Citation Nr: 21068898 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 17-44 409 DATE: November 15, 2021 ORDER Entitlement to service connection for obstructive sleep apnea as secondary to service-connected left nostril collapse is granted. Entitlement to a rating in excess of 10 percent prior to December 12, 2019 and in excess of 20 percent thereafter for a low back disability is denied. REMANDED Entitlement to service connection for bilateral lower extremity radiculopathy associated with service-connected low back disability is remanded. Entitlement to an initial rating in excess of 20 percent for pelvic prolapse is remanded. FINDINGS OF FACT 1. The Veteran's obstructive sleep apnea is proximately due to service-connected left nostril collapse. 2. For the entire appeal period, the Veteran's low back disability has been manifested by forward flexion of the thoracolumbar spine between 60 and 90 degrees with no evidence of ankylosis or incapacitating episodes of intervertebral disc syndrome (IVDS). CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea as secondary to service-connected left nostril collapse are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a). 2. The criteria for entitlement to a rating in excess of 10 percent prior to December 12, 2019, and in excess of 20 percent thereafter for a low back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1971 to March 1974 and from May 1974 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which, in part, granted service connection for pelvic prolapse and assigned a 20 percent rating from April 1, 2013, continued a noncompensable rating for a low back disability. In a June 2017 rating decision, the RO increased the rating to 10 percent for a low back disability, effective April 1, 2013. In a June 2020 rating decision, the RO increased the rating to 20 percent for a low back disability, effective December 12, 2019. In August 2019, the Board remanded the appeal for further development. Service Connection 1. Entitlement to service connection for obstructive sleep apnea as secondary to service-connected left nostril collapse is granted. The Veteran asserts that her obstructive sleep apnea is due to her service-connected left nostril collapse. See October 2013 VA Form 21-4138, February 2015 Notice of Disagreement (NOD), and September 2020 Correspondence. As the discussion below is favorable regarding secondary service connection on a proximate cause basis, no other theory of entitlement will be addressed. Service connection may be established for disability resulting from injury or disease incurred during active service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection the evidence must show: (1) the existence of a present disability; (2) 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran has a current diagnosis of obstructive sleep apnea. See January 2014 and December 2019 VA examination reports. She is currently service-connected for multiple disabilities, including left nostril collapse. Therefore, the Board finds that the first and second elements of secondary service connection are met. The crux of the secondary service connection claim therefore rests on element three, whether there is a relationship, or nexus, between obstructive sleep apnea and left nostril collapse or any of her service-connected disabilities. The Board finds that such relationship is substantiated for reasons detailed below. The December 2019 VA examiner opined negatively on the Veteran's obstructive sleep apnea as secondary to her left nostril collapse. However, the opinion was conclusory and provided limited rationale. The Board finds this opinion to be inadequate for two reasons. First, the opinion notes that obstructive sleep apnea is proximately due to or the result of the Veteran's nostril collapse and/or scar, removal of basal cell carcinoma, reasoning that the residual scar from nasal surgery is too small to cause sleep apnea and that the Veteran is obese and snores and that neither are caused by surgery for skin cancer. The examiner does not weigh the evidence and did not address whether the actual collapsed left nostril (not just the surgical scar) could cause obstructive sleep apnea and at least puts the evidence of causation in equipoise. See Andrews v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 1091, 2021 WL 2549071, No. 19-0352, at *18-25 (June 22, 2021). Second, in addressing the aggravation prong, the examiner applied the wrong legal standard when rendering the negative opinion stating that obstructive sleep apnea was not a "preexisting condition" and therefore could not have been aggravated. This is an erroneous application of a direct service connection standard for aggravation and not for the aggravation prong of secondary service connection. For these reasons, the December 2019 negative nexus opinion is supported by an inadequate rationale and applies the wrong legal standard and is therefore non-probative. Remand is not necessary to obtain an addendum opinion, however, as there is positive evidence submitted by the Veteran in February 2015 and September 2020. Thus, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); See Andrews v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 1091, 2021 WL 2549071, No. 19-0352, at *23 (June 22, 2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim.") Here, D. W., LCSW in an October 2014 letter briefly stated that the Veteran's obstructive sleep apnea and difficulty breathing while snoring is due to the nostril collapse. Moreover, in an October 2014 private treatment record Dr. Kotlarz, an Ear, Nose, and Throat (ENT) specialist, acknowledged the Veteran related her obstructive sleep apnea to her left nostril collapse and noted an assessment of "anatomic airway obstruction secondary to septal deviation, enlargement of inferior turbinates, collapsed nasal valve". Lastly, the Veteran submitted two lay statements in September 2020, the first from her spouse where he stated that prior to her nasal surgery and resulting collapse of the left nostril, his wife did not experience symptoms associated with sleep apnea and that since that time she has continued to experience these symptoms, highlighting the fact he recorded the collapse of her nostril that results in snoring, occasional gasping, and clicking sounds while sleeping. Secondly, the Veteran stated that during the December 2019 VA examination, she informed the examiner of the video showing her left nostril causing sleep apnea and the examiner refused to watch and consider it while accessing her condition. Additionally, she stated that Dr. Kotlarz, an ENT specialist, related her sleep apnea to her left nostril collapse (noted above) and that this should carry more weight than a non-specialist who did not examine her nose or throat in any manner. The Board agrees. In sum, the evidence of record establishes that the Veteran has been diagnosed with obstructive sleep apnea and that she is service connected for left nostril collapse. The record contains a negative nexus opinion that is non-probative due to its inadequate supporting rationale and application of the wrong legal standard for secondary service connection. However, remand is not necessary as the October 2014 VA private treatment records from D. W., LCSW and Dr. Kotlarz relates her obstructive sleep apnea to her left nostril collapse, thus establishing a causal connection between the Veteran's current disability and her service-connected disability. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011) (drawing an "inference based on the evidence" is at the heart of any adjudication). Accordingly, all elements of secondary service connection are met, and the benefit sought on appeal is granted. Increased Ratings 2. Entitlement to a rating in excess of 10 percent prior to December 12, 2019 and in excess of 20 percent thereafter for a low back disability is denied. I. General Rating Principles Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. § 4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Other important factors include excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. While the regulations require review of the recorded history of a disability, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. II. Rating Criteria Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine 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. Pursuant to DC 5237, a 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees or the combined range of motion of the thoracolumbar spine is 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 disability rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is 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 warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5237. Note (1) provides for separate ratings for associated objective neurologic abnormalities. Note (5) notes that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. DC 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes with a total duration of at one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes with a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. III. Analysis The Veteran is in receipt of a noncompensable rating from June 8, 1998, a 10 percent rating from April 1, 2013, and a 20 percent rating from December 12, 2019 for her service-connected low back disability. The appeal period is from April 1, 2013, the date of her increased rating claim, plus the one-year "look back" period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Throughout the entire appeal period, the Veteran has complained of chronic low back pain that radiates through her ankles, stiffness, interference with sitting, including numbness, and limited mobility which requires frequent pain medication to function. See September 2013 Correspondence, December 2014 NOD, August 2017 VA Form 9; and July 2014 through August 2016, January through November 2017, and June 2020 VA treatment records, and May 2015 through September 2015, September 2016 through July 2018 private treatment records. The Veteran was afforded a VA back examination in January 2014. Range of motion testing results were as follows: forward flexion 90 degrees or greater; extension to 30 degrees or greater; right and left lateral flexion to 30 degrees or greater; and right and left lateral rotation to 30 degrees or greater, with no further limitation of motion with repetitive use. The Veteran denied flare-ups. Straight leg testing was negative in both legs and muscle strength, reflex, and sensory testing were normal. No radiculopathy, ankylosis, IVDS, or an impact on the Veteran's ability to work were found. The Veteran was afforded another VA back examination in December 2019. She reported worsening pain that radiates from her back to ankles and numbness when she sits too long and use of pain medication. The Veteran denied flare-ups but reported functional loss described as pain that radiates down to ankles and numbness when she sits too long. Range of motion testing results were as follows: forward flexion to 60 degrees; extension to 20 degrees; right and left lateral flexion to 20 degrees; and right and left lateral rotation to 20 degrees, with no further limitation of motion with repetitive use. The examiner noted pain that did not result in functional loss. The examiner indicated Deluca factors would not significantly limit her ability to function with repeated use over time or during flare-ups. No guarding was found but muscle spasms not resulting in abnormal gait or abnormal spinal contour was indicated. Additional contributing factors of interference with sitting and standing were noted. Muscle strength, reflex, and sensory testing were normal. Straight leg raising test was negative in both legs. No muscle atrophy or radicular symptoms due to radiculopathy were found. No other neurologic abnormalities were noted. No ankylosis, IVDS, or assistive devices were indicated. The examiner noted the Veteran's ability to work was impacted due to her inability to sit for too long. A rating in excess of 10 percent prior to December 12, 2019, and in excess of 20 percent thereafter under the General Formula for Rating Diseases and Injuries of the Spine is not warranted at any time during the entire appeal period. Prior to December 12, 2019, the Veteran achieved 90 degrees of forward flexion and no less than 240 degrees of combined motion of the lumbar spine, which warrants a 10 percent rating as currently assigned under the General Rating Formula due to painful motion. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991) (holding that painful motion of a major joint or group of minor joints caused by degenerative arthritis is deemed to be limited motion such that a minimum compensable rating is warranted under 5003 even though there is no actual limitation of motion); Petitti v. McDonald, 27 Vet. App. 415, 428 (2015) (finding that objective confirmation of the Veteran's joint pain is required to assign a compensable rating). Additionally, it is not until December 12, 2019, where the Veteran achieved 60 degrees of flexion and 160 degrees of combined range of motion, corresponding with a 20 percent rating as currently assigned. The next higher rating of 40 percent contemplates unfavorable ankylosis of the entire thoracolumbar spine, and the evidence of record does not show the Veteran has had unfavorable ankylosis of the entire thoracolumbar spine at any time during the appeal period, even when considering the DeLuca factors, with repeated use over time and during flare-ups, which notably the Veteran has denied flare-ups duriiung both VA examinations and the December 2019 examiner indicated these factors would not significantly limited her ability to function over time. An increased rating under DC 5243 is also not warranted, as no diagnosis of IVDS of the spine is demonstrated at any time during the appeal period. 38 C.F.R. § 4.71a, DC 5243, Note (1). Regarding separate neurological manifestations, the evidence of record does indicate some radicular symptoms in the bilateral lower extremities which as noted above will be addressed in the remand section below. No other separate compensable ratings for objective neurologic abnormalities are warranted, as there is no indication of any other neurological findings related to the Veteran's back disability at any time during the appeal period. 38 C.F.R. §§ 4.71a, Note (1), 4.118; DCs 7801-7805. REASONS FOR REMAND 3. Entitlement to service connection for bilateral lower extremity radiculopathy associated with a low back disability is remanded. Pursuant to the Board's August 2019 remand directives, the Veteran was afforded a VA back examination in December 2019. However, the examiner's lack of findings of any radicular symptoms or diagnosis of radiculopathy contradicts the other medical evidence of record including the Veteran's reports of numbness in the same report. Additionally, private treatment records show a history of leg pain, numbness, and tingling associated with the Veteran's back disability and note "intermittent radiculopathy". See June 2018 and July 2018 private treatment records. Thus, on remand a VA peripheral nerves examination is warranted to properly access the Veteran's bilateral lower extremity radiculopathy. 4. Entitlement to an initial rating in excess of 20 percent for pelvic prolapse is remanded. Pursuant to the Board's August 2019 remand directives, the Veteran was afforded a VA gynecological examination in December 2019 and a VA urinary tract examination in August 2020. However, both examinations were mild in their findings, particularly the August 2020 examination in light with the other medical evidence of record. Throughout the appeal period, the Veteran has reported urinary frequency and urgency associated with her pelvic prolapse, including voiding multiple times during the day and awaking at night to do so. See private treatment records submitted by the Veteran in November 2015 and August 2020 VA examination report. However, the August 2020 examiner did not endorse any voiding dysfunction symptoms and instead noted she does not have an "official diagnosis." Thus, on remand a new VA urinary tract examination from another examiner is warranted to properly access the severity of the Veteran's pelvic prolapse. Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any relevant outstanding private treatment records. 3. Then schedule the Veteran for a VA peripheral nerves examination to determine the current nature and severity of any bilateral lower extremity radiculopathy disability. The entire claims file, including a copy of this remand, must be made available to the examiner, and the examiner should confirm that such records were reviewed. All findings should be reported in detail. (a) Determine whether the Veteran has had a diagnosis of any bilateral lower extremity neurological condition, including radiculopathy, associated with her low back disability since April 1, 2013. (b) Please detail all neurologic symptoms consistent with the applicable rating criteria for any diagnoses in part (a), including any functional effects associated with the Veteran's bilateral lower extremity radiculopathy. 4. Then schedule the Veteran for a VA urinary tract examination to determine the current nature and severity of any urinary symptoms associated with a pelvic prolapse disability. The entire claims file, including a copy of this remand, must be made available to the examiner, and the examiner should confirm that such records were reviewed. All findings should be reported in detail consistent with the applicable rating criteria, including any functional effects associated with the Veteran's pelvic prolapse/urinary symptomatology. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.