Citation Nr: 21069577 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-61 675 DATE: November 18, 2021 ORDER Service connection for sleep apnea is granted. Service connection for a gum disorder is denied. Service connection for a dental condition for compensation purposes is denied. A rating in excess of 10 percent for degenerative arthritis of the lumbar spine (herein a lumbar spine disability) prior to April 20, 2020 is denied. A 40 percent rating for a lumbar spine disability, effective April 20, 2020, is granted. A rating in excess of 40 percent for a lumbar spine disability from April 20, 2020 is denied. REMANDED A total disability rating based on individual unemployability (TDIU). FINDINGS OF FACT 1. The Veteran's sleep apnea is related to his active service. 2. During (or recent to) the appeal period, the Veteran has not had a gum disorder or dental condition eligible for VA compensation. 3. Prior to April 20, 2020, the Veteran's lumbar spine disability picture did not more nearly approximate 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. 4. From April 20, 2020, the Veteran's lumbar spine disability picture more nearly approximated forward flexion of the thoracolumbar spine to 30 degrees or less and did not more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a gum disorder or a dental condition, for compensation purposes, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150. 3. Prior to April 20, 2020, the criteria for a rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 4. From April 20, 2020, the criteria for a 40 percent rating, but no higher, for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1975 to April 1979 and from April 1981 to April 1997. The case is on appeal from August 2015 and January 2018 rating decisions. In April 2020, the Veteran testified at a Board hearing. In June 2020, the Board dismissed, reopened, granted, denied and remanded various claims. When the case was in remand status, in a May 2021 rating decision, the RO granted service connection for multiple claims ((1) major depressive disorder, generalized anxiety disorder and alcohol use disorder; (2) chronic kidney disease with hypertension; (3) hypothyroidism; (4) tinnitus; and (5) bilateral hearing loss). As the benefits sought for these issues were granted, they are no longer on appeal. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Service connection for sleep apnea. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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 or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Analysis Initially, various evidence of record noted a diagnosis of sleep apnea during the appeal period. See, e.g., March 2021 Sleep Apnea Disability Benefits Questionnaire (DBQ) (noting a diagnosis of obstructive sleep apnea and a date of diagnosis of 2008). As to the issue of nexus, of record are two competent opinions addressing the issue of whether the Veteran's sleep apnea is related to his active service. On one hand, a negative direct service connection opinion was provided following VA examination in March 2021 by Physician Assistant (PA) L.F. Specifically, the opinion stated that "[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The supporting rationale stated in full that: It is less likely that the [V]eteran's medical records support that any currently diagnosed conditions related to the [V]eteran[']s claim sleep disorder was incurred or caused by the complaint in service. Review the [V]eteran service treatment records show May 30, 1975 through April 29, 1979. He also had a period of active duty from April 1981 through April 1997. Retirement examination completed January 13, 1997 was negative for complaints of frequent trouble sleeping. The [V]eteran underwent a sleep study in 2013 that revealed obstructive sleep apnea. [Board] remand transcripts have been reviewed. The [V]eteran's obstructive sleep apnea did not occur during active duty service and was diagnosed after active duty service. The examiner also stated generally about the nature and etiology of sleep apnea that "[o]bstructive sleep apnea is caused by a collapse of the soft tissues of the throat while sleep leading to obstructive breathing and apnea episodes this is based upon the known pathophysiology of this condition." On the other hand, an August 2019 private positive direct service connection opinion was provided by Dr. Z.H. The opinion noted that "I have been [the Veteran's] primary care physician since approximately September 2016." The opinion also stated that "[i]t is my medical opinion that the following conditions are at least as likely as not, or directly connected to his miliary service," followed by discussion of various disabilities. As to sleep apnea, the opinion stated "[v]ery severe Sleep Apnea...This is likely due to years of working abnormal shift work during service in the US Navy." With respect to the negative March 2021 VA opinion, the substance of rationale was, essentially, that (1) the Veteran's January 1997 retirement examination included the Veteran's denial of frequent trouble sleeping and (2) that sleep apnea "did not occur during active duty service and was diagnosed after active duty service." As to the January 1997 retirement examination, the Report of Medical History form did include the Veteran's report that he had not ever had or had now frequent trouble sleeping. This form, however, also included the Veteran's report of having now or ever having frequent or severe headaches and on an accompanying form the Veteran stated "get headaches frequently, many times I awaken with severe headaches no evaluation." The Board notes that morning headaches may be a symptom of obstructive sleep apnea. See Lewis R. Kline, MD, Clinical presentation and diagnosis of obstructive sleep apnea in adults, UpToDate (June 3, 2021), https://www.uptodate.com/contents/clinical-presentation-and-diagnosis-of-obstructive-sleep-apnea-in-adults (discussing morning headaches as signs and symptoms of obstructive sleep apnea and stating "[m]orning headaches are reported by 10 to 30 percent of patients with untreated [obstructive sleep apnea]"). As to the comment that sleep apnea was diagnosed after service, the Board notes that 38 C.F.R. § 3.303(d) states "Postservice initial diagnosis of disease. Service connection may 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." As such, the fact that sleep apnea was diagnosed after service does not necessarily mean that such is not related to service for direct service connection purposes. In review of the March 2021 VA opinion, the Board affords it some probative value. The Board, however, finds that the opinion warrants reduced probative value in light of the fact that opinion did not discuss the headaches reported on the January 1997 retirement examination, which may be a symptom of untreated sleep apnea, and because a portion of the rationale was that sleep apnea was diagnosed after service, which is not in and of itself a sufficient basis to find direct service connection not warranted. With respect to the positive August 2019 private opinion, the Board affords it some probative value. This opinion was from the Veteran's primary care physician that had treated him for multiple years. A rationale was provided that the Veteran's sleep apnea "is likely due to years of working abnormal shift work during service in the US Navy." The Board highlights that the Veteran had approximately twenty years of active service. While the Board acknowledges that the rationale provided was brief and fairly limited, this opinion was the only competent opinion of record that directly addressed whether the Veteran's sleep apnea was related to his abnormal shift work during service, as the March 2021 VA opinion did not specifically address this issue. Overall, the Board finds that there is at least an approximate balance of positive and negative evidence regarding whether the Veteran's sleep apnea is related to his active service. After resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's sleep apnea is related to his active service. See 38 U.S.C. § 5107(b) ("When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, [VA] shall give the benefit of the doubt to the claimant"); 38 C.F.R. § 3.102 ("When...a reasonable doubt arises regarding service origin...such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim"). As such, service connection for sleep apnea is warranted. 2. Service connection for a gum disorder. 3. Service connection for a dental condition for compensation purposes. Legal Criteria Initially, the Board notes that a claim of service connection for a dental condition for compensation purposes may also be a claim for VA outpatient dental treatment under 38 C.F.R. § 3.381. See Mays v. Brown, 5 Vet. App. 302, 306 (1993). In this case, the appeal before the Board is limited to the issue of service connection for a dental condition for compensation purposes. The Veteran was informed at the April 2020 Board hearing and in the June 2020 Board remand that he may apply for or seek dental treatment at a VA Medical Center (VAMC). Under current VA regulations, service-connected compensation is only available for certain types of dental and oral conditions, which are rated under 38 C.F.R. § 4.150, DCs 9900-16. Compensation is available under DC 9913 for loss of teeth, but a Note to this DC states that such "ratings apply only to bone loss through trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling." In addition, 38 C.F.R. § 3.381(b) states that "[t]reatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities." See also Byrd v. Nicholson, 19 Vet. App. 388, 394 (2005) ("[VA] has chosen to eliminate periodontal disease, among other common conditions such as 'carious teeth' and 'missing teeth' from diseases generally eligible for VA compensation"). Analysis By way of procedural background, on a VA Form 21-526EZ initiated in October 2014, the Veteran listed a disability of "gum disease (related to: Hepatitis C)." An August 2015 rating decision denied service connection for periodontal disease. A January 2018 rating decision denied service connection for gum disease. Both rating decisions were appealed to the Board and, in June 2020, the Board remanded the claims of service connection for "a gum disorder" and for "a dental condition for compensation purposes." The Veteran was afforded a VA examination in April 2015 and a Dental and Oral Conditions DBQ was completed by W.I., who had a title of "Dental Chief." Diagnoses were noted of periodontal disease and caries. Under the dental history section, it was stated that "Veteran states that since his discharge in 1997 his teeth are falling apart. He now has periodontal disease, which needs treatment and also the dental crowns and restorations he received in the military are failing and need attention. The [V]eteran has not received dental care since discharge in 1997." Also noted was a chief complaint of "gums disease" and a diagnosis was noted of "periodontal neglect." Diagnostic testing was noted as showing "carries and periodontal bone loss." The examiner provided an opinion that "[t]he [V]eteran's gums disease is not the result of Infectious Hepatitis" and the accompanying rationale stated that "[t]he [V]eteran's gum disease is the result of dental neglect." At the April 2020 Board hearing, the Veteran's representative asked him what he believed caused his gum disease and he stated "I'm not sure." He also referenced the April 2015 VA examination and stated that "from what I gathered, he said it was a no brainer that it was service connected." The Veteran additionally stated that "I had some work done after I got out of the Navy on some teeth some caps and stuff. But other than that I don't know, unless it's just the general environmental conditions while in the service, I'm not sure." The Veteran was afforded another VA examination in April 2021 and a Dental and Oral Conditions DBQ was completed by D.H., D.D.S. (a dentist). Diagnoses were noted of periodontal disease, carious lesions #3, #14 and abscesses #19. Under the dental history section, it was stated that the Veteran "stated he was diagnosed with gingivitis around 1985. Over time his condition has gotten worse. He now experiences pain from broken teeth, food gets stuck in little gaps in between his teeth, teeth sensitivity to hot/cold, inability to chew on his right side, gum bleeding, and bad breath" and that "[d]octors treated him with antibiotics years ago but it didn't help. He hasn't been to the dentist in about 5 years so his symptoms are getting worse. His condition makes it difficult for him to eat certain foods and eat on the right side of his mouth because of his teeth pain and sensitivity." The examiner also noted other physical findings of "[g]eneral gingival calculus" and "[m]obile teeth." Diagnostic testing was noted as showing "[c]aps #8, 9," "[d]iastema in the upper maxilla," "[r]oot canal #2, 20," "[m]issing wisdom," "[m]ultiple large restorations" and "[b]one loss." The examiner also stated that "[t]he [V]eteran presents with multiple dental abscesses, severe bone loss, mobile teeth...These dental conditions make working difficult due to constant discomfort from the oral region." D.H. also provided various opinions. A positive direct service connection opinion was provided that "[t]he claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness." The rationale mostly reiterated information contained on the accompanying DBQ and additionally stated that "[w]ith at least as likely as not (50 percent or greater probability) vets periodontal disease incurred during active duty and has worsened." It was additionally stated in a separate portion of the opinions that "Veteran's medical history reveals periodontal issues while in active duty and is related to service." Regarding all gum and dental conditions experienced by the Veteran since November 2014, it was stated "pertinent findings reveals heavy plaque and calculus accumulation." Regarding whether any dental condition has bone loss, it was stated "[p]eriodontal disease is affiliated with bone loss, which is a current diagnosis for the [V]eteran." It was further stated that "[p]eriodontal disease in the case of the [V]eteran has decreased the bone levels in the alveolar ridge portions of the mandible and maxilla." It was also stated that "[l]oss of teeth is affiliated with severe periodontal disease." D.H. also provided opinions addressing whether the dental conditions were related to service-connected hepatitis C. The opinion stated that "Veteran's periodontal disease was present during service and worsened resulting in loss of teeth and loss of alveolar ridges for maxilla and mandible. Interferon is known to activate inflammatory processes which are present in periodontal disease and makes the disease worse" and "[l]east as likely as not, veteran's H[epatitis] C medications worsened veteran's dental conditions." Upon review, the Board finds that, during (or recent to) the appeal period, the Veteran has not had a gum disorder or dental condition eligible for VA compensation. Even assuming (without deciding) for purposes of this decision that the April 2021 VA opinion was the most probative evidence of record as to the issue of etiology, service connection for compensation purposes is still not warranted. The April 2021 VA opinion, essentially, indicated that the Veteran's periodontal disease was directly related to service and also that the Veteran's periodontal disease was secondary (by way of aggravation) to his service-connected hepatitis C. Periodontal disease, however, is not eligible for VA compensation. See 38 C.F.R. §§ 3.381, 4.150, DC 9913; Byrd, 19 Vet. App. at 394 ("when VA established a rating schedule for dental and oral conditions, VA determined that periodontal disease was not to be included as a disability under § 4.150"). As such, even assuming that periodontal disease was directly related to service or secondary to service-connected Hepatitis C, service connection for VA compensation would still not be warranted. In addition, the April 2021 VA opinion stated that "[p]eriodontal disease in the case of the [V]eteran has decreased the bone levels in the alveolar ridge portions of the mandible and maxilla" and that "[l]oss of teeth is affiliated with severe periodontal disease." This, essentially, indicated that the Veteran's periodontal disease had caused bone loss and loss of teeth. A Note to DC 9913, however, states that "[t]hese ratings apply only to bone loss through trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling." This Note indicates that any bone loss or loss of teeth due to periodontal disease is not eligible for VA compensation. As such, in this case service connection for VA compensation is not warranted for bone loss or loss of teeth. The evidence did not otherwise show that the Veteran had a gum disorder or dental condition eligible for VA compensation during the appeal period. In addition to periodontal disease, the Dental and Oral Conditions DBQs noted diagnoses of caries (the April 2015 DBQ) and carious lesions #3, #14 and abscesses #19 (the April 2021 DBQ). 38 C.F.R. § 3.381, however, specifically states that that "[t]reatable carious teeth,...dental or alveolar abscesses...are not compensable disabilities." As such, compensation is not warranted for the other diagnoses noted by the two VA examination reports dated during the appeal period. In sum, the Board finds that, during (or recent to) the appeal period, the Veteran has not had a gum disorder or dental condition eligible for VA compensation. In reaching this finding, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for a gum disorder or a dental condition, for purposes of compensation, is not warranted. 4. Increased rating for a lumbar spine disability. Procedural History and Legal Criteria A November 1997 rating decision granted service connection for a chronic lumbosacral strain and assigned a 10 percent rating under DC 5295 (which no longer exists). The Veteran filed an increased rating claim for his lumbosacral strain on a VA Form 21-526EZ initiated in October 2014. In the August 2015 rating decision on appeal, the Veteran's service-connected disability was recharacterized as degenerative arthritis of the lumbar spine and a 10 percent rating was continued under DC 5242. A May 2021 rating decision increased the assigned rating for the Veteran's lumbar spine disability to 40 percent under DC 5242, effective March 31, 2021. As outlined, the Veteran's lumbar spine disability has been rated under 38 C.F.R. § 4.71a, DC 5242. Under the General Rating Formula for Diseases and Injuries of the Spine (General Formula), a 10 percent rating is warranted 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 warranted 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 warranted 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 warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Pursuant to Note 5 under the General Formula, unfavorable ankylosis is defined as "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." Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is 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 itself 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"). Evidence Social Security Administration (SSA) disability records included a December 2014 Function Report (as well as a February 2015 report containing similar information) completed by the Veteran, where he reported difficulty dressing, bathing and using the toilet due to back pain (and also obesity and depression). The Veteran was afforded a VA examination in April 2015 and a Back (Thoracolumbar Spine) Conditions DBQ was completed. Diagnoses were noted of lumbosacral strain and degenerative arthritis of the lumbosacral spine. Under the medical history section, it was referenced that the Veteran injured his back during active service and that "has since had [low back pain] treated with Aleve." It was noted that the Veteran did not report flare-ups of the thoracolumbar spine. It was noted that the Veteran did not report having any functional loss or functional impairment of the thoracolumbar spine. As to range of motion, initial testing showed forward flexion to 80 degrees and the combined range of motion of the thoracolumbar spine to 205 degrees. No pain was noted on exam. It was noted that there was no evidence of pain with weight bearing. It was noted that the Veteran was able to perform repetitive use testing with at least three repetitions and that there was no additional loss of function or range of motion after three repetitions. It was noted that the Veteran did not have guarding or muscle spasms of the thoracolumbar spine. It was noted that there was no ankylosis of the spine. It was noted that the Veteran's thoracolumbar spine condition did not impact his ability to work and the examiner stated that "[t]here are no functional restrictions on back basis." A January 2016 private medical record from Dr. D.S. stated that the Veteran "has had back pain for years, but more recently, he has had pain that goes down the legs including some type of burning or just discomfort." It was stated "[o]n motor exam, the [Veteran] has no problems walking, is able to move around with decent range of motion." A January 2016 private medical record from Dr. L.B. stated that the Veteran "reports a 30 year history of back pain that has slowly been getting worse to the point that now he 'can't do much.'" It was noted that "[i]t hurts to bend over" and that "[f]or his back pain, in the past [the Veteran] has tried muscle relaxants, which didn't really help. Occasionally he takes [A]leve, which helps a little (takes the pain from 9/10 to about a 7/10)." This note stated under the physical examination heading "Musculo-skeletal Neck/Back: Full range of motion." A February 2016 private medical record from Dr. Z.B. noted an average daily pain of 7/10 and worst pain as 7/10 and noted that "Pain Affects Function: general activity 7/10, mood 7/10, walking ability 8/10, normal work 8/10, relationships 6/10, sleep 8/10, and enjoyment in life 8/10." This note stated under the objective heading "Musculoskeletal: Normal range of motion. He exhibits no edema or tenderness. Pain in back increased with flexion of the back." A September 2016 private medical record from Dr. H.Z. noted a past medical history of low back pain and stated under the general examination heading "Back: full range of motion, no costovertebral angle tenderness, normal exam of spine." A May 2019 VA primary care nurse record stated "new patient establish care [complains of] back pain." The accompanying May 2019 VA primary care physician note stated under the exam heading "Back = nontender, full range of motion." The Veteran testified at an April 2020 Board hearing. The Veteran's representative referenced the prior April 2015 VA Back Condition DBQ and stated that it said "[t]hat he doesn't have flare ups at all. He certainly, absolutely has flare ups. That's a huge issue for him in fact with his back" and that "[b]asically what happens, sometimes he can, you know, kind of cope with it. It's always painful, but he can cope with it. Other times it gets so bad that he, you know, has, can't really even, you know, he can sit on the couch, but really can't even get around." The Veteran also reported that he continued "to have trouble, a lot of difficulty" with his back." He stated that "I've sort of had to unfortunately learned to live with it. There's not much they can do except give you, give me pills" and he referenced seeing a neurosurgeon and an orthopedic surgeon and that "they said they really couldn't do anything except surgery. And they didn't really recommend surgery at that time." He further stated that "all I can really do is take Tylenol and either lay down or sit up in a nice lumbar support type chair." The Veteran further stated that "I have problems all the time. I, sometimes if I just move the wrong way I'll be--I will feel like a cripple for three days. And really just have to, you know, lay in bed or sit up in a chair straight. And then it'll, you know, then I'll be all right for a little while until I bend over again wrong or do something wrong." The Veteran's representative asked him, essentially, how often these flare ups occur and the Veteran stated "All the time. I mean, probably once a week, although I have also, a lot of times I wake up with a lot of back pain because I, I toss and turn in my sleep and that makes my back even worse. But I mean all the time, it happens all the time, more so than others." He further stated that "if I try to do any kind of exercise or whatever, I, I'll end up typically hurting my back again, and then, like I say, for about three or four days I'll end up being a crippled. And then, and then I'll be a little bit better off after that." The Veteran also stated that "it's crippling pain. Yeah, I can't even, barely even move. And I, I can't, haven't been able, I used to run a lot. I used to do a lot of exercise and stuff when I was younger. And because of that I can't do that anymore and for a lot of other reasons." He further stated that "it's hard, you know, when your back, when you have a lot of back pain it's hard to get up and get motivated and go to work." The Veteran was afforded another VA examination on March 31, 2021 and a Back Conditions DBQ was also completed. A diagnosis was noted of degenerative arthritis. Under the medical history section, it was stated that the Veteran "reports that he now has back pain that ranges from a 3 to 10 out of 10 in intensity. He reports that he will have flare-ups of back pain that can last for 3 to 4 days. His back pain is aggravated with bending, lifting, twisting reports sitting improves pain" and that "[h]e takes Tylenol and Excedrin as needed for pain. He reports he received a steroid injection in his back in the past. He denies any further treatment for this condition." It was noted that the Veteran reported flare-ups of the thoracolumbar spine. The flare-ups were described by the Veteran as having a frequency of "[i]ntermittently with bending, twisting," as having a duration of three to four days with the characteristics of "[s]harp pain aggravated with bending" and with precipitating factors of "[b]ending, twisting" and alleviating factors of "[s]itting, pain medication." The severity of the flare-ups were described as severe and regarding the extent of functional impairment experienced during a flare-up of symptoms it was stated that "[t]he [V]eteran has a decrease capacity for bending, prolonged standing and walking secondary to his back condition." It was noted that the Veteran reported having any functional loss or functional impairment of the joint or extremity being evaluated, including but not limited to after repeated use over time and it was noted that the Veteran reported "I cannot bend, twist, do any heavy lifting because of my back pain." As to range of motion, initial testing showed forward flexion to 40 degrees and the combined range of motion of the thoracolumbar spine to 130 degrees. It was noted that pain was exhibited for all range of motion (forward flexion, extension and right and left lateral flexion and lateral rotation). It was noted that passive range of motion testing was not performed because it was medical contraindicated in that such "may cause the Veteran severe pain or the risk of further injury." It was also noted that there was evidence of pain on active motion and that such caused functional loss, with it being noted that "[t]he [V]eteran has a decrease capacity for bending secondary to his back condition." It was noted that there was objective evidence of moderate localized tenderness or pain on palpation of the midline posterior back. It was noted that the Veteran was able to perform repetitive use testing with at least three repetitions and that there was additional loss of function or range of motion after three repetitions. Range of motion testing following completion of three repetitions showed forward flexion to 30 degrees and the combined range of motion of the thoracolumbar spine of 95 degrees. Pain was noted as the factor that caused this functional loss. It was noted that procured evidence (statements from the Veteran) suggested pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with repeated use over time and that pain was the factor that caused this functional loss. An estimate was provided as to range of motion immediately after repeated use over time, with forward flexion noted as 30 degrees and the combined range of motion of the thoracolumbar spine noted as 75 degrees. It was also noted that procured evidence (statements from the Veteran) suggested pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with flare-ups and that pain was the factor that caused this functional loss. An estimate was provided as to range of motion during flare-ups, with forward flexion noted as 30 degrees and the combined range of motion of the thoracolumbar spine noted as 75 degrees. It was noted that there was localized tenderness and muscle spasm and that such did not result in abnormal gait or spinal contour. Additional factors contributing to disability were noted as interference with standing, disturbance of locomotion and less movement than normal. It was noted that there was not ankylosis of the spine. It was also noted that the Veteran used a cane for his lumbar spine disability "as needed" and occasionally. It was noted that the Veteran's thoracolumbar spine condition did impact his ability perform any type of occupation task and the examiner stated that "[t]he [V]eteran has a decrease capacity for bending, lifting, twisting secondary to his back condition." The examiner further stated that "[t]he [V]eteran's [d]egenerative arthritis of the lumbar spine impact his ability to do activities such as lifting over 10 pounds, prolonged standing, walking, bending and twisting. It does not impact his ability to do sedentary work. The [V]eteran reports his back pain is improved with sitting in a comfortable chair." The examiner also indicated that "there is a worsening of the Veteran's symptoms." Analysis Excess of 10 percent prior to April 20, 2020 For the period prior to April 20, 2020, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's lumbar spine disability. As noted above, under DC 5242 and the General Formula, the next higher 20 percent rating is warranted 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. The evidence of record during the relevant period did not show that the Veteran's lumbar spine disability picture met or approximated these criteria. As to forward flexion, the most limited range of motion shown during the appeal period was to 80 degrees, as documented by the April 2015 VA Back Conditions DBQ. As to the combined range of motion of the thoracolumbar spine, the most limited such results (and the only clear such results) during the appeal period were greater than 120 degrees, as documented by the April 2015 VA Back Conditions DBQ that noted 205 degrees of combined range of motion. In addition, the evidence did not show muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis and, in this regard, the April 2015 Back Conditions DBQ specifically noted that the Veteran did not have guarding or muscle spasm of the thoracolumbar spine. In sum, the Board finds that, prior to April 20, 2020, an increased rating in excess of 10 percent is not warranted under DC 5242 and the General Formula. The Board specifically acknowledges the Veteran's lay reports of symptoms and that evidence of record demonstrated functional loss and functional impairment. Even considering such, however, the Board finds that the Veteran's disability picture or any additional limitation would not result in limitation of motion more nearly approximating 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. As such, while the Board has considered 38 C.F.R. § 4.40 and § 4.45, the Board finds that a higher rating in excess of 10 percent is not warranted for this period. In sum, the Board finds that, prior to April 20, 2020, the Veteran's lumbar spine disability picture did not more nearly approximate 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. As such, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Thus, prior to April 20, 2020, a rating in excess of 10 percent for the Veteran's lumbar spine disability is not warranted. Analysis 40 Percent as of April 20, 2020 As noted, in a May 2021 rating decision, the RO increased the assigned rating for the Veteran's lumbar spine disability to 40 percent under DC 5242, effective March 31, 2021. This assigned effective date was the date of the March 2021 VA examination. The rating decision stated that the assigned 40 percent rating was based on "[f]orward flexion of the thoracolumbar spine 30 degrees or less." As outlined, the March 2021 VA Back Conditions DBQ noted initial range of motion testing for forward flexion to 40 degrees. Following repetitive use testing, range of motion testing for forward flexion was shown as to 30 degrees, with the examiner also estimating 30 degrees for forward flexion immediately after repeated use over time and during flare-ups. 38 U.S.C. § 5110(b)(3) states that "[t]he effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred." 38 C.F.R. § 3.400(o)(2) states regarding the effective date for an increase in disability compensation that such is the "[e]arliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred." The United States Court of Appeals for Veterans Claims stated in Swain v. McDonald, 27 Vet. App. 219, 224 (2015) that "the effective date for an increased rating, indeed, as well as for an initial rating or for staged ratings, is predicated on when the increase in [disability] can be ascertained." Resolving reasonable doubt in the Veteran's favor, the Board finds that it was factually ascertainable as of the April 20, 2020 Board hearing that an increase in the Veteran's lumbar spine disability occurred. At the Board hearing, the Veteran, essentially, provided testimony indicating that his disability had worsened. In this regard, while the April 2015 VA Back Conditions DBQ noted that the Veteran did not report flare-ups of the thoracolumbar spine, flare-ups were reported at the Board hearing. The subsequent March 2021 VA examination confirmed that forward flexion was limited to 30 degrees following repetitive use testing and the examiner additionally estimated that forward flexion was limited to 30 degrees during flare-ups. In review, the Veteran, essentially, reported worsening of his lumbar spine disability at the April 20, 2020 Board hearing and such worsening was validated by the subsequent March 2021 VA examination. The Board accordingly finds, after resolving reasonable doubt in the Veteran's favor, that from April 20, 2020, the Veteran's lumbar spine disability was manifested by forward flexion of the thoracolumbar spine to 30 degrees or less. As such, the 40 percent rating is made effective April 20, 2020, the date of the Board hearing. An even earlier date for the 40 percent rating is not warranted because it is not factually ascertainable that an increase in the Veteran's lumbar spine disability occurred prior to April 20, 2020. As noted, a May 2019 VA primary care physician note stated under the exam heading "Back = nontender, full range of motion." While it is possible that the Veteran's lumbar spine disability worsened prior to the April 20, 2020 hearing, an earlier onset of the Veteran's 40 percent level of disability cannot be ascertained based on all the evidence of record. Application of the benefit of the doubt doctrine is not appropriate under these circumstances. See 38 C.F.R. § 3.102 (discussing reasonable doubt as "a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility"). In sum, the Board finds that, from April 20, 2020, the Veteran's lumbar spine disability picture more nearly approximated forward flexion of the thoracolumbar spine to 30 degrees or less. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Thus, from April 20, 2020, a rating of 40 percent for the Veteran's lumbar spine disability is warranted. Analysis Excess of 40 percent from April 20, 2020 The Board also finds that, for the period from April 20, 2020, a rating in excess of 40 percent is not warranted for the Veteran's lumbar spine disability. As noted above, under DC 5242 and the General Formula, a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The evidence of record did not indicate that the Veteran had ankylosis during the relevant period and, in this regard, the March 2021 Back Conditions DBQ specifically stated that there was not ankylosis of the spine. The Board specifically acknowledges the Veteran's lay reports of symptoms and that evidence of record demonstrated functional loss, functional impairment and flare-ups. The Board also specifically acknowledges the Court case of Chavis v. McDonough, 34 Vet. App. 1 (2021), which stated that "application of [38 C.F.R.] §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosisin other words, if it is the functional equivalent of ankylosis." Upon review, even when considering the functional limitations present during a flare-up and the functional limitations shown generally, the Board finds that the Veteran's disability picture or any additional limitation does not more nearly approximate the entire thoracolumbar spine fixed in flexion or extension and one of the additional symptoms set forth in the General Formula Note 5 or the functional equivalent of ankylosis. As such, while the Board has considered 38 C.F.R. § 4.40 and § 4.45, the Board finds that a higher rating in excess of 40 percent is not warranted. In sum, the Board finds that, from April 20, 2020, the Veteran's lumbar spine disability picture did not more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine. As such, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Thus, from April 20, 2020, a rating in excess of 40 percent for the Veteran's lumbar spine disability is not warranted. REASONS FOR REMAND A TDIU. As outlined above, the Board granted service connection for sleep apnea. The Veteran has contended that TDIU is warranted in part due to sleep apnea. See August 2020 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) (noting as service-connected disabilities preventing the Veteran from securing or following any substantially gainful occupation: migraines, depression, sleep apnea and back condition). The RO will assign an effective date and initial rating for sleep apnea in the first instance, which may impact the TDIU claim. In this regard, the RO stated in the May 2021 supplemental statement of the case (SSOC) that "[e]ntitlement to [TDIU] is considered moot as of December 7, 2017, because your service-connected disabilities are evaluated as 100 percent disabling." Based on the effective date and initial rating assigned for sleep apnea, it is possible that the Veteran's combined 100 percent schedular rating will be effective prior to December 7, 2017. As such, the Board finds that the TDIU claim is inextricably intertwined at this time with the sleep apnea claim that was granted in this decision and that remand is accordingly warranted for the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: After implementing the Board's grant of service connection for sleep apnea by assigning an effective date and initial rating, readjudicate (if necessary) entitlement to a TDIU. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoopengardner, 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.