Citation Nr: 21026478 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 18-11 053A DATE: May 3, 2021 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to a disability rating greater than 10 percent for status post right thumb injury with arthritis ("right thumb disability") is denied. REMANDED Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to a back disability, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving doubt in favor of the Veteran, his sleep apnea had its onset in active service. 2. Throughout the appeal period, the Veteran's right thumb disability does not more nearly approximate a gap of more than two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). 2. The criteria for a disability rating greater than 10 percent for a right thumb disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5228 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from September 2001 to September 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from January and September 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Board remanded the Veteran's claim of service connection for sleep apnea and denied, in pertinent part, reopening the claim for residuals of traumatic brain injury (TBI), service connection for left lower extremity radiculopathy, and granted a 10 percent rating for right thumb disability. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans' Claims (Court). The Court granted a joint motion for partial remand (JMPR), vacating the Board's decision in part and remanding the matters to the Board for review. In August 2020, the Board remanded the claims of service connection for TBI, service connection for left lower extremity radiculopathy, and entitlement to a rating in excess of 10 percent for right thumb disability for additional development. A January 2021 rating decision granted service connection for residuals of TBI and headaches. Because the benefit sought on appeal has been granted in full, it is no longer an issue before the Board. The matters of service connection for left lower extremity radiculopathy and entitlement to a rating in excess of 10 percent for right thumb disability have been returned to the Board for review. In addition, the claim of service connection for sleep apnea also has been returned to the Board for review. During the pendency of the appeal for an increased rating for right thumb disability, the Veteran's attorney raised the issue of entitlement to TDIU. The Board finds that the issue of TDIU has been raised as part and parcel to the increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in August 2017. Though the August 2017 notice was provided after another unrelated claim for compensation had been filed, the general notice provided information regarding how to substantiate a claim for an increased rating and the claim has been readjudicated following that notice. The RO associated the Veteran's service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. In this respect, the Veteran was provided releases in accord with the Board's prior remand and private treatment records were obtained. The Veteran was advised of a follow-up request to Hoag Hospital and that it was his responsibility that VA receive those records. He was also notified of the inability to obtain records from Hoag Hospital. 38 C.F.R. § 3.159(e). No other relevant records have been identified and are outstanding and the Board's prior remand directive has been completed. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was provided an adequate VA examination for his right thumb disability in 2021. The VA examiner addressed additional functional and impairment during periods of flare-ups as the Veteran did not report functional impairment and loss during periods of repeated use, tested the opposite side, addressed weight-bearing and non-weight bearing, and passive range of motion. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). The Board's recent remand requested that the 2021 examiner address functional loss and impairment during flare-ups and repeated use, the examiner did not address repeated use given that the Veteran denied such impairment during repeated use. Regarding flare-ups, the examiner estimated that limitation of function would remain unchanged, including finding that there would be no gap between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. Though the examiner estimated that gap between the thumb pad and fingers, i.e. no gap, would remain the same during a flare-up, this is within the examiner's medical expertise and knowledge to express such an opinion. As such, the 2021 VA examination report substantially complied with the Board's remand directive and VA has satisfied its duty to assist. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Entitlement to service connection for sleep apnea The Veteran asserts that he is entitled to service connection for sleep apnea. He has a current diagnosis of sleep apnea as reflected by a June 2014 sleep study. Service treatment records do not reveal complaints related to sleep. A June 2005 report of medical history shows that he denied experiencing frequent trouble sleeping. During an April 2006 psychiatric examination, he reported poor sleep and sleep impairment. An April 2014 pulmonary sleep clinic consult shows that he complained of very loud snoring (per wife), leg movements, gasping at night, witnessed apneas (per wife), and rare nocturia. A sleep study was ordered. A June 2014 sleep consult and study shows that he was assessed with severe obstructive sleep apnea. In a statement from a fellow serviceman, J.A., he explained that he had been roommates with the Veteran for about three years during service. He stated that the Veteran was exposed to numerous IED explosions and that the blasts impacted him severely. The Veteran developed sleep problems and would often wake up gasping for air. J.A. would also sometimes find the Veteran on the floor trying to breathe. In a statement from the Veteran's wife, A.R., she noted that she knew him since 1998 before he served with the U.S. Marine Corps. She stated that when he returned from his last tour in Iraq, he developed a sleeping problem. A.R. explained that he made noises like he was choking and that several times during the night, he stopped breathing. In a statement from J.H., he stated that after the Veteran's tours to Iraq, he made a choking or short of breath sound. In September 2016, the Veteran stated that there were instances during service when he would awaken after not being able to breathe. He reported that his roommates would wake him up because they were concerned that he was in danger. In August 2020, the Veteran was provided a VA examination for his sleep apnea. The examiner provided a negative etiology opinion regarding direct service connection. The examiner reasoned that the Veteran started having issues with sleep in the service, but that the service treatment records did not show that. The Board finds the Veteran's statements and that of his fellow serviceman and wife competent and credible concerning the existence of waking up and gasping for air during active service and upon return from active service. The symptoms of sleep apnea, including gasping for air and waking up during the night, are observable symptoms which are capable of being identified by the Veteran and his fellow servicemen and wife as lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). These statements are afforded significant probative value as to the in-service onset. In addition, after service, the Veteran reported a history of gasping for air as a reason to obtain a sleep study and was then diagnosed with sleep apnea. Though the August 2020 VA examiner provided a negative opinion, the examiner discounted the Veteran's lay statements based on the absence of evidence in service, which is impermissible, and this opinion is afforded no probative value. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board finds that the evidence weighs in favor of finding that the Veteran's sleep apnea had its onset during service. Accordingly, and after resolving any reasonable doubt in the Veteran's favor, the criteria for service connection for sleep apnea have been met. Entitlement to a disability rating greater than 10 percent for a right thumb disability The Veteran's right thumb disability is rated as 10 percent disabling under 38 C.F.R. § 4.71a, DCs 5003-5228. In September 2016, the Veteran filed a claim for a higher rating for his right thumb disability. VA treatment records show complaints of right thumb pain. An April 2016 private treatment record shows that he had pain in his right thumb. He stated that he had received cortisone shots in his thumb at VA and took a medication for pain. On examination, the Veteran's right thumb had obvious swelling at the MP joint. There was swelling at the right MC joint and no tenderness at CMMP joint. There was instability with pain on medial and lateral stress. An x-ray report showed some narrowing of the MP joint. In November 2016, the Veteran was provided a hand and fingers examination. The examination report did not reflect whether passive range of motion testing or weight-bearing and non-weight bearing testing was completed. See Correia v. McDonald, 28 Vet. App. 158 (2016). Accordingly, the range of motion findings are not adequate for rating purposes. However, the report also contains other findings. The Veteran reported pain and stiffness and that he had received steroid injections in his thumb. He also reported flare-ups occurring after multiple movements and in cold weather. He reported functional impairment and loss described as mild limitation in function of the thumb especially on prolonged use of right thumb and hand grip movement. Muscle strength testing was 4/5 in the right hand. There was no muscle atrophy. The examiner found that the Veteran had limited ability to perform hand fine manipulation such as painting or sculpting. A March 2017 VA treatment record shows that the Veteran reported arthritis in his hands and that the pain was bothersome. He stated that he had been able to paint more. In August 2017, the Veteran's attorney contended that the Veteran had limited use of his hand because of limitation of motion of the thumb. He could not write for more than two minutes and could not sculpt or draw portraits. He was unable to hold a hammer or do tattoos. The attorney also stated that the Veteran had severe weakness. In November 2017, the Veteran was provided a VA examination. The Board's August 2020 remand determined that the VA examination was deficient because the VA examiner did not adequately address limitation of function during flare-ups. Thus, the range-of-motion findings are not considered adequate for rating purposes. The Board will address other relevant findings made in the VA examination report. The Veteran reported continued pain in his right thumb. He had been treated with cortisone injections and oral medication to reduce inflammation. The Veteran reported flare-ups described as sharp, shooting pain at the base of the right thumb with any movements. The Veteran reported functional loss or impairment described as the inability to do prolonged writing, typing, and doing repetitive finger movements. Muscle strength testing was normal and there was no atrophy. There was no ankylosis. In January 2021, the Veteran was provided a hand and fingers VA examination. The examiner reported severe pain since his initial surgery. He reported flare-ups described as severe pain and stiffness of the right thumb. The Veteran did not report functional loss or impairment including but not limited to repeated use over time. Range of motion findings reflected normal findings for all fingers including the thumb. There was no gap between the pad of the thumb and fingers. There was no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. There was pain on examination but it did not result in or cause functional loss. There was pain with finger flexion, opposition with thumb, and finger extension. There was evidence of pain with use of the hand and pain on motion of thumb in all directions described as moderate to severe. The Veteran was able to perform repetitive-use testing and there was no additional loss of function or range of motion after three repetitions. The examiner determined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time and that range of motion would remain normal in all fingers. There would also be no gap between the pad of the thumb and fingers. The examiner determined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with flare-ups. Range of motion would still be normal in all fingers. There would also be no gap between the pad of the thumb and fingers. There were no additional contributing factors of disability. Muscle strength testing was normal and there was no muscle atrophy. There was no ankylosis. Diagnostic testing reflected moderately severe arthritis of the 1st MCP joint. The examiner indicated that the Veteran's condition would limit repetitive motion and the use of thumb in prolonged hand activities. The right thumb exhibited pain on range of motion, there was no objective evidence of pain on non-weight bearing. Passive range of motion for the right hand was the same as active range of motion. The Board finds that the preponderance of the evidence is against granting the Veteran's claim for a disability rating greater than 10 percent for a right thumb disability. The objective medical findings do not show that the Veteran has a gap of more than two inches between the right thumb pad and the right fingers, with the thumb attempting to oppose the fingers, to warrant a 20 percent rating the maximum rating available under DC 5228. As to any additional functional loss and impairment during flare-ups and repeated use, the 2021 VA examination report shows that the Veteran reported flare-ups described as severe pain and stiffness of the right thumb. He did not report functional loss or impairment including but not limited to repeated use over time. The examiner determined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with flare-ups. The examiner estimated that range of motion would remain normal in all fingers and there would be no gap between the pad of the thumb and fingers. Accordingly, the evidence does not show that any additional functional impairment and loss during flare-ups would more nearly approximate a gap of more than two inches between the thumb pad and the fingers. The 2021 VA examiner determined that the Veteran did not have a gap either on physical examination or during a flare-up. That the Veteran experiences increased symptoms of pain and stiffness during a flare-up as well as limited repetitive motion and the use of thumb in prolonged hand activities does not require a finding that his range of motion would be diminished such that he would have a gap akin to 2 inches or more between the pad of the thumb and fingers. Accordingly, the Board finds that the evidence of record does not support assigning a disability rating greater than 10 percent for the service-connected right thumb disability. The Board has considered the Veteran's reported symptoms, including pain, stiffness, and weakness, and his limited ability to do certain fine hand movements as well as his attorney's statement regarding the Veteran's inability to write for more than two minutes, weakness, and limited ability to paint, do tattoos, and sculpt. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). This lay evidence does not establish a level of disability contemplated by a higher evaluation. The objective findings on examination show muscle strength, at its worst, as 4/5, no muscular atrophy, and do not show that the Veteran's limitation of motion of the thumb is akin to a gap of more than two inches between the thumb pad and the fingers with the thumb attempting to oppose the fingers to warrant a higher rating. The evidence also does not show ankylosis of any fingers or joints of the hand, amputation of any fingers or the hand, or loss of use of the hand, thumb, or any fingers such that the Veteran would be equally well served by amputation with prosthesis. He finally has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 10 percent for his service-connected right thumb disability. Thus, the Board finds that the criteria for a disability rating greater than 10 percent for a right thumb disability have not been met. REASONS FOR REMAND Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to back disability, is remanded. During the pendency of the Veteran's claim for service connection for left lower extremity, he submitted a supplemental claim application to reopen his previously denied claim for service connection for a back disability. He has made several status requests regarding this issue and recently was provided a VA examination for his back, suggesting that the claim is being developed. He has asserted repeatedly that his claimed radiculopathy is secondary to this pending claim for service connection for a back disability. Because that claim is still pending before the RO and may have an impact on the claim for left lower extremity radiculopathy, the Board finds that the issues are inextricably intertwined, and adjudication of the issue must be deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Entitlement TDIU is remanded. Because the issue of entitlement to TDIU is on appeal, the Veteran must be provided a TDIU application and the matter must then be adjudicated by the RO. The matters are REMANDED for the following action: 1. Send the Veteran a development letter regarding his TDIU claim and an application for a TDIU, VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Following adjudication of the pending claim of service connection for a back disability, readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Seay, 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.