Citation Nr: 21014389
Decision Date: 03/12/21	Archive Date: 03/12/21

DOCKET NO. 17-28 206
DATE: March 12, 2021

ORDER

Prior to March 13, 2017, entitlement to a compensable disability rating for service-connected bilateral hearing loss is denied.

Beginning March 13, 2017, entitlement to a 10 percent disability rating for service-connected bilateral hearing loss is granted.

Entitlement to an initial disability rating in excess of 30 percent for service-connected bronchitis is denied.

Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) is denied.

Entitlement to a disability rating in excess of 30 percent for service-connected osteoarthritis of the right shoulder (hereafter referred to as a “right shoulder disability”) is denied.

Prior to March 24, 2018, entitlement to a disability rating in excess of 20 percent for service-connected lumbar strain with degenerative arthritis (hereafter referred to as a "low back disability") is denied.

Beginning March 24, 2018, entitlement to a 40 percent disability rating for service-connected low back disability is granted.

Prior to March 24, 2018, entitlement to a disability rating in excess of 20 percent for service-connected degenerative joint disease of the cervical spine (hereafter referred to as a "neck disability") is denied.

From March 24, 2018, to June 7, 2020, entitlement to a 30 percent disability rating for service-connected neck disability is granted.

Beginning June 8, 2020, entitlement to a disability rating in excess of 20 percent for service-connected neck disability is denied.

Beginning March 24, 2018, entitlement to a separate 20 percent disability rating for radiculopathy of the sciatic nerve branch for the right lower extremity is granted.

Beginning March 24, 2018, entitlement to a separate 20 percent disability rating for radiculopathy of the sciatic nerve branch for the left lower extremity is granted.

Beginning March 24, 2018, entitlement to a separate 30 percent disability rating for radiculopathy of the radial nerve for the right upper extremity is granted.

Beginning March 24, 2018, entitlement to a separate 20 percent disability rating for radiculopathy of the radial nerve for the left upper extremity is granted.

REMAND

Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected bronchitis or PTSD, is remanded.

Entitlement to service connection for a left shoulder disability is remanded.

FINDINGS OF FACT

1. Prior to March 13, 2017, the Veteran’s both manifest level I hearing impairment.

2. Beginning March 13, 2017, the Veteran’s right ear manifests level II hearing impairment, and his left ear manifests level V hearing impairment.

3. The Veteran’s service-connected bronchitis does not manifest at least FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit).

4. The Veteran’s service-connected PTSD more closely approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily, with routine behavior, self-care, and conversation.

5. The Veteran’s service-connected right shoulder disability does not manifest limitation of flexion or abduction to at least 25 degrees from the side.

6. Prior to March 24, 2018, the Veteran’s service-connected low back disability does not manifest limitation of flexion to at least 30 degrees or any form of ankylosis.

7. Beginning March 24, 2018, the Veteran’s service-connected low back disability manifests limitation of flexion to at least 30 degrees.

8. Prior to March 24, 2018, the Veteran’s service-connected neck disability does not manifest limitation of flexion to at least 15 degrees or any form of ankylosis.

9. From March 24, 2018, to June 7, 2020, the Veteran’s service-connected neck disability manifests limitation of flexion to at least 15 degrees.

10. Beginning June 8, 2020, the Veteran’s service-connected neck disability does not manifest limitation of flexion to at least 15 degrees or any form of ankylosis.

11. Beginning March 24, 2018, the Veteran’s right lower extremity manifests moderate radiculopathy of the sciatic nerve.

12. Beginning March 24, 2018, the Veteran’s left lower extremity manifests moderate radiculopathy of the sciatic nerve.

13. Beginning March 24, 2018, the Veteran’s right upper extremity (dominant arm) manifests moderate radiculopathy of the radial nerve.

14. Beginning March 24, 2018, the Veteran’s left upper extremity (non-dominant arm) manifests moderate radiculopathy of the radial nerve.

CONCLUSIONS OF LAW

1. Prior to March 13, 2017, the criteria for entitlement to a compensable disability rating for service-connected bilateral hearing loss are not met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100.

2. Beginning March 13, 2017, the criteria for entitlement to a 10 percent disability rating for service-connected bilateral hearing loss are met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, DC 6100.

3. The criteria for entitlement to an initial disability rating in excess of 30 percent for service-connected bronchitis are not met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.97, DC 6600.

4. The criteria for entitlement to an initial disability rating in excess of 30 percent for service-connected PTSD are not met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.130, DC 9411.

5. The criteria for entitlement to a disability rating in excess of 30 percent for service-connected right shoulder disability are not met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5200–5203.

6. Prior to March 24, 2018, the criteria for entitlement to a disability rating in excess of 20 percent for service-connected low back disability are not met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5235–5243.

7. Beginning March 24, 2018, the criteria for entitlement to a 40 percent disability rating for service-connected low back disability are met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5235–5243.

8. Prior to March 24, 2018, the criteria for entitlement to a disability rating in excess of 20 percent for service-connected neck disability are not met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5235–5243.

9. From March 24, 2018, to June 7, 2020, the criteria for entitlement to a 30 percent disability rating for service-connected neck disability are met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5235–5243.

10. Beginning June 8, 2020, the criteria for entitlement to a disability rating in excess of 20 percent for service-connected neck disability are not met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5235–5243.

11. Beginning March 24, 2018, the criteria for entitlement to a separate 20 percent disability rating for radiculopathy of the sciatic nerve for the right lower extremity are met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124a, DC 8520.

12. Beginning March 24, 2018, the criteria for entitlement to a separate 20 percent disability rating for radiculopathy of the sciatic nerve for the left lower extremity are met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124a, DC 8520.

13. Beginning March 24, 2018, the criteria for entitlement to a separate 30 percent disability rating for radiculopathy of the radial nerve for the right upper extremity are met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124a, DC 8514.

14. Beginning March 24, 2018, the criteria for entitlement to a separate 20 percent disability rating for radiculopathy of the radial nerve for the left upper extremity are met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124a, DC 8514.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1994 to August 1994, July 2006 to November 2007, and August 2010 to October 2011.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska.

A Board hearing was conducted via videoconference with the RO in Anchorage, Alaska.  A transcript of this hearing is contained within the electronic claims file.  See August 23, 2019, Hearing Transcript (Tr.).

The Board previously addressed these claims in an April 2020 decision.  There, the Board held that remand was necessary to obtain outstanding Social Security Administration (SSA) records and any other outstanding VA medical center (VAMC) records.  Since that decision, SSA, VAMC, and private medical records have been added to the claims file.  Thus, VA substantially has complied with the Board’s previous directives, nad the Board now may adjudicate these claims.  See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Where 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.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).

While a veteran’s entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).

In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings.  Hart v. Mansfield, 21 Vet. App. 505, 509 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary.

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran.  38 C.F.R. § 4.3.

1. Prior to March 13, 2017, entitlement to a compensable disability rating for service-connected bilateral hearing loss is denied; thereafter, entitlement to a 10 percent disability rating is granted.

The Veteran originally was awarded service connection for his bilateral hearing loss via a September 2013 rating decision; he was awarded a noncompensable rating effective October 14, 2011.  In July 2016, the Veteran filed the instant increase rating claim.

The assignment of disability ratings for hearing impairment are to be derived by mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  In cases in which the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  Examinations are conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).

Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the pure tone threshold average (horizontal axis) and the percentage of speech discrimination (vertical axis).  The Roman numeral designation is located at the point where the pure tone threshold average and the percentage of speech discrimination intersect.  38 C.F.R. § 4.85(b).

Table VIA, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average.  Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86.  38 C.F.R. § 4.85(c).

“Puretone threshold average,” as used in Tables VI and VIA, is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA.  38 C.F.R. § 4.85(d).

Table VII, “Percentage Evaluations for Hearing Impairment (Diagnostic Code 6100),” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing of the two ears, and the vertical column represents the ear having the better hearing of the two.  The percentage evaluation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(e).

Exceptional patterns of hearing impairment occur when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  When this occurs, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86.

With respect to hearing loss, an audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).

An August 2016 VA examination report noted audiological examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history.  That examination produced the following results:

Hertz (HZ)	1000	2000	3000	4000	Average Hz

Right Ear	20	20	20	30	23

Left Ear	20	20	15	20	19

The Veteran’s right ear received a speech discrimination score of 96 percent, and his left ear received a score of 100 percent.  The Veteran described his functional loss as his coworkers thinking he is yelling at them.

With an average pure tone threshold of 23 and a speech discrimination score of 96 percent, the Veteran’s right ear manifests Level I impairment.  With an average pure tone threshold of 19 and a speech discrimination score of 100 percent, the Veteran’s left ear manifests Level I impairment.  See 38 C.F.R. § 4.85(b), Table VI.  Thus, with both ears manifesting Level I hearing impairment, the Veteran’s bilateral hearing loss meets the criteria for a noncompensable rating only.  See 38 C.F.R. § 4.85(e), DC 6100, Table VII.  This examination yielded no pattern of exceptional hearing loss.  See 38 C.F.R. § 4.86.

Private treatment records from September 2016 document the Veteran’s complaints of hearing loss, but the records do not contain any sort of audiological testing data.

In a March 13, 2017, Correspondence, the Veteran alleged that his hearing was worsening and that he and his wife argue a lot due to his hearing loss.

A March 2018 VA examination report noted audiological examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history.  That examination produced the following results:

Hertz (HZ)	1000	2000	3000	4000	Average Hz

Right Ear	25	30	30	35	30

Left Ear	30	30	25	40	31.25

The Veteran’s right ear received a speech discrimination score of 86 percent, and his left ear received a score of 60 percent.  The Veteran described his functional loss as arguing with his wife.

With an average pure tone threshold of 30 and a speech discrimination score of 86 percent, the Veteran’s right ear manifests Level II impairment.  With an average pure tone threshold of 31.25 and a speech discrimination score of 60 percent, the Veteran’s left ear manifests Level V impairment.  See 38 C.F.R. § 4.85(b), Table VI.  Thus, with the Veteran’s better ear (right ear) manifesting Level II hearing impairment, and with his worse ear (left ear) manifesting Level V hearing impairment, his bilateral hearing loss meets the criteria for a 10 percent disability rating only.  See 38 C.F.R. § 4.85(e), DC 6100, Table VII.  This examination yielded no pattern of exceptional hearing loss.  See 38 C.F.R. § 4.86.

At the hearing, the Veteran testified that his hearing had worsened and that he submitted private audiological records.  See Tr. at 10.

Conducting a mechanical application of the audiological testing available to the Board shows that the Veteran does not meet the threshold criteria for a compensable rating until the March 2018 VA examination.  Nevertheless, because the Veteran alleged that his hearing worsened back on March 13, 2017, the Board will not penalize the Veteran with the amount of time it took VA to afford him a new examination, especially where that examination confirmed worsening.  Thus, prior to March 13, 2017, the evidence does not show that the Veteran’s bilateral hearing loss warrants a compensable rating.  Beginning that date, however, and affording all reasonable doubt to the Veteran, the Board will find that he is entitled to 10 percent disability rating.  See Lendenmann, 3 Vet. App.at 349; 38 C.F.R. §§ 4.85, 4.86.

2. Entitlement to an initial disability rating in excess of 30 percent for service-connected bronchitis is denied.

The Veteran originally was awarded service connection for bronchitis in the December 2016 rating decision now on appeal; he was awarded a 30 percent disability rating effective March 23, 2016.  The Veteran timely appealed on his May 20, 2017, Notice of Disagreement (NOD).

Under 38 C.F.R. § 4.97, DC 6600, a 100 percent disability rating requires FEV-1 less than 40 percent of predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy.

FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit) warrants a 60 percent rating.

A 30 percent requires FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted.

A 10 percent requires FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted.

A May 2016 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history.  The report indicates that prior January 2015 pulmonary function test (PFT) results, which accurately reflected the Veteran’s current pulmonary function, were of record and indicated FEV-1 60 percent predicted and FEV-1/FVC 73 percent.

A December 2016 bronchitis examination reported the same January 2015 figures.

A March 2018 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history.  An updated PFT was obtained and indicated FEV-1 56 percent predicted, FEV-1/FVC 65 percent, and DLCO 81 percent predicted.  The examiner noted that FEV-1 percent predicted was the most accurate number for this Veteran.

Other medical evidence of record documents the continued care and treatment of the Veteran’s chronic bronchitis but does not contain the necessary laboratory data needed to rate the Veteran’s condition.

Looking at the data available to the Board, the Veteran does not qualify for a disability rating in excess of 30 percent.  At their worst, the Veteran’s FEV-1 was 56 predicted; his FEV-1/FVC was 65 percent; and his DLCO was 81 percent.  None of these figures qualify the Veteran for a rating in excess of 30 percent.  Thus, the Veteran’s appeal on this issue is denied.  See 38 C.F.R. § 4.97, DC 6600.

3. Entitlement to an initial disability rating in excess of 30 percent for service-connected PTSD is denied.

The Veteran originally was awarded service connection for PTSD in a July 2016 rating decision; he was awarded a 30 percent disability rating effective March 23, 2016.  The instant rating claim was filed in September 2016, which VA denied in the December 2016 rating decision now on appeal.

For psychiatric disabilities, a 100 percent disability rating contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. § 4.130.

A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood, due to such symptoms as: suicidal ideation; obsessional rituals, which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships.

A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and/or difficulty in establishing and maintaining effective work and social relationships.

A 30 percent rating requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication warrants a 10 percent rating.

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant a particular rating, but are not meant to be exhaustive, and the Board need not find all, or even some, of the symptoms to award a specific rating.  Mauerhan v. Principi, 16 Vet. App. 436, 442–43 (2002).  If the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a specific rating, the appropriate, equivalent rating will be assigned.  Id. at 443.  The rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed. Cir. 2013).

VA is precluded from differentiating between the symptoms of the Veteran’s service-connected PTSD and those of her other mental disorders in the absence of clinical evidence that clearly shows such a distinction.  See Mittleider v. West, 11 Vet. Ap. 181, 182 (1998).  Furthermore, because all psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders, a single evaluation will be assigned that encompasses all of the Veteran’s overlapping psychiatric symptoms, however diagnosed.  See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009).

A January 2016 private psychological evaluation from Dr. M.S. is of record.  The report contains the following summary:

[The Veteran] is a 56 year old Army veteran who reported extensive physical behavioral health issues following his second deployment in Iraq.  He endorsed a significant amount of issues related to intrusive dreams, thoughts, and physical reaction related to his military experience.  He also exhibits avoidance of stimuli associated with a variety of traumatic events in Iraq.  [The Veteran] expressed concern about persistent negative moods and feeling emotionally numb since he has returned to the states.  He also reports irritability, sleep issues, and being extra alert and on edge.  Although he rated these symptoms as mostly extreme and problematic, a second assessment (MMPI-2-RF) suggests that he may have unintentionally over reported these symptoms.  Although this does not negate that he may experience PTSD symptoms, an accurate measure of their presence and intensity cannot be determined by this evaluation.

At this time, it was noted that the Veteran currently is married and has a good relationship with his ex-wife and child.  The Veteran was working for Anchorage Airport.

In a March 2016 Correspondence, the Veteran reported experiencing nightmares, getting easily mad and wanting to kill people when he is put down, blank thinking, suicidal ideation, remaining vigilant when he hears loud noises, and terrible sleep.

A June 2016 VA examination report noted mental examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history.  The examiner indicated that the Veteran exhibited occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.  Noted symptoms were anxiety, chronic sleep impairment, and mild memory loss.  At this time, the Veteran worked at the Anchorage Airport as a wheelchair agent, which he enjoyed for the exercise, despite the job’s low ranking.  The report notes that the Veteran has a college degree in agriculture.

A November 2016 VA examination report noted mental examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history.  The examiner indicated that the Veteran exhibited occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation.  Noted symptoms were depressed mood, anxiety, chronic sleep impairment, and suspiciousness.  The Veteran lives with his wife of three and one-half years and his eleven-year-old stepdaughter.  The Veteran’s hobbies include going for walks, which allow him to think, watching the Philippine news and movies, visiting with his uncle and his uncle’s family, or going grocery shopping.  The Veteran attends church every Sunday (either alone or with his wife) and enjoys going to the range for practice.  The Veteran’s long-term goal is to move somewhere warmer and noted that he owns property in the Philippines near Clark Air Force Base.  The Veteran continues to work at the Anchorage Airport as a wheelchair agent, but notes that he desires a different career, potentially with VA as a representative.  The Veteran specifically noted that he “‘can do office work.’”

A March 2018 VA examination report noted mental examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history.  The examiner indicated that the Veteran exhibited occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.  Noted symptoms were depressed mood, anxiety, and chronic sleep impairment.  Since the Veteran’s last examination, he described his family life as good and stable.  The Veteran continues to work at the Anchorage Airport and denied any occupational impairment.

There are various mental health evaluations contained in the Veteran’s SSA records.  A May 2019 psychiatric evaluation by Dr. D.M. notes that the evidence shows that the Veteran’s impairment due to PTSD is “mild,” and that he is able to understand, remember, and apply information accordingly.  Dr. D.M. noted that the Veteran’s PTSD causes moderate impairment for interactions with others, noting the Veteran’s fear of large crowds; however, the Veteran still attends church services, goes shopping, and attends family gatherings.  The Veteran also has the support of his wife and daughter.  Dr. D.M. noted that, in considering the entirety of the medical evidence available to him, the Veteran’s statements regarding the Veteran’s symptoms of PTSD were not consistent.  A May 2019 psychiatric evaluation by Dr. D.G. shows that the Veteran’s hobbies included gardening and yardwork and that he also attends church and family gatherings.  The Veteran denied hallucinations, paranoia, and suicidal ideation.

Private treatment records from August 2019 reveal that the Veteran struggles with survivor’s guilt, blame, large crowds, negative thoughts, and passive suicidal ideation.  A January 2020 entry notes that the Veteran experiences passive suicidal ideation from time to time.

A January 2021 Independent Medical Examination was conducted by Dr. J.G., who stated the Veteran experiences occupational and social impairment in most areas.  Noted symptoms were depressed mood, anxiety, suspiciousness, near-continuous panic attacks, chronic sleep impairment, mild memory loss, neglect of personal appearance or hygiene, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, flattened affect, impaired judgment, disturbances of motivation and mood, intermittent inability to perform activities of daily living, impaired impulse control, suicidal ideation, obsessional rituals, speech intermittently illogical, spatial disorientation, grossly inappropriate behavior, disorientation to time or place, and persistent danger of hurting others or self.  The Veteran endorsed struggling with anger and frustration and a fear that this will cause him to become violent towards his wife or stepdaughter.  Before military deployment, the Veteran noted that he enjoyed hosting parties and having people over his house.  Now, however, the Veteran finds such activities to be overwhelming and he avoids public places; often times he experiences hypervigilant behaviors.  The Veteran continues to work at the airport but believes this position is beneath his education and experience; however, it is better suited to his PTSD, which affects his ability to think.  Dr. J.G. offered, in pertinent part, the following impression:

The [V]eteran endorsed significant ongoing symptoms of his worsening mental state due to his service-connected PTSD, including disturbing dreams, survivor guilt, flashbacks, hypervigilance, paranoia, feelings of detachment from others, chronic sleep impairment, disrupted cognitive functioning, suicidal ideation, impaired judgment, and avoidance behaviors.  Additionally, he reported self-destructive behavior and recurrent thoughts of harming others.  He experiences significant problems with anger, guilt, hopelessness, and apathy.  Overall, the [V]eteran has been experiencing a persistent degree of mental health impairments (e.g., reduced activity, depression, social withdrawal anxiety, irritability, fatigue, memory and cognitive impairment, relationship problems, reduced self-esteem, decreased interest in sex, & impaired sleep) following the trauma experienced in the military.  These difficulties adversely impact multiple facets of life, including social, occupational, marital, and family environments.

The [V]eteran’s current presentation is consistent with a diagnosis of [PTSD].  The level of psychological distress based on the [V]eteran’s self-report and diagnostic clinical interview is EXTREME.

Evaluating the evidence of record, the Board does not find that a disability rating in excess of 30 percent for the Veteran’s PTSD is warranted.  First it is important to note that Dr. M.S. stated, in his January 2016 evaluation, that the Veteran may unintentionally overreport his symptoms associated with PTSD.  The three VA examinations of record (June 2016, November 2016, and March 2018) all noted that the Veteran’s level of occupational and social impairment was not above that of a 30 percent rating, with one examiner believing that the Veteran’s impairment was more in line with a 10 percent rating.  All the examiners noted that the Veteran engaged in social/recreational activities, attended religious services, had good relationships with immediate and extended family, and was employed full time.  The psychiatric assessments in May 2019 within the SSA records also corroborate all past examinations and findings.  Drs. D.M. and D.G. both noted that the Veteran mildly was impaired by his psychiatric symptoms; Dr. D.M. noted that the Veteran’s report of his own symptoms was inconsistent with the other medical evidence of record, aligning with the January 2016 statements of Dr. M.S.  To Dr. D.G., the Veteran specifically denied paranoia, hallucinations, and suicidal ideation.

Dr. J.G.’s report states that Veteran experiences occupational and social impairment in most areas.  This conclusion, however, is inconsistent both with the other evidence of record, and Dr. J.G.’s own observations/notations.  First this report lists a multitude of severe psychiatric symptoms that the Veteran experiences, including, but not limited to, disorientation as to time or place; spatial disorientation; intermittent ability to perform tasks of daily living; intermittently illogical, obscure, or irrelevant speech; and an inability to maintain or establish effective work and social relationships.  These symptoms, however, relate to someone who experiences the worst kind of psychiatric debilitation, often losing touch with reality.  The evidence shows that this is not the Veteran we have here.  Dr. J.G. noted that this report was based on the Veteran’s own statements and Dr. J.G.’s observations from their January 4, 2021, encounter.  As previously noted, however, two separate psychiatric professionals have stated that the Veteran (1) overreports his symptoms and (2) that the overreporting does not coincide with the other objective medical evidence.  When considering this, the Board finds it difficult to find credible the Veteran’s statements in Dr. J.G.’s report as it pertains to the more severe symptoms experienced.  This is especially so when this report is the only piece of evidence that documents that the Veteran experienced such severe symptoms.

Be that as it may, assume, for the sake of argument, that the Veteran did experience all the symptoms listed in Dr. J.G.’s report.  That, in and of itself, is not enough to warrant for the Veteran a higher rating.  Recall that the listed symptoms in the rating schedule are meant to be examples of the types of symptoms that an individual at a corresponding level of impairment might experience, and the Board need not find one, or even all, the symptoms listed; the focus is on the level of occupational and social impairment produced.  Even considering Dr. J.G.’s report, the evidence does not show occupational and social impairment that warrants a rating above 30 percent.  See Vazquez-Claudio, 713 F.3d at 116–17; Mauerhan, 16 Vet. App. at 442–43.  Dr. J.G. noted that the Veteran is afraid he will become violent with his wife, but this fear of future action speaks nothing to the current relationship he has with his wife.  The same can be said for his stepdaughter.  The Veteran continues to experience stress and anxiety when in public (symptoms already noted in past examinations), but Dr. J.G. does not address the Veteran’s previous activities of going to church, gardening, yardwork, watching Philippine news, grocery shopping, going to the range, and associating with his uncle’s family.  Dr. J.G. also noted that the Veteran continues to work at the airport with fluctuating hours.  That occupational and social picture does not warrant a disability rating in excess of 30 percent.

The Board is mindful that suicidal ideation, as mentioned in the rating criteria, does not distinguish between active and passive thoughts, both of which qualify as “ideation.”  Bankhead v. Shulkin, 29 Vet. App. 10, 19–20 (2017).  Furthermore, suicidal ideation appears only at the 70 percent rating; there are no analogues at the lower evaluation levels.  “Thus, the language of the regulation indicates that the presence of suicidal ideation alone... may cause occupational and social impairment with deficiencies in most areas.”  Id. at 20.  The Board recognizes that the Veteran has alleged, at multiple times, that he has experienced passive suicidal ideation.  The presence of suicidal ideation, however, does not require an automatic award of benefits at the 70 percent level; the Veteran still is required to manifest social and occupational impairment with deficiencies in most areas.  As discussed above, the Board does not find this to be so.

Thus, considering the relevant evidence of record, the Board affords more probative value to Dr. M.S.’s examination, the VA examinations, and the examinations contained in the Veteran’s SSA records.  In this instance, those examinations, along with the other evidence discussed, shows that a disability rating in excess of 30 percent is not warranted.  See 38 C.F.R. § 4.130, DC 9411.

4. Entitlement to a disability rating in excess of 30 percent for service-connected right shoulder disability is denied.

The Veteran was awarded service connection for his right shoulder disability in a September 2013 rating decision; he was granted a 30 percent rating effective October 14, 2011.  The December 2016 decision now on appeal denied an increase, and the Veteran timely appealed.

When assessing the severity of musculoskeletal disabilities that are, at least partly, rated on the basis of limitation of motion, VA also must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when a veteran’s symptoms are most prevalent (“flare-ups”) due to the extent of his or her pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria.  DeLuca v. Brown, 8 Vet. App. 202, 204–07 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59.

The Board notes that, during the pendency of this appeal, VA has amended the rating criteria for the musculoskeletal system contained in 38 C.F.R. § 4.71a.  These changes took effect February 7, 2021, and cannot be applied prior to that date.  Beginning that date, however, the Board will apply the rating criteria that is more favorable to the Veteran: either the old or new criteria.  85 Fed. Reg. 76,453, 76,462, 76,469 (Nov. 30, 2020).

Under DC 5200, ankylosis of scapulohumeral articulation, favorable ankylosis with unfavorable abduction limited to 25 degrees from the side warrants a 50 percent disability rating for the dominant arm and 40 percent for the nondominant arm.  Intermediated between unfavorable and favorable ankylosis warrants a 40 percent disability rating for the dominant arm and 30 percent for the nondominant arm.  Unfavorable ankylosis with abduction limited to 25 degrees from the side warrants a 30 percent disability rating for the dominant arm and 20 percent for the nondominant arm.

Under DC 5201, limitation of motion of the arm to 25 degrees from the side is rated as 40 percent disabling for the dominant arm and 30 percent disabling for the nondominant arm.  Midway between the side and shoulder level warrants a 30 percent rating for the dominant arm and 20 percent for the nondominant arm.  Limitation of motion to the shoulder level warrants a 20 percent disability rating for either arm.  Plate I shows that normal range of motion for shoulder flexion and abduction is 0–180 degrees, and external and internal rotation is 0–90 degrees.  Shoulder level for both flexion and abduction is the 90 degree mark, while shoulder level for external and internal rotation is 0 degrees.  Notably, DC 5201 does not provide separate ratings for limitations on flexion, extension, abduction and rotation; rather, DC 5201 permits only a single rating for limitation of motion of an arm.  Yonek v. Shinseki, 722 F.3d 1355, 1359 (Fed. Cir. 2013).

DC 5202 pertains to impairment of the humerus and recurrent dislocation of the shoulder at the scapulohumeral joint.  Loss of head (flail shoulder) warrants an 80 percent disability rating for the dominant arm and 70 percent for the nondominant arm.  Nonunion of the humerus (false flail joint) warrants a 60 percent disability rating for the dominant arm and 50 percent for the nondominant arm.  Fibrous union of the humerus warrants a 50 percent disability rating for the dominant arm and 40 percent for the nondominant arm.  Recurrent dislocation of the shoulder at the scapulohumeral joint with frequent episodes and guarding of all arm movements warrants a 30 percent disability rating for the dominant arm and 20 percent for the nondominant arm.  Recurrent dislocation of the shoulder at the scapulohumeral joint with infrequent episodes and guarding movement only at shoulder level warrants a 20 percent rating for either arm.

DC 5203 pertains to impairment of the clavicle or scapula.  Dislocation of either joint for either arm warrants a 20 percent rating.  Nonunion of either joint with loose movement also warrants a 20 percent rating for either arm; without loose movement warrants a 10 percent rating.

The new criteria simply clarify three points regarding what the old criteria meant in discussing its ranges of motion: (1) Under DC 5201, limitation of motion midway between side and shoulder level means flexion and/or abduction limited to 45 degrees; (2) Under DC 520,1 limitation of motion at shoulder level means flexion and/or abduction limited to 90 degrees; and (3) Under DC 5202, recurrent dislocation of the shoulder at the scapulohumeral joint with infrequent episodes and guarding movement only at shoulder level means flexion and/or abduction limited to 90 degrees.  Other than these clarifications, there are no substantive changes to the rating criteria for the shoulders.

A January 2017 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history.  The Veteran reported constant pain of 7/10 in right shoulder, which can flare up to a 10/10 if he tries to raise his arm too high.  The Veteran stated that he is unable to perform any overhead work.  Range of motion for the Veteran’s right shoulder was as follows: flexion: 0–60 degrees; abduction: 0–45 degrees; external rotation: 0–50 degrees; internal rotation: 0–55 degrees.  All ranges of motion exhibited pain, and there was pain on weight bearing with mild tenderness at the joint line.  There was no evidence of crepitus.  The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of range of motion.  Flexion and abduction strength were rated as 4/5.  There was no muscle atrophy or ankylosis; however, the right shoulder had rotator problems, which tested positive on the Hawkins’ Impingement, Empty-Can, External Rotation/Infraspinatus Strength, and Lift-off Subscapularis Tests.  There was no shoulder instability; clavicle, scapula, or AC joint condition; or conditions or impairments of the humerus.  No assistive devices were noted, and x-rays from August 2013 documented arthritis in the right shoulder.  The Veteran’s right shoulder disability impacted his ability to work by prohibiting overhead work.

A March 2018 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history.  The Veteran did not report flare-ups but stated he is unable to put his hands behind his back on either side and experiences pain and weakness while carrying things overhead.  Range of motion for the Veteran’s right shoulder was as follows: flexion: 0–55 degrees; abduction: 0–35 degrees; external and internal rotation could not be tested due to limitations.  All ranges of motion exhibited pain, and there was pain on weight bearing with crepitus.  The Veteran was unable to perform repetitive-use testing due to pain.  Muscle strength for the right shoulder was normal.  There was no muscle atrophy or ankylosis.  The Veteran’s rotator cuff condition was noted, but he was unable to perform any of the tests.  There was instability with mechanical symptoms, such as clicking ant catching.  There was no clavicle, scapula, or AC joint condition or conditions or impairment of the humerus.  No assistive devices were noted, and no additional imagining was performed.  The Veteran’s right shoulder disability impacted his ability to work by prohibiting lifting, carrying, or use of shoulder for activities due to severe pain.

Private treatment records from January 2021 show that the Veteran’s right shoulder exhibited flexion to 110 degrees and abduction to 140 degrees.  The VAMC and SSA records document that the Veteran receives care and treatment for his right shoulder pain, but do not include any range of motion testing or indication that he suffers from any other articulated right shoulder disability.

Evaluating the evidence of record, the Board does not find that the Veteran is entitled to a disability rating in excess of 30 percent for his right shoulder disability.  The only impairment that the Veteran experiences is limitation of motion.  In order to receive a 40 percent rating, the Veteran’s flexion or abduction must be limited to at least 25 degrees.  All evaluations show that, at worst, the Veteran experiences abduction limited to 35 degrees and flexion limited to 55 degrees.  Neither of these limitations meet the necessary criteria for a rating in excess of 30 percent.  The Veteran is competent to report that his right shoulder causes pain and the limitation he experiences due to that pain.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The VA examiner noted, however, the Veteran’s painful motion at the reported ranges previously discussed.  Even considering the decreased range of motion due to pain, the range of motion for the Veteran’s condition does not qualify him for a higher disability rating as the rating criteria adequately captures the functional and economic limitation the Veteran experiences.  See DeLuca, 8 Vet. App. at 204–07; 38 C.F.R. § 4.1.  Thus, the Veteran’s appeal on this issue is denied.  See 38 C.F.R. § 4.71a, DCs 5200–5203.

The Spine and Associated Neurological Conditions

The Veteran originally was awarded service connection for his neck and low back disabilities in a September 2013 rating decision.  Both disabilities were granted a 20 percent disability rating effective October 14, 2011.  The current increased rating claim was filed in March 2016, and the December 2016 rating decision on appeal denied increases; the Veteran timely appealed.

DCs 5235 through 5242 pertain to various disease and injuries of the spine.  Invertebral disc syndrome based on incapacitating episodes (IVDS) (DC 5243), however, is rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  38 C.F.R. § 4.71a at Note (6).

Under 38 C.F.R. § 4.71a, DCs 5235–5242, a 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine.  A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine.  A 40 percent rating is warranted for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.  

A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine.

A 20 percent rating is assigned when there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 

A 20 percent rating is assigned when there is forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; a 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.

Normal range of motion of the cervical spine encompasses forward flexion and extension of 0–45 degrees; bilateral flexion of 0–45 degrees; and bilateral rotation of 0–80 degrees.  The normal combined range of motion of the cervical spine is 340 degrees.  The thoracolumbar spine encompasses forward flexion of 0–90 degrees; extension of 0–30 degrees; and bilateral lateral flexion and bilateral rotation of 0–30 degrees.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  Id. at Note (2), Plate V.

Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate diagnostic code.  Id. at Note (1).

Under DC 5243, incapacitating episodes of IVDS having a total duration of at least six weeks during the past twelve months warrants a 60 percent rating.  Incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months yields a 40 percent rating.  Incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months warrants a 20 percent rating.  Incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months is rated as 10 percent disabling.

For purposes of evaluations under diagnostic code 5243, 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.  If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.  Id. at Notes (1) and (2).

The rating criteria for the spine also did not undergo any substantive changes.  Rather, the rating schedule merely reflects updated DCs.  DC 5242 now is assigned for degenerative arthritis and degenerative disc disease other than IVDS.  DC 5243—IVDS—now will be assigned only where there is disc herniation with compression and/or irritation of the adjacent nerve root; DC 5242 should be assigned for all other disc diagnoses.  DC 5244 is created for complete, traumatic paralysis; if it does not cause loss of use of both hands or feet, then it is incomplete paralysis, and the residuals thereof should be rated under the appropriate DCs for the peripheral nerves.  Paraplegia is to be rated under DC 5110.  85 Fed. Reg. 76,453, 76,463, 76,469 (Nov. 30, 2020).

A May 2016 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history.  The report indicated that Veteran suffers from a lumbosacral strain and degenerative arthritis of the spine.  The Veteran reported flare-ups described as reduced range of motion and increased pain.  Range of motion was recorded as follows: forward flexion: 0–60 degrees; extension: 0–10 degrees; bilateral lateral flexion: 0–20 degrees; right lateral rotation: 0–15 degrees; left lateral rotation: 0–25 degrees.  Pain was noted for all ranges of motion and on weight bearing.  There was pain upon palpating the lumbar spine bilaterally/painful SI joints bilaterally.  Repetitive use testing was performed without additional loss of range of motion.  While there were muscle spasms in the bilateral gluteus muscles, it did not result in abnormal gait or spinal contour; the same was said for localized tenderness.  Muscle strength was normal.  There was no muscle atrophy, radiculopathy, ankylosis, or IVDS.  No assistive devices were noted.  The Veteran’s low back disability impacts running, bending/stooping, lifting, and squatting.  It does not preclude all aspects of sedentary activity.

A May 2016 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history.  The report indicated that Veteran suffers from degenerative arthritis of the cervical spine.  The Veteran reported flare-ups described as reduced range of motion and increased neck pain.  Range of motion was recorded as follows: forward flexion: 0–30 degrees; extension: 0–25 degrees; bilateral lateral flexion: 0–20 degrees; right lateral rotation: 0–30 degrees; left lateral rotation: 0–25 degrees.  Pain was noted for all ranges of motion but not on weight bearing.  There was pain upon palpating the trapezius muscles of the neck.  Repetitive use testing was performed without additional loss of range of motion.  While there were muscle spasms, guarding, and localized tenderness in the bilateral trapezius muscles, it did not result in abnormal gait or spinal contour.  Muscle strength was normal.  There was no muscle atrophy, radiculopathy, ankylosis, or IVDS.  No assistive devices were noted.  The Veteran’s neck disability impacts his ability to rotate his neck without pain and causes difficulty to do activities such as driving or others that require neck motion.

A December 2016 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history.  The report confirmed the Veteran’s degenerative arthritis of the spine.  The Veteran reported flare-ups described as pain exacerbated by prolonged standing, sitting, lifting, and bending.  Range of motion was recorded as follows: forward flexion: 0–60 degrees; extension: 0–20 degrees; bilateral lateral flexion: 0–25 degrees; bilateral lateral rotation: 0–30 degrees.  Pain was noted for flexion and extension, as well as on weight bearing.  There was pain upon palpating the paraspinal muscles.  Repetitive use testing was performed without additional loss of range of motion.  There was guarding of the thoracolumbar spine, which did result in abnormal gait or spinal contour.  Muscle strength was normal.  There was no muscle atrophy, radiculopathy, ankylosis, or IVDS.  No assistive devices were noted.  The Veteran’s low back disability prevents him from working in environments that require heavy labor.

A December 2016 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history.  The report indicated that Veteran suffers from degenerative arthritis of the cervical spine.  The Veteran reported flare-ups described as pain exacerbated by turning his head, which produces limited driving.  Range of motion was recorded as follows: forward flexion: 0–30 degrees; extension: 0–30 degrees; bilateral lateral flexion: 0–30 degrees; bilateral lateral rotation: 0–40 degrees.  Pain was noted for all ranges of motion but not on weight bearing.  There was pain upon palpation of the cervical spine.  Repetitive use testing was performed without additional loss of range of motion.  There was guarding of the cervical spine, which did result in abnormal gait or spinal contour.  Muscle strength was normal.  There was no muscle atrophy, radiculopathy, ankylosis, or IVDS.  No assistive devices were noted.  The Veteran’s neck disability precludes him from engaging in heavy labor.

A March 2018 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history.  The report confirmed the Veteran’s degenerative arthritis of the spine.  The Veteran reported flare-ups described as an inability to move without severe pain, bend over, squat, pick up objects, or rotate.  Range of motion was recorded as follows: forward flexion: 0–20 degrees; extension: 0–10 degrees; right lateral flexion: 0–10 degrees; left lateral flexion: 0–5 degrees; right lateral rotation: 0–2 degrees; left lateral rotation: 0–5 degrees.  Pain was noted for all ranges of motion, as well as on weight bearing.  There was moderate pain for the paraspinal muscles.  Repetitive use testing was not performed due to severe pain.  There was no guarding or muscle spasms of the thoracolumbar spine.  Muscle strength was normal.  There was no muscle atrophy, ankylosis, or IVDS.  Radiculopathy, however, was noted for the L4/L5/S1/S2/S3 nerve roots.  The Veteran experiences severe bilateral constant pain, paresthesias and/or dysesthesias, and numbness.  The examiner indicated that the Veteran’s radiculopathy was moderate.  No assistive devices were noted.  The Veteran’s low back disability prevents him from maintaining any position for more than a few minutes without severe pain and is considered a fall risk.

A March 2018 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history.  The report indicated that Veteran suffers from degenerative arthritis of the cervical spine and IVDS.  The Veteran reported flare-ups described as numbness and paresthesias down both arms into all fingers.  The veteran related that he is unable to move his neck in any direction without pain.  Range of motion was recorded as follows: forward flexion: 0–2 degrees; extension: 0–5 degrees; right lateral flexion: 0–10 degrees; left lateral flexion: 0–5 degrees; right lateral rotation: 0–10 degrees; left lateral rotation: 0–15 degrees.  Pain was noted for all ranges of motion but not on weight bearing.  There was moderate pain upon palpation of the neck.  Repetitive use testing was not performed due to severe pain.  There were no muscle spasms of the cervical spine, but there was guarding, which did not result in abnormal gait or spinal contour.  Muscle strength was normal.  There was no muscle atrophy, or ankylosis.  Radiculopathy was noted in the upper, middle, and lower radicular group, which caused severe intermittent pain, paresthesias and/or dysesthesias, and numbness.  The Veteran also experienced decreased vibration sensation in the left hand.  The examiner categorized the Veteran’s bilateral upper extremity radiculopathy as moderate.  While IVDS was noted, the Veteran did not have any acute signs and symptoms that required bed rest prescribed by a physician in the past twelve months.  No assistive devices were noted.  The Veteran’s neck pain prevents him from turning his neck.

SSA records from April 2018 reveal that the Veteran was complaining of bilateral upper extremity radiating nerve pain with decreasing grip strength.

Private records from June 2020 show ranges of motion for the Veteran’s lower back and neck.  The former was documented as follows: forward flexion: 0–60 degrees; extension: 0–25 degrees; bilateral lateral flexion: 0–15 degrees; bilateral lateral rotation: 0–20 degrees.  The latter was recorded as follows: forward flexion: 0–40 degrees; extension: 0–50 degrees; bilateral lateral flexion: 0–25 degrees; bilateral lateral rotation: 0–60 degrees.  Entries from December 2020 show slight changes in the ranges of motion from June 2020.  By January 2021, however, the Veteran’s lumbar spine flexion had worsened to 30 degrees; cervical flexion likewise was at 30 degrees.

5. Prior to March 24, 2018, entitlement to a disability rating in excess of 20 percent for service-connected low back and neck disabilities are denied.

The Board finds that, prior to this date, entitlement to a disability rating in excess of 20 percent for either the Veteran’s neck or back disability is warranted.

The relevant evidence for this time period consists of the March and December 2016 VA examinations.  Those reports reveal that the Veteran’s neck and back did not experience limitation of flexion to 15 or 30 degrees, respectively.  Neither was there any indication that any portion of the Veteran’s spine was experiencing ankylosis.  The Veteran is competent to report that his back and neck cause pain and the limitation he experiences due to that pain.  See Layno, 6 Vet. App. at 469.  The VA examiners, however, noted the Veteran’s painful motion at the reported ranges previously discussed.  Even considering the decreased range of motion due to pain, the range of motion for the Veteran’s condition does not qualify him for a higher disability rating as the rating criteria adequately captures the functional and economic limitation the Veteran experiences for this time period.  See DeLuca, 8 Vet. App. at 204–07; 38 C.F.R. § 4.1.  Thus, the Veteran’s appeal on these issues for this time period are denied.  See 38 C.F.R. § 4.71a, DCs 5235–5242.

6. Beginning March 24, 2018, entitlement to a 40 percent disability rating for service-connected low back disability;  and from March 24, 2018, to June 7, 2020, entitlement to a 30 percent disability rating for service-connected neck disability is granted.

Beginning March 24, 2018, however, the Board finds that the Veteran is entitled to a 40 percent rating for his back and a 30 percent rating for his neck.  As of this date, the evidence shows that the Veteran’s back experiences limitation of flexion to at least 30 degrees and that his neck experiences limitation of flexion to at least 15 degrees.  This evidence alone qualifies the Veteran for the increased ratings.  Ratings of the spine in excess of these amounts, for either the neck or back, require evidence of ankylosis, either favorable or unfavorable.  Because the record contains no evidence of ankylosis, the Board finds that ratings in excess of 40 percent for the back and 30 percent for the neck are not warranted.  See 38 C.F.R. § 4.71a, DCs 5235–5242.

The Board notes that it will not stage the Veteran’s back rating.  While the June and December 2020 records show improvement in the Veteran’s back flexion, the January 2021 record show that he has limitation of flexion to 30 degrees—the minimum limitation required for a 40 percent rating.  In this instance, the Board will afford the Veteran the benefit of the doubt and keep his increased rating assigned March 24, 2018

7. Beginning June 8, 2020, entitlement to a disability rating in excess of 20 percent for service-connected neck disability is denied.

As noted above, staged ratings are appropriate where, over the course of the appeal period, the Veteran’s symptoms meet rating criteria at different stages.  See Hart, 21 Vet. App. at 509. 

The private records beginning in June 8, 2020, show that the range of motion for the Veteran’s neck have improved to the point that a lower rating is appropriate.  For instance, the June 2020 records noted that the Veteran’s neck exhibited limitation of extension to 50 degrees.  The December 2020 and January 2021 entries noted cervical flexion limited to 35 and 30 degrees, respectively.  As previously mentioned, a disability rating in excess of 20 percent requires limitation of flexion to 15 degrees.  These very recent records show that the Veteran’s cervical spine does not experience the same level of flexion limitation that it did at the time of the March 2018 VA examination.  The Veteran’s disability has improved.  While the Veteran still may experience pain in his neck, the Board does not find that that such pain equates to an additional limitation of motion of 15 degrees.  Thus, beginning June 8, 2020, the Board finds that a disability rating in excess of 20 percent for the Veteran’s neck disability is not warranted.  See 38 C.F.R. § 4.71a, DCs 5235–5242.

8. Beginning March 24, 2018, entitlement to a separate 20 percent disability rating for radiculopathy of the sciatic nerve for each the right and left lower extremity; a separate 30 percent disability rating for radiculopathy of the radial nerve for the right upper extremity; and a separate 20 percent disability rating for radiculopathy of the radial nerve for the left upper extremity is granted.

Neurological or convulsive disorders ordinarily are to be rated in proportion to the impairment of motor, sensory or mental function.  Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, injury to the skull, etc.  In rating disability from the conditions in the preceding sentence refer to the appropriate schedule.  In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120.

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. See nerve involved for diagnostic code number and rating. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis.  38 C.F.R. § 4.123.

Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis.  See nerve involved for diagnostic code number and rating.  Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve.  38 C.F.R. § 4.124.

The opening paragraph to 38 C.F.R. § 4.124a states that, with the exceptions noted, disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function.  Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule.  With partial loss of use of one or more extremities from neurological lesions, rate by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves.

The United States Court of Appeals for the Federal Circuit has held that the M21 does not “carry the force of law.”  DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (2017).  It is “an internal manual used to convey guidance to VA adjudicators.  It is not intended to establish substantive rules beyond those contained in statute and regulation.”  Id. (quoting 72 Fed. Reg. 66,218, 66,219 (Nov. 27, 2007)).  The M21 provisions do not go through the regular rulemaking procedures and is little more than evidence as to how VBA applies law and regulation in practices; it is not binding on the Board as it is not a regulation, instruction of the Secretary, or OGC opinion.  Id.; see also 38 U.S.C. § 7104(c).  The regulations further clarify that the Board “is not bound by Department manuals, circulars, or similar administrative issues.”  38 C.F.R. § 20.105.

In Overton v. Wilkie, 30 Vet. App. 257, 264 (2018), however, the CAVC held that the Board is required to discuss “any relevant provisions contained in the [M21] as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an [M21] provision as a factor to support its decision.”

The CAVC has stated, on at least two prior occasions, that, where the rating applicable rating criteria contains terms that are undefined, the Board must define those terms as it applies them to the veteran at hand in order to satisfy its obligation to provide adequate reasons or bases.  Johnson v. Wilkie, 30 Vet. App. 245, 254–55 (2018); Spellers v. Wilkie, 30 Vet. App. 211, 219–20 (2018).

Section III.iv.4.N.4.c. provides a table that assists VBA adjudicators in determining the appropriate level of severity for incomplete paralysis, neuritis, and neuralgia.  That table is as follows:

Degree of Incomplete Paralysis	Description

Mild	•	As this is the lowest level of evaluation for each nerve this is the default assigned based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment for SC purposes.

•	In general look for a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area.

•	A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis.

Moderate	•	Moderate is the maximum evaluation reserved for the most significant cases of sensory-only impairment (38 C.F.R. § 4.124a). 

•	Symptoms will likely be described by the claimants and medically graded as significantly disabling.

•	In such cases a larger area in the nerve distribution may be affected by sensory symptoms.

•	Other sign/symptom combinations that may fall into the moderate category include

•	combinations of significant sensory changes and reflex or motor changes of a lower degree, or

•	motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate.

•	Moderate is also the maximum evaluation that can be assigned for

•	neuritis not characterized by organic changes referred to in 38 C.F.R. § 4.123, or

•	neuralgia characterized usually by a dull and intermittent pain in the distribution of a nerve (38 C.F.R. § 4.124).

Moderately Severe	•	The moderately severe evaluation level is only applicable for involvement of the sciatic nerve.

•	This is the maximum rating for sciatic nerve neuritis not characterized by the organic changes specified in 38 C.F.R. § 4.123.  

•	Motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected.  

•	Atrophy may be present. However, for marked muscular atrophy see the criteria for a severe evaluation under 38 C.F.R. § 4.124a, DC 8520.

Severe	•	In general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability.  

•	Trophic changes may be seen in severe longstanding neuropathy cases.

•	For the sciatic nerve (38 C.F.R. § 4.124a, DC 8520) marked muscular atrophy is expected.

•	Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve.

•	Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve (38 C.F.R. § 4.123).

There is scant-to-no guidance on how to define the severity terms for the peripheral nerves.  Where the Board otherwise is required to define these terms when adjudicating the Veteran’s appeal, see Overton, 30 Vet. App. at 264, it likewise finds the guidance contained in M21 III.iv.4.N.4.c. helpful and instructive.

The opening paragraph to the table for diseases of the peripheral nerves states that the term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. See 38 C.F.R. § 4.124a.

As noted, when VA rates the back and neck, it also is to consider any neurological abnormalities as a result.  The March 24, 2018, VA examinations for the back and neck show that the Veteran experiences bilateral radiculopathy of the both the upper and lower extremities.

Under 38 C.F.R. § 4.124a, an 80 percent disability rating is warranted for complete paralysis with the following symptoms:  the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.  A 60 percent disability rating is warranted for incomplete paralysis with severe symptoms marked by muscular atrophy.  A 40 percent disability rating is warranted for incomplete paralysis with moderately severe symptoms.  A 20 percent disability rating is warranted for incomplete paralysis with moderate symptoms.  A 10 percent disability rating is warranted for incomplete paralysis with mild symptoms.

Where an examiner does not indicate which specific nerve is affected in an upper extremity, upper extremity radiculopathy should be rated using the radial nerve, DC 8514.  See M21 III.iv.4.N.4.G.

DC 8514 is assigned for the musculospiral nerve (the radial nerve).  Evaluations differ depending on whether the major (dominant) or minor (nondominant) extremity is affected.  A 70 (major) or 60 (minor) percent rating is warranted for complete paralysis of the musculospiral nerve manifesting drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; inability to extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist; supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; or total paralysis of the triceps occurs only as the greatest rarity.  Severe incomplete paralysis warrants a 50 (major) or 40 (minor) percent rating.  Moderate incomplete paralysis warrants a 30 (major) or 20 (minor) percent rating.  Mild incomplete paralysis warrants a 20 percent rating for either the major or minor extremity.

The examiner labeled the Veteran’s radiculopathy of all extremities as “moderate,” and the Board agrees.  While the examiner listed all the present symptoms for the Veteran’s radiculopathy—in all extremities—as severe, the only noted symptoms were sensory symptoms.  The Veteran experienced only pain, numbness, and paresthesias and/or dysesthesias.  There were no changes in muscle strength or reflexes, and there was no indication of muscle atrophy in any extremity.  As the regulations make clear, where symptoms wholly are sensory, the rating should be, at most, the moderate level.  Without additional symptoms, the Board finds that, for the lower extremities, a 20 percent rating for moderate radiculopathy of each leg is warranted, and, for the upper extremities, the dominant arm (right) warrants a 30 percent rating, and the non-dominant arm (left) warrants a 20 percent rating.  See 38 C.F.R. §§ 4.120, 4.124, 4.124a, DCs 8514, 8520.  The Board notes that the M21 also suggests that the Veteran’s radiculopathy ratings should be at the moderate level.  Looking to the above chart, it notes that moderately severe (for the sciatic nerve) and severe ratings (all other nerves) indicate that there should motor/reflex impairments; yet, the Veteran experiences none of these symptoms.  Thus, the Board is confident that a moderate rating adequately captures his disability impairments.  See M21 III.iv.4.N.4.c.

Because the record does not reflect any signs or symptoms other than wholly sensory symptoms, as discussed above, the Board finds that, at no time, is a rating above the moderate level of impairment appropriate for this Veteran.

As an ancillary point, the Board notes that this appeal originally contained the issue of entitlement to service connection for a left leg condition to include radiculopathy.  Because the Veteran has been awarded a separate rating for radiculopathy in conjunction with his increased rating claim for the back, it need not address the separate issue of service connection for the left leg.

REASONS FOR REMAND

9. Entitlement to service connection for a left shoulder disability is remanded. is remanded.

The Veteran alleges that, while in Iraq, he fell in a HUMVEE and hit his whole body, thereby injuring his left shoulder.  See March 13, 2017, Correspondence. 

VA’s duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law.  38 C.F.R. § 3.159(c)(4).  In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained, there are four factors that must be met: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4).

STRs verify that, while in Iraq, the Veteran hit his head in a tank and subsequently was diagnosed with left and right trapezoid strains.

Post-service private treatment records reveal that, as early as December 2014, the Veteran has suffered from pain and decreased range of motion in his left shoulder.

VAMC records from January 2017 reveal that two views of the Veteran’s left shoulder were obtained.  There was no significant abnormality; however, there is narrowing of the subacromial space with a 2-millimeter inferior projecting lateral acromial osteophyte, which may predispose Veteran to impingement-type symptoms.

In the Board’s view, the Veteran is entitled to an initial examination and opinion for his left shoulder.  There is a current diagnosis of the left shoulder; the Veteran had an in-service injury; there is some medical treatment relatively close after separation from service that at least indicates the two could be related; and there otherwise insufficient medical evidence for the Board to decide the claim.  Thus, remand is required for this claim.  See 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 81; 38 C.F.R. §§ 3.159(c)(4), 20.904(a).

10. Entitlement to service connection for OSA, to include as secondary to service-connected bronchitis or PTSD, is remanded.

The Veteran argues that his OSA developed during his period of active duty service due to vaccines he received (Anthrax, anti-venom, Physostigmine Bromide, and malaria) or, in the alternative, that it is secondary either to his service-connected bronchitis or PTSD.  See October 30, 2020, Appellant’s Post-Remand Brief (Brief) at 3; March 13, 2017, Correspondence.

A May 2016 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history.  The report confirms the Veteran’s diagnosis of OSA.  An associated etiological opinion stated the following: “After reviewing the SM medical records, and reviewing current research and performing a physical exam and medical history it is my opinion that [Veteran’s] sleep apnea is unrelated to his acute bronchitis episodes.”

As noted above, VA is not always required to provide the Veteran with an examination and secure an opinion on his/her behalf; only when certain criteria are met is it required by law.  If not required, however, and VA still chooses to provide the Veteran with an examination and/or opinion, then it is bound to provide an adequate one.  A medical opinion is adequate when it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s evaluation of the claimed disability will be a fully informed one.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  To qualify as adequate, a medical examination and opinion provided for the purposes of assessing secondary service connection must address both whether the claimed disability was proximately caused by some service-connected disability and whether the claimed disability was aggravated (chronically worsened) by some service-connected disability.  El-Amin v. Shinseki, 26 Vet. App. 136, 139–41 (2012).

There can be no doubt that the obtained opinion asking whether the Veteran’s bronchitis is related to his OSA is inadequate.  The examiner does not discuss the research he used in arriving at this opinion.  He provides a conclusory statement that the two conditions are unrelated without further explanation or rationale.  Furthermore, he does address both proximate causation and aggravation, rendering the opinion inadequate on that separate ground.  Thus, remand is required to obtain an adequate opinion with respect to this theory.  See El-Amin, 26 Vet. App. at 139–41; Barr, 21 Vet. App. at 311; 38 C.F.R. § 20.904(a).

The Board stresses that it is remanding this claim for an opinion only with respect to the Veteran’s theory that his OSA is related to his service-connected bronchitis.  At this time and as explained below, VA is not required to provide him with opinions addressing whether OSA is related to his in-service vaccinations or service-connected PTSD.

While the Veteran indeed is service connected for PTSD and received various immunization shots while in service, there is no evidence of record to suggest that either the PTSD or the vaccination shots are related to OSA.  The Veteran may believe as such, but he is not competent to provide such a complex medical opinion.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007).  The Veteran’s mere conclusory, generalized lay statement that a service event or illness caused his current condition is insufficient to trigger VA’s duty to provide an examination.  See Waters v. Shinseki, 601 F.3d 1274, 1278–79 (Fed. Cir. 2010) (“Since all veterans could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran’s disability case.  If Congress had intended that requirement, presumably it would have explicitly so provided.”).  Thus, with respect to these two theories, the Board does not find that the third McLendon element has been satisfied.  On remand, the Veteran is free, should he choose, to submit to the Board additional evidence to substantiate his various theories of entitlement.

The matters are REMANDED for the following action:

1. Obtain any ongoing VA treatment records.  Should they exist, associate them with the claims file.

2. Schedule the Veteran for an examination of his left shoulder.  The examiner shall answer the following:

Is it at least as likely as not (a fifty percent probability or greater) that any left shoulder disability occurred in, or is the result of, his period of active duty service, to include falling on his left shoulder while inside a HUMVEE?

3. Obtain an addendum to the May 2016 VA opinion.  The examiner shall answer the following:

Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s service-connected chronic bronchitis (i) proximately caused or (ii) aggravated beyond natural progression,  his OSA?

Note: The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it.

A detailed rationale supporting the examiner’s opinions must be provided.  The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding.  If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible.

4. Conduct any other development deemed necessary and then readjudicate the Veteran’s claims.

The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded.  See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner.  38 U.S.C. §§ 5109B, 7112.

 

 

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Trevor T. Bernard, 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.