In respective December 2018 and April 2019 Orders, granting November 2018 and April 2019 Joint Motions for Partial Remand (Joint Motions), the Court vacated and remanded the October 2017 and May 2018 Board decisions consistent with the terms of the Joint Motions and dismissed the appeals as to the remaining issues. The Board remanded these issues and a related issue of service connection for left lower extremity radiculopathy in September 2019 for additional development. The issue of service connection for left lower extremity radiculopathy was granted in a July 2020 rating decision from July 6, 2009, the date of claim. As this represents a complete grant of the issue of service connection for left lower extremity radiculopathy, this issue is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The issues of service connection for obstructive sleep apnea and an increased rating for the lumbosacral spine disability have now returned to the Board for further appellate review. In September 2020, the Veteran, through his attorney, requested the full 90-day period to submit evidence and argument in support of his claim. As that period has concluded, the Board will proceed with adjudication. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbosacral spine (also claimed as pinched nerve) is denied. The Veteran contends that a rating in excess of 20 percent for his lumbosacral spine disability is warranted. The Board finds that a higher rating is not warranted. Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s lumbosacral spine disability is currently rated under DC 5010-5242. Pursuant to 38 C.F.R. § 4.27, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. In this case, the hyphenated code indicates the disability is rated under DC 5242, for degenerative arthritis of the spine. Spine disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine (Rating Formula). 38 C.F.R. § 4.71a. Under the Rating Formula, unfavorable ankylosis of the entire spine warrants a 100 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire cervical spine; forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; the combined range of motion of the cervical spine not greater than 170 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 warrants a 20 percent rating. The rating criteria define normal range of motion for the various spinal segments 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 are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. In evaluating musculoskeletal disabilities, the Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Factors to be evaluated include more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are related considerations. 38 C.F.R. § 4.45. The veteran’s entire history is reviewed when making disability ratings. 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, as in this case, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The current claim for increase was filed in July 2009, and the Board will look at the evidence within the year prior to that filing to determine whether an increase occurred within that time frame. The Board has reviewed all of the evidence in the Veteran’s record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. The Board will summarize the pertinent evidence as deemed appropriate, and the Board’s analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1278, 1380-81 (Fed. Cir. 2000). In this case, in a July 2008 private occupational health patient status form, the treatment provider noted work limitations including no lifting, no pushing or pulling, changing positions 3 to 4 times per hour, no bending, no squatting or kneeling, and no climbing ladders. In a June 2009 note, the Veteran reported that he felt like his back pain had worsened and requested a re-referral to physical therapy. In another June 2009 note, he was noted to have painful forward flexion at about 60 degrees, no limitations or pain on extension or left and right lateral bending, and minimal pain on left and right lateral rotation. In a September 2009 VA examination report, the Veteran reported that his back pain had worsened since October 2005 and that he had one severe episode in July 2008 which lasted for 3 weeks, during which he had to take time off from work. He reported that pain had previously been intermittent but that for the last three months he had constant severe pain but continued to work. He reported that his back pain worsened with prolonged standing, walking, and sitting and engaging in bending or lifting activities. He reported that he had significant episodes every few months and normally took some time off for a few days each year. He reported that he used no assistive device, could walk reasonable distances, and could climb some stairs. He reported that he frequently shifted his sitting position and avoided prolonged standing. The examiner noted that he walked at a slower pace. On range of motion testing his forward flexion was 80 degrees with pain, extension was 30 degrees, left and right lateral bending was 25 degrees, and trunk rotation was 50 degrees. The examiner noted no significant aggravation of pain or fatigability, lack of endurance, or loss of range of motion on observed repetition. The examiner noted that it is quite possible that under certain conditions he may have more pain with motion, some loss of motion, fatigability, and lack of endurance, but that it would be mere speculation to guess the degree of such impairment during these flare-ups. However, the examiner did not clearly indicate that such speculation would be based on a lack of knowledge within the medical community rather than on the absence of procurable information or the limits of the examiner’s specialized knowledge. In a September 2009 pain management note, the Veteran reported that his pain had been persistent and had worsened in the last 2 to 3 years. He reported that the pain was intermittent and episodic, lasting 2 to 3 weeks. In a February 2010 note, he reported that he felt like his exacerbations of low back pain were more frequent and that his pain worsened with sitting for prolonged periods. In a July 2011 private note, the Veteran reported chronic low back pain with intermittent exacerbations. The provider noted that he did not appear to need acute therapy but that he would probably need acute therapy intermittently as his back pain flared intermittently. In a February 2012 primary care note, he reported that he occasionally had spasms and had flares from time to time but that they always resolved. In a November 2015 VA examination report, the Veteran reported chronic low back pain for 20 years, with flare-ups of back pain of 10 on a scale of 10, 3 to 4 times per month in the past 6 months. He reported that during his flares, he would stop what he was doing and lie down for 15 to 20 minutes before getting up and taking pain medication. He reported that he used no assistive devices, was independent in his activities of daily living, performed childcare duties and household chores, and could lift his 21-pound child without back pain or limitation. On range of motion testing, his forward flexion was 80 degrees, extension was 25 degrees, and all other motions were within normal limits. The examiner noted no additional limitation of motion with observed repetitive use. The examiner stated that functional limitation with repeated use over time or during flare-ups could not be assessed without mere speculation but did not clearly indicate that such speculation would be based on a lack of knowledge within the medical community rather than on the absence of procurable information or the limits of the examiner’s specialized knowledge. The examiner concluded that the Veteran did not have ankylosis of the spine or intervertebral disc syndrome (IVDS). The examiner concluded that his disability was not severe such that he would be equally well-served by amputation with prosthesis. In a December 2017 VA examination report, the Veteran reported moderate to severe lumbar spine pain with repetitive bending, repetitive lifting of 20 or more pounds, on nonweight-bearing and weight-bearing, and with ambulation 15 minutes and greater. He reported flare-ups of back pain approximately once per week lasting less than a day and that he had to rest from 1 to 4 hours per week during flare-ups. On range of motion testing forward flexion was 60 degrees, extension was 15 degrees, and all other motions were within normal limits. The examiner concluded that while pain, weakness, fatigability, or incoordination limited functional ability with repeated use over time and during flare-ups, there was no additional limitation of motion with repetitive use over time or during flare ups. The examiner also concluded that there was no ankylosis of the spine and that he did not have IVDS of the thoracolumbar spine. The examiner assessed the functional impact of the disability as moderate lumbar spine pain with repetitive bending, repetitive lifting of 20 pounds or more, and ambulation of 15 minutes or more. The examiner concluded that his disability was not severe such that he would be equally well-served by amputation with prosthesis. In a November 2019 VA examination report, the Veteran reported daily flare-ups that were mostly moderate but sometimes severe. He reported that the flare ups were precipitated by sitting or standing for more than 30 minutes and were alleviated by back stretches and lying face down. He reported that once the pain had its onset, he could not sit or stand but could only lie face-down. On range of motion testing, forward flexion was 85 degrees, extension was 25, and left and right lateral flexion and lateral rotation were 20 degrees. The examiner concluded that pain, weakness, fatigability, or incoordination limited functional ability with repeated use over time and during flare-ups and assessed that forward flexion was 75 degrees after repeated use over time and 70 degrees during flare-ups, that extension was 15 degrees after repeated use over time and during flare ups, and that there was no additional functional loss with other motions. The examiner concluded that there was no ankylosis of the spine and no IVDS of the thoracolumbar spine. The examiner noted that he used no assistive devices. The examiner concluded that his disability was not severe such that he would be equally well-served by amputation with prosthesis. The examiner assessed the functional impact of the disability as pain and spasms interfering with sitting for an hour, walking for an hour, standing for an hour, and bending. There are no notations of ankylosis and it was affirmatively not found on examination during the period on appeal. The Board finds that a rating in excess of 20 percent is not warranted as the preponderance of the evidence is against a finding of forward flexion of the thoracolumbar spine 30 degrees or less at any time during the appeal. As the VA examiners both concluded that the Veteran does not have ankylosis and there is no evidence of ankylosis, the preponderance of the evidence is against finding that he has favorable or unfavorable ankylosis. The Board acknowledges the evidence of limitations on sitting, standing, walking, bending, and lifting and concludes that this functional impact is contemplated by the rating criteria. The Board additionally acknowledges the VA examiners’ conclusions that pain, weakness, fatigability, or incoordination limited functional ability with repeated use over time and during flare-ups but finds that a higher rating is not warranted as limitation of motion with such pain, weakness, fatigability, or incoordination more nearly approximates that contemplated in a rating of 20 percent disabling. The Board has considered the doctrine of reasonable doubt but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Accordingly, a rating in excess of 20 percent for the back disability is not warranted. Gilbert, 1 Vet. App. at 55; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As stated above, the issue of service connection for left lower extremity radiculopathy was granted in the July 2020 rating decision and is no longer on appeal before the Board. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea is remanded. A remand is warranted as an addendum opinion as to the nature and etiology of the Veteran’s obstructive sleep apnea is necessary. In a January 2020 VA examination report, the examiner concluded that the Veteran’s obstructive sleep apnea is less likely than not related to service as there was no mention of sleep disorders in service and there was only a letter from a friend stating that he had snored loudly; therefore, there is no evidence to conclude that the sleep apnea arose in service. However, while presumably acknowledging the Veteran’s in-service snoring, the examiner appears to rely on the lack of an in service diagnosis or treatment without explaining whether in-service observable sleep apnea symptoms would have been reported and recorded in service medical records; additionally, the examiner did not address whether in-service snoring was a symptom of sleep apnea. Additionally, the Board notes that the Veteran relayed not exercising or otherwise limiting his physical activities due to his back pain and that he was diagnosed with overweight/obesity related to physical inactivity. In a February 2016 note, the Veteran’s treatment provider noted that he had been educated on the health risks of overweight/obesity, including sleep apnea. As there is an indication that the Veteran’s overweight/obesity may be related to his service-connected lumbosacral spine disability and that his sleep apnea may be related to his overweight/obesity, an addendum opinion on obesity as an intermediate step is necessary. The Board makes no credibility findings at this time. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for the disability on appeal. Please ask the Veteran to provide the releases necessary for VA to secure any adequately identified private treatment records. 2. After the development in paragraph 1 is complete, please refer the claim to a clinician for an opinion as to the nature and etiology of the Veteran’s obstructive sleep apnea. The Veteran’s claims-file must be made available to and reviewed by the clinician. Regarding a theory of direct service connection, the clinician is requested to opine as to the following: (a.) Is the Veteran’s obstructive sleep apnea at least as likely as not (a 50 percent or greater probability) related to service? In addressing the question above, the clinician is requested to explain whether in-service notations of fatigue and a “dazed” sensation when fatigued as well as lay statements of in-service snoring loudly enough to prevent roommates from sleeping align with how obstructive sleep apnea is known to develop. The clinician is requested to consider and address the following: • A March 11, 1994 tuberculosis screening program service treatment record noting fatigue (see STR – Medical associated with the record on July 11, 2018, page 58 of 98); • A May 9, 1995 report of medical history in which the examiner noted that the Veteran gets tired with exertion and did not have vertigo, syncope, or “dizziness” but had a “dazed” sensation when fatigued (see STR – Medical associated with the record on July 11, 2018, page 28 of 98); • A February 15, 2017 VA pulmonary consultation note in which the Veteran complained of loud snoring since 1995, when he went to Vegas with some friends. • A statement from the Veteran’s former housemate from 1991 to 2000 in which the housemate relayed witnessing on many occasions the Veteran asleep on the living room couch snoring loudly and hearing him snoring in his room with the doors closed (see VA 21-4138 associated with the record on January 21, 2019); and • A statement from a friend of the Veteran in which the friend relayed sharing a hotel room with the Veteran and being unable to sleep because of his snoring during trips to Las Vegas in 1992 and 1993 (see VA 21 4138 associated with the record on January 29, 2019). For the purposes of rendering the requested opinion, the clinician is to treat the lay statements of in-service snoring as credible. If the sole basis of a negative nexus opinion is the absence of evidence of treatment in the Veteran’s service medical records, the clinician must explain whether obstructive sleep apnea would have manifested observable symptoms in service which would have been reported and recorded in service medical records. Regarding a theory of entitlement related to obesity as an intermediate step, the clinician is requested to opine as to the following: (b.) Is the Veteran’s obesity at least as likely as not (a 50 percent or greater probability) caused by service-connected disabilities, to include his lumbosacral disability and lower extremity radiculopathy? (c.) Is the Veteran’s obesity at least as likely as not (a 50 percent or greater probability) aggravated by service-connected disabilities, to include his lumbosacral disability and lower extremity radiculopathy? In rendering these opinions requested in (b.) and (c.) above, the examiner is requested to consider the Veteran’s musculoskeletal service-connected disabilities in aggregate rather than separately. (d.) If the answer to either (b.) or (c.) above is yes, is the Veteran’s obesity at least as likely as not (a 50 percent or greater probability) a substantial factor in causing his obstructive sleep apnea? (e.) If the answer to either (b.) or (c.) above is yes, is it at least as likely as not (a 50 percent or greater probability) that the obstructive sleep apnea would not have occurred but for obesity caused by the service-connected disabilities? In addressing questions (b.) through (e.) above, the clinician is requested to consider and address the following: • In a July 2009 statement, the Veteran relayed that his back pain limited his physical activities and that he was getting heavier (see Correspondence associated with the record on July 6, 2009); • A June 12, 2015 VA primary care note in which the Veteran relayed not exercising for the past few months due to an exacerbation in back pain; • A May 17, 2019 private record noting increased back pain and decreased activity level (see Medical Treatment Record – Non-Government Facility) associated with the record on December 8, 2020). • A May 23, 2016 VA nutrition dietetics note in which the Veteran was diagnosed with overweight/obesity related to physical inactivity as evidenced by sedentary lifestyle; and • A February 2016 VA primary care addendum note identifying sleep apnea as a health risk of overweight/obesity. ONLY IF the clinician determines that an examination is necessary for the addendum opinion, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the disorder. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an   explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Vashaw, Associate 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.