Citation Nr: 21009976 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-10 180A DATE: February 23, 2021 ORDER An initial rating in excess of 20 percent for a low back disability, characterized as degenerative arthritis of the spine, is denied. Entitlement to service connection for a right knee disorder, characterized as knee pain, is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s low back disability has been characterized by pain, limitation of motion, forward flexion no less than 50 degrees, and a combined range of motion no less than 110 degrees; neither favorable nor unfavorable ankylosis of the thoracolumbar spine have not been shown. 2. The evidence of record does not demonstrate that the Veteran currently experiences a diagnosed right knee condition, nor has he experienced one during the pendency of the appeal or recent to the filing of the claim. 3. The Veteran’s sleep apnea was not shown in service or for many years thereafter, and is not otherwise related to active duty service. 4. Throughout the period on appeal, the Veteran’s service-connected disabilities did not prevent him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243. 2. The criteria for entitlement to service connection for a right knee condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304 3. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 4. The criteria for entitlement to a total disability rating based on unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.19, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to June 1986. These matters return to the Board of Veterans’ Appeals (Board) following the issuance of an August 2018 remand decision which directed the Regional Office (RO) to complete additional development. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). For musculoskeletal disabilities, a higher rating may be warranted based on greater limitation of motion due to pain on use, including during flare-ups. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and therefore, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. 1. An initial rating in excess of 20 percent for a low back disability, characterized as degenerative arthritis of the spine The Veteran contends that his back disability is worse than the rating currently assigned contemplates. During the period on appeal, the Veteran’s low back disability has been assigned a 20 percent rating under 38 C.F.R. § 4.71a, DCs 5242-5243 (addressing limitation of motion and IVDS of the lumbar spine). A rating in excess of 20 percent is warranted for a lumbar spine disability when the evidence shows: • Forward flexion of the thoracolumbar spine greater than 30 degrees or less (40 percent); • Favorable ankylosis of the entire thoracolumbar spine (40 percent); or • IVDS With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent). 38 C.F.R. § 4.71a. DCs 5003, 5242. After a review of the evidence, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran’s lumbar spine disability. The Veteran was afforded VA medical examinations in September 2016 and May 2019. At the September 2016 VA examination, the Veteran reported constant pain especially with movement, he did not report flare-ups. On examination, the Veteran displayed forward flexion to 50 degrees with some limited motion due to pain. The Veteran did not demonstrate pain with weight bearing or an inability to perform repetitive motion. The examiner noted localized tenderness and mild pain on palpation. The examiner indicated that there was no guarding or muscle spasm, and no use of assistive devices employed by the Veteran. The examiner did not endorse a diagnosis of IVDS, and indicated that the Veteran had no additional neurologic symptoms or diagnoses associated with his low back disability. The examiner indicated that there was no ankylosis. Finally, the examiner noted that the Veteran’s low back disability would likely mildly impact the Veteran’s ability to perform physical labor but would not likely impact his ability to engage in sedentary work. Similarly, at a May 2019 VA examination the Veteran reported pain and functional loss, specifically that he cannot sit or stand for long periods of time without pain and discomfort, and that he cannot lift but minimal objects or bend over without pain. He also reported the worsening of his back disability. The Veteran did not endorse flare-ups. Upon examination, the Veteran displayed forward flexion to 80 degrees, there was no documented reduction in range of motion due to pain. The examiner did indicate that there was pain on motion, including with weight bearing and repetitive use. The examiner documented pain on palpation, which was described as “achy” by the Veteran. The examiner noted that the Veteran experiences muscle spasm resulting in abnormal gait or spine contour leading to interference with standing and sitting, guarding was not endorsed. The examiner did not endorse a diagnosis of IVDS, ankylosis, or any additional neurological disorder related to his low back disability. In terms of the functional impact of the Veteran’s low back disability, the examiner noted that the Veteran was retired, and lost 0-1 weeks of work time lost in the past 12 months and that the Veteran cannot stand or sit for long periods of time without pain or discomfort. In evaluating the extent of a Veteran’s low back disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71a , Note 1. The Veteran has not been diagnosed with any neurological disabilities associated with his low back disability, such as nerve conditions of other extremities or disabilities of the bladder or renal system. There are no indications of neurological disabilities or associated symptoms in the Veteran’s medical records. Additionally, there were no diagnoses of associated neurological disabilities at the VA examinations conducted in September 2016 or May 2019. In fact, the both examiners specifically concluded that the Veteran did not have any associated neurological symptoms resulting from his low back disability. As such, the Board determines that separate ratings based on neurological abnormalities associated with the Veteran’s back disability are not warranted. There was no evidence in the Veteran’s treatment records to support a rating in excess of 20 percent based upon limitation of motion. Therefore, a rating in excess of 20 percent is not for application. When considering these ratings, the Board has considered the impact of functional loss in the Veteran’s back due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 206 -07 (1995). In this case, the Veteran has complained of constant pain, limitation of motion, and discomfort in relation to sitting or standing for long periods of time. However, while the Veteran experiences the aforementioned symptoms, overall, it does not appear that these symptoms result in additional and significant functional loss, and his complaints are adequately contemplated in the ratings he currently receives. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Here, while the Veteran has alleged that he is functionally limited due to his low back disability, including the activities he enumerated, his medical records and VA examinations are silent for any discussion of his being limited to the extent that would indicate that a higher rating was warranted for his low back disability. The Board notes that the Veteran has not submitted any relevant clinical evidence, including private examinations or opinions, that would support his contentions for the period on appeal. In considering the appropriate disability ratings, the Board has also considered the statements of the Veteran, that the severity of his low back disability is worse than the rating currently assigned. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s disabilities has been provided by the medical personnel who have examined his during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Therefore, based on the evidence of record, the Board determines that a rating in excess of 20 percent is not warranted and the 20 percent rating adequately contemplates the severity of his low back disability. Accordingly, the evidence of record does not indicate that the Veteran’s low back disability is more severe than the ratings already assigned to it for the period on appeal, and his appeal is denied. Service Connection The Veteran asserts that his right knee disorder and sleep apnea began in and are related to his time in service. He has not alleged a specific event or injury in service for either claim. The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 2. Entitlement to service connection for a right knee disorder, characterized as knee pain The Veteran contends generally that he has right knee pain. The question before the Board is whether the Veteran has a diagnosable right knee condition that is attributable to an in-service injury, event or occurrence. Upon consideration of the record, the Board concludes that the preponderance of the evidence is against a finding that the Veteran has a diagnosable right knee condition. The Veteran’s service treatment records are silent for any indication of a chronic right knee disorder, including treatment, complaints, signs, or a diagnosis. In fact, the Veteran’s March 1986 retirement examination was silent for any indication of a knee disorder or related symptoms. Available post-service medical records do not show that the Veteran been diagnosed with a disorder of the knee. However, such records do show that he has sought treatment for knee pain in general evidenced by treatment notes from January 2003, December 2005, and June 2010. The Veteran was afforded a VA medical examination for his knee in May 2019. The examiner declined to endorse a diagnosis for a right knee disorder and noted that the Veteran’s right knee had complete and normal range of motion. The examiner did note that the Veteran states that he was treated for knee pain in service. However, the examiner noted that this was an acute condition which by itself does not illustrate the presence of a chronic disorder. Moreover, the examiner noted that the record does not support continuity of care for such a claim. There is no competent evidence to suggest that the Veteran currently has a diagnosable right knee injury. Although he asserts generally that he has right knee pain, the available evidence shows full range of motion and no functional loss; therefore, the evidence does not support finding the Veteran’s pain reaches a level of functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (2018). In light of the above evidence showing no current diagnosis of a right knee condition, the Board finds that the preponderance of the evidence is against a determination that, even in light of Saunders, the Veteran has the condition at issue or that it is attributable to service. Accordingly, service connection for a right knee condition must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107 (b). 3. Entitlement to service connection for sleep apnea Initially, the Board notes that the Veteran has a current diagnosis for sleep apnea. However, after a detailed review of the evidence of record, the Board concludes that the preponderance of the evidence weighs against finding that this disorder began during service or is otherwise etiologically related to an in-service injury, event, or disease. 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), (d), 3.304, 3.307, 3.309, 3.317. In this case, the service treatment records reflect do not reflect complaints, symptoms, or a diagnosis of sleep apnea. Of note, the Veteran’s March 1986 retirement examination is silent for any indications of sleep apnea, or other related sleep related symptoms or disorders. Instead, the Veteran and examiner reported that he was in “good” health. Further, while the post-service medical evidence includes the Veteran’s report of symptoms since the 1990s, medical evidence does not reflect treatment or a diagnosis of sleep apnea until June 2019, approximately 33 years since his separation from service. Therefore, continuity of symptoms has not been shown based on the clinical evidence. While the Veteran has not specifically claimed that he has experienced sleep apnea symptoms since active duty, the Board infers this from his claim. While the Veteran is competent to report that he experienced symptoms related to these disorders during and since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is nonetheless insufficient by itself to support a relationship between his disorders and active service. As an initial matter, the large gap in treatment for his disorder weighs against the Veteran’s claims. Additionally, the Board notes that the Veteran filed a claim for education benefits in July 1986, and for VA medical benefits many years prior to filing the claims on appeal. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out a claim for other benefits, but made no reference to the disorders he now claims, weighs heavily against his credibility. Next, although the Veteran is not competent to diagnose and provide etiological opinions related to the disorders on appeal, service connection may also be established if a relationship is demonstrated by competent evidence, including medical evidence and opinions. Here, the competent evidence fails to establish a relationship between active duty and the Veteran’s current symptoms. In this regard, the Board places significant probative value on the opinions from the May 2019 VA examiner that performed a detailed review of the Veteran’s service and medical treatment records and an in-person examination. Specifically, the examiner determined that the Veteran’s sleep apnea may have onset in the 1990s due to reported snoring from the Veteran and his wife. However, the examiner also notes that a formal diagnosis for sleep apnea was given in 2019. The Veteran reported snoring, waking up several times at night, and not feeling rested following sleeping. The examiner concluded that the Veteran’s sleep apnea was less likely than not related to service citing the lack of medical treatment in the 33 years between his retirement and diagnosis. Lastly, as part of this claim, the Board recognizes the statements from the Veteran, regarding the relationship between his disorders and active service. Nevertheless, while he is competent to provide testimony regarding observable symptomatology, he is not competent to provide a nexus opinion in this case. As discussed, these issues are medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s disorders are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection for sleep and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. TDIU 4. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran asserts that he is unable to work because of his service-connected low back and tinnitus disabilities, and therefore seeks TDIU. The Board finds the claim must be denied. A Veteran will be entitled to TDIU upon establishing he is in fact unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Consideration may be given to his level of education, any special training, and previous work experience in making this determination, but not to his age or impairment from disabilities that are not service connected (i.e., unrelated to his military service). See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19. To qualify for a total rating for compensation purposes on a schedular basis, the evidence must show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities-provided there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). In a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As an initial matter, the Board notes that the Veteran currently meets the schedular requirements for TDIU. The Veteran is currently service connected for asbestosis at 60 percent; a low back disability at 20 percent; tinnitus at 10 percent; hearing loss at 10 percent; and he receives noncompensable ratings for a skin disorder, prostate cancer residuals, and erectile dysfunction. However, the Board finds that the Veteran's service-connected disabilities do not prevent him from securing or following a substantially gainful occupation on a factual basis. See 38 C.F.R. § 4.16 (b). Specifically, he contends that his service-connected low back disorder and tinnitus render him unable to secure and maintain substantially gainful occupation. In this case, the May 2012 VA examiner opined that the Veteran’s hearing loss and tinnitus do not affect his functional ability and they should not keep him from obtaining and maintaining gainful employment. The Veteran reported trouble hearing, and often having to ask people to repeat themselves. The September 2016 VA examiner did indicate that the Veteran’s hearing loss and tinnitus do impact his functional ability but did not provide an opinion as to the functional impact. At the Veteran’s September 2016 low back disability VA examination, the Veteran reported constant pain, especially when ambulating. Flare-ups were not endorsed. The VA examiner opined that the Veteran’s low back disability would likely mildly impact his ability to perform physical tasks but not those of a sedentary nature. The examiner did not endorse diagnoses of ankylosis, IVDS, or associated neurological disorders. Additionally, upon examination, there was no documented loss in range of motion due to pain, weight bearing, or repetition. The Veteran was not noted to employ the use of assistive devices to move. At the Veteran’s May 2019 low back disability VA examination, the Veteran reported daily back pain, worsening symptoms, and an inability to sit or stand for long periods of time without pain and discomfort. Flare-ups were denied. The examiner noted that there was no loss of range of motion due to pain, weight bearing, or repetition, but did not that the Veteran experienced muscle spasm leading to abnormal gait and/or spinal contour resulting in interference in standing or sitting. The examiner did not endorse diagnoses of ankylosis, IVDS, or other associated neurological disorders associated with spinal disabilities. The examiner noted that the Veteran does not need assistive devices to move. The examiner noted that the Veteran was retired and that to the extent that his low back disability impacts his functional ability to work that he cannot sit or stand for long periods of time. The examiner did not indicate that this would preclude the Veteran from working in a sedentary position entirely. Finally, the Veteran was afforded a VA examination to evaluate his asbestosis in May 2019. The Veteran noted that he cannot walk long distances without shortness of breath, for example, he noted that he cannot perform yard work for more than four hours without difficulty. The examiner noted that his asbestosis results in a negative impact to his functional ability but did not opine that he would be precluded from working, including in a sedentary job, from this disability. The Veteran’s medical records are silent for any additional notations of functional loss caused by the Veteran’s service-connected disabilities. There are no further limitations documented in the available clinical evidence. The Board has also considered the Veteran's level of education and previous work experience. See 38 C.F.R. §§ 4.16. In this case, the Veteran worked as a postal employee for the United States Postal Service from August 1990 to December 2005. He is a high school graduate with some college experience. Given that the evidence of record does not indicate that the Veteran is completely unable to engage in work, such as that of a sedentary nature, the Board finds that the evidence concerning his education and training, in conjunction with the medical evidence, shows that his service-connected disabilities do not prevent him from securing or following a substantially gainful occupation. The Board notes the Social Security Administration has defined “sedentary work” as work that “involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools.” Moreover, although a sedentary job is defined as one which involves sitting, “a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. 404.1567 (a). The Board finds that this definition is adequate for adjudication purposes here. In this case, the Veteran’s occupational background and level of education confirms that he was qualified for sedentary occupations during the period on appeal. Additionally, the Veteran, in his medical records, has indicated that he is still able to enjoy activities such as golfing, gardening, and taking walks around his neighborhood. Thus, the VA medical opinions indicating that his specific disabilities do not preclude sedentary work, as defined above, weighs against the instant TDIU claim because the Veteran’s background indicates he is well qualified for sedentary work, such as work in an administrate capacity at a desk. Id. at 148 (before the Board can rely on an examiner’s finding that a veteran is capable of sedentary work to deny TDIU, it must also ensure that the finding is consistent with the medical evidence as a whole). Moreover, the Board finds that the clinical evidence is sufficient for the Board to make its own conclusions. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner). In this regard, the Board notes that despite the statements from the Veteran, the most probative evidence, including the numerous VA examinations, does not support a finding that he is entitled to TDIU as his service-connected disabilities do not prevent him from working. As a result, the weight of the evidence is against the Veteran's claim for entitlement to TDIU. As such, the Veteran's claim is denied. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board's decision in the above decisions 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Hernan, Associate Counsel