Citation Nr: 21040316 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 18-12 538 DATE: July 3, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for a cervical spine condition, to that extent only, is granted. New and material evidence having been received, the application to reopen the previously denied claim for service connection for sleep apnea, to that extent only, is granted Entitlement to service connection for a cervical spine condition is granted. Entitlement to an extended period of temporary total evaluation beyond April 30, 2016 for convalescence of the service-connected lumbar spine condition is denied. REMANDED Entitlement to service connection for sleep apnea and any other sleep-related conditions, to include insomnia, is remanded. Entitlement to a rating in excess of 10 percent for a lumbar spine condition is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity radiculitis is remanded. REFERRED During the September 2020 Board virtual hearing, the Veteran testified that he has PTSD and anger issues related to his lumbar spine pain and sciatica pain. The Board finds that the issue has been raised and the claim should be referred to the Agency of Original Jurisdiction for adjudication. FINDINGS OF FACT 1. A July 2011 rating decision denying the Veteran's claims of service connection for a cervical spine condition and sleep apnea became final after a failure to appeal. 2. Evidence added to the record since the most recent final rating decision presents a reasonable possibility of substantiating the Veteran's cervical spine condition and sleep apnea claims on the merits. 3. The Veteran has experienced pain and limitation of motion related to a cervical spine condition since his separation from service. 4. The Veteran's March 25, 2016 surgery for his service-connected lumbar spine condition did not require convalescence beyond April 30, 2016. CONCLUSIONS OF LAW 1. The RO's July 2011 denial of service connection for a cervical spine condition and sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. 2. New and material evidence has been submitted to reopen the previously denied claims of entitlement to service connection for a cervical spine condition and sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for entitlement to service connection for a cervical spine condition have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to an extended period of temporary total evaluation beyond April 30, 2016 based on convalescence for the lumbar spine condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Navy from June 1969 to June 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a virtual hearing in September 2020. A transcript of the proceeding has been associated with the claims file. The Board also notes while the Veteran has expressly filed a claim of service connection for sleep apnea, in light of Borkowski v. Shinseki, 23 Vet. App. 79, 85 (2009), the Board finds that it is appropriate to recharacterize the claim more broadly as one of entitlement to service connection for sleep apnea and any other sleep-related conditions, to include insomnia. During the course of the appeal, in a July 2016 rating decision, the RO granted the Veteran a separate compensable rating for his right lower extremity radiculopathy secondary to his service-connected lumbar spine condition effective March 25, 2016. Additionally, the Veteran was awarded a temporary total evaluation for his service-connected lumbar spine condition from March 25, 2016 to April 30, 2016. 1. New and material evidence for service connection of a cervical spine condition and sleep apnea The Board is required to consider the question of whether new and material evidence has been received to reopen the claim without regard to the RO's determination in order to establish the Board's jurisdiction to address the underlying claim and to adjudicate the claim on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see also Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Here, a July 2011 rating decision denied the Veteran's original claim of service connection for a cervical spine condition and sleep apnea. He did not appeal this determination, and no new material evidence was submitted within a year following notification of the July 2011 denial. The July 2011 rating decision is therefore final. The prior final decision denying service connection for a cervical spine condition was based on the finding that medical evidence submitted did not substantiate an unestablished fact, that the condition manifested during service. As for the sleep apnea claim, the RO determined that there was no evidence that sleep apnea was clinically diagnosed. The Veteran filed a new claim in August 2013, which was subsequently denied in August 2014 due to a failure to submit new and material evidence. The Veteran's claims were subsequently reopened by the RO in the February 2018 statement of the case; however, the Board is not bound by the RO's finding. See Butler v. Brown, 9 Vet. App. 167, 171 (1996). The Board finds that new and material evidence has been presented sufficient to reopen these claims. New evidence includes VA examinations completed in February 2018. The evidence is new as it is not cumulative or redundant of the evidence of record at the time of the prior final decision. It is also material, as it relates to an unestablished fact necessary to substantiate the claim (specifically, details regarding whether the Veteran has current conditions that are related to his service) and raises a reasonable possibility of substantiating the claims. The Board finds that new and material evidence has been submitted as to the claims of service connection for a cervical condition and sleep apnea. Accordingly, these claims are reopened. 2. Entitlement to service connection for a cervical spine condition The Veteran contends that he started experiencing pain in his neck in the 1970s while he was in service, and the pain continued for years prior to and after his separation from service. See September 2020 Hearing Transcript. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. To that end, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R. § 3.303 (d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board notes that the February 2018 VA examination confirmed that the Veteran has diagnoses of cervical strain, degenerative arthritis of the spine, spinal fusion, and spinal stenosis. Thus, the Board finds that the Veteran's cervical spine condition qualifies as a chronic disease pursuant to 38 C.F.R. § 3.309 (a). The Veteran's service treatment records reveal multiple complaints of and treatment for cervical spine pain during active service. The Veteran complained of midback pain in December 1977. In 1979, the Veteran complained of cervical spine pain in March and April. X-rays conducted in April 1979 showed irregularities at C-7. The Veteran engaged in physical therapy for his pain. The Veteran again complained of pain while lifting weights in December 1980. In 1981, the Veteran continued to complain of cervical spine pain. An August 1981 x-ray of the cervical spine was within normal limits. In September 1981, the Veteran visited the orthopedics department where slow onset and gradual progression of neck pain was documented. It was noted that the Veteran's symptoms were worse with prolonged periods of neck flexion. The Veteran also reported that it was uncomfortable sleeping aboard the ship. He stated that the pain began about 6 to 7 years prior. The Veteran was assessed with psychological discomfort after a normal examination. The rationale for the assessment was that no significant abnormalities were noted, and the Veteran's 1979 and 1981 x-rays were within normal limits. Thereafter, the Veteran continued to report neck and shoulder pain. In July 1985, the Veteran reported neck strain after falling while playing baseball. In June 1987, the Veteran reported pain in his neck and right shoulder area. In January 1989, the Veteran reported an upper back spasm. In May 1989, the Veteran visited sick bay after falling through a hatch and landing on the deck. At the time, he only reported knee pain. The Veteran's post-service treatment records include an April 2004 complaint of neck pain. The Veteran stated that he has had the problem for a long time and wanted to know the cause of his neck pain. An MRI was completed in May 2004 revealing moderate congenital stenosis; foraminal stenosis, disk bulging and degenerative uncovertebral disease. The Veteran's post-service medical records indicate that he has received extensive treatment for his cervical spine condition. In January 2012, while seeking treatment, the Veteran stated that he has a long history of neck pain. He described several injuries that have occurred from his youth as well as during his time in the Navy and contends that he has dealt with chronic neck pain through most of his adult life. The Veteran provided an October 2014 statement from his neurosurgeon, Dr. S.P., who found that the Veteran has diffuse spinal degeneration that led to major surgery and chronic pain. Dr. S.P. further opined that the Veteran's military service may have exacerbated this, but he cannot state this causation with any certainty. The Board notes that Dr. S.P. did not specify whether this statement referred to the Veteran's cervical spine condition. The Veteran was afforded a VA examination in February 2018. During the examination, he told the examiner that his neck stiffness started shortly after enlisting. The examiner opined that the Veteran's cervical stenosis status post fusion condition is less likely as not caused by or a result of the cervical spine symptoms during service. The rationale provided was that per record review, the Veteran has congenital cervical spine stenosis and there is no objective data to support aggravation during military service. The examiner noted that the Veteran's cervical range of motion was normal on many medical records after retirement and cervical imaging in 1979 and 1981 were normal. In September 2020, the Veteran testified before the Board. He contended that in the early 1970s, he started experiencing tremendous pain down the right side of his neck and into his right shoulder. He testified that the pain would come and go for years. The Veteran also stated that he did not go to sick call for his neck as they would give him pain medication if he did and he did not want to take medication. He stated that he just dealt with the pain. During his testimony, he also recalled an event where he fell on the ship through an open hole. He stated that after this incident he had neck pain and limited motion. The Veteran further stated that he continued to experience pain after service. After careful consideration of the evidence of record, the Board concludes that while the Veteran's arthritis of the cervical spine was not shown as chronic or reliably diagnosed in service or within a presumptive period and did not manifest to a compensable degree within a presumptive period, the evidence supports a finding that the Veteran's symptoms of his neck condition started in service, and continued thereafter resulting in his current diagnosis. The Veteran's service treatment records include numerous reports of neck pain and treatment for neck pain in service. The Veteran's statements to medical providers in April 2004 and January 2012 and his September 2020 Board testimony indicate that the Veteran continued to experience neck pain throughout his active military service and thereafter. The Veteran was diagnosed with degenerative arthritis of the neck in May 2004 after his years of in-service complaints of neck pain. The Board also notes that his service treatment records documented an irregularity at C-7 of the cervical spine after an April 1979 x-ray. The Board has considered the negative opinion offered by the VA examiner in February 2018. However, the Board finds that the VA opinion is inadequate as the examiner failed to consider the Veteran's statements regarding continuity of symptomatology. Additionally, the examiner noted the x-rays in 1979 and 1981 were normal; however, neither the irregularity at C-7 on the 1979 x-ray nor the continued complaints of neck pain after 1981 were considered when rendering the negative opinion. An adequate medical nexus opinion accounts for all the evidence of record and bases its rationale on that evidence. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). As a result, the Board finds that the remaining evidence of record, including the Veteran's statements, has more probative value than the February 2018 VA medical opinion. In sum, the Board finds the evidence to at least be in equipoise as to whether the Veteran's in-service neck pain continued after separation from service and is attributable to his currently diagnosed degenerative arthritis of the cervical spine. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53. Accordingly, after resolving all doubt in favor of the Veteran, entitlement to service connection for a cervical spine condition is granted. 3. Entitlement to an extended period of temporary total evaluation beyond April 30, 2016 based on convalescence for the lumbar spine condition The Veteran contends that he is entitled to an extra month of convalescence for his March 2016 lumbar spine condition surgery. A total rating (100 percent) for convalescence is assigned following hospital discharge, effective from the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release, if the hospital treatment of the service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps or recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. Extensions of 1 or more months, up to 6 months beyond the initial 6-month period, may be made upon a determination that there still exist severe postoperative residuals under 38 C.F.R. § 4.30 (a)(2) or immobilization by cast under 38 C.F.R. § 4.30 (a)(3). 38 C.F.R. § 4.40(b)(2). Following the temporary total disability rating, the disability is rated by the appropriate schedular evaluation. 38 C.F.R. § 4.30. The assignment of a temporary total rating based on convalescence is not appropriate simply on the basis that the underlying disability continued to be symptomatic following surgery. The Court has held that convalescence is "the stage of recovery following an attack of disease, a surgical operation, or an injury," and recovery is "the act of regaining or returning toward a normal or healthy state." Felden v. West, 11 Vet. App. 427, 430 (1998). It was additionally held that a Veteran's incapacity to work after surgery must be taken into account in the evaluation of a claim brought under 38 C.F.R. § 4.30. Here, the Veteran's post service treatment records indicate that he had surgery for his service-connected lumbar spine condition on March 25, 2016 and was subsequently discharged on March 29, 2016. In his discharge summary, the activity instructions noted a general activity limitation of 4 weeks. The Veteran was instructed to avoid lifting anything greater than 10 pounds for 4 weeks. He was instructed to limit exercise for 4 weeks. The Board notes that 4 weeks from the surgery would have been April 26, 2016. The RO granted the Veteran a temporary total evaluation up to April 30, 2016. When arguing for an extension of the temporary total evaluation, the Veteran and his representative referred to additional hospital discharge instructions that recommended avoiding lifting anything more than 10 pounds for 6 weeks after surgery rather than the previously noted 4 weeks. However, neither the Veteran nor his representative have provided evidence that the Veteran was required to lift greater than 10 pounds as part of his return to a normal or healthy state. Additionally, a single recommended instruction of avoidance of lifting more than 10 pounds for 6 weeks does not show that the Veteran himself continued to experience severe post-operation residuals necessitating limitation of lifting more than 10 pounds. During the September 2020 Board testimony, the Veteran stated that he had a very long and painful recovery from surgery, but he did not specify how his long and painful recovery prevented him from returning to a normal and healthy state or whether his recovery extended beyond April 30, 2016. Furthermore, there is no other evidence indicating that the Veteran was unable to resume day-to-day activities or employment more than 4 weeks after his lumbar spine surgery. The Board finds that a temporary total rating for more than one month is not warranted as there is no evidence that the Veteran's recovery extended past April 30, 2016 or that he was unable to engage in employment or everyday activities due to residual symptoms of his surgery. Accordingly, a temporary total rating for convalescence beyond April 30, 2016 is denied. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine does not apply. Gilbert, 1 Vet. App. at 54; 38 U.S.C. § 5107; 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea and any other sleep-related conditions, to include insomnia, is remanded. The Veteran contends that his sleep apnea started in service. The Veteran was afforded a VA examination in February 2018. The examiner opined that the Veteran's sleep apnea is less likely as not caused by or a result of the sleep complaints during service. When providing the rationale, the examiner noted that the Veteran's service treatment records in December 1969 and January 1972 are related to insomnia rather than sleep apnea, and insomnia is not the same condition as obstructive sleep apnea. In February 2005, the Veteran underwent a sleep study where he was diagnosed with insomnia and mild sleep apnea/hypopnea syndrome. His service treatment records include a December 1969 diagnosis of depressive neurosis in relation to a complaint of insomnia and a January 1972 diagnosis of fatigue syndrome. The Board finds that it is necessary to conduct an additional VA examination to determine if the Veteran currently has a diagnosis of insomnia that is related to his in-service complaints of and treatment related to insomnia. 2. Entitlement to a rating in excess of 10 percent for a lumbar spine condition is remanded. 3. Entitlement to a rating in excess of 10 percent for right lower extremity radiculitis is remanded. The Veteran contends that his lumbar spine condition and right leg radiculopathy have worsened since his last VA examination. The Veteran was last afforded a VA examination in February 2018. VA's duty to assist requires VA to provide a contemporaneous medical examination when the Veteran asserts or the evidence indicates that the disability has worsened since the last VA examination or the record does not adequately reveal the current state of the disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Additionally, a review of the February 2018, May 2014, and March 2014 VA examinations indicates that they do not fully satisfy the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board notes that a VA examination is inadequate when, while acknowledging that an appellant was not suffering flare-ups at the time of the VA examination, the examiner fails to ascertain adequate informationthat is, the frequency, duration, characteristics, severity or functional lossregarding flare-ups by alternative means (to include lay statements made by the Veteran). Thus, the Board finds that a new examination is necessary. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination for sleep-related conditions, including insomnia. The examiner must review the claims file. The examiner is asked to offer an opinion as to whether the Veteran has a current diagnosis of insomnia. The examiner is instructed to review the February 2005 sleep study that diagnosed the Veteran with both insomnia and sleep apnea. Additionally, the examiner must consider the Veteran's lay statements regarding his snoring and fatigue. If the Veteran has a current diagnosis of insomnia, the examiner is asked to offer an opinion as to whether it is at least as likely as not related to service, including his December 1969 complaint of insomnia and his January 1972 diagnosis of fatigue syndrome. Additionally, the examiner must consider the Veteran's lay statements regarding his in-service snoring and fatigue. Any opinion expressed should be accompanied by a complete rationale. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine and right lower extremity radiculitis conditions. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.