Citation Nr: 21071848 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 15-00 359A DATE: December 1, 2021 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to a 20 percent rating for a right ankle disability effective October 21, 2009 is granted. REMANDED Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) for the period prior to November 7, 2019 is remanded. Entitlement to a disability rating in excess of 70 percent after November 7, 2019, for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to the service-connected disabilities prior to November 7, 2019, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that obstructive sleep apnea began during active service or is otherwise related to an in-service injury or disease. 2. Throughout the appeal period the Veteran's right ankle disability has more nearly approximated a marked limitation of motion without ankylosis. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a disability rating of 20 percent, and not in excess thereof, for the service-connected right ankle disorder have been satisfied effective October 21, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Naval Reserve; he had active military service from October 2008 to October 2009, to include service in Southwest Asia during the Persian Gulf War. These issues are on appeal from January 2011, April 2014, January 2015, November 2015, May 2016, November 2017, and July 2020 rating decisions. The Veteran testified before the undersigned at a Board hearing held in January 2018. In March 2019, and December 2020 the Board remanded this appeal to the Agency of Original Jurisdiction (AOJ) for further development. Upon remand, the Veteran was awarded a TDIU, effective November 7, 2019, in a July 2020 rating decision. Unfortunately additional remand of some of the issues is required. 1. Service Connection for Sleep Apnea. Again, the Veteran served in the Naval Reserve; his assertion is that his claimed sleep apnea was caused by his period of active duty service from October 2008 to October 2009. Specifically, the Veteran claims that he had a sleep study conducted in 2008 prior to his period of active duty and that he had sleep trouble during active duty and that his currently diagnosed sleep apnea was incurred during this period of service. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran has a current sleep apnea disability. For example, a May 2014 VA sleep study report indicates a diagnosis of obstruct sleep apnea and that he was prescribed a CPAP for treatment. The earliest indications of service connection are in September 2013 VA treatment records where he reported having increasing sleepiness and tiredness during daytime and waking up at night; he stated that he was told by a friend that he "stops breathing while sleeping." Service treatment records show that on his October 2008 pre-mobilization _exam he had no complaints, diagnosis, or treatment related to respiratory problems or sleep apnea. Subsequent to his period of active duty the Veteran indicated on a June 2009 post-deployment health assessment that he did not have trouble breathing but did report problems sleeping or still feeling tired after sleeping. During a July 2009 health assessment he reported concerns about the air quality during his active duty deployment to Kuwait; he also reported mental health concerns related to insomnia and nightmares. At the January 2018 hearing the Veteran testified that he participated in a private sleep research study in 2008 prior to his deployment to the Middle East and that he did not have a diagnosis of sleep apnea at that time. He reported that his experiences during his active duty deployment were stressful, and that he had difficulty sleeping after that. In November 2019 a VA Compensation and Pension examination of the Veteran was conducted and confirmed the current diagnosis of obstructive sleep apnea with a noted onset of diagnosis in 2014. The examining physician reviewed the evidence of record and indicated that the Veteran's sleep apnea was less likely than the result of any injury, event or disease during service. The physician specifically noted that the Veteran reported problems sleeping on his post-deployment health assessment, but also noted that the Veteran was diagnosed with PTSD which could account for such sleep problems, and that there was no additional evidence of symptoms of sleep apnea during service. In August 2021, a second VA examination of the Veteran was conducted. The examining physician reviewed the evidence of record with attention to the evidence of record including the Veteran's service treatment records, and the fact that the Veteran served in the Middle East. Again the physician's medical opinion was that it was that the "Veteran's obstructive sleep apnea is less likely than not (less than 50% probability) related to an in-service injury, event, or disease, including the June 2009 and July 2009 in-service reports of sleep problems and/or his service in Southwest Asia during the Persian Gulf War." The physician provided full rationale and noted that the Veteran's post-deployment reports of trouble sleeping were indicated to be mental health concerns of insomnia and nightmares, and the no respiratory symptoms were reported or noted. Again the Veteran is diagnosed with PTSD. The Board has considered the Veteran's statements, to include his assertions that his post-deployment reports of sleep problems were symptoms of sleep apnea. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran's report of post-deployment sleep problems being mental health related to insomnia and nightmares, and his denial of respiratory problems at that same time. The Board finds the report of this medical history at separation from active duty deployment to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. Simply put the Veteran has a current diagnosis of sleep apnea which was made approximately 5 years after service. There is no credible evidence linking the current sleep apnea to service; rather, the medical opinion of two physicians is that the sleep apnea was not incurred in, or the result of the Veteran's active duty service. For the above reasons, the preponderance of the evidence is against the claim and service connection for sleep apnea is denied. 2. Increased Disability Rating for a Right Ankle Disorder. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The evidentiary record does not reasonably raise the prospect that the Veteran's disability is not and cannot be adequately rated under the Rating Schedule. 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria."). The Veteran is currently assigned a 10 percent disability rating pursuant for his service-connected right ankle disability. For the period of time from August 1, 2014 to November 1, 2014 he is assigned a temporary total (100%) disability rating pursuant to 38 C.F.R. § 4.30. The Veteran has not disagreed with this rating, rather his claim for an increased rating is for the underlying disability rating assigned for his ankle disability under 38 C.F.R. § 4.71a, Diagnostic Code 5271 for limitation of motion of the ankle. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5271, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic code only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, Diagnostic Code 5271 assigned a 20 percent rating for marked limitation of motion of the ankle and a 10 percent rating for moderate limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2020). The regulatory change amended the diagnostic code to define marked limitation of motion as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion and to define moderate limitation of motion as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. 85 Fed. Reg. 76453 (Nov. 30, 2020). The normal range of motion of the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II. Notably, in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. However, a 10 percent rating can be assigned for the ankle joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). During the appeal period the Veteran underwent VA examinations in October 2009, November 2013, February 2015, September 2015, November 2019, and August 2021. Range of motion testing was performed and showed, at worst, dorsiflexion to 5 degrees and plantar flexion to 10 degrees after repetitive motion testing. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. At the examination, the Veteran reported flare-ups consisting of pain and instability of the ankle. VA treatment records also show that the Veteran has been prescribed an ankle brace for his right ankle because of pain and instability issues. The ranges of motion for the most recent VA examination conducted in August 2021, reveal that the Veteran has marked limitation of motion of the right ankle. While prior ranges of motion recorded on the other examination reports throughout the appeal period show more range of motion, the Veteran's complaints of pain and instability of the right ankle have been consistent throughout the entire appeal period. Accordingly, the Board finds that the Veteran's service-connected right ankle disability has been manifest by marked limitation of motion warranting the assignment of a 20 percent disability rating for the entire appeal period effective from October 21, 2009. The 20 percent disability rating is the maximum assignable rating under Diagnostic Code 5271. While disability ratings up to 40 percent can be assigned under Diagnostic Code 5270 for ankylosis of the ankle, all of the examination reports of record indicate that there is no ankylosis of the right ankle, making rating under this rating criteria not applicable. 38 C.F.R. § 4.71a, Diagnostic Code 5270. REASONS FOR REMAND Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the PTSD issue. The Board remanded this claim, in pertinent part, for the AOJ to obtain the Veteran's VA psychiatric treatment records from the VA Community-Based Outpatient Clinic in Winter Park, Florida ("Crossroads Annex") for the period beginning in 2009. Upon most recent remand, the AOJ's attempts to contact the clinic by phone were unsuccessful. No additional attempts to obtain the records were made. These records affect the Veteran remaining claims for increased ratings for his PTSD as well as TDIU prior to November 2019. Another remand is required to allow VA to obtain them. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: Obtain the Veteran's VA psychiatric treatment records for the period from October 2009to the Present from the VA Crossroads Clinic (925 South Semoran Blvd., Winter Park, FL 32792). All attempts must be documented in the claims file. If the records are not available, the Veteran and his representative must be informed and provided an opportunity to submit their own copies. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Havelka, 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.