Citation Nr: 21022595 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 16-09 939 DATE: April 16, 2021 ORDER Entitlement to service connection for sleep apnea is granted. The reduction of the rating for the Veteran’s impairment of the thigh disability from 20 percent to a 0 percent evaluation was improper, and the 20 percent disability rating is restored, effective October 11, 2012. The reduction of the rating for the Veteran’s limitation of extension of a thigh disability from 10 percent to a 0 percent evaluation was improper, and the 10 percent disability rating is restored, effective October 11, 2012. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the evidence of record favors a finding that the Veteran’s sleep apnea disability is aggravated by his service-connected posttraumatic stress disorder (PTSD) disability. 2. The 20 percent rating for the Veteran’s left thigh disability and 10 percent rating for limitation of extension of the left thigh were in effect for fewer than five years at the time of the reductions. 3. For the period from October 1, 2015, improvement of the Veteran’s service-connected left thigh disability and limitation of extension of the left thigh disability had not been demonstrated. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a sleep apnea disability are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 2. The July 2015 RO rating decision which reduced the Veteran’s rating for his service-connected left thigh disability from 20 percent to 0 percent, effective October 1, 2015, was not proper and the criteria for restoration of the 20 percent rating for this time period are met. 38 C.F.R. §§ 3.105 (e), 3.344 (2020). 3. The July 2015 RO rating decision which reduced the Veteran’s rating for his service-connected limitation of extension of the left thigh disability from 10 percent to 0 percent, effective October 1, 2015, was not proper and the criteria for restoration of the 10 percent rating for this time period are met. 38 C.F.R. §§ 3.105 (e), 3.344 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to November 1988 and from September 1990 to June 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a January 2021 hearing. A transcript of the hearing is associated with the evidentiary record. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Factual Background and Analysis The Veteran contends that he has a current sleep apnea disability that is secondary to his service-connected PTSD disability. In a March 2019 correspondence, a private physician noted that sleep apnea can cause complications with PTSD including increased depression and anxiety. As a result, the physician opined that it was more likely than not that the Veteran’s PTSD was an aggravating factor of his sleep apnea. The physician noted research which indicated that PTSD can lead to neural sensitization which resulted in upper airway dysfunction such as sleep apnea. The chronic functional somatic symptoms such as but not limited to nonrestorative sleep, disrupted sleep, waking at night gasping or feeling short of breath as well as daytime sleepiness overlapped the signs and symptoms of PTSD making the medical evidence applicable to the relationship between the Veteran’s PTSD as a nexus for his sleep apnea. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for a sleep apnea disability as secondary to his service-connected PTSD disability is warranted. The Veteran’s medical record shows that he has been diagnosed with sleep apnea. Accordingly, as there is a current diagnosis of a sleep apnea disability, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Notably, the Veteran is currently service connected for a PTSD disability. The evidence demonstrates that the Veteran has a current sleep apnea disability that was proximately due to or aggravated by his service-connected PTSD. As noted above, the March 2019 private physician opined that it was more likely than not that the Veteran’s PTSD was an aggravating factor of his sleep apnea. Therefore, the March 2019 positive medical opinion of the private physician provides the only competent medical opinion as to the relationship between the Veteran’s current sleep apnea disability and his service-connected PTSD. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran’s claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. In sum, for the reasons and bases discussed above, the Board has resolved doubt in favor of the Veteran, and service connection for a sleep apnea disability as secondary to his service-connected PTSD disability is granted. See 38 U.S.C. § 5107(b). Reductions Laws and Regulations VA regulations provide that where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating prosing the reduction or discontinuance is to be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e) (2020). The beneficiary must be notified of the contemplated action at his or her latest address of record and furnished detailed reasons. Id. The beneficiary must be given 60 days for the presentation of additional evidence. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2019). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2020). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2020). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his thigh disabilities. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See Greyzck v. West, 12 Vet. App. 288, 292 (1999) and cases cited therein. Procedurally, where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105 (e). Initially, the Board finds that the RO complied with the procedural requirements for reductions. 38 C.F.R. § 3.105 (e) (2020). In December 2014, the RO proposed to reduce the Veteran’s evaluation for impairment of the thigh from 20 percent to 0 percent and his evaluation for limitation of extension of the thigh from 10 percent to 0 percent. After the proposed reduction, the Veteran was given at least 60 days to present additional evidence, and was notified at his address of record. Thereafter, in the July 2015 rating decision, the RO reduced the 20 percent evaluation for the Veteran’s thigh impairment to 0 percent and reduced the 10 percent evaluation for the Veteran’s limitation of extension to 0 percent, effective October 1, 2015. Also, in accordance with 38 C.F.R. § 3.105 (e), the reduction was made effective from October 1, 2015, well beyond the last day of the month from the 60-day period from the date of the December 2014 notice of the proposed reduction. In sum, the reductions for the Veteran’s impairment of the thigh from 20 percent to 0 percent and his limitation of extension of the thigh from 10 percent to 0 percent were effectuated in a manner that satisfies the procedural requirements under 38 C.F.R. § 3.105 (e). Thus, the Board finds that the provisions of 38 C.F.R. § 3.105 (e) are applicable and were met; therefore, the reductions were procedurally proper. The Board must, however, still consider whether the reductions were factually appropriate based upon the evidence of record. Regarding rating reductions, the law provides that, when a rating has continued for a long period at the same level (i.e., five years or more), a reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344 (a). However, where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344 (a) are inapplicable, as set forth in 38 C.F.R. § 3.344 (c). In such cases, an adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344 (c); 3.343(a). A rating reduction requires an inquiry as to “whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.” See Brown v. Brown, 5 Vet. App. 413, 421. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran’s responsibility to show that the disability has worsened. A rating reduction case focuses on the propriety of the reduction, and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). In this case, the Veteran’s 20 percent rating for a left thigh disability and the 10 percent rating for a limitation of extension of the left thigh disability were in effect for less than 5 years, from October 11, 2012 to October 1, 2015. Therefore, the provisions of 38 C.F.R. § 3.344 (a) and 38 C.F.R. § 3.344 (b) are not applicable and an examination disclosing improvement will warrant a reduction in the rating. 38 C.F.R. § 3.344 (c). The question of whether a disabilities have improved involves consideration of the applicable rating criteria. The Veteran’s impairment of the left thigh associated with gunshot wounds is currently rated as 0 percent disabling, effective October 1, 2015 under Diagnostic Code 5253 and the Veteran’s limitation of extension of the left thigh is currently rated as 0 percent disabling, effective October 1, 2015 under Diagnostic Code 5251. Diagnostic Code 5251 assigns a maximum 10 percent disability evaluation where there is limitation of extension of the thigh to 5 degrees. Pursuant to Diagnostic Code 5253, a 10 percent disability evaluation is assigned for limitation of rotation, with an inability to toe-out in excess of 15 degrees or where there is limitation of adduction such that one cannot cross their legs. A 20 percent disability evaluation is warranted for limitation of abduction, where motion is lost beyond 10 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5251-5253. Factual Background and Analysis The Veteran underwent a VA examination in December 2012. The Veteran had a gunshot wound to his left thigh that was painful and radiated to his left knee. The pain was a 7.5/10 on the pain scale. He reported flare-ups as he indicated that he could not lift his left leg as high as his right leg. Left hip flexion was from 0 to 40 degrees and extension was from 5 to 0 degrees. Abduction was lost beyond 10 degrees. Post repetitive use testing did not demonstrate abduction lost beyond 10 degrees, did not demonstrate an inability to toe-out in excess of 15 degrees and was not so limited where the Veteran could not cross his legs. There was no additional loss of motion of the thigh or hip after repetitive use testing but the Veteran did have impairment of the hip and thigh as he had less movement than normal and pain on movement. There was localized pain to palpation. Muscle strength testing was normal and there was no ankylosis. The Veteran did not use any assistive devices. The Veteran’s left hip impacted his ability to work as standing and walking over 2 hours was limited. The Veteran’s muscle injury from the gunshot wound resulted in some loss of deep fascia but the muscle injury did not affect muscle substance or function. The Veteran underwent a VA examination in November 2014. The Veteran had a gunshot wound to his left thigh as well as age related degenerative joint disease. The Veteran had painful motion of the left hip, limitation of abduction of the thigh and motion lost beyond 10 degrees. He also had limitation of motion and extension of the left thigh as extension was limited to 5 degrees. The Veteran had pain and weakness of the left thigh and his condition had gotten worse. He reported flare-ups with prolonged standing or walking that would be painful for several days. Left hip flexion was from 0 to 90 degrees with pain at 20 degrees. Extension was greater than 5 degrees with no objective evidence of painful motion. Abduction was not lost beyond 10 degrees, abduction was not limited to such a degree where he could not cross his legs and rotation was not so limited where he could not toe-out more than 15 degrees even after repetitive use testing. There was no additional loss of motion of the thigh or hip after repetitive use testing but the Veteran did have impairment of the hip and thigh as he had less movement than normal and pain on movement. Muscle strength testing was normal and there was no ankylosis. The Veteran did not use any assistive devices. The examiner indicated that the Veteran’s left hip and thigh disability impacted his ability to work as he had difficulty standing and walking for long periods of time. The examiner noted that the Veteran’s extension of the thigh was limited to 5 degrees and the diagnosis was changed as motion was no longer lost beyond 10 degrees. The Veteran’s muscle injury from the gunshot wound resulted in some loss of deep fascia but the muscle injury did not affect muscle substance or function with occasional fatigue and pain. Based on a review of the record, the Board finds that the Veteran’s claim should be granted and his 20 percent rating for a left thigh disability and 10 percent rating for a limitation of extension of the left thigh disability should be restored for the period from October 1, 2015. Initially, as noted above, the 20 percent rating for a left thigh disability and 10 percent rating for a limitation of extension of the left thigh disability were in effect for less than 5 years at the time of the reductions. As such, the Board does not have a heightened duty to show sustained material improvement as contemplated by 38 C.F.R. § 3.344(a) and (b). As noted above, a rating reduction is not proper unless the veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000) (noting that VA must review the entire history of the veteran’s disability, ascertain whether the evidence reflects an actual change in the disability, and ascertain whether the examination reports reflecting such change are based upon thorough examinations) (citing Brown v. Brown, 5 Vet. App. 413, 421 (1993)). The Board finds that the November 2014 VA examination report, upon which the RO reduced the Veteran’s disability ratings, fails to show any improvement in the Veteran’s left thigh disability or limitation of extension of the left thigh disability from the December 2012 VA examination which formed the basis of the original 20 percent and 10 percent disability ratings, effective October 11, 2012. Notably, the November 2014 VA examination indicated that the Veteran’s extension of the thigh was limited to 5 degrees while the Veteran presented with complaints of worsening pain and weakness. The November 2014 VA examiner also specifically indicated that the Veteran’s thigh disability impacted his ability to work. The July 2015 rating decision reduced the 10 percent rating based upon the October 2012 VA examination’s finding that there was extension limited to 5 degrees. However, as noted above, the November 2014 VA examiner also indicated that the Veteran’s extension of the thigh was limited to 5 degrees. As a result, the evidence does not show actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work. The July 2015 rating decision also reduced the 20 percent rating based upon the October 2012 VA examination’s finding that abduction was not lost beyond 10 degrees. However, comparing the demonstrated symptomatology at the time of the assignment of the Veteran’s pre-reduction 20 percent disability rating versus the demonstrated symptomatology since that time, the Board concludes that the evidence does not show actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Notably, the December 2012 and November 2014 VA examinations both indicated that the Veteran’s thigh disability caused pain and weakness of the left thigh and the November 2014 VA examination noted that the Veteran’s condition had gotten worse. On both examinations, the Veteran also reported flare-ups with prolonged standing or walking that would be painful for several days. Notably, both the December 2012 and November 2014 VA examiners also found that the Veteran’s left thigh disability impacted his ability to work as he was unable to stand or walk for prolonged periods. Accordingly, improvement under the ordinary conditions of life and work is not demonstrated. Thus, affording the Veteran the benefit of the doubt, the evidence of record serves to support the continuance of the 20 percent and 10 percent evaluations. For these reasons, the Board concludes that the evidence is at least equally weighted on the question of whether the Veteran’s left thigh disabilities had improved for the period from October 1, 2015, and the Veteran’s claims are granted. The Board finds that for the period from October 1, 2015, the Veteran’s 20 percent rating for a left thigh disability and the 10 percent rating for a limitation of extension of the left thigh disability were improperly reduced. Therefore, the Board finds that the reductions of the 20 percent disability rating for a thigh impairment and of the 10 percent evaluation for the Veteran’s limitation of extension of the thigh disability were improper and that the restoration of the 20 percent rating for service-connected a thigh impairment and a 10 percent rating for limitation of extension of the thigh disability are warranted, effective October 11, 2012. See 38 C.F.R. §§ 4.2, 4.10; Brown, 5 Vet. App. at 421. The Board has resolved reasonable doubt in favor of the claimant in making this decision. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.