Citation Nr: 21071007 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-12 940 DATE: November 29, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. Entitlement to a 50 percent rating prior to November 18, 2016, for migraine headaches is granted. REMANDED Entitlement to a rating in excess of 20 percent prior to January 24, 2020, and in excess of 30 percent thereafter, for cervical C3-4 disc bulge with secondary degenerative disease and stenosis ("neck disability") is remanded. Entitlement to a rating in excess of 20 percent prior to November 13, 2017, and in excess of 40 percent thereafter, for lumbosacral strain with degenerative disc disease ("back disability") is remanded. Entitlement to a rating in excess of 30 percent for right knee patellar tendonitis with degenerative joint disease and chondromalacia patella ("right knee disability") is remanded. Entitlement to a rating in excess of 10 percent for left knee anterior cruciate ligament tear with degenerative joint disease and chondromalacia patella ("left knee disability") is remanded. Entitlement to a compensable rating for limitation of extension, left knee disability, is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity sciatic radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the Veteran's OSA was chronically worsened by his weight gain, and he gained weight because of his service-connected disabilities. 2. Resolving reasonable doubt in the Veteran's favor, his migraine headaches were characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability prior to November 18, 2016. CONCLUSIONS OF LAW 1. The Veteran's OSA was proximately due to his service-connected disabilities. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for a 50 percent rating prior to November 18, 2016, for migraine headaches have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1985 to September 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of history, the Board denied entitlement to an increased rating for the Veteran's service-connected migraine headaches in November 2019. The remaining issues currently on appeal were remanded for additional development. The Veteran appealed his increased rating claim for service-connected migraine headaches to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Court granted a Joint Motion for Partial Remand of the parties, vacated the Board's decision, and remanded the case to the Board for action consistent with the Joint Motion. The matters have since been returned to the Board for further appellate action. 1. Service Connection OSA The Veteran has asserted that his OSA is related to his active service or secondary to his service-connected disabilities, to include an intermediate step of weight gain. Following review of the record, the Board finds that the evidence addressing whether the Veteran's OSA is secondary to a service-connected disability is in relative equipoise, such that the claim may be granted on that basis. Service connection may be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). Additionally, VA's Office of General Counsel has held that a claim for secondary service connection may rest on obesity as an intermediary between the claimed secondary disability and the service-connected primary disability. See VAOPGCPREC 1-2017. Turning to the relevant evidence, in May 2010, the Veteran underwent a VA sleep study and was diagnosed with OSA. In November 2016, the Veteran was afforded a VA examination. The examiner opined that the Veteran's OSA was less likely as not aggravated by his service-connected allergic rhinitis. The examiner found no increase in symptoms related to sleep apnea or allergies/sinus condition noted in the records. The RO obtained VA medical opinions in February 2018 and April 2018. The examiners opined that the Veteran's OSA was less likely as not proximately due to, the result of, and/or aggravated beyond its natural progression by his service-connected disabilities, to specifically include allergic rhinitis and migraine headaches. The April 2018 VA examiner indicated that the strongest risk factor for OSA was obesity. The April 2018 VA examiner observed that the Veteran had a BMI of 29.15 in 2010. In January 2020, the RO obtained an additional VA medical opinion. The examiner opined that the Veteran's OSA was less likely as not proximately due to, the result of, and/or aggravated beyond its natural progression by his service-connected disabilities, to specifically include allergic rhinitis, migraine headaches, posttraumatic stress disorder (PTSD), and tinnitus. The examiner found that the Veteran had a crowded oropharynx which was a documented cause of OSA in non-obese patients. Furthermore, the literature showed that the frequency of OSA increased with aging, craniofacial and upper airway soft tissue abnormalities. In August 2021, a private physician opined that the Veteran's OSA was as likely as not proximately due to, the result of, and/or aggravated beyond its natural progression by his service-connected disabilities, to specifically include allergic rhinitis, PTSD, tinnitus, musculoskeletal disabilities, and an intermediate step of obesity. The private physician further observed that the Veteran's STRs showed that he had a normal BMI at his February 1984 enlistment examination. VA treatment records showed that the Veteran was obese in March 2006. In May 2007, he complained of knee and back pain and was unable to perform exercises due to his discomfort. Additionally, the private physician mentioned that the Veteran's service-connected knee and back disabilities contributed to his inability to walk, stand, and climb stairs. In concurrence with the April 2018 VA examiner above, the private physician noted that obesity was one of the main risk factors for the development of OSA. The private physician explained that the Veteran's service-connected musculoskeletal disabilities significantly contributed to his weight gain by limiting his ability to exercise. The Board finds the August 2021 private medical opinion probative. In this regard, the private physician's rationale is based on a review of the Veteran's pertinent medical records and current medical literature, and she relied on her own training, knowledge, and expertise in rendering an opinion. Moreover, the private physician's findings aligned with the February and April 2018 VA medical remarks that obesity was a significant risk factor for OSA. Therefore, the Board finds that the evidence for and against the claim of entitlement to service connection for OSA is at least in equipoise. Accordingly, reasonable doubt must be resolved in favor of the Veteran, entitlement to service connection for OSA is warranted, and the claim is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Increased Rating Migraine Headaches The Veteran has asserted that the symptoms associated with his migraine headaches are worse than those accounted for by the 30 percent rating assigned prior to November 18, 2016. Following review of the record, the Board finds that a 50 percent rating is warranted throughout the claim period prior to that date. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100. Under DC 8100, and as relevant here, a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The criteria for a 50 percent rating contain several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson v. Wilkie, 30 Vet. App. 245, 253 (2018). The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). In August 2011, the Veteran was afforded a VA examination. He reported intermittent headaches with remissions occurring two times per week and lasting one to two days. He described photophobia and prostrating headaches. He stated that he missed five weeks of work in the past twelve months due, in part, to migraines. In his September 2013 Notice of Disagreement, the Veteran reported that his migraine episodes with auras, nausea, and light and sound sensitivity adversely impacted his ability to work by causing him to miss at least one day per week, even when taking prescribed VA medication. Resolving reasonable doubt in the Veteran's favor, a 50 percent rating is warranted throughout the claim period prior to November 18, 2016. In this regard, the Board finds that the evidence of record prior to that date supports that the Veteran had very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, as those criteria are described above. Accordingly, the Board finds that a 50 percent rating, the maximum allowable schedular rating, is warranted. 38 C.F.R. § 4.124a, DC 8100; Gilbert, 1 Vet. App. 55. REASONS FOR REMAND 1. Increased Ratings Neck, Back, and Left and Right Knees Addendum medical opinions were issued in connection with these claims in October 2020, pursuant to the Board's prior remand instructions. However, the examiner concluded that the Veteran's reported flare-ups of symptomatology related to these disabilities during prior VA examinations did not meet the definition of a flare-up, which he described as "a worsening of the disease process." Specifically, with respect to the neck, the examiner explained that the Veteran's flare-ups occurring twice daily implied regularity and consistency, not a worsening of the disease process or a flare. Although the Veteran reportedly had to stop what he was doing due to flare-ups, the examiner stated that whether he had to stop what he was doing did not contribute to the definition of a flare. The examiner added that it was not uncommon for individuals to work, exercise, and recreate despite pain. Additionally, the examiner found no example in which a physical limitation or range of motion changed from baseline. The examiner observed that this was consistent with the findings of an October 2020 VA examination, as no flare was described that met the definition of a flare-up, and no functional change or increase in physical limitation was noted. With respect to the back, the examiner explained that the Veteran described a regular occurring, repetitive symptom that waxed and waned continuously. The examiner stated that such symptomatology did not qualify as a worsening of the disease process. The examiner stated that the testimony offered was that any additional disability came in the form of increased pain. The examiner noted that some individuals worked and recreated with pain and were fully functional, while others succumbed to pain and exhibited functional limitations. The examiner determined that no change in range of motion was supported and thus, there was no change in function. With respect to the knees, the examiner explained that flare-ups that occurred daily and resulted in swelling, increased pain, and sometimes giving way were consistent with a regular or reoccurring issue, not a worsening of the disease process or flare. Although the Veteran reportedly had to stop what he was doing due to flare-ups, the examiner stated that no frequency or description of the flare or the associated disability was given. Additionally, the examiner found no example in which a physical limitation or range of motion changed from baseline. The examiner stated that this was consistent with the October 2020 VA examination, as no flare was described that met the definition of a flare-up, and no functional change or increase in physical limitation was noted. The Board finds that the development conducted on remand does not substantially comply with the November 2019 Board directives. Specifically, the October 2020 VA examiner did not consider all procurable and assembled data before expressing an opinion regarding functional impairment. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Instead, the examiner concluded that the Veteran's described flare-ups of symptomatology did not meet a specific standard, citing a rheumatology-based definition of "flare" obtained online. However, the Veteran did, in fact, describe exacerbations of his disability symptomatology as detailed above, and pertinent caselaw requires an examiner to estimate the functional loss that would occur during those periods, if an examination was not conducted concurrently. Id. at 34. As the October 2020 VA examiner dismissed the Veteran's self-described flares of disability symptomatology, an opinion that addresses the exacerbated symptoms the Veteran reported, and any associated functional loss, is needed on remand. 2. Increased Rating Left Lower Extremity Radiculopathy On remand, the Veteran should also be provided a new VA examination to determine the current level of severity of all impairment resulting from his service-connected sciatic radiculopathy, left lower extremity. In this regard, the October 2020 VA examiner indicated that the Veteran did not have left lower extremity radiculopathy and stated he was in no position to opine whether the condition had resolved, or a prior examination had erred. In contrast, the Veteran submitted a private disability benefits questionnaire for peripheral nerves conditions in July 2017, which indicated that he had left and right lower extremity radiculopathy involving both the sciatic and femoral nerves. In light of these contradictory findings, a new VA examination must be provided to resolve the discrepancies in the medical evidence. 3. TDIU The issue of entitlement to a TDIU is inextricably intertwined with the claims granted and remanded herein. Hence, a determination on this matter is deferred. The matters are REMANDED for the following action: 1. Arrange for an addendum opinion to assess the retrospective severity of the Veteran's service-connected neck disability. The clinician must review the entire record and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. The clinician must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. Even if the Veteran did not have a flare-up at the time of his historic examinations, the clinician must still provide estimated assessments, using the lay observations that have already been elicited from the Veteran. If at any point the clinician believes the Veteran's functional impairment worsened, there should be separate and distinct assessments for each period of worsening. If it is not possible to provide any of the requested information, the clinician must state whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the clinician (that is, the clinician does not have the required knowledge or training). Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran was not having a flare-up at the time of the past examinations will not be deemed adequate. In forming any opinions, the Board emphasizes that the Veteran is competent to report what his symptoms were and when they began. If his statements are inconsistent with the medical evidence, the clinician must provide a comprehensive report including a complete explanation (rationale) for all opinions and conclusions reached, citing the objective medical findings or other evidence leading to the conclusion that his statements are inconsistent with the medical evidence. 2. Arrange for an addendum opinion to assess the retrospective severity of the Veteran's service-connected back disability. The clinician must review the entire record and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. The clinician must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. Even if the Veteran did not have a flare-up at the time of his historic examinations, the clinician must still provide estimated assessments, using the lay observations that have already been elicited from the Veteran. If at any point the clinician believes the Veteran's functional impairment worsened, there should be separate and distinct assessments for each period of worsening. If it is not possible to provide any of the requested information, the clinician must state whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the clinician (that is, the clinician does not have the required knowledge or training). Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran was not having a flare-up at the time of the past examinations will not be deemed adequate. In forming any opinions, the Board emphasizes that the Veteran is competent to report what his symptoms were and when they began. If his statements are inconsistent with the medical evidence, the clinician must provide a comprehensive report including a complete explanation (rationale) for all opinions and conclusions reached, citing the objective medical findings or other evidence leading to the conclusion that his statements are inconsistent with the medical evidence. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left lower extremity radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner is also asked to resolve the contrasting findings in the October 2020 VA examination report and the July 2017 private disability benefits questionnaire (received in September 2017). 4. Arrange for an addendum opinion to assess the retrospective severity of the Veteran's service-connected left and right knee disabilities. The clinician must review the entire record and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. The clinician must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. Even if the Veteran did not have a flare-up at the time of his historic examinations, the clinician must still provide estimated assessments, using the lay observations that have already been elicited from the Veteran. If at any point the clinician believes the Veteran's functional impairment worsened, there should be separate and distinct assessments for each period of worsening. If it is not possible to provide any of the requested information, the clinician must state whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the clinician (that is, the clinician does not have the required knowledge or training). Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran was not having a flare-up at the time of the past examinations will not be deemed adequate. In forming any opinions, the Board emphasizes that the Veteran is competent to report what his symptoms were and when they began. If his statements are inconsistent with the medical evidence, the clinician must provide a comprehensive report including a complete explanation (rationale) for all opinions and conclusions reached, citing the objective medical findings or other evidence leading to the conclusion that his statements are inconsistent with the medical evidence. L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ware, 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.