Citation Nr: 21010982 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 15-41 122A DATE: February 26, 2021 ORDER An effective date earlier than April 4, 2013, for service connection for radiculopathy of the right lower extremity sciatic nerve is denied. An effective date earlier than April 4, 2013, for service connection for radiculopathy of the left lower extremity sciatic nerve is denied. Service connection for obstructive sleep apnea is denied. A rating in excess of 10 percent for radiculopathy of the right lower extremity sciatic nerve prior to December 11, 2019, is denied. A rating in excess of 10 percent for radiculopathy of the left lower extremity sciatic nerve prior to December 11, 2019, is denied. A rating in excess of 20 percent for radiculopathy of the right lower extremity sciatic nerve effective December 11, 2019, is denied. A rating in excess of 20 percent for radiculopathy of the left lower extremity sciatic nerve effective December 11, 2019, is denied. A rating in excess of 20 percent for radiculopathy of the right lower extremity, femoral nerve effective December 11, 2019, is denied. A rating in excess of 20 percent for radiculopathy of the left lower extremity, femoral nerve effective December 11, 2019, is denied. REMANDED The issue of an increased rating for spinal stenosis with lumbar disc displacement, status post discectomy (previously rated as chronic lumbar strain), currently rated as 10 percent disabling prior to December 11, 2019, and rated 20 percent disabling effective December 11, 2019, is remanded. FINDINGS OF FACT 1. The grant of service connection for radiculopathy of the right lower extremity sciatic nerve arose from an increased rating claim for the Veteran’s lumbar spine that was received on April 4, 2013. 2. The grant of service connection for radiculopathy of the left lower extremity sciatic nerve arose from an increased rating claim for the Veteran’s lumbar spine that was received on April 4, 2013. 3. The preponderance of the evidence is against finding that obstructive sleep apnea began during active service or is otherwise related to an in-service injury or disease. 4. Prior to December 11, 2019, the Veteran’s radiculopathy of the right lower extremity sciatic nerve was manifested by no more than mild incomplete paralysis of the sciatic nerve. 5. Prior to December 11, 2019, the Veteran’s radiculopathy of the left lower extremity sciatic nerve was manifested by no more than mild incomplete paralysis of the sciatic nerve. 6. Effective December 11, 2019, the Veteran’s radiculopathy of the right lower extremity sciatic nerve was manifested by no more than moderate incomplete paralysis of the sciatic nerve. 7. Effective December 11, 2019, the Veteran’s radiculopathy of the left lower extremity sciatic nerve was manifested by no more than moderate incomplete paralysis of the sciatic nerve. 8. Effective December 11, 2019, the Veteran’s radiculopathy of the right lower extremity femoral nerve was manifested by no more than moderate incomplete paralysis of the femoral nerve. 9. Effective December 11, 2019, the Veteran’s radiculopathy of the left lower extremity femoral nerve was manifested by no more than moderate incomplete paralysis of the femoral nerve. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than April 4, 2013 for the grant of service connection for radiculopathy of the right lower extremity sciatic nerve have not been met. 38 U.S.C. §§ 5110, 5107(b); 38 C.F.R. § 3.400. 2. The criteria for an effective date earlier than April 4, 2013 for the grant of service connection for radiculopathy of the left lower extremity sciatic nerve have not been met. 38 U.S.C. §§ 5110, 5107(b); 38 C.F.R. § 3.400. 3. The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. Prior to December 11, 2019, the criteria for a disability evaluation in excess of 10 percent for the Veteran’s service-connected radiculopathy of the right lower extremity sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8520. 5. Prior to December 11, 2019, the criteria for a disability evaluation in excess of 10 percent for the Veteran’s service-connected radiculopathy of the left lower extremity sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8520. 6. Effective December 11, 2019, the criteria for a disability evaluation in excess of 20 percent for the Veteran’s service-connected radiculopathy of the right lower extremity sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8520. 7. Effective December 11, 2019, the criteria for a disability evaluation in excess of 20 percent for the Veteran’s service-connected radiculopathy of the left lower extremity sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8520. 8. Effective December 11, 2019, the criteria for a disability evaluation in excess of 20 percent for the Veteran’s service-connected radiculopathy of the right lower extremity femoral nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8526. 9. Effective December 11, 2019, the criteria for a disability evaluation in excess of 20 percent for the Veteran’s service-connected radiculopathy of the right lower extremity femoral nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1999 to July 2003. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in January 2019 for further development. When the Board remanded the claims, two of the issues involved whether an effective date prior to April 4, 2013, was warranted for service connection for radiculopathy of the right and left lower extremities. The issues were on appeal from an October 2013 rating decision that granted service connection under Diagnostic Code 8520, governing the sciatic nerve. These issues are decided below. In an August 2020 rating decision, the RO increased the ratings from 10 percent to 20 percent effective December 11, 2019. It also granted service connection for radiculopathy of the femoral nerves of the right and left lower extremities under Diagnostic Code 8526, effective December 11, 2019. In a January 2021 correspondence, the Veteran argued for an earlier effective date for service connection for the femoral nerves. The Veteran, however, has not yet filed a timely notice of disagreement with the effective date of the award of compensation for the femoral nerves. Thus, these issues are not currently before the Board. Earlier Effective Dates In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in a current disability was incurred in active service, or if pre-existing active service, was aggravated therein. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided, the effective date for an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless specifically provided, such determination is made on the basis of the facts found. 38 C.F.R. § 3.400(a). Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. Under 38 C.F.R. § 3.400(b)(2)(ii), the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151. An effective date earlier than April 4, 2013, for service connection for radiculopathy of the right and left lower extremities is denied. In October 2003, the Veteran filed a claim of service connection for a back injury. At a November 2003 VA examination, he reported that back pain radiated to his lower extremities; however, the neurologic examination was normal. The RO granted service connection for the Veteran’s lumbar strain in a January 2004 rating decision. The Veteran failed to file a timely notice of disagreement, and the decision became final. The Veteran filed an increased rating claim for his lumbar strain in December 2007. At an April 2008 VA examination, the Veteran once again reported that the pain radiated to his lower extremities. No objective findings were noted. The RO denied the increased rating claim by way of a June 2008 rating decision. The Veteran failed to file a timely notice of disagreement, and the decision became final. The Veteran filed another increased rating claim for his service-connected lumbar strain. The claim was received on April 4, 2013. It was accompanied by private treatment records from Sierra Providence East Medical Center which reflect numbness in both legs in March 2012. An August 2013 VA examination confirmed radiculopathy. The RO granted service connection for radiculopathy of the right and left lower extremities effective April 4, 2013 (the date of receipt of the claim). As noted above, the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. There has been no contention that a claim for radiculopathy was made within one year of separation from service (which occurred in July 2003). Moreover, the Veteran’s claims regarding his lumbar strain were decided in January 2004 and June 2008, and they were not appealed. In the absence of a claim filed within one year of separation, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. The Veteran filed an increased rating claim for his back that was received on April 4, 2013. He submitted private medical records reflecting numbness in March 2012. Consequently, even if it could be argued that entitlement arose prior to April 4, 2013, the proper effective date is whichever is later. Later, in this case, would be the date of receipt of the claim (April 4, 2013). There is no basis upon which to grant an earlier effective date for service connection. In a January 2021 correspondence, the Veteran argued that “the effective date can be up to one year prior to the Formal Claim as long as the medical evidence demonstrates the increase is warranted.” The Board notes that the effective date of an increased rating can be up to one year prior to the claim. The issue in this case is not the effective date of an increased rating. The issue is the effective date of service connection. Consequently, the argument is inapplicable. Additionally, the Veteran stated that “this issue has also been in continuous adjudication since the date of the claim.” As noted above, the issue has not been in continuous adjudication. To the contrary, the adjudications of January 2004 and June 2008 were final, as no timely notice of disagreement was filed, and new and material evidence was not submitted within one year of notification of the decision. This issue has only been in continuous adjudication since April 4, 2013. Service connection for sleep apnea is denied. The Veteran contends that he suffers from sleep apnea that arose during service or is otherwise due to service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. The Board concludes that, although the Veteran has a current diagnosis of sleep apnea, the evidence shows that the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of sleep began during service or is otherwise related to an in-service injury or disease. The service treatment records fail to reflect any findings attributed to sleep apnea. The Veteran failed to file a claim for sleep apnea when he filed claims for other disabilities in October 2003 or December 2007. He has failed to provide any rationale for his belief that sleep apnea is due to service. The Veteran underwent a sleep study in April 2008 that reflects disrupted sleep mostly likely due to the first night on Nasal Continuous Positive Airway Pressure (NCPAP). The Veteran underwent a VA examination in December 2019. He reported that his sleep apnea began during service, but that he does not remember what year. He stated that it began with loud snoring and daytime sleepiness. He reported that VA recommended that he undergo a sleep study, which occurred 8 or 9 years earlier. He stated that he was diagnosed with obstructive sleep apnea and given a CPAP machine to use nightly. The examiner opined that the Veteran’s obstructive sleep apnea was less likely than not etiologically related to military service to include an injury or symptomatology therein. He stated that there is no noted chronicity and/or continuity of care until many years after service ended. He stated that the Veteran’s current sleep apnea is more likely than not due to his current body mass index (BMI) of 40.1. He cited several studies that link an increase in BMI to sleep apnea. He stated that after review of the medical evidence, there is not enough evidence to support the Veteran’s obstructive sleep apnea to be etiologically related to military service to include any injury or symptomatology therein. The Veteran believes his obstructive sleep apnea is related to service. He is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the December 2019 VA examiner. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to service connection for sleep apnea must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Ratings 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. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s service-connected radiculopathy of the right lower extremity sciatic nerve has been rated by the RO under the provisions of Diagnostic Code 8520. Under this regulatory provision, a rating of 80 percent is warranted for complete paralysis of the sciatic nerve. A 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. A 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve. A 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. A 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. In the October 2013 rating decision that is the subject of this appeal, the RO granted service connection for right and left lower extremity radiculopathy, and assigned a 10 percent rating to each extremity effective April 4, 2013. In an August 2020 rating decision, the RO increased the rating in each lower extremity to 20 percent effective December 11, 2019. Consequently, there are two time periods to consider. Ratings in excess of 10 percent for radiculopathy of the right and left lower extremities sciatic nerve prior to December 11, 2019, is denied. The Veteran underwent a VA examination in April 2013. He reported flare-ups of his lumbar spine that occurred every day when walking and standing for approximately one hour. Pain was exacerbated when he sat for more than 30 minutes. He reported that when he stood, he losed some balance. He also reported right leg numbness and pain down to his feet. Upon examination, the Veteran had mild intermittent pain in each extremity, and mild numbness in each extremity. When asked to rate the severity of the radiculopathy, the examiner stated that it was mild in each extremity. Sensory examination was normal for both upper thighs, knees, lower leg/ankle, and feet/toes. Deep tendon reflexes were normal to both knees and ankles. In order for a rating in excess of 10 percent to be warranted, the Veteran’s radiculopathy would have to be manifested by moderate incomplete paralysis of the sciatic nerve. In this case, neither the right nor left lower extremity was manifested by moderate incomplete paralysis of the sciatic nerve. To the contrary, the April 2013 VA examiner found the Veteran’s symptomatology to be no more than mild. Consequently, a rating in excess of 10 percent is denied. Ratings in excess of 20 percent for radiculopathy of the right and left lower extremities, sciatic nerve, effective December 11, 2019, is denied. The Veteran underwent another VA examination in December 2019. He stated that he has daily symptoms were progressively getting worse. He described a sharp, shooting pain that radiated down both legs. He also reported constant tingling, and numbness that was intermittent (comes and goes). He stated that he was limited in bending. He reported that staying in any position for a prolonged period of time will aggravate the condition. He also reported some swelling to his feet. Upon examination, the Veteran reported mild intermittent pain to both lower extremities, mild paresthesias and/or dysesthesias to both lower extremities, and mild numbness to both lower extremities. Muscle strength testing to the lower extremities was normal. Reflex examination showed hypoactive responses in both knees and ankles. Sensory examination showed decreased sensation in both upper anterior thighs (L2), both thighs/knees (L3), both lower legs/ankles (L4/L5/S1), and both feet/toes (L5). There was mild incomplete paralysis of both sciatic nerves, and mild incomplete paralysis of both femoral nerves. The Veteran did not use any assistive devices as a normal mode of locomotion. In order for a rating in excess of 20 percent to be warranted, the Veteran’s disability must be manifested by moderately severe incomplete paralysis of the sciatic nerve. In this case, the results of the December 2019 VA examination reflect that the Veteran had no more than mild incomplete paralysis of the sciatic nerve. Consequently, a rating in excess of 20 percent is denied. Ratings in excess of 20 percent for radiculopathy of the right and left lower extremities, femoral nerve, effective December 11, 2019, is denied. The RO, in its August 2020 rating decision, granted service connection for radiculopathy of the right and left femoral nerves, and it granted a 20 percent rating for each lower extremity. The Veteran’s service-connected radiculopathy of the right and left lower extremity femoral nerve has been rated by the RO under the provisions of Diagnostic Code 8526. Under this regulatory provision, a rating of 40 percent is warranted for complete paralysis of the femoral nerve. A 30 percent rating is warranted for severe incomplete paralysis of the femoral nerve. A 20 percent rating is warranted for moderate incomplete paralysis of the femoral nerve. A 10 percent rating is warranted for mild incomplete paralysis of the femoral nerve. In order to warrant rating in excess of the current 20 percent rating in each lower extremity, the Veteran’s disability would have to be manifested by severe incomplete paralysis of the femoral nerve. At the Veteran’s December 2019 VA examination, the examiner deemed the Veteran’s disability to be manifested by mild incomplete paralysis of the femoral nerve (bilaterally). Consequently, the criteria for a higher rating are not met. Ratings in excess of 20 percent for radiculopathy of the right and left lower extremities, femoral nerve, is denied. REASONS FOR REMAND An increased rating for spinal stenosis with lumbar disc displacement, status post discectomy (previously rated as chronic lumbar strain), currently rated as 10 percent disabling prior to December 11, 2019, and rated 20 percent disabling effective December 11, 2019, is remanded. The Veteran underwent a VA examination in December 2019. The examination report states that the Veteran did not report flare-ups of the disability. In a January 2021 correspondence, the Veteran argued that he still experiences frequent spasms and debilitating pain (which would be considered flare-ups). He stated that during these flare-ups, he must lie on his back, use heat/ice, and stretch until the pain subsides. He stated that after performing yard work, it takes days to recover. Given the apparent contradiction between the Veteran’s reporting of symptoms (including flare-ups), and the December 2019 examination report in which the Veteran’s flare-ups are not noted, the Board finds that a new VA examination in necessary. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the current severity of his service-connected spinal stenosis with lumbar disc displacement, status post discectomy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should note the flare-ups described in the January 2021 correspondence, including muscle spasms and increased pain, that (according to the Veteran) require several days of lying on his back in order to recover. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.