Citation Nr: 21006836 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-31 825A DATE: February 5, 2021 ORDER New and material evidence having been received, the petition to reopen the claim for service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to an effective date of January 26, 2011, for the award of a 20 percent rating for the cervical spine disability, is granted. Entitlement to service connection for sleep apnea is granted. For the period prior to July 20, 2016, entitlement to an increased rating of 40 percent, but no higher, for the thoracolumbar strain with intervertebral disc syndrome (IVDS), disc bulge and degeneration is granted, subject to the regulations governing the award of monetary benefits. Entitlement to a rating in excess of 40 percent for the thoracolumbar strain with intervertebral disc syndrome IVDS, disc bulge and degeneration, is denied. REMANDED Entitlement to a rating in excess of 20 percent prior to October 11, 2018, and in excess of 30 percent thereafter, for cervical strain is remanded. Entitlement to service connection for PTSD is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include generalized anxiety disorder and panic disorder, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed April 2004 rating decision, the RO denied service connection for PTSD on the grounds that there was no PTSD diagnosis; the Veteran was advised of the RO’s decision, and his appellate rights in an April 2004 letter, but he did not initiate an appeal from this determination, and new and material evidence was not received within one year. 2. Evidence received since the April 2004 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD, and raises a reasonable possibility of substantiating the claim. 3. The Veteran met the criteria for a 20 percent rating for the cervical spine disability prior to January 26, 2012. 4. Resolving reasonable doubt in the Veteran’s favor, his sleep apnea began during active service. 5. Resolving any doubt in favor of the Veteran, for the period prior to July 20, 2016, considering his complaints of pain on motion, the Veteran’s service-connected thoracolumbar strain with intervertebral disc syndrome IVDS, disc bulge and degeneration more closely approximated forward flexion limited to 30 degrees. 6. The Veteran’s thoracolumbar strain with intervertebral disc syndrome IVDS, disc bulge and degeneration has not been manifested by unfavorable ankylosis or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months at any time during the appeal period. CONCLUSIONS OF LAW 1. The April 2004 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The evidence received since the April 2004 rating decision is new and material, and the claim for service connection for PTSD is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for an effective date of January 26, 2011, for the award of a 20 percent rating for the cervical spine disability, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.126, 4.130, Diagnostic Code 5237. 4. The criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. For the period prior to July 20, 2016, the criteria for an increased rating of 40 percent, but no higher, for the Veteran’s thoracolumbar strain with intervertebral disc syndrome IVDS, disc bulge and degeneration have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 5242-5243. 6. The criteria for a rating in excess of 40 percent for the Veteran’s thoracolumbar strain with intervertebral disc syndrome IVDS, disc bulge and degeneration have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 5242-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2000 to June 2003. These matters come to the Board of Veterans’ Appeals (Board) on appeal from August 2013 and September 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded by the Board in November 2016 for further development, which included to afford the Veteran a Correia compliant VA examination for the lumbar spine disability. The record shows that a lumbar spine examination was requested in August 2019, and an additional August 2019 record shows that the RO scheduled an examination. The Veteran failed to report for his examination, and the examination was thus canceled. Although there is undeliverable mail on record, there is no indication that the Veteran did not receive notice of the pending examination. Furthermore, a September 2019 rating decision and an April 2020 supplemental statement of the case (SSOC), both informed the Veteran of his failure to report for the scheduled examination. The Veteran has not requested a new lumbar spine examination, although he has requested examination for other disabilities. Also, there is no indication that the Veteran failed to receive the September 2019 rating decision or the April 2020 SSOC, as they were not returned as undeliverable. Although a copy of the examination notice is not contained in the Veteran’s file, the Board notes that absence of copies of the VAMC examination scheduling letters in the claims file does not preclude application of the presumption that the Veteran received proper notice. See Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). VA enjoys a “presumption of regularity” that “supports official acts of public officers” and “allows courts to presume that what appears regular is regular.” Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); see Miley v. Principi, 366 F.3d 1343, 1347 (Fed.Cir.2004); Wise v. Shinseki, 26 Vet. App. 517, 525 (2014). The presumption of regularity extends to VA’s ministerial acts of mailing decisional and notice documents to claimants. See, e.g., Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007). For the following reasons, that presumption has not been rebutted in this case. The August 2019 examination report reflects that the Veteran failed to report; no reason was given. An April 2020 SSOC informed the Veteran that he failed to report for the scheduled examination, and he has not responded to the SSOC. There has been no allegation of nonreceipt of the notice of the VA lumbar spine examination, and even such assertion of nonreceipt alone does not constitute clear evidence to rebut the presumption of regularity. See Miley v. Principi, 15 Vet. App. 97 (2001). Given the presumption of regularity of the mailing of the VA examination scheduling notice and the fact that the Veteran has not provided a reason for his failure to report, the Board is satisfied that the Veteran received notice of the examination and failed to report to the scheduled VA examination without good cause. Thus, the Board finds there has been substantial compliance with its remand directive regarding a VA examination for the lumbar spine disability. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board notes that the September 2014 rating decision addressed 21 issues. However, several were granted during the appeal period and in his May 2020 substantive appeal, the Veteran selected to only appeal the lumbar and cervical spine, PTSD, sleep apnea, and anxiety issues to the Board. Thus, this Board disposition will only address such issues. Furthermore, the Board notes that in an April 2020 rating decision, the RO increased the Veteran’s disability ratings for his cervical spine and lumbar spine disabilities to 30 percent and 40 percent disabling, respectively. However, as this was not a full grant of the benefits sought on appeal, the issues remain on appeal before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The issue of entitlement to a TDIU rating has been expressly raised during the pendency of the appeal of the Veteran’s claim for increased disability ratings for cervical and lumbar spine disabilities. As such, it is part and parcel of those claims. See Rice v. Shinseki, 22 Vet. App. 447, 453-55. Consequently, while the issue of entitlement to a TDIU rating was last denied by the RO in a September 2019 rating decision, which has not yet been appealed, it is properly before the Board. As a final preliminary matter, the Board notes that in July 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of rating decisions from prior to February 2019. In August 2020, the agency of original jurisdiction (AOJ) sent a correspondence informing the Veteran that his request could not processes as the legacy appeal process applies to decisions issued prior to February 19, 2019. Whether new and material evidence has been received to reopen a claim of service connection for posttraumatic stress disorder (PTSD) Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the AOJ’s actions, given the previous unappealed denial of the claims on appeal, the Board has a legal duty under to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). A final April 2004 rating decision denied service connection for PTSD on the basis that there was no treatment or a diagnosis of PTSD of record at the time of the decision. The Veteran did not file a notice of disagreement and no substantive appeal was perfected to the Board. As a result, the decision became final. 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. In March 2014, the Veteran submitted a new claim for entitlement to service connection. Throughout the appeal period, additional VA and private treatment records have been associated with the record. The private treatment records show that the Veteran has a PTSD diagnosis. See Third Party Correspondence received May 2017. The PTSD diagnosis was not before adjudicators when the Veteran’s claim was last denied in April 2004 and is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection and raises a reasonable possibility of substantiating the claim. Accordingly, the PTSD disability claim is reopened. Earlier Effective Date for a Cervical Spine Disability The Veteran asserts that he is entitled to an effective date prior to January 26, 2012, for the award of a 20 percent rating for the cervical spine disability. See January 2014 notice of disagreement. By way of background, the Veteran was awarded service connection for a cervical spine disability in an April 2004 rating decision. He was assigned a 10 percent evaluation effective June 22, 2003. He did not appeal this rating decision and it became final. The Veteran filed a claim requesting an increase in evaluation for his cervical spine disability on January 26, 2012. In an August 2013 rating decision, the RO increased the cervical spine disability rating from 10 percent to 20 percent disabling, effective January 26, 2012, the date of the Veteran’s claim for an increased evaluation. The Veteran filed a timely notice of disagreement in January 2014, arguing that the date of the increased 20 percent rating should go back to his original service connection date in the early 2000s. However, the Board notes that the RO erroneously adjudicated the issue of an earlier effective date for the award of service connection for the cervical spine disability, as opposed to an earlier effective date for the 20 percent rating. Nonetheless, the Board has jurisdiction over the issue and will adjudicate in the first instance, the issue of entitlement to an effective date earlier than January 26, 2012, for an increased 20 percent evaluation for the cervical spine disability. The Board finds that an earlier effective date prior to January 26, 2012, for the award of a 20 percent rating for the cervical spine disability is supported. In this regard, VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application, therefore. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Regulations also provide that the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(o)(1). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Three possible dates may be assigned depending on the facts of a case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). Here, the Veteran filed a new claim for an increased rating for his service-connected cervical spine disability on January 26, 2012. An August 31, 2013, rating decision granted the claim, increasing his rating for service-connected cervical strain to 20 percent, effective January 26, 2012, the date of the new claim. As such, under the law, the earliest the Veteran could be entitled to an effective date for his 20 percent evaluation would be January 26, 2011, which is one year prior to the date of the increased rating claim, if it is factually ascertainable that the increase in severity took place during that year. The evidence of record does, in fact, support an increase in severity prior to the January 26, 2012, claim date (January 26, 2011, through January 26, 2012). In this regard, under the formula for rating spine disorders (Diagnostic Codes 5235-5242), cervical spine strain with forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or combined range of motion of the cervical spine not greater than 170 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 warrants a 20 percent disability rating. The record does support entitlement to a 20 percent rating prior to January 26, 2012. Specifically, December 8, 2011, and August 2, 2011, VA treatment notes indicate that the Veteran’s cervical spine forward flexion was less than 30 degrees. Here, it is factually ascertainable that the increase in severity took place during the one year prior to the date of the increased rating claim. Thus, the Veteran is entitled to a January 26, 2011, award date for the 20 percent rating for the cervical spine disability. The evidence clearly shows that the criteria for a rating in excess of 10 percent was met during this period, as August and December 2011 VA treatment notes show that the forward flexion of the cervical spine was less than 30 degrees. See Medical Treatment Record- Government Facility received January 13, 2012. The evidence of record does indicate an increase in severity of the Veteran’s cervical spine disability occurred such that an effective date earlier than January 26, 2012, would be warranted. 38 C.F.R. § 3.400(o). Accordingly, an earlier effective date of January 26, 2011, for the award of a 20 percent rating for the service-connected cervical spine strain, is granted. Service Connection for Sleep Apnea Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran contends that his sleep apnea disability is secondary to his service-connected spine disabilities. Alternatively, he contends that the disability is related to active duty service. The Board concludes that the Veteran has a current disability that began during active service or is related to in-service sleep disturbances. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). September 2013 VA treatment records show the Veteran has a current diagnosis of mild obstructive sleep apnea. During service, the Veteran reported mildly disturbed sleep with one to two hours of sleep loss. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes July 2014 and May 2015 VA opinions. VA examiners provided a negative nexus opinion indicating that the sleep apnea disability was not related to the service-connected spine disabilities. However, neither the July 2014 or May 2015 opinion provided a direct opinion regarding the relation between the Veteran’s sleep apnea diagnosis and his in-service sleep difficulty, nor did they provide a secondary aggravation opinion. The evidence in favor of the claim consists of an April 2017 private examination and report in which the examiner provides that it is much more likely than not the Veteran’s sleep apnea had its onset during the time that he was on active duty. The rationale was that the Veteran had no sleep complaints and did not snore prior to entering the military. During his active duty years, he was told by others that he had begun to snore disruptively during sleep, and he was observed to stop breathing during sleep. The Veteran thought that his poor sleep quality and fatigue during service was due to his duty schedule. The examiner further provided that disruptive snoring, observed breathing difficulties, poor sleep quality, and daytime sleepiness are all symptoms of obstructive sleep apnea. She concluded that the sleep apnea developed while the Veteran was on active duty. The Board notes that the Veteran has not provided any buddy statements indicative of in-service snoring and breathing difficulties during service. However, as noted above, service treatment records do document a report of difficulty sleeping. Thus, upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current sleep apnea arose in or is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for obstructive sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Court held that § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the diagnostic code under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. at 354. Entitlement to a rating in excess of 20 percent for thoracolumbar strain with intervertebral disc syndrome IVDS, disc bulge and degeneration prior to July 20, 2016, and a rating in excess of 40 percent thereafter. By way of background, the Veteran was in receipt of a 20 percent rating for the lumbar spine disability pursuant to Diagnostic Code 5242, since June 22, 2003 when he filed an increased rating claim on January 26, 2012. An April 2020 rating decision increased the rating from 20 percent to 40 percent disabling effective July 20, 2016, the date of the VA examination showing worsening, pursuant to Diagnostic Code 5243. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Veteran contends that he is entitled to an increased rating. As discussed above, the Veteran failed to report to his scheduled August 2019 VA examination, which would have evaluated the current severity of his service-connected lumbar spine disability and corrected any deficiencies in the prior examination reports. Since he did not report to that examination, the Board will evaluate his increased rating claim based on the evidence of record. See 38 C.F.R. § 3.655(a)-(b). Considering the evidence of record, the Board finds that the Veteran’s lumbar spine disability is entitled to a 40 percent rating for the entire appeal period under DC 5243. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. Under the General Rating Formula (for Diagnostic Codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), a 10 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, combined range of motion of the cervical spine not greater than 170 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 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; a 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1): Objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. When rated based on incapacitating episodes, a 10 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An “incapacitating episode” is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. The normal findings for range of motion of the lumbar spine are flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Reviewing the relevant evidence of record, VA treatment records from August 2011 note chronic back pain. A December 2010 VA treatment note shows that the Veteran’s lumbar spine forward flexion was limited to 75 degrees and combined range of motion was 200 degrees. In March 2011, the Veteran complained of dull achy lower back pain and tight neck and upper back after completing activities of daily living (ADLs). In July 2011, he was seen for dull achy back in the middle and lower back. Lumbar spine forward flexion was 75 degrees and combined range of motion was 200 degrees. VA treatment notes from the requisite time frame are replete with complaints of back pain. January and February 2012 VA treatment notes show that the Veteran received both VA chiropractic care and private chiropractic care. He reported mid back pain and was diagnosed with backache and pain primarily in his low back with radiation down his right leg to the posteromedial thigh. The records also note that pain worsened with prolonged sitting and was alleviated with getting up and changing positions. The treatment notes also indicate posture with increased lumbar lordosis and weak abdominal musculature as well as maximally limited lumbar extension, left lateral flexion and left rotation, all of which increased thoracic pain. There was an overall range of motion deficit in lumbar spine. There are several treatment records during the appeal period that note range of motion findings. See September 2012 VA treatment note showing 6” fingertip to floor forward flexion; May 2013 chiropractic note showing forward flexion to 25 degrees with pain; November 2013 VA treatment note showing 8” fingertip to floor forward flexion. However, these treatment records did not indication that range of motion testing was performed with a goniometer. Notably, many of the findings used “fingertip to floor” measurements for forward flexion. Range of motion findings procured without the use of a goniometer are not valid for VA rating purposes and will not be considered here. See 38 C.F.R. § 4.46. Private treatment records received June 2013 and dated from April 2012 to May 2013 show that the Veteran reported unbearable back pain at level 9 on a scale from 1 to 10 that began in April 2012. The records also show pain, stiffness, tenderness, and spasm in the lumbar spine area. Range of motion findings in May 2013 appear to note forward flexion to 25 degrees with pain, but, as noted above, it is unclear whether these measurements were performed with a goniometer. The Veteran underwent VA examination in July 2013 to assess the severity of his lumbar spine disability. During the examination, the Veteran reported that the symptoms onset in January 2002, but the condition had worsened. He reported that his sacral spine was bothering him and that his back pain could be triggered by sneezing, getting dressed, as well as by picking things up from the floor. He also stated that inhaling too deep hurt his thoracic spine, he had to use a cane to get out of bed when pain level was at its highest, and that the back pain had been moving from the top of his spine to his tailbone for many years. The Veteran also reported flare-ups indicating that during flare-ups that his reflexes were much slower due to pain and that moving from laying down to standing up was very painful during flare-ups. The July 2013 examiner documented forward flexion to 60 degrees with pain beginning at 30 degrees. The examiner also found that the Veteran had functional loss and impairment of the thoracolumbar spine with contributing factors of less movement than normal and pain on movement. The Veteran also had localized tenderness to palpation for the joints and/or soft tissue of the thoracolumbar spine, which was further described as pain on palpation of the lumbar and thoracic paraspinals. The examiner remarked that there were contributing factors of pain, weakness, fatigability and/or incoordination, and there was additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time. However, he was unable to provide degree of additional range of motion loss during flare-ups because the Veteran indicated that his flare-ups were not always of the same intensity. However, the July 2013 examiner did indicate that flare-ups range from mild to severe magnitude with a corresponding difference in additional loss of range of motion. In a September 2013 statement in support of claim, the Veteran reported continuous back pain for at least 10 weeks out of the year associated with prolonged sitting and laying down; sharp pain that radiated to hid sacral spine; and incapacitating episodes that chronically impacted his daily habits and quality of life. In a September 2013 notice of disagreement, the Veteran reported pain that radiates down spine to the legs, and that prolonged sitting caused pain in upper and lower back. An April 2014 mental health examination documents that his pain level during the interview was reported at 9/10 in the lower back and 7/10 in the upper back. He walked stiffly with a cane into the interview room. He reported that sharp pain woke him up when he was sleeping. He reported experiencing stiffness when sitting and then standing at work and indicated that pain made it a longer day. During an April 2014 lumbar spine VA examination, the Veteran reported that his condition had worsened, he was unable to sleep at nights, and he had to use a cane from time to time. The Veteran reported flare-ups; he noted the impact of flare-ups as decreased movement and difficulty in focus. Forward flexion of the lumbar spine was limited to 10 degrees with objective evidence of painful motion at 10 degrees. Extension ended at 10 degrees with objective evidence of painful motion at 10 degrees. Right and left lateral flexion ended at 10 degrees with objective evidence of painful motion at 10 degrees. Right and left lateral rotation ended at 20 degrees with objective evidence of painful motion at 20 degrees. The Veteran was able to perform repetitive-use testing with 3 repetitions. Post-test forward flexion ended at 10 degrees; extension at 10 degrees; right and left lateral flexion at 10 degrees; and right and left lateral rotation at 20 degrees. The Veteran did not have additional limitation in range of motion following repetitive-use testing. He had additional functional loss of less movement than normal and pain on movement. The Veteran had guarding. Muscle atrophy was not present and muscle strength testing was all normal. Sensation to light touch was all normal. Straight leg raising test was negative. The Veteran did not have any other signs or symptoms due to radiculopathy. There were no other neurological abnormalities. IVDS was not found. The examiner found that the back impacted the Veteran’s ability to work due to limitations on frequent bending, stooping, and heavy lifting. The Veteran submitted a Back-Disability Benefits Questionnaire (DBQ) in July 2016; however, it contains no range of motion findings. It does indicate chronic back pain with stiffness and the inability to walk properly. During a May 2015 VA examination, the Veteran denied flare-ups of the spine. He denied functional loss of the spine. the Veteran’s lumbar spine forward flexion was to 90 degrees; extension was to 25 degrees; right and left lateral flexion were to 25 degrees and right and left lateral rotation were to 25 degrees. The examiner noted pain which causes functional loss. There was no evidence of pain with weight bearing. The Veteran had localized tenderness which did not result in abnormal gait or spinal contour. The examiner noted disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength was normal and there was no atrophy. There was no radicular pain or any other neurologic abnormalities. There was no ankylosis or IVDS. The examiner found that the lumbar spine disability impacted the Veteran’s ability to work as he needed to avoid heavy lifting and repetitive bending. In a July 2016 VA examination, the Veteran reported flare-ups occurring once a month. The Veteran reported the following overall functional impairments: numbness, loss of range of motion, and loss of strength. He also reported loss of sleep due to pain. The Veteran’s lumbar spine forward flexion was limited to 20 degrees; extension was limited to 10 degrees; right and left lateral flexion was limited to 10 degrees; and right and left lateral rotation was limited to 20 degrees. The examiner found that range of motion itself contributed to a functional loss of limiting bending. The examiner found that pain was noted on examination and caused functional loss. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness described as moderate severe sharp pain. The Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional loss of range of motion after three repetitions. The examiner found that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time or during a flare-up because the current examination showed only pain during range of motion and no significant loss of motion during observed repetitive use. Additional contributing factors of disability were noted as less movement than normal. Muscle strength was normal and there was no atrophy. Straight leg raising test was positive on the left. There was mild paresthesias of the left lower extremity. There was no ankylosis. The examiner noted IVDS but no episodes of acute signs and symptoms due to IVDS requiring bed rest prescribed by a physician. The examiner found that the condition impacted the Veteran’s ability to work due to limitations in frequent bending, stooping, and heavy lifting. The Board acknowledges that the May 2015 and July 2016 VA examination reports do not comply with the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016), because they do not include range-of-motion testing on active, passive, weight-bearing, and nonweight-bearing or a statement to the effect that such testing was not possible or was unnecessary in this case. However, as noted above, the Board remanded this matter in November 2016 to obtain an examination that complies with the holding in Correia and the Veteran failed to report without good cause. As such, and because there is ample evidence in this case to adequately rate the lumbar spine disability, the Board will rate the Veteran’s lumbar spine disability based on the evidence of record as a whole. Resolving any doubt in the Veteran’s favor, the Board finds that a 40 percent rating, but no higher, is warranted for the period prior to July 20, 2016. Considering pain and functional loss due to pain, the most probative evidence shows that the Veteran’s lumbar spine disability more nearly approximates forward flexion of the thoracolumbar spine 30 degrees or less. However, the Board finds that the evidence does not show that a rating higher than 40 percent is warranted at any time during the appeal period. The General Rating Formula does not provide for a rating higher than 40 percent unless there is unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. Ankylosis is defined as 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). In this case, the Veteran has not been diagnosed with ankylosis of any segment of his spine. The medical records clearly demonstrate that while the motion of the Veteran’s lumbar spine has been limited, some range of motion is present throughout the applicable period under appeal. As shown above, none of the examiners have found any spinal ankylosis. Thus, it cannot be concluded that the Veteran has ankylosis of the thoracolumbar or lumbar spine, and certainly not unfavorable ankylosis. There is no basis, therefore, for a higher evaluation inasmuch as there is no clinical evaluation of ankylosis. See Johnston v. Brown, 10 Vet. App. 80 (1997). The Board has also considered whether an increased evaluation could be assigned on the basis of functional loss due to the Veteran’s subjective complaints of pain and stiffness. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Veteran already receives the maximum disability rating available for limited motion in the lumbar spine absent ankylosis. In addition, none of the medical evidence suggests that the severity of his service-connected back disability is the functional equivalent of ankylosis. Notably, all of the examinations during this timeframe demonstrated that the Veteran had at least some range of motion in his lumbar spine, even with Deluca considerations, throughout the applicable period under appeal. Hence, even with consideration of sections 4.40 and 4.45 and DeLuca, the record presents no basis for the assignment of a rating higher than 40 percent based on functional loss. As such, the Veteran is not entitled to a higher rating under the General Rating Formula for limitation of spine movement. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. As for a higher rating under Diagnostic Code 5243 for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Board notes that the most recent examination in July 2016 revealed incapacitating episodes of intervertebral disc syndrome having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, which could warrant a 20 percent rating. There were no findings of intervertebral disc syndrome prior to this examination. As such, a disability rating higher than the currently assigned 40 percent under the rating criteria for intervertebral disc syndrome would not be warranted. Id. As to whether additional compensation for neurological impairment is warranted at any time during either of the appeal periods, the General Rating Formula requires consideration of neurological findings, to include bladder or bowel impairment, separate from orthopedic manifestations. The RO granted service connection for left lower extremity radiculopathy and assigned a separate 10 percent rating effective July 7, 2016, the date of the VA examination showing left lower extremity radiculopathy related to the spine. The evidence does not show the presence of radicular symptoms in the left prior to this date. The evidence also does not show right lower extremity radiculopathy during the appeal period. There have not been any other neurological findings, to include bladder or bowel impairment, during the appeal period. The Board has also considered the Veteran’s statements that describe his pain and discomfort. The Veteran is certainly competent to describe his observations and the Board finds that his statements are credible. In this case, however, the Board finds that the objective medical findings by skilled professionals are more persuasive, which, as indicated above, do not support an increased rating higher than 40 percent for the entire period on appeal, for the service-connected thoracolumbar strain with intervertebral disc syndrome IVDS, disc bulge and degeneration. Accordingly, resolving all reasonable doubt in favor of the Veteran, for the period prior to July 20, 2016, an increased rating of 40 percent, but no higher, for the Veteran’s service-connected thoracolumbar strain with intervertebral disc syndrome IVDS, disc bulge and degeneration, is warranted. However, a rating in excess of 40 percent for the Veteran’s service-connected thoracolumbar strain with intervertebral disc syndrome IVDS, disc bulge and degeneration is not warranted at any time during the appeal period. REASONS FOR REMAND Entitlement to a rating in excess of 20 percent prior to October 11, 2018, and in excess of 30 percent thereafter, for cervical strain, is remanded. The Veteran was last afforded a VA cervical spine examination in October 2018; however, the examination was not adequate because the range of motion test results provided failed to comply with 38 C.F.R. § 4.59 and the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016). The examination also failed to comply with the holdings in DeLuca v. Brown, 8 Vet. App. 202 (1995) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Specifically, although the examiner noted pain on nonweight-bearing and passive motion, the testing did not record passive or nonweight-bearing range of motion or explain why such measurements were not possible or necessary. Moreover, the examiner did not provide an estimate of additional range of motion loss due to pain, weakness, fatigue and/or incoordination during repetitive use or flare-ups. Instead the examiner provided, “Unable to provide degree of additional ROM loss as the examinee does not indicate that flare ups are always of the same intensity. This would suggest flare ups range from a mild to severe magnitude with a corresponding difference in additional loss of ROM. Theoretically a very mild flare up may not reduce range of motion at all while an extremely severe flare up may prevent any movement whatsoever. The claimant also does not indicate that repetitive use is always of the same duration. Theoretically repetitive use over a few minutes may result in a smaller loss of range of motion however repetitive use over a half hour or hour would result in a greater loss of range of motion. Furthermore, the claimant does not indicate a specific numerical loss of range of motion either during flare ups or repetitive use.” See October 2018 VA Cervical Spine Examination. Given the foregoing, the Board finds a remand is needed to afford the Veteran an updated VA examination that evaluates the current nature and severity of his cervical spine disability, to include the additional functional impairment caused during repetitive use and flare-ups. Entitlement to service connection for PTSD is remanded. The Veteran contends that he is entitled to service connection for PTSD as a result of the traumatic experiences he encountered while serving in the military. Service connection for PTSD requires: (1) a medical evidence establishing a clear diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptoms and a claimed in-service stressor. See 38 C.F.R. § 3.304(f). The Veteran has claimed various stressors throughout the appeal period. A March 2014 Report of General Contact shows that the Veteran identified several possible stressors relating to a PTSD diagnosis which included suffering from a heat exhaustion episode, and the death of two soldiers in his 2nd Calvary, Eagle Horse, HHT unit during a training event in Ft. Irwin. The Veteran also indicated that his grandmother passed away while he was in service and that it caused him to worry that other family members would pass away while he was away. Finally, the Veteran stated that his Sergeant drove him through a field of undetonated grenades in the Barstow area. See March 2014 VA 21-0820 Report of General Information. In a correspondence received in July 2014, the Veteran described being in a field exercise in January 2001 or January 2002 in the desert in tents with gas heaters inside. He indicated that the tent next to him had three guys die in it because the flame went out in their gas heater due to high winds blowing into the tent filling it with pure gas fumes. The Veteran described being afraid to sleep in the tent because he did not want to die from gas fumes and that he kept waking up every 30 minutes to make die he was still alive and didn’t smell any gas fumes. He also said that his grandmother died during service. An additional stressor he described was being forced to work longer weeks and months due to others driving under the influence. See July 2014 Correspondence. In a July 2014 Statement in Support of Claim, the Veteran identified a basic training event in 2000 in which he suffered from heat exhaustion that caused him to lose his vision for 10 minutes. He described that after a 10 to 12-mile road march with platoon, the drill sergeants forced them to do additional laps around the track in under 60 seconds with 45-pound ruck sacks on their backs in 100-degree heat. The Veteran stated he began to feel dizzy and went blind for 10 minutes. He said he regained consciousness and that his pants and underwear were pulled down to his knees and the entire platoon was watching. He also described that in year 2001, one of his sergeants drove him onto a bomb range at night. He described that there were undetonated grenades and he had to open the door to help guide the sergeant clear of driving over the grenades. The Veteran said he saw his life flash before his eyes. See July 2014 Statement in Support of Claim. A July 2015 memorandum shows that Joint Services Records Research Center (JSRRC) made a formal finding that there was a lack of information required to corroborate the above-reported stressors of “collapsing from heat exhaustion in boot camp,” “driving into a grenade range,” “guys dying in tent,” and “grandma died.” However, STRs confirm that the Veteran suffered from heat exhaustion and disorientation during service. Furthermore, the Veteran has consistently reported that his grandmother passed away during service and there is nothing to refute his reports. While the record shows a PTSD diagnosis in May 2017 by J.B., a Veterans Analyst Specialist with the Veteran Service Outreach Program, the Veteran’s reported in-service stressors used to support this diagnosis (being assigned to the 2nd Cavalry and directly exposed to casualties of war, to include witnessing one of his comrades in bootcamp falling from a zip-line and being killed instantly and one of his squad committing suicide, and experiencing racism) have not been confirmed. Finally, in a June 2017 Statement in Support of Claim, the Veteran reported additional stressors during service, to include being a victim of military sexual assault and falling from a truck during service. The above-noted claimed stressors that were reported after the July 2015 JSRRC memorandum need to be further developed, including the military sexual assault claim. Moreover, there is no indication that a VA psychiatrist or psychologist confirmed that the claimed stressors are adequate to support a diagnosis of PTSD and that the Veteran’s symptoms are related to the claimed stressor. Finally, evidence of record indicates that the now service-connected sleep apnea may have contributed to the Veteran’s PTSD. See Medical Treatment Record Non-Government Facility received May 2017. Thus, an opinion is need as to whether the Veteran’s sleep apnea has contributed to the development or progression of his PTSD. Entitlement to service connection for an acquired psychiatric disorder, to include generalized anxiety disorder and panic disorder, is remanded. The Veteran has asserted that his mental health disabilities developed during active duty service after the death of his grandmother and other in-service occurrences. He has also asserted that the disabilities are secondary to his now service-connected sleep apnea. See Medical Treatment Record Non-Government Facility received May 2017. The Veteran was provided a VA mental health examination in April 2014. Panic disorder and anxiety disorder were diagnosed. The examiner provided a negative secondary opinion indicating that the disabilities were not proximately due to or the result of the Veteran’s service-connected conditions. However, the examiner failed to provide a direct opinion or an aggravation opinion. Thus, remand is warranted to ascertain if the panic disorder and anxiety disabilities are directly related to active duty service or if they are aggravated beyond natural progression by the Veteran’s service-connected disability. Furthermore, evidence of record indicates that the now service-connected sleep apnea may have contributed to the Veteran’s anxiety and panic disorders. See Medical Treatment Record Non-Government Facility received May 2017. Thus, an opinion is need as to whether the Veteran’s sleep apnea has contributed to the development or progression of his anxiety disorder and panic disorder disabilities. Entitlement to TDIU is remanded. With respect to the claim of entitlement to a TDIU, the Board notes that the Court has held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the Veteran’s claim for entitlement to TDIU is inextricably intertwined with the remanded claims herein, see Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered), a remand is required. The matters are REMANDED for the following action: 1. Schedule the Veteran a VA examination to assess the severity of his cervical spine disability which includes testing the range of motion and pain levels in active and passive range of motion and after repetitive use. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. The examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flare-ups or repetitive use, and if so, estimate range of motion during flare-ups or repetitive use. If the examination does not take place during a flare-up or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flare-ups or repetitive use and provide the extent of motion loss described in terms of degrees based upon the lay and medical evidence of record. 2. Attempt to develop any and all stressors reported after the July 2015 JSSRC memorandum. 3. Send the Veteran notice required for PTSD claims based on personal assaults and allow time for a response. Then, attempt to corroborate the Veteran’s in-service stressor based on personal assault, including his report of his groin being grabbed during service. If more details are needed, contact the Veteran to request the information. 4. Then, afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of all psychiatric disorders present during the appeal period, including PTSD, anxiety disorder and panic disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed pursuant to the DSM-5. Based on the review of the Veteran’s pertinent history and the examination results, the examiner should identify all acquired psychiatric disorders that have been present during the period of the claim. The examiner should confirm or rule out a diagnosis of PTSD and consider the May 2017 report from J.B. showing a diagnosis of PTSD. The examiner should state an opinion as to whether there is a 50 percent or better probability that PTSD has been present at any time during the period of the claim due to a confirmed in-service stressor to include the death of his grandmother and a heat exhaustion episode, or due to a stressor which relates to “fear of hostile military or terrorist activity.” The examiner should address in detail whether a confirmed in-service stressor supports a diagnosis of PTSD at any time during the period of the claim, whether the Veteran’s symptoms relate to that in-service stressor, and whether the criteria for a diagnosis of PTSD are met. If a diagnosis of PTSD is not made, the examiner should explain why the Veteran does not meet the criteria for the diagnosis. With respect to any additional acquired psychiatric disorder present during the period of the claim, including panic disorder and anxiety disorder, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder is etiologically related to the Veteran’s active service, including the death of his grandmother and heat exhaustion episode. The examiner should also opine as to whether PTSD or any other acquired psychiatric disorder is caused or aggravated beyond natural progression by the Veteran’s service-connected sleep apnea disability. In rendering this opinion, the examiner should consider the opinion from Dr. C.S. See May 2017 Medical Treatment Record – Non-Government Facility. The supporting rationale for all opinions expressed must be provided. If the physician is unable to provide any required opinion, he or she should explain why the required opinion cannot be provided. If the physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Jenna Brant Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Quinn, Associate 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.