Citation Nr: 21062414 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-58 974A DATE: October 7, 2021 ORDER Service connection for a cervical spine disorder is granted. REMANDED The claim of entitlement to service connection for sleep apnea is remanded. The claim of entitlement to a disability rating greater than 10 percent for arthrosis post left knee medial meniscus tear is remanded. The claim of entitlement to a disability rating greater than 10 percent for lumbar degenerative disc disease with left sciatica is remanded. The claim of entitlement to a disability rating greater than 10 percent for left lumbar radiculopathy is remanded. The claim of entitlement to a disability rating greater than 30 percent for anxiety, not otherwise specified (NOS) is remanded. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT The Veteran has a current diagnosis of mild cervical degenerative disc disease, symptoms of which have been present since the Veteran's military service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from June 1989 to August 1989, October 1989 to April 1994, February 1995 to February 1996, April 2005 to October 2006, February 2009 to November 2009, and February 2010 to January 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran indicated on a November 2017 VA Form 9 that he wished to testify at a Board hearing. In October 2020 correspondence, he withdrew this hearing request. Notably, in September 2018, the Veteran elected to opt-in to the Rapid Appeals Modernization Process (RAMP). However, in September 2018 correspondence, this request was denied. 1. Service connection for a cervical spine disorder is granted. The Veteran contends that service connection for a cervical spine disorder is warranted. Specifically, he contends that he injured his cervical spine when he injured his lumbar spine and head in August 2005 and has continued experiencing problems with his cervical spine since this injury. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, a veteran 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as arthritis, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service treatment records show injuries to the low back in 1990, 2005, and 2007 as well as a head injury in 1991. Also, a June 2010 VA treatment record shows a diagnosis of mild degenerative disc disease (DDD) of the cervical spine. The Veteran submitted an initial claim for service connection for a left shoulder disorder in September 2011. In connection with this claim, he was afforded a VA examination in May 2013. At that time, the Veteran reported that in August 2005, while in Afghanistan moving boxes weighing 50-75 pounds each, an explosion nearby caused him to fall, landing on his back and striking his head. He waited two days before seeking medical attention due to accountability to his unit. He then saw his captain who was a chiropractor. He was given an adjustment, as well as pain medication then returned back to work on light duty for the following two weeks. During these two weeks, he had difficulty turning his head from side to side due to stiffness. In 2008, while trying to lift rucksack, he noticed that his neck was frequently getting stiff with difficulty lifting heavy objects overhead. He stated that this caused difficulty driving leading to complete driving restriction and his military license was taken away. In 2010, at MacDill Air Force Base in Tampa, Florida, he states that he received imaging that showed bulging disc in C4 and C5. He was treated conservatively with muscle relaxers and instructed to continue to take his regular pain medication. He was honorably discharged in 2011. The Veteran denied any new injury or surgery since discharge. He continued to have decreased range of motion and stiffness in neck. Significantly, the May 2013 examination report shows a diagnosis of mild cervical DDD. Upon review of the record, the examiner opined that the Veteran's cervical spine disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale for this opinion, the examiner noted that there was no evidence from the Veteran's available STRs on which to base a nexus statement for opinion. As such, the examiner could not make an opinion as to whether the Veteran's current cervical disc degeneration is related to his military service without resorting to mere speculation. The Board finds that the evidence of record is in relative equipoise and, affording the Veteran the benefit of the doubt, service connection for a cervical spine disorder is warranted. As an initial matter, the Board notes that the STRs suggest possible injury to the neck and even show a diagnosis of mild DDD of the cervical spine. There are also competent allegations of continuity of cervical spine symptoms. Significantly, the Veteran is competent to provide lay testimony regarding cervical spine problems he experienced during and immediately following service. The only matter still in question is whether there is a medical link between the Veteran's claimed current cervical spine disorder and his military service. In this case, while the May 2013 VA examiner was unable to provide a medical opinion, the Board declines to remand for an additional opinion as such would resemble a fishing expedition for negative evidence, which, in view of the available medical evidence, is not necessary. Indeed, obtaining such additional evidentiary development in this instance would only result in additional delay with no benefit to the Veteran. Sabonis v. Brown, 6 Vet. App. 426 (1994); VAOPGCPREC 5-04, 69 Fed. Reg. 59,989 (2004). As such, the Board will resolve reasonable doubt in favor of the Veteran and find that the Veteran's cervical spine disorder began during his military service. Therefore, service connection for a cervical spine disorder is warranted. REASONS FOR REMAND 2. The claim of entitlement to service connection for sleep apnea is remanded. The Veteran contends that service connection is warranted for sleep apnea, either directly related to his military service and/or as due to in-service environmental exposures during his Gulf War service. Specifically, in his July 2014 notice of disagreement, the Veteran wrote that he was first treated for sleep problems in November 2006, one month after returning from Afghanistan. He also wrote that, during his deployment to Afghanistan from April 2005 to October 2006, he was exposed to fumes, fuels, burning oil, and sand. While the Veteran's STRs are negative for sleep apnea symptoms, VA treatment records dated in December 2006 (in between two of the Veteran's periods of active service) show significant sleep problems. A post-service sleep study conducted in December 2011, less than one year after the Veteran's discharge from military service, shows a diagnosis of obstructive sleep apnea (OSA). The Veteran submitted the current claim for service connection for sleep apnea in February 2012. In connection with this claim, he was afforded a VA sleep apnea examination in February 2013. Significantly, this examiner diagnosed OSA, noting an onset in 2011, and opined that it was less likely than not that the Veteran's obstructive sleep apnea was related to his military service. As rationale for this opinion, the examiner noted that the claims file had been reviewed and there was no evidence in the claims file of breathing problems, respiratory conditions, or specifically of OSA. While the Veteran had an instance of inability to breathe deeply due to back pain in December 2007, this is not evidence of a respiratory illness but, rather, acute pain reaction. The Veteran also indicated that he was not claiming this connection. Therefore, it was less likely than not that the Veteran's OSA is due to this pain reaction in December 2011 as there is no reasonable medical rationale between the two things. Furthermore, there was no evidence of OSA or a respiratory condition in the STRs. Significantly, the Veteran developed OSA, confirmed by sleep study in December 2011, after onset of consistent symptoms of apnea, snoring, and gasping. OSA is a mechanical airway obstruction that is due to relaxed structures in the throat and mouth closing on the airway while sleeping. This is more prevalent with obesity. Current medical literature does not relate OSA to any metal/air pollutant exposures and there is no evidence of exposure or event in the STRs that would cause development of OSA, which, as before, is a mechanical obstruction. Therefore, this is a diagnosis of known etiology that occurred several years after active military service. It is less likely than not the veteran's OSA is caused by or incurred during service in Afghanistan. In a March 2020 brief, the Veteran's representative argued that the February 2013 VA opinion is speculative and ignores crucial information regarding the Veteran's service. Specifically, the February 2013 VA examiner failed to discuss the Veteran's reports of continuity of symptomatology, specifically the fact that he was suffering from sleep impairment and taking sleep medication before his discharge from service. Furthermore, the February 2013 VA opinion misapplied relevant terminology, referencing the pathophysiology of the Veteran's OSA but not the etiology or underlying cause. Moreover, the Veteran's representative raised the theory of entitlement to service connection for OSA as secondary to and/or aggravated by the Veteran's newly service-connected cervical spine disorder and even submitted medical treatise evidence supporting a connection between these disabilities. Upon review of the record, the Board agrees that the February 2013 VA medical opinion is inadequate as the examiner did not address the documented complaints regarding sleep problems in between the Veteran's periods of active service or the Veteran's competent allegations of symptoms since the Veteran's military service. Furthermore, the February 2013 VA opinion does not address the newly raised theory of entitlement to service connection for OSA as secondary to and/or aggravated by the Veteran's newly service-connected cervical spine disorder along with the supporting medical treatise evidence. As such, a new VA examination along with a medical opinion should be obtained. 3. The claims of entitlement to a disability rating greater than 10 percent for arthrosis post left knee medial meniscus tear and a disability rating greater than 10 percent for lumbar degenerative disc disease with left sciatica are remanded. The Veteran contends that disability ratings greater than 10 percent are warranted for his service-connected left knee and lumbar spine disabilities. He was last afforded VA knee and lumbar spine examinations in February 2013. Significantly, during these examinations, the Veteran reported experiencing flare-ups of the knees/lumbar spine, but the examiner did not attempt to quantify the effect of the claimed flare-ups in terms of additional loss of motion. Also, while these VA examination reports show range of motion findings for the knees/lumbar spine, they do not indicate whether the findings were on either active vs. passive motion and/or in weight-bearing vs. nonweight-bearing. The Court of Appeals for Veterans' Claims (Court) recently clarified the responsibilities of a VA examiner and the Board with regard to describing additional functional loss during flare-ups of musculoskeletal disabilities. The Court explained that case law and VA guidelines anticipate that VA examiners must offer flare opinions based on estimates derived from information procured from relevant sources, including lay statements of Veterans. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. The Court went on to note that an examination is inadequate when, even though the Veteran was not experiencing a flare at the time of the examination, it failed to ascertain adequate information, such as frequency, duration, characteristics, severity, and functional loss, regarding the Veteran's flares by alternative means. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Unfortunately, neither the February 2013 VA knee nor the lumbar spine examination reports comply with Sharp. Accordingly, the Veteran must be afforded new VA examinations to correct the deficiencies with regard to Sharp. Also, the Board observes that a new precedential opinion that directly affects this case was issued by the Court. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Unfortunately, neither the February 2013 VA knee nor lumbar spine examination reports comply with Correia. Accordingly, the Veteran must be afforded new VA examinations to correct the deficiencies with regard to Correia. 4. The claim of entitlement to a disability rating greater than 10 percent for left lumbar radiculopathy is remanded. With regard to the left lumbar radiculopathy issue, this claim is inextricably intertwined with the remanded lumbar spine increased rating claim as the new VA examination regarding the lumbar spine will consider the left lumbar radiculopathy as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Thus, consideration of the left lumbar radiculopathy issue will be deferred. 5. The claim of entitlement to a disability rating greater than 30 percent for anxiety, NOS, is remanded. The Veteran was last afforded VA psychiatric examinations in February and May 2013. Significantly, a comparison of these two examination reports reveals conflicting findings. Specifically, during the February 2013 VA examination, the Veteran was diagnosed with anxiety disorder and his only psychiatric symptoms were depressed mood, anxiety, and chronic sleep impairment. During the May 2013 VA examination, just three months later, it was noted that, in addition to depressed mood, anxiety, and chronic sleep impairment the Veteran also experienced suicidal ideation. As the presence of suicidal ideation is an important factor in rating psychiatric disabilities, further clarification should be made as to frequency and duration of his symptoms. Furthermore, a review of the record shows that the Veteran's anxiety disorder has potentially increased in severity since the May 2013 VA examination as the Veteran has been diagnosed with additional psychiatric disabilities, specifically major depressive disorder in June 2013 and mood disorder in March 2016. On remand, the Veteran should be afforded a new VA psychiatric examination which addresses these findings. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 6. The claim of entitlement to a TDIU is remanded. With regard to the TDIU issue, this claim is inextricably intertwined with the remanded service connection and increased rating claims. See Harris, 1 Vet. App. at 180. Thus, consideration of the TDIU issue will be deferred. Also, with regard to all of the remanded issues, the Veteran should be provided with an opportunity to identify any VA or non-VA healthcare provider who has treated him for his claimed OSA, left knee disability, lumbar spine disability, and/or radiculopathy of the lumbar spine since service. Also, there are likely outstanding VA treatment records as the Veteran has consistently sought treatment at VA since November 2006, but the most recent VA medical records in the claims file are dated in August 2017. Therefore, all outstanding VA treatment records should be obtained on remand. The matters are REMANDED for the following action: 1. Afford the Veteran an opportunity to identify any healthcare provider who has treated him for his claimed OSA, left knee disability, lumbar spine disability, and/or radiculopathy of the lumbar spine since service. After obtaining any necessary authorization from the Veteran, obtain all identified records, to include updated VA treatment records dated from August 2017 to the present. 2. After obtaining any outstanding records to the extent possible, obtain an opinion as to the Veteran's obstructive sleep apnea. Based on a review of the record, the examiner should provide opinions as to the following: (i) whether it is at least as likely not (50 percent probability or greater) that his current obstructive sleep apnea is caused by or is otherwise related to the Veteran's active duty service. (ii) whether it is at least as likely not (50 percent probability or greater) that any current obstructive sleep apnea is aggravated by a service-connected disability (particularly the Veteran's newly service-connected cervical spine disorder). Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. In doing so, the examiner should address the following: (i) VA treatment records dated in December 2006 (in between two of the Veteran's periods of active service) show significant sleep problems (see VBMS, document labeled Medical Treatment Record Government Facility, receipt date 10/25/2012, page 17); (ii) a post-service sleep study in December 2011 showing a diagnosis of OSA (see VBMS, document labeled Medical Treatment Record Non-Government Facility, receipt date 2/15/2012, page 1); and (iii) the February 2013 VA sleep apnea examination showing a diagnosis of OSA, with an onset in 2011, with a negative nexus opinion. (see VBMS, document labeled VA Examination, receipt date 2/26/2013, pages 7 and 10); and (iv) a March 2020 brief wherein the Veteran's representative raised the theory of entitlement to service connection for OSA as secondary to and/or aggravated by the Veteran's newly service-connected cervical spine disorder and submitted medical treatise evidence supporting a connection between these disabilities (see VBMS, document labeled Medical Treatment Record Non-Government Facility, receipt date 3/3/2020, pages 5 and 8). The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. After obtaining any outstanding records to the extent possible, schedule the Veteran for VA knee and lumbar spine examinations for evaluation of the current nature of his service-connected left knee and lumbar spine disabilities. The examiner should test the range of motion (using a goniometer) in active motion, passive motion, weight-bearing, and non-weight-bearing, for each knee as well as the lumbar spine. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, (e.g., feasibility of testing the spine in weight-bearing) he or she should clearly explain why that is so. The VA examiner should also ask the Veteran for a description of his flare ups, and express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. 4. Schedule the Veteran for a VA examination for evaluation of his anxiety disorder. Significantly, the VA examiner should address the differences in the February and May 2013 VA examination reports wherein the Veteran's only psychiatric symptoms in February 2013 were depressed mood, anxiety, and chronic sleep impairment but included suicidal ideation in May 2013 and consider whether the Veteran does, in fact, experience suicidal ideation (see VBMS, documents labeled Medical Treatment Record Government Facility, receipt date 2/26/2013, page 12 and VA Examination, receipt date 5/1/2013, page 33). The examiner should also address the additional psychiatric diagnoses in the record, specifically major depressive disorder in June 2013 and mood disorder in March 2016 (see VBMS, documents labeled CAPRI, receipt date 7/1/2013, page 2 and CAPRI, receipt date 9/5/2017, page 310). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.