Citation Nr: 21061370 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-45 455 DATE: October 1, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine is denied. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right lower extremity is denied. Entitlement to service connection for obstructive sleep apnea (OSA) as secondary to weight gain caused by service-connected psychiatric and musculoskeletal disabilities is granted. REMANDED Entitlement to a compensable disability rating for left ear hearing loss is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for right arm pain is remanded. Entitlement to service connection for left arm pain is remanded. Entitlement to service connection for right shoulder pain is remanded. Entitlement to service connection for left shoulder pain is remanded. Entitlement to service connection for right knee pain is remanded. FINDINGS OF FACT 1. The most probative evidence reflects that the Veteran's service-connected low back disability is manifested by painful limitation of motion; however, there are no instances of doctor-prescribed bedrest due to intervertebral disc syndrome (IVDS) within any 12-month period for consideration. 2. The most probative evidence reflects that the Veteran's service-connected radiculopathy of the right lower extremity is manifested by no more than mild incomplete paralysis of the right sciatic nerve. 3. The most probative evidence demonstrates that the Veteran's OSA was caused by obesity resulting from his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected degenerative arthritis of the lumbar spine have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. 2. The criteria for a rating in excess of 10 percent rating for right lower extremity radiculopathy have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 3. The criteria for service connection for OSA as secondary to obesity from service-connected disabilities are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States from November 1985 to November 1989 and December 2005 to May 2006. He additionally had more than 25 years of service in the Air Force Reserve, from which he retired in June 2015. This matter comes before the Board of Veterans' Appeals (Board) from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These issues were previously remanded by the Board in May 2019 and have since been returned for further adjudication. The Board notes that entitlement to service connection for a hernia and left toe disability were granted after the Board's May 2019 remand, which constitutes a full grant of those appealed issues. As such, those appealed are no longer in appellate jurisdiction and will be discussed no further. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for 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, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question 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, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12-month period. In this case, there is no competent evidence of incapacitating episodes as defined by regulation of the duration required for a higher rating. Although the private March 2019 examination stated there were incapacitating episodes, there is no evidence that the Veteran was prescribed bedrest by a physician, to include the chiropractor who completed the March 2019 private examination, for these episodes. As per the Board's remand, the Veteran was provided two VA Forms 4142 for completion and submission so that VA could request and obtain outstanding private treatment records which may reflect such doctor-prescribed periods of bedrest; however, neither the Veteran nor his private attorney responded with submission of the completed necessary form. Such private treatment records cannot be sought without the Veteran's express release, and in this case, he has refused to provide such while being given ample opportunity to do so. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Range of motion testing was performed during VA examinations in May 2016, August 2017 and March 2020, and a private examination in March 2019 and showed at worst 70 degrees of flexion and 180 degrees of combined motion. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. At the examinations, the Veteran reported flare-ups consisting of increased pain. While given the opportunity to describe functional limitation related to the disability, the Veteran's statements do not show the requisite limitation of motion necessary for a higher rating. Notably, the examiner in March 2020 estimated range of motion during flare-up would be at worst 80 degrees of flexion and 200 degrees of combined motion. Thus, the Board finds that the range of motion findings on examination depict the estimated range of motion during a flare-up. Available treatment records do not show greater limitation of motion than the examination findings. Given the above, a higher rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Spinal Formula. Ankylosis of the spine is not shown by the medical evidence or alleged by the Veteran. Regarding relevant neurological findings, the examiners noted mild right lower extremity radiculopathy, which is discussed below. There is no other evidence in significant conflict with these findings. As the Veteran does not suffer from forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion of the thoracolumbar spine 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, entitlement to a disability rating in excess of 10 percent is not warranted. 2. Entitlement to a disability rating in excess of 10 percent for radiculopathy, of the right lower extremity The Veteran contends that he is entitled to a disability in excess of 10 percent for his right lower extremity radiculopathy. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating that may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. The Veteran underwent a VA examination in May 2016, August 2017, and March 2020. He reported mild intermittent pain and the examiner noted that the Veteran suffered from mild incomplete paralysis. The Board finds that the evidence demonstrates that the Veteran suffers from right lower extremity mild incomplete paralysis of the sciatic nerve. At no time during the appeal period has the evidence shown symptoms that are consistent with moderate incomplete paralysis. Given the above, entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy of the sciatic nerve is denied. 3. Entitlement to service connection for OSA as secondary to weight gain caused by service-connected psychiatric and musculoskeletal disabilities The Veteran contends that the weight gain developed due to his service-connected disabilities, and this has caused his OSA. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. While obesity cannot be service-connected on a direct basis, and obesity cannot qualify as an in-service injury or disease for service connection purposes, obesity may serve as an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). Walsh v. Wilkie, 32 Vet. App. 300 (2020); see also VAOGCPREC 1-2017. In such a case, the evidence would need to reflect that (1) a service-connected disability or disabilities caused the Veteran to become obese or aggravated the Veteran's obesity, (2) the obesity or aggravation of obesity resulting from service-connected disability or disabilities was a substantial factor in causing another disability, and (3) the disability would not have occurred but for the obesity caused by the Veteran's service-connected disability or disabilities or the obesity aggravated by the service-connected disability or disabilities. Walsh, 32 Vet. App. at 306-7. The Veteran was originally diagnosed with sleep apnea in October 2009. In March 2019, the Veteran submitted a private medical opinion. The examiner opined that it is at least as likely as not that the Veteran's OSA is secondary to, related to, and/or aggravated by the weight gain from the service-connected unspecified anxiety disorder, degenerative arthritis of the lumbar spine, and right lower extremity radiculopathy. It is at least as likely as not that without the Veteran's weight gain, his OSA would not have occurred. The Veteran has suffered from progressive weight gain after the development of his mental health stressor events and musculoskeletal injuries. Recent studies in medical literature support that depression induces weight gain and obesity. Due to the constant pain of his service-connected musculoskeletal disabilities, he has been unable to be as active as he was before the injuries and subsequently began to progressively gain weight. Obesity has been found to be associated with passive pharyngeal critical closing pressure. The disposition of fat around the pharyngeal airway is likely to increase the collapsibility of the airway. Obesity has been associated with functional impairment and weakening in the upper airway muscles. Obesity is known to predispose patients to OSA. A VA opinion was obtained in February 2020 that opined on the direct relationship between his OSA and his service-connected disabilities but did not address if the Veteran's obesity was an intermediate step to his OSA as a result of his service-connected disabilities. The examiner did note that weight gain is a major factor in the development of OSA. The Board finds that the evidence supports the Veteran's claim that his service-connected disabilities resulted in his weight gain and obesity, and if not for this obesity, he likely would not have developed OSA. Although the February 2020 VA examiner provided a negative direct opinion regarding the relationship between the Veteran's OSA and his service-connected disabilities, this examiner did not provide an opinion regarding the relationship between the Veteran's OSA and his weight gain from his service-connected disabilities. The March 2019 private examiner cited numerous medical studies that addressed the relationship between weight gain and psychiatric disabilities and his musculoskeletal disabilities. This examiner fully supported the opinion that had the Veteran not suffered from a psychiatric condition and other service-connected disabilities, he would likely not have suffered from substantial weight gain, and had he not suffered from substantial weight gain, he likely would not have developed OSA. As the evidence demonstrates that the Veteran's OSA is related to his weight gain from his service-connected disabilities, service connection for OSA is warranted. REASONS FOR REMAND 1. Entitlement to a compensable disability rating for left ear hearing loss is remanded. 2. Entitlement to service connection for right ear hearing loss is remanded. The Veteran was most recently provided a VA audiological examination in August 2014 more than four years ago. The Veteran has since asserted that his bilateral hearing acuity has worsened. In view of the Veteran's assertion, the Board concludes that a remand is necessary to determine the nature and etiology of the Veteran's claimed right ear hearing loss and the severity of his service-connected left ear hearing loss. In light of the way that VA's Rating Schedule evaluations unilateral and bilateral hearing loss disabilities differently, these issues are inextricably intertwined. 3. Entitlement to service connection for right arm pain 4. Entitlement to service connection for left arm pain 5. Entitlement to service connection for right shoulder pain 6. Entitlement to service connection for left shoulder pain 7. Entitlement to service connection for right knee pain While further delay is regrettable, the Board concludes that another remand is necessary to ensure completeness of the record for review and substantial compliance with the Board's prior remand directives. As noted in the Introduction, the Veteran's career in the Air Force and Air Force Reserve spanned nearly 30 years. Despite this, much of the Veteran's service treatment and service personnel records are not associated with the Veteran's file. The Agency of Original Jurisdiction's (AOJ's) attempt to obtain such from the VA Records Management Center (RMC) were unfruitful. Unfortunately, the file does not reflect that other records repositories were contacted regarding these records or that a formal finding of the unavailability of such was produced by the AOJ, as is necessary under VA's duty to assist the Veteran. In the present case, these records may be instrumental in substantiating the Veteran's competent reports of experiencing arm, shoulder, and right knee pain in service. Accordingly, a remand is necessary to provide the AOJ the opportunity to exhaust all possibilities of obtaining these pertinent service records and associating them with the Veteran's file. Further, as per the Board's prior remand instructions, the Veteran was provided VA examinations to determine the nature and etiology of his claimed disabilities in March 2020; however, the Board finds that such in inadequate for the purpose of readjudicating these appealed issues. The March 2020 VA examiner stated that the Veteran did not have any post-service disability of his arms and/or shoulders; however, such a finding does not address the Veteran's in-service diagnosis of bilateral epicondylitis and whether such resolved prior to the appeal period or whether the Veteran's reports of arm, shoulder, and right knee pain result in functional impairment of earning capacity as to meet the criteria of a "disability" as used in 38 U.S.C. 1110, as per Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Moreover, the Board observes that the March 2020 VA examiner's unfavorable nexus opinions are based on the premise that the record does not show "chronicity of care" for any of the claimed disabilities. The controlling laws regarding the establishment of service connection do not require such evidence, and thus, the Board concludes that the March 2020 VA opinions are inadequate. As such, another remand is necessary. The matters are REMANDED for the following action: 1. The AOJ must request that the Veteran to identify all outstanding treatment records relevant to treatment for the disabilities subject to this remand. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records 2. The AOJ must contact the National Personnel Records Center (NPRC), the Department of the Air Force, and any other appropriate repository and request complete copies of the Veteran's service treatment and personnel records for his career in the Air Force and Air Force Reserve from November 1985 to June 2015. Attempts to secure these records must be clearly documented in the file, along with any negative responses. 3. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to determine the nature and etiology of his claimed disabilities of the arms, shoulders, and right knee. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests must be conducted. Thereafter, the VA examiner is requested to address the following: a. Identify or rule out disabilities affecting the below body parts: i. Right knee; ii. Left shoulder; iii. Right shoulder; iv. Right arm; v. Left arm. *In addressing the above, any findings that the Veteran does not have any disability of the right knee or either arm must be reconciled with the service treatment records and prior VA examinations reflections of in-service diagnoses of a right knee contusion and bilateral epicondylitis. b. For any disability identified in any subpart of part (a), the examiner must provide an approximate date of initial onset (month and year). c. For any disability identified in any subpart of part (a), the examiner must provide an opinion concerning whether such is at least as likely as not proximately due to or the result of any incident of the Veteran's service, to include his active duty in the Air Force or any period of active duty for training or inactive duty training in the Air Force Reserve. d. For any disability identified in any subpart of part (a), the examiner must provide an opinion concerning whether such is at least as likely as not caused by a service-connected disability. e. For any disability identified in any subpart of part (a), the examiner must provide an opinion concerning whether such is at least as likely as not aggravated by a service-connected disability. f. If the Veteran's reported pain in his right knee, either shoulder, or either arm is not found to be a manifestation of any disability, please describe the functional impairment resulting from the Veteran's arms, shoulders, and right knee. In doing so, the examiner is requested, to the extent possible, to describe any and all effects of the Veteran's pain on his ability to stand, walk, run, bend, stoop, reach, grasp, and maintain balance. g. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. After records development is completed, schedule the Veteran for a VA hearing examination to determine the current symptoms, level of severity, and functional impairment associated with his left ear hearing loss. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported. 4. Thereafter, the AOJ must provide the Veteran a VA audiological examination conducted by a VA audiologist. After a review of the complete file and interview with and examination of the Veteran, the examiner should undertake appropriate audiometric testing of the Veteran's bilateral hearing acuity. The examiner must record decibel losses and speech recognition scores for each ear. Thereafter, the examiner must provide an opinion concerning whether testing results meet the criteria of a right ear hearing loss disability. If so, the examiner must opine whether such is at least as likely as not proximately due to or the result of the Veteran's active duty or Reserve service. The examiner must also comment on the impact of the Veteran's hearing loss has on his activities of daily living. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 5. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hofmeister 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.