Citation Nr: 21066868 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-27 171 DATE: November 2, 2021 ORDER Entitlement to a rating in excess of 10 percent for a low back strain is denied. Entitlement to service connection for sleep apnea, including as secondary to service-connected other specified trauma- and stressor-related disorder, limited symptom post-traumatic stress reaction, is granted. Entitlement to service connection for headaches, including as secondary to an undiagnosed or medically unexplained chronic multi-symptom illness and/or service-connected other specified trauma- and stressor-related disorder, limited symptom post-traumatic stress reaction, is granted. Entitlement to service connection for allergic rhinitis with a nasal polyp, left nostril, including as secondary to an undiagnosed or medically unexplained chronic multi-symptom illness, is granted. Entitlement to service connection for a right knee disability is granted. FINDINGS OF FACT 1. The Veteran's lumbar spine disability has worsened, manifesting as muscle spasm, but not so severe as to result in an abnormal gait or spinal contour, painful, limited motion, but not a combined range of motion of the thoracolumbar spine of 120 degrees or less or forward flexion of the thoracolumbar spine between 31 and 60 degrees, including during flare-ups or on repetitive use, and separately rated radiculopathy in the lower extremities. 2. The Veteran's sleep apnea is related to his active service and aggravated by his service-connected psychiatric disability. 3. The Veteran's headaches initially manifested during, and are related to, his active service. 4. The Veteran's allergic rhinitis and left nasal polyp are related to his active service. 5. The Veteran's right knee disability is related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for a low back strain have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for entitlement to service connection for sleep apnea, including as secondary to service-connected other specified trauma- and stressor-related disorder, limited symptom post-traumatic stress reaction, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for entitlement to service connection for headaches, including as secondary to an undiagnosed or medically unexplained chronic multi-symptom illness and/or service-connected other specified trauma- and stressor-related disorder, limited symptom post-traumatic stress reaction, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 4. The criteria for entitlement to service connection for allergic rhinitis with a nasal polyp, left nostril, including as secondary to an undiagnosed or medically unexplained chronic multi-symptom illness, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 5. The criteria for entitlement to service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2003 to February 2005, including in the Southwest Asia theater of operations. As a member of the Army National Guard, he also served on various periods of training, including active duty for training (ACDUTRA) from September 2001 to February 2002. His claims come before the Board of Veterans' Appeals (Board) on appeal of an April 2014 Department of Veterans Affairs (VA) rating decision. The Veteran testified in support of these claims during a July 2019 video conference hearing held before the undersigned Veterans Law Judge. In November 2019 and November 2020, the Board remanded these claims to the Agency of Original Jurisdiction (AOJ) for additional action. Increased Rating Entitlement to a rating in excess of 10 percent for a low back strain The Veteran seeks a rating greater than 10 percent for his low back disability on the basis that it has worsened. In July 2019, he testified that his back disability causes pain daily, particularly when he sits for long periods of time, bends over, drives, and exerts himself physically, and interferes with his sleep and ability to climb stairs, exercise, play with his kids and drive trucks (his profession). He also testified that he manages the pain by stretching and using over-the-counter medication and a VA-issued back brace. He claims that he cannot control his back pain with stronger medication because such medication would aggravate his sleep apnea. He reports that he has limited motion of his back and numbness and tingling down his legs. He also reports flare-ups of back symptoms, sometimes severe, once weekly, lasting one to two hours. These flare-ups reportedly necessitate stretching, resting and lying down and cause limited motion, pain, spasms and tightness (2011), stiffness and sharp pain (2014) and increased sharp, stabbing pain (2020). The preponderance of the evidence is against this claim. The AOJ has rated the Veteran's lumbar spine disability 10 percent disabling pursuant to 38 C.F.R. § 4.71A, DC 5237, which is governed by the General Rating Formula for Diseases and Injuries of the Spine (general rating formula). Effective February 7, 2021, VA amended the criteria for rating spine disabilities. 85 Fed. Reg. 76453 (Nov. 30, 2020), as corrected at 85 Fed. Reg. 85523 (Dec. 29, 2020), as corrected at 86 Fed. Reg. 8142 (Feb. 4, 2021). However, as VA did not amend DC 5237 or the general rating formula, and the Veteran's spine disability does not involve intervertebral disc syndrome (IVDS), rated under 38 C.F.R. § 4.71a, DC 5243 and the Formula for Rating IVDS Based on Incapacitating Episodes, these amendments are not pertinent to the Veteran's claim. Under the general rating formula, a 10 percent rating is assignable for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assignable for 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 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. A 40 percent rating is assignable for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assignable for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assignable for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate DC. Id. at Note 1. Evaluating musculoskeletal disabilities based on limitation of motion requires consideration of functional loss caused by pain and other factors that occur during flare-ups or after repeated use and may not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. It also requires consideration of whether a claimant has less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination and/or pain on movement. 38 C.F.R. § 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating should be assigned based on the extent to which motion is limited pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Examiners must also obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the claimant when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the Veteran's lumbar spine disability has worsened during the course of this appeal but not to the extent an increased rating is warranted. According to treatment records and VA examination reports, this disability manifests as painful, limited motion, but not a combined range of motion of the thoracolumbar spine of 120 degrees or less or forward flexion of the thoracolumbar spine between 31 and 60 degrees, even during flare-ups and on repetitive use. It also manifests as muscle spasm, but not so severe as to result in an abnormal gait or spinal contour, and radiculopathy in each lower extremity, both separately service connected as a neurological manifestation of the lumbar spine disability. More specifically, treatment records establish that, prior to filing a claim for service connection for a back disability, the Veteran was receiving treatment for chronic low back pain. In 2012, VA issued him a lumbar corset for low back support. Since then, he has had lumbar spine x-rays (all normal), received physical therapy for his back, and undergone multiple VA spine examinations. During these examinations conducted in March 2011, February 2014, January 2020 and June 2021, he had painful flexion of the thoracolumbar spine to 75, 80 and 90 degrees, once with a slight reduction on repetitive use, an additional loss of 10 degrees of motion of all ranges during flare-ups, and a combined rating of motion of the thoracolumbar spine of 215, 230, 240 and 255. At least one examiner also noted tenderness, paravertebral muscle spasm not productive of an abnormal gait or spinal contour, no guarding, no ankylosis, no signs of lumbar intervertebral disc syndrome, no arthritis and no evidence of additional joint limitation due to pain, fatigue, weakness, lack of endurance or incoordination on repetitive use. One noted that the back disability had progressed/worsened. He further noted that it was impossible to conduct passive and non-weight bearing range of motion testing in a safe and reasonable manner as it might have caused the Veteran severe pain or risked further injury. No examiner noted any neurological abnormality other than radiculopathy in the lower extremities, which, as noted above, is already service connected. Based on these findings, and accounting for the additional loss of motion of 10 degrees in all ranges during flare-ups, the criteria for entitlement to a rating greater than 10 percent for the Veteran's lumbar spine disability are not met. As the negative and positive evidence is not balanced in this case, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Service Connection The Veteran claims entitlement to service connection for sleep apnea, headaches, allergic rhinitis with a nasal polyp, and a right knee disability on a direct basis as initially manifesting during active service, or secondary basis as related to a service-connected disability, or presumptive basis as related to an undiagnosed or medically unexplained chronic multi-symptom illness. Service connection may be granted on a direct basis for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. "Active military, naval or air service" includes: (1) AD; (2) any period of ACDUTRA during which an individual became disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training (INACDUTRA) during which an individual became disabled or died from an injury incurred or aggravated in the line of duty, or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training. 38 U.S.C. § 101 (24). The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted on a secondary basis for disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if they were noted as chronic in service, manifested to a compensable degree within a year of separation from service, or if continuity of the same symptomatology of those diseases 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). Service connection may also be granted on a presumptive basis in the case of a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability (includes an undiagnosed or medically unexplained chronic multi-symptom illness such as fibromyalgia) that became manifest during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more no later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). A Persian Gulf veteran is defined as one who served on active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The period of the Persian Gulf War extends from August 2, 1990, through the present. 38 C.F.R. § 3.2(i). The evidence supports each of these claims on a direct basis. Entitlement to service connection for sleep apnea, including as secondary to service-connected other specified trauma- and stressor-related disorder, limited symptom post-traumatic stress reaction The Veteran seeks service connection for sleep apnea on a secondary basis as related to his service-connected psychiatric disability, or respiratory disability, which he contends too should be service connected. He claims that, although he was not diagnosed with sleep apnea until 2012, he had related symptoms prior to that time, which his family noticed upon his return from Iraq. For instance, his sleep was not refreshing. In July 2019, he testified that, when he was deployed to Iraq from 2003 to 2004, he often felt fatigued, and his buddies told him he snored. At times, he woke up at night gasping for air. The Veteran further testified that, after he came home from Iraq in 2004, "she" (described in a November 2012 written statement as his fiancée) noticed him frequently snoring. He told his daughter, who recommended a sleep study; this test showed severe sleep apnea. He is reportedly unable to take certain pills VA has recommended for his PTSD because they aggravate his sleep apnea. Based on the evidence of record, the Board concludes that the Veteran currently has sleep apnea, a condition that is related to his active service and aggravated by his service-connected psychiatric disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.310. A physician first diagnosed the Veteran with this condition in 2012 based on a sleep study showing severe obstructive sleep apnea (complex type) and sleep-related hypoxemia/hypoventilation. Since then, the Veteran has submitted articles discussing sleep apnea, and they reflect that this condition is a sleep disorder causing frequent episodes of upper airway obstruction and manifesting, in part, as snoring and periods of breathing cessation. As noted above, the Veteran asserts that, while in Iraq in 2003 and 2004, he felt fatigued and occasionally woke up gasping for breath (choking), and fellow servicemen told him that he snored. He further asserts that family members later confirmed the same symptoms, which continuously manifested following his discharge from service. In August 2021, a VA examiner found the Veteran's sleep apnea at least as likely as not caused by the Veteran's service, including changes in environment and the sleep patterns he experienced there, and aggravated by his service-connected PTSD. The examiner based this opinion on the Veteran's reported history, which, because it is describing lay-observable events, is competent, service treatment records and the 2012 sleep study. As there is no information of record calling into question the Veteran's credibility, this evidence satisfies the criteria for entitlement to service connection for sleep apnea. The Board acknowledges that the record also includes VA examiners' unfavorable opinions on the matter of whether the Veteran's sleep apnea is related to his service. However, these opinions are less probative than the one noted above. As the Board explained in its November 2019 and November 2020 Remands, they either fail to address whether the sleep apnea is due to or aggravated by the Veteran's service-connected psychiatric disability or are speculative in finding that the sleep apnea "might be related" to the Veteran's respiratory disability, service connected below. In addition, they do not consider as competent the lay-observable symptoms the Veteran reported as having occurred in service. The favorable opinion noted above, which was offered in response to the Board's November 2019 and November 2020 Remands, corrects these deficiencies. Entitlement to service connection for headaches, including as secondary to an undiagnosed or medically unexplained chronic multi-symptom illness and/or service-connected other specified trauma- and stressor-related disorder, limited symptom post-traumatic stress reaction The Veteran seeks service connection for headaches on a direct basis as initially manifesting in service. During a September 2013 VA headaches examination, he indicated that his headaches began in 2004. He further indicated that other issues, including severe sleep apnea, allergic rhinitis and a nasal polyp, contribute to the headaches. In July 2019, he testified that his headaches started when he went to Iraq, but he is not sure of their cause. He did not seek headache treatment in Iraq or complain about his headaches because, as a soldier, he had to push through. Now, he treats his headaches with over-the-counter medication; VA also prescribed him allergy and other medications for the headaches, which he stopped taking. Based on the evidence of record, the Board concludes that the Veteran currently has headaches that initially manifested during, and are related to, active service. Upon returning from his deployment to Iraq, where he was exposed, in part, to an improved explosive device (IED) and burn pits and was involved in a motor vehicle accident, during which he reportedly hit his head, he underwent a post-deployment examination. During this examination, he reported that he had had headaches and ringing in his ears during deployment and had them during the examination. According to treatment records dated since 2005, he continued to report and receive treatment for such headaches. In support of this claim, the Veteran has submitted articles discussing Gulf War illnesses, and they reflect the significance of soldiers' various exposures in the Southwest Asia theater of operations. In August 2021, a VA examiner related the Veteran's headaches to one such exposure, specifically, pits burning human waste and fuel, and also to the documented IED blast, tinnitus (ringing in the ears) and Humvee accident. The examiner based this opinion on the Veteran's reported history, which, because it is describing, in part, lay-observable events, is competent, and service and post-service treatment records. As there is no information of record calling into question the Veteran's credibility, this evidence satisfies the criteria for entitlement to service connection for headaches. The Board acknowledges that the record also includes VA examiners' unfavorable opinions on the matter of whether the Veteran's headaches are related to his service. However, these opinions are less probative than the one noted above. As the Board explained in its November 2019 and November 2020 Remands, they do not contemplate the lay-observable symptoms the Veteran reported as having occurred in service. The favorable opinion noted above, which was offered in response to the Board's November 2019 and November 2020 Remands, corrects this deficiency. Entitlement to service connection for allergic rhinitis with a nasal polyp, left nostril, including as secondary to an undiagnosed or medically unexplained chronic multi-symptom illness The Veteran seeks service connection for a respiratory disability on a direct basis as initially manifesting in service. During his July 2019 hearing and January 2020 VA sinusitis/rhinitis examination, the Veteran explained that he began having respiratory issues, including a runny nose and congestion, when he was overseas in Iraq, likely because of the dust and heat to which he was exposed on a daily basis. He testified that he was issued nasal spray, which he has since continued taking in conjunction with allergy pills. During September 2013 VA respiratory and nose, throat, larynx and pharynx examinations, he indicated that he had had a runny nose and stuffiness for some time and had been diagnosed with a nasal polyp in 2011. He also reported trouble breathing. He indicated that, beginning in 2005, he became short of breath when he worked out or played sports; a cardiac work-up revealed sinus bradycardia only. The Veteran believes his severe sleep apnea with hypoxemia/hypoventilation contributes to or aggravates his respiratory issues. Based on the evidence of record, the Board concludes that the Veteran currently has allergic rhinitis that is related to his active service. Upon returning from his deployment to Iraq, where he was exposed, in part, to burn pits, he underwent a post-deployment examination. During this examination, he reported that he had had a runny nose during deployment and had one during the examination. During a follow-up evaluation, he also reported redness of eyes with tearing and difficulty breathing. As noted above, the Veteran asserts that, during this time frame, he was given nasal spray for nasal congestion. According to treatment records dated since 2005, he continued to report and receive treatment for similar symptoms, which were initially attributed to other respiratory disabilities. In 2012, however, a doctor diagnosed allergic rhinitis. In August 2021, a VA examiner confirmed this diagnosis, finding that the Veteran had developed symptoms thereof in Iraq in 2004. This examiner related the allergic rhinitis to the Veteran's active service, basing the opinion on the fact that the Veteran was exposed to burn pits there, was seen in medical for, in part, lay-observable breathing difficulty and congestion, and has since been experiencing the same symptoms. This evidence satisfies the criteria for entitlement to service connection for allergic rhinitis. The Board acknowledges that the record also includes VA examiners' unfavorable opinions on the matter of whether the Veteran's allergic rhinitis is related to his service. However, these opinions are less probative than the one noted above. As the Board explained in its November 2019 and November 2020 Remands, they relied on the erroneous fact that the Veteran had never been diagnosed with allergic rhinitis and failed to consider the Veteran's written statements and hearing testimony, which include reports of lay-observable respiratory symptoms. The favorable opinion noted above, which was offered in response to the Board's November 2019 and November 2020 Remands, corrects these deficiencies. Entitlement to service connection for a right knee disability The Veteran seeks service connection for a right knee disability on a direct basis as related to an in-service right knee injury. In a January 2008 application for VA compensation, he indicated that he injured his knee in May 2007 and received treatment for it until January 2008. He also indicated that his knees hurt from entering tanks and trucks and running. In a written statement submitted the same month, he reported a 2004 knee injury. In an application to reopen received in October 2010, he reported two knee injuries, one in 2004, another in 2008. During the course of the appeals process, the injuries have been variously described as occurring secondary to a fall in a hole while serving in Iraq, secondary to a Humvee/motor vehicle accident, and secondary to training. In a written statement submitted in August 2011 and during a January 2020 VA knee examination, the Veteran explained that after he injured his knee in 2004, when he twisted it stepping into a hole, he did not seek treatment but had swelling for three or four days; he reported swollen, stiff and painful joints during his post-deployment assessment. In 2008, he aggravated the initial injury falling while running (experienced a dizzy spell and felt like passing out). During a September 2013 VA knee examination, the Veteran indicated that he continuously experienced knee problems, including pain, after the 2004 injury. During his July 2019 hearing, he explained the circumstances of the 2004 knee injury that occurred while on a nighttime mission in Iraq. He was sitting in a ditch and twisted his knee; he felt something pop but did not realize he had torn his medial collateral ligament. He indicated that he did not seek treatment for the injury until he got out. Instead, he pushed through it and completed the mission, learning in 2008 he needed surgery. Treatment records dated since 2007 confirm that the Veteran currently has a right knee disability that required surgery in 2008. Despite this surgery, the Veteran has continued to report and receive treatment for right knee complaints, including a recent tear. As noted above, the Veteran attributes his right knee disability to in-service knee injuries. A September 2001 letter the Veteran wrote to his mother mentions one such injury, during which the Veteran was running in a group when another runner mistakenly tripped him. The Veteran fell and skinned his knees. In a written statement the Veteran's mother submitted in May 2009, she recalls the Veteran's knee injury during basic training. She also recalls him falling in a hole in Iraq, which did not stop his mission. In August 2021, a VA examiner related the Veteran's right knee disability to his active service. The examiner based this opinion on the Veteran's reported history of two in-service injuries, including one that occurred while running during basic training and another that occurred in Iraq while running from the enemy after a Humvee accident, and post-service treatment records showing 2008 right knee surgery (meniscectomy). This evidence satisfies the criteria for entitlement to service connection for a right knee disability. The Board acknowledges that the record also includes VA examiners' unfavorable opinions on the matter of whether the Veteran's right knee disability is related to his service. However, these opinions are less probative than the one noted above. As the Board explained in its November 2019 and November 2020 Remands, these opinions do not contemplate the lay-observable injuries and symptoms the Veteran reported as having occurred in service. The favorable opinion noted above, which was offered in response to the Board's November 2019 and November 2020 Remands, corrects these deficiencies. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. N 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.