Citation Nr: 21075290 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 15-10 503 DATE: December 20, 2021 ORDER Prior to October 11, 2018, entitlement to an initial rating of 40 percent, but no higher, for degenerative disc disease or the thoracolumbar spine is granted. REMANDED Entitlement to service connection for a sleep disorder, including sleep apnea, is remanded. FINDING OF FACT Prior to October 11, 2018, the Veteran's lumbar spine disability manifested by forward flexion to 30 degrees or less; unfavorable ankylosis of the Veteran's lumbar spine was not present and did not cause incapacitating episodes having a total duration of at least six weeks within a 12-month period. CONCLUSION OF LAW Prior to October 11, 2018, the criteria for a disability rating of 40 percent, but no higher, for degenerative disc disease or the thoracolumbar spine were met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1977 to March 1982. This appeal comes to the Board of Veterans' Appeals (Board) from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). An October 2013 rating decision granted service connection for degenerative disc disease of the thoracolumbar spine and assigned an initial 20 percent evaluation, denied service connection for degenerative joint disease of the right knee, and denied service connection for a left knee disability. In a February 2018 rating decision, the RO denied service connection for a sleeping disorder. The Veteran timely appealed both decisions. In August 2019, the Board denied increased ratings for the Veteran's back and denied service connection for a sleeping disorder, a left knee disability, and a right knee disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Partial Remand (JMPR) vacating and remanding the portion of the August 2019 Board decision that denied entitlement to service connection for a sleep disorder, a left knee disability, and a right knee disability, and an initial evaluation in excess of 20 percent disabling for the lumbar spine prior to October 11, 2018. In February 2021, the Board remanded these issues for additional development. With regard to the issue of entitlement to an initial evaluation in excess of 20 percent disabling for the lumbar spine prior to October 11, 2018, the Board finds that the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In a July 2021 rating decision, the RO granted service connection for left knee osteoarthritis, status post arthroplasty. The RO granted service connection for right knee degenerative joint disease in a September 2021 rating decision. These represent a complete grant of the benefits sought, and those claims are no longer before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The RO issued a Supplemental Statement of the Case in September 2021 denying a rating more than 20 percent for degenerative disc disease of the thoracolumbar spine before October 11, 2018 and denying service connection for sleep apnea. Entitlement to an initial rating in excess of 20 percent for degenerative disc disease of the thoracolumbar spine, before October 11, 2018 The Veteran has contended that a higher disability rating is warranted for his service-connected degenerative disc disease or the thoracolumbar spine prior to October 11, 2018. The Veteran's lumbar spine disability has been rated under DC 5243. His condition can either be evaluated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or according to the Formula for Rating IVDS Based on Incapacitating Episodes (Incapacitating Episodes Formula). 38 C.F.R. § 4.71a, DC 5235-5243. Under the General Formula, a 20 percent rating will be assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, with a combined range of motion 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 evaluation is warranted under the General Formula when there is forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is warranted where there is unfavorable ankylosis of the entire spine (meaning when considering the adjacent cervical segment as well). See 38 C.F.R. § 4.71a, DC 5242, General Formula. 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. Id. Note (5). The General Formula applies for rating purposes with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. When rating according to the General Formula, any associated objective neurologic abnormalities are rated separately under their respective diagnostic codes. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The Veteran's lumbar spine disability can also be rated using the Incapacitating Episodes Formula. See 38 C.F.R. § 4.71a, DC 5243. This formula allows for a rating of 20 percent if there have been incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months; a 40 percent evaluation was assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past twelve months; and a 60 percent evaluation was assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243, Incapacitating Episodes Formula. For the purposes of this formula, 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. Id. at Note (1). Based upon the evidence of record, the Board finds that a disability rating of 40 percent, but no higher, is warranted for the Veteran's lumbar spine disability for the period on appeal prior to October 11, 2018. See Fenderson. The Board finds probative the findings of the October 2018 VA examination that indicated that the Veteran's lumbar flexion range of motion was limited to 30 degrees or less due to severe pain. While the examinations prior to October 2018 did not report limitation of forward flexion to 30 degrees or less, the Board notes that these examinations did not adequately report the Veteran's limitations of lumbar flexion. The Board notes examinations in September 2013 and July 2016 each indicated limitation to at least 45 degrees but did not provide an opinion as to the extent of additional limitation during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Additionally, the Board notes the September 2013 examiner's opinion that the Veteran's condition would result in less movement than normal, weakened movement, and pain on movement. The Board will resolve the benefit of the doubt in favor of the Veteran and finds that a rating of 40 percent is warranted prior to October 11, 2018 based upon limitation of forward flexion to 30 degrees or less. 38 C.F.R. §§ 4.3, 4.71a, DC 5243. The Board, however, does not find that a rating in excess of 40 percent is warranted for the Veteran's low back disability prior to October 11, 2018. In order to warrant a rating in excess of 40 percent under the schedular rating criteria for a lumbar spine disability, the evidence must demonstrate unfavorable ankylosis of the thoracolumbar spine, incapacitating episodes of at least six weeks within a 12-month period, or unfavorable ankylosis of the entire spine. The evidence does not support such a finding. 38 C.F.R. §§ 4.3, 4.71a, DC 5237. The Board finds that none of the competent, credible evidence of record indicates that the Veteran has unfavorable ankylosis of his spine. Examinations in 2013, 2016, and 2018 each denied ankylosis of the Veteran's spine. Further, each examination reports some range of motion of the lumbar spine, which indicates that the Veteran's spine is not fixed in place due to ankylosis. To the extent that the examinations of record do not properly consider additional limitations of range of motion during flare-ups, the Board finds these inadequacies are irrelevant as limitation of flexion to 0 degrees at most would approximate favorable ankylosis, which is contemplated by the Veteran's assigned 40 percent rating. As the Veteran has not reported, and as the medical evidence of record does not otherwise indicate, that the Veteran's spine is permanently fixed in a non-favorable position, the Board finds that his condition did not more nearly approximate unfavorable ankylosis of the lumbar spine during the appeal period. The Board also finds that the evidence does not support that the Veteran required bed rest for at least 6 weeks during the period on appeal. The July 2014, July 2016, and October 2018 examiners each denied incapacitating episodes and none of the examiners indicated that the Veteran had episodes of symptoms due to IVDS that required bed rest prescribed by a physician in excess of 6 weeks or more in a 12-month period. The Veteran's treatment records of record also do not establish that the Veteran was prescribed bed rest by a physician for his back during this period in excess of 6 weeks or more. As such, the Board finds that the credible evidence of record does not support that the Veteran required bed rest of at least 6 weeks during a 12-month period prior to October 11, 2018. In sum, the Board finds that a disability rating of 40 percent, but no higher, is warranted for the Veteran's lumbar spine disability prior to October 11, 2018. See 38 C.F.R. § 4.3; 4.71a, DC 5243. REASONS FOR REMAND 1. Entitlement to service connection for a sleep disorder, including sleep apnea, is remanded. The Veteran seeks service connection for a sleep disorder as secondary to his service-connected degenerative disc disease of the thoracolumbar spine. He primarily contends a sleep disorder, now including sleep apnea, is secondary to his service-connected thoracolumbar degenerative disc disease. He has reported that his sleep is interrupted by muscle spasms and pain related to his back disability. See March 2018 Notice of Disagreement. Medical records do show complaints and diagnoses of both pain and muscle spasms associated with his service-connected back disability. As noted above, the Board denied entitlement to service connection for a sleep disorder in August 2019. The Veteran appealed to the Court, which resulted in a JMPR. The parties to the JMPR agreed that the Board had provided an inadequate statement of reasons or bases as to whether the November 2017 VA examination for mental disorders was adequate for purposes of determining whether entitlement to service connection for sleep apnea was warranted. The JMPR stated that the Board must assess whether a VA examination was warranted as to the Veteran's claim for entitlement to service connection for sleep apnea, to include as secondary to his service-connected thoracolumbar spine disability. The Board remanded this claim in July 2021 for additional development. While the evidence does not provide a current diagnosis of sleep apnea, the Veteran has reported difficulty sleeping and difficulty breathing in February 2016. Further, the Veteran's representative notes that the Veteran has reported symptoms of interrupted sleep and snoring. The Veteran's representative has also argued that the 2021 VA examiner indicated that body habitus and lifestyle are factors in the development of sleep apnea and that the Veteran's body habitus and lifestyle have been impacted by his service-connected conditions. The Board finds that the Veteran should be provided a VA examination to determine if the Veteran has a sleep disorder, to include sleep apnea, secondary to his service-connected conditions. See McLendon. The matters are REMANDED for the following action: 1. Undertake appropriate efforts to schedule the Veteran for a VA examination to determine the etiology of any current sleep disorder, to include sleep apnea. The claims file made available to the examiner. The examiner must report review of the claims file. The examiner is specifically asked to identify any current sleep disorders separate from the Veteran's service-connected psychiatric disorder. If any separate disorders are diagnosed, the examiner is asked to provide the following opinions: a) Whether it any separate sleep disorder, to include sleep apnea, at least as likely as not (a 50 percent probability) is caused by any service-connected disability. b) Whether it any separate sleep disorder, to include sleep apnea, at least as likely as not (a 50 percent probability) has been aggravated by any service-connected disability. A complete rationale for all opinions must be provided. Separate opinions for causation and aggravation should be provided. In providing the requested opinions, the examiner must address the Veteran's lay assertions. Lay statements of record cannot be disregarded solely due to lack of contemporaneous medical evidence. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.