Citation Nr: 21023434 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-27 817 DATE: April 20, 2021 ORDER Entitlement to a rating in excess of 10 percent for a left knee sprain is denied. Prior to January 6, 2014, entitlement to a rating in excess of 10 percent for a lumbar strain is denied. From January 6, 2014 to December 22, 2020, entitlement to a rating of 20 percent, but no greater, for a lumbar strain is granted. Since December 23, 2020, entitlement to a rating in excess of 10 percent for a lumbar strain is denied. Entitlement to a rating in excess of 50 percent for sleep apnea is denied. FINDINGS OF FACT 1. The Veteran’s left knee strain has been manifested by pain with movement; flexion is limited to no less than 120 degrees and extension is full. 2. Prior to January 6, 2014, the Veteran’s lumbar strain was manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, and the combined range of motion of the thoracolumbar spine was no less than 215 degrees. 3. From January 6, 2014 to December 22, 2020, the Veteran’s lumbar strain was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, and the combined range of motion of the thoracolumbar spine was no less than 240 degrees. 4. Since December 23, 2020, the Veteran’s lumbar strain has been manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, and the combined range of motion of the thoracolumbar spine has been no less than 220 degrees. 5. The Veteran’s sleep apnea has been manifested by persistent day-time hypersomnolence and the use of a continuous airway pressure (CPAP) machine has been recommended, although she reports that she discontinued such use, but chronic respiratory failure with carbon dioxide retention or cor pulmonale, or tracheostomy have not been shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for limitation of flexion due to left knee sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5024 - 5260. 2. The criteria for a rating in excess of 10 percent for lumbar strain, prior to January 6, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 3. The criteria for a rating of 20 percent, but no higher, for lumbar strain, from January 6, 2014 to December 22, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 4. The criteria for a rating in excess of 10 percent for lumbar strain since December 23, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 5. The criteria for a rating in excess of 50 percent for sleep apnea have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.97, Diagnostic Code 6847. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 2003 to December 2005. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In pertinent part, a June 2015 rating decision granted service connection for right lower extremity radiculopathy involving sciatic nerve and assigned an initial 10 percent evaluation, effective February 2014; and also granted service connection for mild ligament left knee instability and assigned an initial 10 percent evaluation, also effective February 2014. The Veteran was notified of this rating by letter of August 2015. The Veteran appealed that decision by filing VA Form 21-0958, Notice of Disagreement (NOD) in August 2016, as to the ratings and effective dates for the grants of service connection. A March 2020 statement of the case (SOC) was issued addressing the 10 percent ratings assigned for each disability (but not the effective dates of the grants of service connection). However, the appeal was never perfected by the filing of VA Form 9, Appeal to the Board, or equivalent. The Veteran was scheduled for a November 2018 hearing before the Board but failed to appear as scheduled, with no request to reschedule or good cause shown. Therefore, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.704. The Veteran is in receipt of special monthly compensation (SMC) under 38 U.S.C. § 1114(k) on account of anatomical loss of a creative organ from June 29, 2010, and in receipt of a total disability rating for individual unemployability (TDIU) from November 29, 2011. A March 2019 Board decision denied ratings in excess of 10 percent for a left knee sprain and for a lumbar strain; denied a rating in excess of 50 percent for sleep apnea; and denied a rating in excess of 70 percent for dysthymia and posttraumatic stress disorder (PTSD). Claims for service connection for laceration residuals of the middle finger of the left hand and for a deviated septum were remanded. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court) the denials of increased ratings for her left knee, lumbar strain, and sleep apnea disorder, but not the denial of an increased rating for her service-connected psychiatric disorder. Pursuant to a Joint Motion for Remand (JMR), the Court entered an Order in February 2020 vacating those denials and remanded the case to the Board. A March 2020 rating decision granted service connection for a laceration scar of the tip of the left middle finger (left 3rd finger) and assigned an initial noncompensable rating, effective June 2010. She was notified of that decision by RO letter in April 2020 but did not appeal that decision. In September 2020, the Board denied service connection for a deviated septum, and remanded all three claims for increased ratings, as well as claims for earlier effective date prior to February 2014, for the grants of service connection for left knee instability and for service connection for right lower extremity radiculopathy (each having been assigned initial ratings of 10 percent) for the issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). In this regard, the Veteran was notified of the effective dates of the grants of service connection for left knee instability and right lower extremity radiculopathy by RO letter of August 2015, and an appeal was initiated later in August 2015 by filing VA Form 21-0958, Notice of Disagreement (NOD). Thereafter, an SOC addressing those matters was issued in October 2020. However, no VA Form 9, Appeal to the Board, or equivalent, was ever filed and, so, an appeal as to those matters has not been perfected and those matters are not before the Board. Increased Schedular Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When entitlement to compensation is established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, it is essential to consider the history of the disability. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Not all cases will show all of the findings for a specific rating, especially in the more fully described grades of disabilities, but the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. §§ 4.7, 4.21. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Left Knee Sprain The Veteran contends she is entitled to a rating in excess of 10 percent for left knee sprain, which is evaluated by use of a built-up Diagnostic Code 5099 under 38 C.F.R. § 4.27, analogously as tenosynovitis under Diagnostic Code 5024 which is rated on limitation of motion of the affected part as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5024. Multiple diagnostic codes are potentially applicable to evaluation of the knees. Simultaneous compensation under several Diagnostic Codes is permissible so long as differing symptomatology is being compensated by each Code. Limitations of flexion (Code 5260) and extension (Code 5261) may both be rated, but a rating for arthritis (Code 5003) cannot be combined with either, as it refers to general limitations of motion and would include both flexion and extension. Similarly, instability (Code 5257) and meniscal disabilities (Codes 5258 and 5259) can be rated with limits of motion, and with each other, so long as differing symptoms and manifestations are being compensated. VAOGCPREC 9-2004; VAOPGCPREC 23-97; VAOPGCPREC 9-98. Pursuant to Diagnostic Code 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted; if flexion is limited to 45 degrees, a 10 percent rating is warranted; if flexion limited to 30 degrees warrants a 20 percent rating; and flexion limited to 15 degrees warrants the maximum 30 percent rating. Diagnostic Code 5261 rates based on limitation of extension and provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Also, extension limited to 45 degrees warrants the maximum, 50 percent rating. The diagnostic criteria for rating recurrent subluxation or lateral instability are found at 38 C.F.R. § 4.71a, Diagnostic Code 5257 which provides that slight impairment warrants a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “mild” or “moderate” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. The diagnostic criteria for rating disability affecting the semilunar knee cartilage are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5258 and 5259. Diagnostic Code 5258 provides for a single, and maximum, rating of 20 percent for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Diagnostic Code 5259 provides for a single and maximum rating of 10 percent for symptoms due to the removal of the semilunar knee cartilage. VA records dated October 2011 reflect that the Veteran had no complaints of joint swelling or stiffness, or loss of function or range of motion. On physical examination, no bony deformity, redness, or swelling were noted, but some tenderness was observed with palpation of the medial joint line of the left knee. Varus, valgus, anterior and posterior drawer, and Lachman tests were reportedly negative. A January 2012 x-ray of the left knee showed some narrowing of the patellofemoral compartment, evidence of an old medial collateral ligament injury, but no fracture, dislocation, or effusion. During private hospitalization in January 2012 for psychiatric treatment, a physical examination revealed all of the Veteran’s extremities appeared normal with no appreciated pain with palpation and range of motion was intact in all extremities. On official examination of her left knee disability in February 2012 a VA examiner referenced the Veteran’s 2003 diagnosis of degenerative arthritis of the left knee. The Veteran endorsed knee pain with prolonged walking. The VA examiner reported that the Veteran had knee pain, stiffness, limited range of motion, and difficulty with prolonged walking, jogging, and climbing stairs. On physical examination she had 120 degrees of flexion with objective evidence of painful motion at 120 degrees, and no limitation of extension. She had no additional limitation in range of motion, functional loss, or functional impairment of the left knee following repetitive-use testing. There was no tenderness or pain to palpation for joint line or soft tissues, and she had normal muscle strength and joint stability. The VA examiner reported that there was no evidence or history of recurrent patellar subluxation or dislocation, medial tibial stress syndrome, or a meniscus (semilunar cartilage) condition and no symptoms from any meniscectomy. It was noted that she did not use any assistive devices. The functional impact as to her ability to work was knee pain, stiffness, limited motion, difficulty with prolonged walking, jogging, or climbing stairs. On official examination in January 2014 the Veteran reported that her knee “gives out daily,” with pain and locking, difficulty bending, and pain in the back of her knee. On examination she had 130 degrees of left knee flexion with objective evidence of painful motion at 120 degrees. There was no limitation of extension or objective evidence of painful motion. She did not have additional limitation of range of motion in the knee following repetitive-use testing, but had functional loss of less movement than normal, and pain on movement. Muscle strength and joint stability tests of the left knee were normal. The VA examiner noted that there was no evidence or history of recurrent patellar subluxation or dislocation, or medial tibial stress syndrome. The examination report indicated that she had a meniscus (semilunar cartilage) condition, because she had frequent episodes of joint “locking”, but she had never had a meniscectomy. However, she did not use any assistive devices as a normal mode of locomotion. As to the impact on her ability to work, during flareups she might have limitation as to prolonged standing, ambulation, kneeling, squatting, or bending. A left knee x-ray showed small retropatellar spurs, a benign Pellegrini-Stieda fragment, but no fracture, dislocation, soft tissue swelling, joint effusion, or chondrocalcinosis. At an April 2016 VA orthopedic consultation, the Veteran reported having left anterior knee pain. On examination she had slight valgus alignment, but no effusion or loss of motion, and no ligamentous dysfunction. Her left knee was reportedly very tender at the medial articular facet of the patella and slight tenderness was noted at the medial joint line. A June 2019 VA Emergency Department note reflects that the Veteran was seen for left knee pain and swelling. She had been dancing more in dance class for the last week. Last night she was standing from 9 p.m. to 1 a.m. In the past, after dance workouts her knees had hurt. She complained of a catching sensation and a feeling that the left knee would give way. On examination, there was no effusion or edema and range of motion was grossly intact. There was mild tenderness below patella, with normal patellar tracking and slight crepitus. There was bilateral joint line tenderness. Anterior drawer sign was negative and there was no instability of varus and valgus pressure. When she walked, she favored her left knee. The assessment was left knee pain, most likely related to overuse, with an underlying meniscal injury, possible PFS. She was not a fall risk. A July 2019 VA Rehabilitation Consultation reflects that the Veteran was seen for bilateral knee pain, which she described as pain sharp, stabby, and tight in the center and sides of her knees. She reports that she was unable to work, which was to stand up to 40 hours a week. She reported that dancing, jumping, and running upstairs caused pain. On examination she had slight genu valgus but a symmetric gait. Right and left knee extension were full. There was tenderness to palpation medial to the patella on the left knee, and slight crepitus of the left knee joint. There was no joint laxity, bilaterally. The assessment was bilateral knee pain with patellofemoral syndrome (PFS) and possible old meniscus injury. An August 2019 VAOPT record shows that the Veteran reported that since her last job she had had to use knee braces constantly, and not just for working out. She complained of pain and reported that she had done more dancing this summer than in her whole life. On examination she ambulated with a steady gait and pace without assistive device although he used a left knee brace. An August 2020 Rehabilitation clinical note shows that the Veteran had had 14 sessions of physical therapy and reported significant decrease in her bilateral knee pain. She said she had no pain at rest and 2/10 pain when her knee pain flared up after strenuous exertion. She reported that physical therapists had taught her how to modify her exercises and taught her to avoid certain movements. She had been taping her knees and was taught how to tape them herself. Her knee had not given out since starting the physical therapy. She wanted to know the next step to possibly get back to dancing. A December 2020 Knee and Lower Leg Conditions Disability Benefits Questionnaire reflects that the Veteran’s records were reviewed. She related that in the last year her left knee pain has worsened. The pain was stabbing, and at times sharp, in nature. She also reported that her left knee would give out, and that she felt a grinding and popping sensation while in motion. She related having flareups twice monthly, lasting for 2 days, accompanied by a sensation of tightness, and inability to bear weight, bend the knee, or go upstairs. She related having function loss or impairment due to interference with walking, bending, and going up stairs. On examination the Veteran had full left knee extension and flexion was to 130 degrees, with pain on flexion that caused functional loss. She was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion after three repetitions. The examination was not conducted during a flareup, but the examiner reported that pain and, weakness significantly limit functional ability with flareups, but that range of motion continued to be full left knee extension and flexion to 130 degrees. Strength was normal in flexion and extension, and there was no muscle atrophy. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Testing of joint stability was normal. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of pain with weight bearing or objective evidence of crepitus. There was no objective evidence of pain when the joint is used in non-weight bearing but there was evidence of pain on passive range of motion testing. The examiner reported that the Veteran did not have and had never had a “meniscus (semilunar cartilage) condition.” She had no scars related to past treatment. She occasionally used a knee brace as an ambulatory assistive device. The examiner reported that the Veteran had PFS, or pain of chondromalacia patella, which was aggravated by activity or prolonged sitting with bent knees. Abnormal tracking allowed the kneecap (patella) to grate over the lower end of the thighbone (femur), causing chronic inflammation and pain. She had a history of chronic left knee sprains which could be related PFS. The left knee arthritis could also be related to her past knee sprains because trauma could predispose one to the development of arthritis. As to the impact on the Veteran’s ability to work, the examiner reported that the Veteran’s left knee PFS, degenerative arthritis, and sprain could cause inflammation that made her knees stiff, made it difficult to sit for long periods of driving where she had to stop and stretch. Initially, the Board notes that the criteria for the evaluation of instability of a knee under 38 C.F.R. § 4.71a, Diagnostic Code 5257 were amended effective February 7, 2021. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). However, in this case the Veteran did not perfect an appeal as to the initial 10 percent rating assigned for instability of the left knee and, accordingly, that matter is not before the Board. In this regard, the evidence of her use of a knee brace and even taping of her left knee are due to instability, which is separately rated, and will not be considered for the purpose of the rating based on limitation of motion. The JMR indicated that the Board had previously not addressed why the purported findings and symptoms of a menisceal condition on VA examination in January 2014, standing alone, were not sufficient for a separate rating of 10 percent. In this connection, the Diagnostic Codes addressing menisceal conditions are Diagnostic Codes 5258 and 5259. The apparent argument is that purported “locking” alone is sufficient to warrant a separate 10 percent rating. However, Diagnostic Code 5258 requires more than simply “locking.” Read in its entirety it requires that the locking be symptomatic of a dislocated semilunar cartilage. In this case, there is simply no evidence that the Veteran has ever actually had any dislocation of a semilunar cartilage. In fact, the most recent examination in 2020 found that she did not have and had never had a menisceal condition. This opinion was not predicated upon the Veteran’s self-report of her symptomatology. On the other hand, the VA examination in 2014 indicated she had a menisceal condition because of her self-report of locking of the left knee. Similarly, the June 2019 notation of an underlying menisceal injury was also based upon her self-report of a sensation of catching in the left knee, and the next month, in July2019 it was only reported that she possibly had an old menisceal injury. Thus, these notations and the opinion of the 2014 VA examiner rested upon the credibility of the Veteran’s self-reported episodes of locking which the Board finds is lacking because it is not corroborated by the voluminous VA outpatient treatment records. Rather, the record shows that the Veteran has been seen by VA on an outpatient basis on many occasions and, yet, at no time has any actual locking of the left knee been found. In other words, while at times she may have had some stiffness in the left knee, and even some episodes of a sensation of catching, if in fact, she had had actual locking it would be expected that this would have been found at some point in time over the many years of her VA outpatient treatment. However, it has not and, thus, the Board finds that she had not had any actual episodes of locking of the left knee. Moreover, assuming that she had had a dislocated semilunar cartilage with episodes of actual locking, this could be corrected, or at least somewhat alleviated, by surgery, i.e., removal, including partial removal, of semilunar cartilage but the record shows that surgical intervention has never been recommended. Rather, she has had extensive physical therapy, and this was for her instability, not locking. Moreover, studies have confirmed a past injury of a ligament, which is the basis of the award of service connection for a sprain, but no clinical studies have ever documented any menisceal damage. Diagnostic Code 5289 provides for a rating of 10 percent for symptomatic residuals of removal of a semilunar cartilage, i.e., a meniscectomy. But, in this case, it is undisputed that the Veteran has never had surgery on her left knee and, so, cannot have had a meniscectomy. Thus, Diagnostic Code 5289 is not applicable. Similarly, she does not have knee ankylosis or genu recurvatum and, thus, Diagnostic Codes 5256 and 5263 at not applicable. Even though the Veteran’s left knee function is aggravated by activity or prolonged sitting due to her sprain and any PFS, arthritis, or chondromalacia of the patella, she has continued to have full extension of the left knee and flexion has not been limited to less than 120 degrees. Neither is compensable under Diagnostic Codes 5260 (flexion) or 5261 (extension). The current 10 percent rating encompasses painful motion under 38 C.F.R. § 4.59. Thus, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating based on impaired knee extension, and against assigning a rating in excess of 10 percent based on limited knee flexion, as well as against the award of a 20 percent rating for a dislocated semilunar cartilage. Lumbar Strain The Veteran’s lumbar strain is rated 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5237, effective January 28, 2009. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula), or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher rating. Under the General Rating Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 contour such as scoliosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Note 1 following the General Rating Formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note 2 states that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note 3 provides that in exceptional cases, an examiner may state that because of age, body habitus, neurological disease, or other factors not the result of disease or injury of the spine, the range of motion of spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note 2. Provided that the examiner provides an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis as a condition in which the entire cervical spine, the entire the thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Under the Formula for Rating IVDS Based on Incapacitating Episodes (in pertinent part) a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 for purposes of evaluations under the Formula for Rating IVDS Based on Incapacitating Episodes, defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The Board finds that a rating in excess of 10 percent for the Veteran’s service-connected lumbar strain is not warranted. VA records dated October 2011show that the Veteran had normal spinal curvature, no bony deformity, redness, or swelling, and full range of motion. Some tenderness with paraspinal L4-S1 palpation was present. A January 2012 lumbar x-ray showed disc space narrowing at L5, straightening of the lumbar lordosis, symmetric sclerosis at the sacroiliac (SI) joints, and no evidence of spondylosis. During private hospitalization in January 2012 for psychiatric treatment, a physical examination revealed the Veteran had no back pain and range of motion of her back was normal. On official spinal examination in February 2012 the Veteran’s 2003 diagnosis of degenerative arthritis of the lumbar spine was noted. She reported having back pain with heavy lifting. The VA examiner reported that she had back pain, stiffness, limited range of motion, difficulty with heavy lifting, bending, prolonged walking, and climbing stairs. On examination she had 65 degrees of forward flexion with objective evidence of painful motion at 65 degrees, normal extension, and normal lateral flexion and lateral rotation bilaterally. She did not have additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. She did not have localized tenderness or pain to palpation for joints and or soft tissue of the thoracolumbar spine, and no guarding, muscle spasm, or muscle atrophy. Muscle strength, reflex, and sensory testing were normal. Straight leg raising was negative, and she did not have radicular pain or any other signs or symptoms due to radiculopathy. The VA examiner reported that she did not have IVDS. She did not use any assistive devices as a normal mode of locomotion. The functional impact as to her ability to work was back pain, stiffness, limited motion, difficulty with heavy lifting, bending, prolonged walking, jogging, or climbing stairs. On official spinal examination in January 2014 the Veteran reported that her disability had worsened, as she sometimes was unable to get out of bed, and experienced sharp, almost burning, or tingling pain. On examination she had normal forward flexion with objective evidence of painful motion at 60 degrees. She had normal extension and lateral flexion bilaterally with no objective evidence of painful motion. She had normal lateral rotation bilaterally, but with objective evidence of painful motion at 25 degrees, bilaterally. She had no additional thoracolumbar limitation of motion following repetitive-use testing but had functional loss or functional impairment of pain on movement. She had no localized tenderness or pain to palpation for joints and or soft tissue of the thoracolumbar spine or guarding or muscle spasm. She had normal muscle strength testing, no muscle atrophy, normal reflex, sensory examination, and straight leg raising testing. The January 2014 VA examiner reported that the Veteran had mild intermittent pain of the right lower extremity, and mild paresthesias and or dysesthesias of the right lower extremity. The assessment was mild right lower extremity radiculopathy affecting the sciatic nerve, and it was reported that she did not have IVDS of the thoracolumbar spine. Also, she did not use any assistive devices as a normal mode of locomotion. A lumbar x-ray was normal, because there was normal alignment and lordotic curvature, no fracture or dislocation, no degenerative disease, maintained intervertebral disc spaces, and normal posterior elements and mineralization. As to the impact on her ability to work, during flareups she might have limitation as to heavy lifting, carrying, repetitive bending and twisting. In August 2016 VA treatment notes for back pain, the Veteran had flexion to 60 degrees with crepitus. In April 2017, she complained of low back pain on the right into the right buttocks with morning stiffness. On examination she had impeded range of motion in flexion and extension with pain, lumbar spasm, spinous tenderness to palpation at L4-L5, and no sensory loss. A December 2020 Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire reflects that the Veteran’s records were reviewed. The Veteran reported that her symptoms had worsened in the past year, but she had not seen a doctor for her back since 2014. She reported having sharp, throbbing, burning pain that radiated down her right leg. She reported having flareups of pain with prolonged standing and sitting, as well as spasms twice every 2 to 3 months, lasting one day in duration. On examination, the Veteran had thoracolumbar flexion to 80 degrees (normal being to 90 degrees) and she had normal extension, right and left lateral flexion, and right and left rotation (with normal being to 30 degrees in each such plane of motion), for a combined range of motion of 230 degrees. She had pain in flexion and in extension, but it did not contribute to functional loss. She was not examined during a flareup but the examiner was able to estimate her range of motion, after repeated use over time, and stated that pain and weakness caused functional loss with flexion being to 80 degrees and there being normal motion in all other planes, for a combined range of motion of 230 degrees. She was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion. She was not examined after repeated use over time but the examiner was able to estimate her range of motion, after repeated use over time, and stated that pain and weakness caused functional loss with flexion being to 70 degrees and there being normal motion in all other planes, for a combined range of motion of 220 degrees. There was no objective evidence of pain in nonweight-bearing, and passive range of motion testing was not conducted because it was not feasible to do so safely. There was pain on palpation of the lower back and sacral area but no guarding or muscle spasm. Strength, sensation to light touch, and reflexes were normal throughout, bilaterally, and there was no muscle atrophy. Straight leg raising was negative, bilaterally. There was no radiculopathy except for mild radiculopathy of the right lower extremity in the sciatic nerve distribution, and there were no other neurologic abnormalities. It was reported that she did not have intervertebral disc syndrome (IVDS). She did not an assistive device for ambulation due to her back disorder. There was no scarring, surgical or otherwise. She did not have a thoracic vertebral fracture with loss of 50 percent or more of vertebral body height. As to the impact on her ability to work the examiner stated that her back disorder could interfere with lifting and carrying things and can make it difficult to sit for long periods. Entitlement to a rating in excess of 10 percent for lumbar strain, prior to January 6, 2014 In this case it is neither shown nor contended that the Veteran has ever had such limitation of motion in all planes that her combined range of motion was not greater than 120 degrees, and in fact the evidence shows that it has never been less than 215 degrees. Similarly, although the Veteran has reported having thoracolumbar muscle spasm, and even though not found on any rating examination, it is neither shown nor contended that the Veteran has ever had muscle spasm or guarding causing an abnormality of gait or spinal contour. The rating criteria under Diagnostic Code 5237 are clear that flexion to greater than 60 degrees, but less than 85 degrees warrants a 10 percent rating, and when flexion is greater than 30 degrees but not greater than 60 degrees a 20 percent rating is warranted. Stated in simpler terms, if thoracolumbar flexion is limited to 60 degrees, a 20 percent rating is warranted. In this case, the February 212 examination found that flexion was to 65 degrees. This warrants a rating of no more than 10 percent. Accordingly, the Board finds that the preponderance of the evidence weighs against entitlement to a rating greater than 10 percent for lumbar strain prior to January 6, 2014. Entitlement to a rating of no more than 20 percent for lumbar strain, from January 6, 2014 to December 22, 2020 The JMR observed that an August 2016 VA treatment note, and a chiropractic consult demonstrated that flexion of the Veteran’s lumbar spine for flexion was to 60 degrees with crepitus and the January 2013 rating examination found objective evidence painful motion beginning at 60 degrees. It was further stated that “[i]n light of the fact that Appellant’s ROM on forward flexion appears to be over 30 degrees and the Board’s acknowledgement that her forward flexion is not greater than 60 degrees, the Board erred when it failed to adequately explain whether Appellant is entitled to a 20 percent rating.” Here, the January 2014 rating examination found that the Veteran had normal flexion of the thoracolumbar spine but that there was objective evidence of pain in flexion beginning at 60 degrees. Range of motion was normal in all other planes of thoracolumbar motion. Additionally, a VA treatment record in August 2016 found that flexion was limited to 60 degrees. Resolving doubt in favor of the Veteran, the Board finds that this demonstrates such severity of the thoracolumbar spinal disability as to more closely approximate the criteria for a 20 percent disability rating. However, a rating greater than 20 percent is not warranted because this would require flexion limited to only 30 degrees or less or favorable ankylosis of the thoracolumbar spine. There is no evidence of such severe loss of forward thoracolumbar flexion and the fact that he has a significant remaining range of motion clearly shows that he does not approximate favorable thoracolumbar ankylosis. Accordingly, from January 6, 2014 to December 22, 2020, a rating of no more than 20 percent is warranted. Entitlement to a rating in excess of 10 percent for lumbar strain, since December 23, 2020 Although a 20 percent rating is warranted from January 6, 2014 to December 22, 2020, the December 23, 2020, rating examination demonstrated significantly greater flexion of the thoracolumbar spine than that which is assigned for the 20 percent rating. Specifically, flexion even with pain was to at least 80 degrees, and the examiner even estimated that during flareups and on repetitive use there was 80 degrees of flexion. Moreover, the examiner estimated that even with repetitive use over time the Veteran would have 70 degrees of flexion. These ranges of motion place the findings firmly in the category of being greater than 60 degrees but not greater than 85 degrees which warrants the assignment of no more than a 10 percent rating. Although the time lapse during which a 20 percent rating is warranted, i.e., from January 6, 2014, to December 22, 2020, is a period greater than five (5) years, the requirements for the reduction of a rating in effect for more than 5 years, under 38 C.F.R. § 3.105 (predetermination notice) and 38 C.F.R. § 3.344 (stabilization of disability evaluations) are not applicable. See, respectively, Tatum v. Shinseki, 24 Vet. App. 139 (2010) notice under 38 C.F.R. § 3.105(e) is warranted only where there is a reduction in compensation payments currently being made) and Singleton v. Shinseki, 23 Vet. App. 376, 379 (2010) (“[n]othing in the plain text of the regulation [38 C.F.R. § 3.344] requires its application in the staged disability rating context.”). Sleep Apnea The Veteran contends that she is entitled to a rating in excess of 50 percent for her sleep apnea which is rated under 38 C.F.R. § 4.97, Diagnostic Code 6847. That Diagnostic Code provides that a 30 percent rating is warranted when there is persistent day-time hypersomnolence, and the 50 percent rating currently assigned encompasses disability of such severity from sleep apnea as to require the use of a breathing assistance device such as CPAP machine. The next higher rating of 100 percent is assigned for sleep apnea that causes chronic respiratory failure with carbon dioxide retention or cor pulmonale, or requires tracheostomy. On official examination for obstructive sleep apnea in February 2012 it was found that the Veteran did not require continuous medication for control of her sleep apnea but did require the use of a breathing assistive device. The VA examiner reported that the Veteran did not currently have any findings, signs, or symptoms attributable to sleep apnea consisting of persistent daytime hypersomnolence, evidence of chronic respiratory failure with carbon dioxide retention, cor pulmonale, or having required a tracheostomy. The impact on her ability to work was daytime sleepiness, as well as decreased stamina and fatigue with physical exertion. On VA examination in February 2014 it was found that the Veteran did not require continuous medication but required the use of a breathing device. The VA examiner noted that the Veteran did not currently have any findings, signs, or symptoms attributable to sleep apnea consisting of persistent daytime hypersomnolence, evidence of chronic respiratory failure with carbon dioxide retention, cor pulmonale, or having required a tracheostomy. The impact on her ability to work was daytime sleepiness, as well as decreased stamina and fatigue with physical exertion. The JMR indicated that the VA examinations were inadequate because subsequent treatment records indicate that the Veteran’s sleep apnea had worsened, citing to an October 2016 VA consult indicating that Appellant’s sleep apnea became “sever[e]” with moderate O2 desaturation and that a Continuous Positive Airway Pressure (CPAP) titration was needed, as well as January 2018 VA ambulatory/outpatient care note indicating that she still had not had her titration study. Thus, she was to be provided with a contemporaneous VA examination that assessed the current severity of her service-connected sleep apnea. A December 2020 VAOPT record reflects that the Veteran had not been successful with using a CPAP device because it contributed to panic attacks awakening her from sleep. She had last used the device beginning 2019. A December 2020 Sleep Apnea Disability Benefits Questionnaire reflects that the Veteran’s records were reviewed. She reported that over the last year she had had increased tiredness, she awoke about 7 times a night. She tried to use a CPAP machine but would awaken in a panic, stating that it felt like she was suffocating. Continuous over-the-counter (OTC) medication was required for control of her sleep disorder and she required the use of a breathing device. She had persistent daytime hypersomnolence. She did not have any findings, signs, or symptoms attributable to sleep apnea consisting of evidence of chronic respiratory failure with carbon dioxide retention, cor pulmonale, or having required a tracheostomy. As to the impact on her ability to work her sleep apnea caused her to have daytime sleepiness which made it difficult to stay awake while driving, and she reported that she had to drink a lot of energy drinks to help stay awake. Here, even if the Veteran’s sleep apnea has actually worsened, it has not worsened to the extent that the next higher rating, of 100 percent, is warranted. As to this, she has daytime hypersomnolence, but this is encompassed in the lower 30 percent rating. Even though she no longer obtains any benefit from the use of a CPAP machine, i.e., a breathing device, it is encompassed in the current 50 percent rating, and she has not had chronic respiratory failure with carbon dioxide retention or cor pulmonale, or required a tracheostomy. While not all criteria for a higher schedular rating under a particular Diagnostic Code must be found on multiple examinations in this case, and despite any increase in severity, none of the repeated examinations have ever found that the Veteran has any of the criteria for a 100 percent schedular rating. Accordingly, the Board must conclude that the preponderance of the evidence is against finding that the Veteran’s sleep apnea warrants a 100 percent schedular rating. L. ANDERSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, 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.