Citation Nr: 21041255 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 12-07 290 DATE: July 8, 2021 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to a rating in excess of 10 percent for the residuals of right ankle fracture is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's sleep apnea is at least as likely as not proximately due to a service-connected disability. 2. The preponderance of evidence is against a finding that the Veteran's service-connected right ankle disability has resulted in marked limitation of motion or any degree of ankylosis, at any point in the appeal period, even after consideration of additional functional impairment due to pain, weakened movement, excess fatigability, incoordination, and flare-ups. 3. The Veteran meets the schedular percentage requirements for TDIU, and his service-connected disabilities at least as likely as not prevent him from engaging in substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for a rating in excess of 10 percent for the residuals of right ankle fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270-74. 3. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1982 to September 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Veteran appeared at a hearing before the undersigned in April 2015. A transcript of the hearing is of record. These matters were most recently before the Board in January 2021, when they were remanded to request any records that may be available for the Veteran from the Social Security Administration (SSA) and to obtain a new opinion regarding the Veteran's service connection claim for sleep apnea. As explained below, the Board finds service connection is warranted for sleep apnea, so discussion of VA's duty to assist regarding that claim is unnecessary as the following decision results in a full grant of the benefit sought on appeal. Following the Board's January 2021 remand, the Veteran reported he has not filed an application for SSA disability benefits but rather opted to receive early SSA benefits based on age when he turned 62 years of age in August 2013. Previous remand directives related to the translation of records and the obtainment of a new examination regarding the Veteran's increased rating claim for his right ankle disability were completed prior to the Board's January 2021 remand. Thus, there has been substantial compliance with the Board's prior remand directives, rendering the issues on appeal ready for appellate consideration. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for sleep apnea is granted. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In accordance with these principles, service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Here, the record clearly establishes the Veteran has obstructive sleep apnea. The Veteran asserts his sleep apnea is secondary to his service-connected disabilities. In March 2021, the Veteran submitted an opinion from a private physician, C.C., M.D., that indicates there is a nexus between the claimed sleep apnea and the Veteran's service-connected gastroesophageal reflux disease (GERD). C.C., M.D., explained there is a multitude of complex inter-related pathophysiological mechanisms and processes that occur directly from GERD that can be considered to either lead to the development or increase the severity of obstructive sleep apnea. C.C., M.D., cited medical literature to support this conclusion, to include studies showing nighttime heartburn leads to or worsens sleep derangements, causing development of obstructive sleep apnea or, at the very least, contributing as an aggravating factor in the development of obstructive sleep apnea; studies showing GERD as a contributor to the development of obstructive sleep apnea; studies showing a mutual relationship between obstructive sleep apnea and GERD reinforcing each other, resulting in a bidirectional relationship between the conditions; and studies showing a majority of non-obese patients with GERD suffer from a low respiratory arousal threshold, resulting in a greater tendency to easily awake during sleep. Based on the breadth of literature regarding a potential relationship between GERD and obstructive sleep apnea, C.C., M.D., concluded the Veteran's obstructive sleep apnea is at least as likely as not secondary to his service-connected GERD when considering either causation or aggravation. The record also includes a February 2021 VA opinion, which indicates the Veteran's sleep apnea is at least as likely as not the result of manifestations of a psychiatric disability that occurred during the Veteran's period of active service and eventually led to the award of service-connection for a psychiatric disability. The only negative opinion regarding the Veteran's claim is an inadequate direct service connection opinion provided by a July 2019 VA examiner. Thus, the Board finds the evidence is in at least relative equipoise as to whether the claimed sleep apnea is secondary to a service-connected disability with evidence supporting both a relationship based on causation and aggravation. Resolving reasonable doubt in the Veteran's favor, the Board finds service connection for sleep apnea is warranted on a secondary basis based on a theory of causation without any reduction of a baseline level of disability being necessary and, to that extent, the Veteran's appeal is granted. 2. Entitlement to a rating in excess of 10 percent for the residuals of right ankle fracture is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern; therefore, the more critical evidence consists of the evidence generated during the appeal period. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Yet, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. § 4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by visible behavior of the claimant undertaking the motion. Id. VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45 for disabilities evaluated on the basis of limitation of motion. In applying these regulations, VA must obtain examinations in which the examiner determines whether the disability is manifested by pain, weakened movement, excess fatigability, incoordination, and flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to those factors. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, the intent of the VA Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 38 C.F.R. § 4.59. Thus, a joint that is painful, unstable, or malaligned, due to healed injury, warrants at least the minimum compensable rating for the joint. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran's service-connected residuals of a right ankle fracture have been rated as 10 percent disabling under Diagnostic Code 5271 throughout the appeal period based on his November 2010 increased rating claim for the disability. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum, 20 percent rating is warranted for marked limited motion of the ankle. Normal range of motion of the ankle includes dorsiflexion from zero to 20 degrees, and plantar flexion from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II. The Board notes the rating criteria under Diagnostic Code 5271 were amended, effective February 7, 2021, to specifically define the range of motion required to establish both moderate and marked limitation of motion of the ankle. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). Under the new criteria, "moderate" range-of-motion loss of the ankle is defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion with "marked" range-of-motion loss of the ankle being defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion; however, these amendments cannot be applied any earlier than their effective date. Prior to February 7, 2021, the terms "marked" and "moderate" were not defined in Diagnostic Code 5271 with the question of whether a particular degree of disability qualifies as moderate or marked being a legal determination rather than a medical conclusion. 38 C.F.R. § 3.100(a) (delegating the Secretary's authority "to make findings and decisions . . . as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination . . . so that the current rating may accurately reflect the elements of disability present."). Yet, VA's Adjudication Procedures Manual provides guidance on the matter. Specifically, prior to February 7, 2021, the manual instructs an example of "moderate" limitation of ankle motion is when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while an example of "marked" limitation of ankle motion is when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See VA Adjudication Procedures Manual, M21-1, III.iv.4.A.6.m (April 13, 2018). Although the Board is not bound by the VA Adjudication Manual, it provides useful guidance. DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) ("The M21-1 Manual is binding on neither the agency nor tribunals"). The Court of Appeals for Veterans Claims (Court) has recently held the M21-1 constitutes a "relevant factor" that the Board cannot ignore in its analysis with the Board rather being required to provide reasoning for declining to follow a specific M21-1 provision. See Healy v. McDonough, 33 Vet. App. 312, 320 (2021). Thus, the Board finds the M21-1 parameters of "moderate" and "marked" limitation of motion of the ankle relevant in its analysis of the proper rating assigned under Diagnostic Code 5271 prior to the implementation of the new rating criteria effective February 7, 2021, as the new amendments to Diagnostic Code 5271 simply codified the standards that were already being applied by VA with respect to ankle limitation of motion. The Veteran has been provided three VA examinations during the appeal period. In January 2011, the Veteran was found to have 20 degrees dorsiflexion and 45 degrees plantar flexion on both initial and repetitive-use range-of-motion testing. The January 2011 examiner reported he was unable to determine any further range-of-motion loss during flare-ups. In May 2012, the Veteran was found to have 15 degrees dorsiflexion and 40 degrees plantar flexion on both initial and repetitive-use range-of-motion testing with increased pain, weakness, and stiffness during flare-ups. In July 2019, the Veteran was found to have 10 degrees dorsiflexion and 25 degrees plantar flexion on both initial and repetitive-use range-of-motion testing. The July 2019 VA examiner acknowledged the Veteran's reports of flare-ups but determined the Veteran's flare-ups do not result in any additional range-of-motion loss beyond that shown on initial and repetitive-use range-of-motion testing after considering the Veteran's lay reports. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The July 2019 VA examiner also conducted testing consistent with the holding in Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, the July 2019 examination report is adequate to make a fully informed decision on the Veteran's claim. There are no private treatment records that show limitation of motion beyond that shown during the July 2019 examination. There is no indication the Veteran has had any degree of ankylosis at any point in the appeal period; therefore, diagnostic codes pertinent to the ankle premised on ankylosis are not for application in the Veteran's appeal. As a result, the Board finds the preponderance of evidence is against a finding that the Veteran's service-connected right ankle disability has resulted in marked limitation of motion or any degree of ankylosis at any point in the appeal period even after consideration of additional functional impairment due to pain, weakened movement, excess fatigability, incoordination, and flare-ups. The Board notes other diagnostic codes related to the ankle, to include Diagnostic Code 5273 and Diagnostic Code 5274, are not for application in the Veteran's appeal because there is no evidence of that he has malunion of the os calcis or astragalus or that he has undergone astragalectomy. The Board acknowledges the Veteran has primarily asserted that he is entitled to a rating in excess of 10 percent for the residuals of a right ankle fracture because he is unable to stand or drive for long periods of time due to pain, weakness, and stiffness in his right ankle; however, the Board finds these symptoms are fully contemplated by the rating schedule via the provisions of 38 C.F.R. §§ 4.40 and 4.45. The Board has no doubt the Veteran experiences these symptoms, but it finds they do not support a rating in excess of the 10 percent rating already assigned under Diagnostic Code 5271, and, to that extent, the Veteran's appeal is denied. Nevertheless, the Board finds the symptoms remain an important consideration in the context of the issue of entitlement to TDIU, which is an element of the Veteran's appeal of the rating assigned for his service-connected right ankle disability, as discussed in more detail below. 3. Entitlement to TDIU is granted. TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The relevant issue is not whether the Veteran is unemployed or has difficulty obtaining employment, but whether the Veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Yet, a finding of total occupational impairment is not necessary to establish entitlement to TDIU. See 38 C.F.R. § 4.16(a) (indicating TDIU may be assigned in cases of marginal employment). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but no consideration may be given to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19. Here, the Veteran meets the schedular percentage requirements for TDIU. He has had a combined rating of 70 percent or more with at least one disability rated as 40 percent or more disabling. Thus, the only issue that remains is whether the Veteran's service-connected disabilities prevent him from engaging in substantially gainful employment for which his eduction and occupational experience would otherwise qualify him. The Board finds the Veteran's service-connected disabilities at least as likely as not prevent him from engaging in substantially gainful employment for which his eduction and occupational experience would otherwise qualify him. The record establishes the Veteran has not worked since he left a position in federal service as a budget analyst in 2012 due to a deterioration in his health. The record further establishes the Veteran has significant impairment resulting from his service-connected disabilities that affects his ability to engage in even sedentary employment. There is expert evidence that indicates the prescription medications prescribed for pain emanating from the Veteran's service-connected orthopedic disabilities result in symptoms that inhibit his ability to focus and concentrate on work-related tasks from his past employment. Further, a recent examination report reveals the Veteran's service-connected psychiatric disability results in anxiety, impairment of both short- and long-term memory, flattened affect, disturbance of motivation and mood, and difficulty in establishing and maintain effective work and social relationships. When the impairment of focus, concentration, and both short- and long-term memory is viewed in light of the Veteran's severe hearing difficulties due to his service-connected bilateral hearing loss and tinnitus, service-connected psychiatric impairment, and persistent daytime hypersomnolence due to his now service-connected sleep apnea, the Board finds it would be nothing more than conjecture to assume the Veteran could engage in even sedentary work that would be anything other than marginal, as he does not appear capable of performing the mental tasks required of his past employment on a consistent basis. The Board notes it cannot deny TDIU without producing evidence, as distinguished from mere conjecture, showing the claimant can perform work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). The Board concedes the severity of the Veteran's service-connected right ankle and back disabilities, to include the associated neurological impairment of both lower extremities, appear to foreclose the possibility of any level of physical employment. Resolving reasonable doubt in the Veteran's favor, the Board finds a TDIU is warranted; the AOJ will assign the effective date in the first instance to ensure the Veteran is afforded due process. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.