Citation Nr: 21040542 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 13-10 927 DATE: July 5, 2021 ORDER Effective August 26, 2009, an increased initial rating of 40 percent (but no higher) for service-connected low back strain with degenerative disc disease (DDD) and degenerative arthritis of the spine is granted. REMANDED Service connection for obstructive sleep apnea (OSA) is remanded. Service connection for bilateral flat feet (pes planus) is remanded. FINDING OF FACT Affording the Veteran the benefit of doubt, the evidence of record shows the symptoms associated with the Veteran's low back disability manifested to a severity that more closely approximates a 40 percent rating under the diagnostic code. Those symptoms include, among others, forward flexion less than 30 degrees with chronic, severe pain which aligns with a 40 percent rating. At no time during the period on appeal did the Veteran present with favorable or unfavorable ankylosis. CONCLUSION OF LAW Effective August 26, 2009, the criteria have been met for an increased initial rating of 40 percent (but no higher) for service-connected low back strain with DDD and degenerative arthritis of the spine. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5237-5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1975 to September 1979. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In July 2016, a videoconference hearing addressing his OSA, pes planus, and low back disability was held before the undersigned; a transcript of the hearing is associated with the record. In November 2016, the Board remanded the Veteran's claims for further development. 1. Effective August 26, 2009, an increased initial rating of 40 percent (but no higher) for service-connected low back strain is granted. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran is currently rated pursuant to Code 5237-5242 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosia. A 40 percent rating is warranted for flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. "Unfavorable ankylosis" is defined, in pertinent part, as "a condition in which...the entire 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." See id., Note (5). Factual Background and Analysis The Veteran attended a June 2020 VA examination for his service-connected low back disability. The Veteran reported symptoms of pain in his lower back with radiation to his right greater than left legs. He reported thigh and leg pain radiating to the tops of his feet bilaterally. He stated he is unable to walk long distances and feels pressure in his back by one third of a block of walking with numbness and tingling in his right leg and occasionally left leg. He stated he uses a cane for balance. The examiner noted functional loss or impairment due to difficulty walking for any significant distance or in prolonged standing. The Veteran also stated he retired from his job in the VA due to his back pain and inability to lift or carry as needed. Initial range of motion testing indicated forward flexion 0-30 deg., extension 0-5 deg., right lateral flexion 0-15 deg., left lateral flexion 0-20 deg., right lateral rotation 0-10 deg., and left lateral rotation 0-20 deg. The examiner indicated there was no ankylosis of the spine. Forward flexion of 30 degrees or less corresponds to the 40 percent rating criteria. To warrant a disability rating in excess of 40 percent, the evidence would need to show unfavorable ankylosis of the thoracolumbar spine or the entire spine. There is no evidence in the record that the Veteran experiences the symptoms associated with unfavorable ankylosis. Accordingly, an increased rating in excess of 40 percent must be denied. Additionally, because all prior VA examination did not adequately address the Veteran's reports of symptoms associated with his back disability, the Board is unable to assign any significant probative value you and must resolve any doubt as to the Veteran's initial rating in his favor. Therefore, because the Veteran has continuously appealed his rating since service connection was initially granted, the Board finds the 40 percent rating is effective August 26, 2009. [CONTINUED ON NEXT PAGE] REASONS FOR REMAND 1. Service connection for obstructive sleep apnea (OSA) is remanded. The Veteran attended a June 2020 VA examination for his OSA. The examiner confirmed a diagnosis of OSA. The Veteran reported an initial "PSG" outside the VA in 2004 and that he was diagnosed with OSA. The examiner opined that the Veteran's OSA was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner reasoned that OSA and the Veteran's left and right knee disabilities are not medically related. The examiner went on to state that OSA is a separate entity entirely from the Veteran's knee condition and unrelated to it based on a review of the medical literature. The examiner also opined that the Veteran's obesity, caused by an inability to exercise due to his knee and back disabilities is not a cause or aggravation. The examiner reasoned that sleep apnea is caused by the collapse of soft tissue in the upper oropharynx during sleep. Further, the examiner stated that obesity is the best-documented risk factor of OSA, but then stated that a risk factor is not a cause whether by direct cause or by aggravation and then stated that any obesity related to an inability to exercise is not a causal relationship. The Board finds the June 2020 VA examiner failed to consider the precise nature of the questions presented and arguments put forward by the Veteran. The Veteran has asserted that by nature of his service-connected conditions, he is unable to exercise and that has contributed to or led to him gaining excessive weight. Further, that his excessive weight has made his OSA worse. The examiner's reasoning that obesity is only a risk factor, seems to suggest that though it may not be a direct cause of OSA, obesity can make OSA worse and that would fall into VA's definition of aggravation. Accordingly, a remand is needed for an addendum opinion. 2. Service connection for bilateral flat feet (pes planus) is remanded. In a June 2020 VA examination, the VA examiner opined that the Veteran's bilateral flat feet was less likely as not due to or related to the Veteran's military service, in part, because the Veteran's pes planus was may have been contributed to by occupations post-service, which included prolonged standing and walking. One of the Veteran's specific contentions was that prolonged standing and walking in service led to the development of his pes planus. The Board must request a clarification opinion to ascertain whether the examiner intended to state that only prolonged standing and walking post-service could have contributed to the Veteran's pes planus and why? Accordingly, a remand is required. The matters are REMANDED for the following action: 1. Please note that this Veteran's case has been advanced on the docket and, by law, ALL remanded claims must be processed expeditiously. 2. The AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional to determine the nature and likely cause of his OSA. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and any examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: 3. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's OSA is proximately due to, or the result of, or aggravated (permanently worsened beyond normal progression, by any amount) by the Veteran's service-connected bilateral knee condition. In rendering this decision, the examiner MUST specifically state: i. Are the Veteran's service-connected knee conditions at least as likely as not (50% chance or greater) the CAUSE of the Veteran becoming obese or overweight? ii. Did obesity at least as likely as not (a 50% or greater chance) CAUSE or AGGRAVATE the OSA? (aggravation is ANY INCREASE (however slight) in the natural progression of the illness) and iii. Would the OSA not have occurred or worsened, BUT FOR the obesity? In other words, did this Veteran's weight gain, attributed to a lack of exercise due to his service-connected conditions, make worse, cause, or aggravate his OSA in any way? 4. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. [The Board also notes for the examiner that, by law, obesity may establish a causal link between the claimed condition and a service-connected condition, despite the fact that obesity itself is not eligible for service connection.] A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) 5. The AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any bilateral foot pes planus disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: 6. For bilateral pes planus disability, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. 7. Specifically, the June 2020 VA examiner indicated that prolonged standing and walking in an occupational setting post-service contributed to the development of the Veteran's pes planus. Is it at least as likely as not that prolonged standing and walking in service also caused or aggravated the Veteran's pes planus? (Aggravation is ANY INCREASE (however slight) in the natural progression of the illness.) The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Williams, 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.