Citation Nr: 21008026 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 09-33 749 DATE: February 11, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is denied. Entitlement to a disability rating of 40 percent for spinal fusion of the thoracolumbar spine, prior to July 20, 2016 is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a disability rating in excess of 40 percent for spinal fusion of the thoracolumbar spine is remanded. Entitlement to a TDIU prior to January 21, 2011 is remanded. FINDINGS OF FACT 1. The Veteran’s sleep apnea was not incurred in service and the preponderance of the evidence is against a finding that the Veteran’s sleep apnea was caused or aggravated by any of his service-connected disabilities. 2. Prior to July 19, 2016, the Veteran’s spinal fusion of the thoracolumbar spine was manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to a disability rating of 40 percent for spinal fusion of the thoracolumbar spine, prior to July 20, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3. 4.7, 4.40, 4.45, 4.71a, DCs 5325-5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1988 to September 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in October 2004 and January 2008 by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the case for further development in May 2018. At that time, the Board found that the Veteran may be entitled to service connection for disabilities secondary to his service-connected spinal fusion, including cauda equina syndrome with bladder and bowel dysfunction, rectal sphincter dysfunction, and penile dysfunction. Following the Board’s remand, the agency of original jurisdiction (AOJ) issued a rating decision in October 2020, granting service connection for cauda equina syndrome with bladder dysfunction (incontinence) as secondary to the service-connected disability of spinal fusion; service connection for cauda equina syndrome with erectile dysfunction as secondary to the service-connected disability of spinal fusion; and service connection for cauda equina syndrome with rectal sphincter dysfunction as secondary to the service-connected disability of spinal fusion, which constitutes a full award of the benefits sought on appeal with respect to those issues. AB v. Brown, 6 Vet. App. 35 (1993). The case has since been returned to the Board for appellate review of the issues listed on the title page. 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See U.S.C. §1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’ the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). A Veteran can also receive compensation via secondary service connection. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran seeks service connection for sleep apnea. He contends that his sleep apnea is secondary to his service-connected spinal fusion, neck condition with findings of degenerative arthritis and narrow disc spaces C2-C3 through C5-C6, or idiopathic urticaria, in combination or as separate disabilities. The Veteran was diagnosed with sleep apnea in December 2007 and obstructive sleep apnea in September 2017. Accordingly, the evidence establishes a current sleep apnea disability. As an initial matter, the evidence does not demonstrate and the Veteran does not contend service connection on a direct basis is warranted, as the service treatment records are negative for any complaints of or treatment for sleep apnea, sleep disturbance, insomnia, snoring, daytime fatigue, or any other symptoms indicative of sleep apnea during active duty service. In report of medical history dated in March 1991 and June 1992, the Veteran denied a history of frequent trouble sleeping. Additionally, the evidence does not suggest that the Veteran’s sleep apnea has been chronic and continuous since service separation, as the medical evidence documents the first complaints of sleep disturbance in July 2005, 12 years after service discharge. As the medical evidence does not indicate in-service incurrence of sleep apnea and the Veteran has not provided any lay evidence of in-service symptoms of sleep apnea, the preponderance of the evidence is against the award of service connection on a direct basis for sleep apnea. As noted above, the Veteran alleges that his sleep apnea was caused or aggravated by his service-connected neck disorder. The Veteran was afforded a VA examination to determine the nature and etiology of his sleep apnea in December 2007. The VA examiner opined that it was less likely than not that the Veteran’s sleep apnea was caused by his cervical spine condition, lumbar spine condition, or urticaria service-connected disabilities. He explained that after reviewing the Harrison textbook of medicine he could not anything in its literature to speculate that either cervical spine conditions, lumbar spine conditions, or urticaria in combination or as separate entities causes sleep apnea. Following a May 2018 Board remand, an addendum medical opinion was obtained in June 2019 to determine whether the Veteran’s sleep apnea was aggravated beyond its natural progression by his service-connected spinal fusion, neck condition with findings of degenerative arthritis and narrow disc spaces C2-C3 through C5-C6, or idiopathic urticaria, in combination or as separate disabilities. The examiner opined that the Veteran’s sleep apnea was less likely than not aggravated beyond its natural progression by the Veteran’s service-connected spinal fusion, neck condition with findings of degenerative arthritis and narrow disc spaces C2-C3 through C5-C6, or idiopathic urticaria, in combination or as separate disabilities. The examiner explained that since there are no pathophysiological relationship between these conditions or any medical records showing such relationships, there is no direct correlation between sleep apnea and having spinal fusion, neck condition with findings of degenerative arthritis and narrow disc spaces C2-C3 through C5-C6, or idiopathic urticaria, in combination or as separate disabilities. The examiner further noted there is no medical physiology to explain such a relationship. The June 2019 VA examiner also opined that the Veteran’s sleep apnea was less likely than not proximately due to or the result of the Veteran’s service-connected spinal fusion, neck condition with findings of degenerative arthritis and narrow disc spaces C2-C3 through C5-C6, or idiopathic urticaria, in combination or as separate disabilities. As rationale, the examiner explained that sleep apnea tends to be multifactorial in nature, including genetic factors, environmental factors, drug abuse, lifestyles, body habitus, sinus conditions, upper respiratory conditions, neurological deficit, and/or idiopathic. The examiner thus concluded that there was no direct causality of spinal fusion neck condition with findings of degenerative arthritis and narrowing disc spaces C2-C3 through C5-C6 causing or leading to sleep apnea. The examiner stated that although symptoms of spinal fusion neck condition with findings of degenerative arthritis and narrowing disc spaces C2-C3 through C5-C6 can result in difficulties sleeping, these symptoms are not contributing factors or causes of sleep apnea, and are usually not associated with sleep apnea. After a thorough review of the evidence in the claims file, the Board concludes that the weight of the probative evidence does not show that the Veteran’s sleep apnea was caused or aggravated by his service-connected spinal fusion, neck condition with findings of degenerative arthritis and narrow disc spaces C2-C3 through C5-C6, or idiopathic urticaria, in combination or as separate disabilities. The only medical evidence in the claims file addressing the etiology of the Veteran’s sleep apnea are the December 2007 and June 2019 VA opinions. These opinions provided adequate explanations and rationales to support the conclusion that the Veteran’s sleep apnea was not caused or aggravated by his service-connected spinal fusion, neck condition with findings of degenerative arthritis and narrow disc spaces C2-C3 through C5-C6, or idiopathic urticaria, in combination or as separate disabilities. Accordingly, the Board affords the December 2007 and June 2019 VA opinions significant probative weight. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran’s belief that his sleep apnea was caused or aggravated by his service-connected spinal fusion, neck condition with findings of degenerative arthritis and narrow disc spaces C2-C3 through C5-C6, or idiopathic urticaria, in combination or as separate disabilities, and that he is competent to report symptoms capable of lay observation as well as the history of his treatment. However, as a lay person, the Veteran has not been shown to be capable of making medical conclusions, especially as to a complex medical opinion regarding the etiology of his sleep apnea. Given the Veteran’s lack of demonstrated medical expertise, the Board finds the December 2007 and June 2019 VA opinions to be the most probative evidence of record as to the current nature and etiology of sleep apnea. This objective medical evidence ultimately outweighs the Veteran’s lay contentions that his disability is related to his service-connected spinal fusion, neck condition with findings of degenerative arthritis and narrow disc spaces C2-C3 through C5-C6, or idiopathic urticaria, in combination or as separate disabilities. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Ultimately, the Board finds that the competent evidence of record does not show that the Veteran’s sleep apnea was caused or aggravated by his service-connected spinal fusion, neck condition with findings of degenerative arthritis and narrow disc spaces C2-C3 through C5-C6, or idiopathic urticaria, in combination or as separate disabilities. In sum, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is sympathetic to the Veteran and grateful for his honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). 2. Entitlement to a disability rating greater than 10 percent for spinal fusion of the thoracolumbar spine prior to July 20, 2016 Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. at 119, 126-27 (1999). When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. The intent of the rating 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. 38 C.F.R. § 4.59. Section 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 (DC) under which the disability is being evaluated is predicated on range of motion measurements. See Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). The Veteran’s spinal fusion is currently evaluated under DCs 5242 and 5237, which assign ratings based on the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a. Under the General Rating Formula, a 10 percent rating is warranted if forward flexion of the thoracolumbar spine is more than 60 degrees but not more than 85 degrees; or, combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, there is muscle spasm, guarding, or localized tenderness that does not result in abnormal gait or abnormal spinal contour; or, there is vertebral body fracture with loss of 50 percent or more of height. A 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. In this case, the Veteran’s claim for increased rating was received on March 22, 2004. During the pendency of the appeal, in a January 2018 rating decision, the AOJ increased the disability rating of the Veteran’s spinal fusion from 10 percent to 40 percent, effective July 20, 2016, under 38 C.F.R. § 4.71a, DC 5237. As discussed in the Remand section of this decision below, entitlement to a rating in excess of 40 percent for spinal fusion from July 20, 2016 is remanded for further development; accordingly, only the period prior to July 20, 2016 is addressed herein. The Veteran was afforded a VA spine examination in July 2004. Upon examination, forward flexion of the thoracolumbar spine was to 30 degrees. Extension was to 15 degrees, right and left lateral flexion were to 15 degrees, and right and left lateral rotation were to 30 degrees. There was pain on all range of motion testing. After repetitive motion testing, right lateral rotation was reduced to 20 degrees. During a visit to a private orthopeadic clinic in December 2014, the Veteran had a range of motion examination for his lumbar spine. Upon examination, forward flexion of the thoracolumbar spine was to 80 degrees and extension was to 20 degrees. The Veteran was afforded another VA spine examination in December 2006. Upon examination, forward flexion of the thoracolumbar spine was to 50 degrees. Extension was to 10 degrees, right and left lateral flexion were to 15 degrees or greater, and right and left lateral rotation were to 20 degrees. There was pain on motion with no additional limitation of motion with repetitive use. During an initial evaluation at a private orthopaedic surgeon in March 2007, the Veteran had a range of motion examination for his lumbar spine. Upon examination, forward flexion of the thoracolumbar spine was to 25 degrees and extension was to 5 degrees. The Veteran was afforded an additional VA spine examination in December 2007. Upon examination, forward flexion of the thoracolumbar spine was to 50 degrees with pain. Extension was to 15 degrees with pain, right and left lateral flexion were to 30 degrees with pain at the extreme, and right and left lateral rotation were to 45 degrees with pain at the extreme. The Veteran was afforded another VA spine examination in February 2011. Upon examination, forward flexion of the thoracolumbar spine was to 30 degrees with pain at the extreme. Right and left lateral flexion were to 20 degrees with pain at the extreme, and right and left lateral rotation were to 20 degrees with pain at the extreme. Repetitive motion testing did not increase pain, fatigue, weakness, lack of endurance, or incoordination. There was no ankylosis on examination. A final examination was conducted in July 2016. Upon examination, forward flexion of the thoracolumbar spine was to 30 degrees. Extension was to 5 degrees, right and left lateral flexion were to 20 degrees, and right and left lateral rotation were to 10 degrees. There was pain on extension and right and left lateral flexion which caused functional loss. The Veteran was not able to complete repetitive motion testing due to pain. There was no ankylosis of the spine on examination. The Board has thoroughly reviewed the VA examination reports referenced above, in addition to all of the Veteran’s VA and private medical records and the lay evidence of record. Based on the totality of the evidence, the Board finds that a 40 percent rating for spinal fusion is warranted for the entire period on appeal as the Veteran’s spinal fusion has manifested as forward flexion of the thoracolumbar spine to 30 degrees or less in four out of the seven range of motion examinations he had throughout the period on appeal. The issue of entitlement to an increased rating greater than 40 percent for spinal fusion of the thoracolumbar spine is addressed in the remand section of this decision, below. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 40 percent for spinal fusion of the thoracolumbar spine is remanded. In its May 2018 remand, the Board requested that the Agency of Original Jurisdiction (AOJ) afford the Veteran a new VA examination to determine the current severity of his service-connected spinal fusion. The remand also instructed the VA examiner to resolve conflicting medical evidence as to whether the Veteran’s neurologic symptoms of left lower extremity radiculopathy, bladder and bowel dysfunction, renal sphincter dysfunction, and any other identified neurologic abnormalities were manifestations of the Veteran’s lumbar spine disorder. Although the Veteran underwent a VA examination in June 2019 to ascertain the severity of his lumbar spine disorder, the VA examiner did not address the etiology of the Veteran’s documented neurologic symptoms. While a September 2020 VA examiner opined that the Veteran’s cauda equina syndrome, manifested by pain that radiates down the leg, numbness of the anus, and loss of bowel or bladder control, were associated with his lumbar spine disorder, the examiner did not provide an opinion as to whether the Veteran had left lower extremity radiculopathy, and if so, whether it was related to his service-connected spinal fusion, as instructed in the May 2018 Board remand directives. The Board must ensure compliance with the terms of its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders). In the present case, the Board finds that there has not been substantial compliance with its May 2018 remand directives. Therefore, another remand is required in order to procure a medical opinion that adequately addresses whether the Veteran had left lower extremity radiculopathy, and if so, whether it was related to his service-connected spinal fusion, before the Board can render a fully-informed decision on the merits of the Veteran’s appeal. 2. Entitlement to a TDIU prior to January 21, 2011 is remanded. The Veteran contends that an effective date prior to January 21, 2011 is warranted for his TDIU. Because the award of TDIU was assigned based upon the date that the Veteran first met the schedular criteria for an award of TDIU, the Veteran’s claim for entitlement to a TDIU prior to January 21, 2011 is intertwined with the claim remanded herein; accordingly, it must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Forward the claims file, a copy of this remand, and a copy of the May 2018 remand to an appropriate examiner for completion of an addendum medical opinion to determine whether the Veteran has left lower extremity radiculopathy, and if so, whether it is related to his service-connected spinal fusion. The examiner should specifically state whether the Veteran has a diagnosis of left lower extremity radiculopathy now or at any time during the appeal period. For each diagnosis, the examiner should provide an opinion addressing the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left lower extremity disorder, to include radiculopathy, was proximately due to his service-connected spinal fusion? (b.) If not, is it at least as likely as not (50 percent probability or greater) that the Veteran’s left lower extremity disorder, to include radiculopathy, was aggravated (worsened beyond its natural progression) by a service-connected disability, to include his service-connected spinal fusion? The examiner is advised that a finding that a disability is aggravated beyond its natural progression due to a service-connected disability does not require evidence of a permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. In providing opinions for whether the Veteran’s left lower extremity radiculopathy was proximately due to or aggravated by his service-connected spinal fusion, the examiner is specifically asked to address the conflicting medical evidence concerning whether the Veteran has left lower extremity radiculopathy found in a January 2016 private treatment record, the July 2016 VA examination, the June 2019 VA examination, and the September 2020 VA examination. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. 2. When the above development has been completed, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and afford the Veteran and his representative an adequate opportunity to respond, prior to returning the issue to the Board for appellate review. MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.