Citation Nr: 21041497 Decision Date: 07/14/21 Archive Date: 07/14/21 DOCKET NO. 16-54 883 DATE: July 14, 2021 ORDER Entitlement to service connection for coronary artery disease (CAD) is granted. Entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure, is granted. Entitlement to service connection right upper extremity peripheral neuropathy as secondary to diabetes mellitus is granted. Entitlement to service connection left upper extremity peripheral neuropathy as secondary to diabetes mellitus is granted. Entitlement to service connection for right lower extremity peripheral neuropathy as secondary to diabetes mellitus is granted. Entitlement to service connection for left lower extremity peripheral neuropathy as secondary to diabetes mellitus is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to a 60 percent evaluation for thoracolumbar back sprain, degenerative spine disease with stenosis and herniated L4-L5 Disc, and lumbar spine Intervertebral Disc Syndrome (IDVS) (back disability) is granted. REMANDED Entitlement to a higher evaluation than 20 percent for right lower extremity radiculopathy is remanded. Entitlement to a higher evaluation than 20 percent for left lower extremity radiculopathy is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of coronary artery disease which is related to the Veteran's herbicide exposure in service. 2. The Veteran has a current diagnosis of diabetes mellitus, type II, which is related to the Veteran's herbicide exposure in service. 3. The Veteran's current diagnosis of right upper extremity peripheral neuropathy is due to his service-connected diabetes mellitus. 4. The Veteran's current diagnosis of left upper extremity peripheral neuropathy is due to his service-connected diabetes mellitus. 5. The Veteran's current diagnosis of right lower extremity peripheral neuropathy is due to his service-connected diabetes mellitus. 6. The Veteran's current diagnosis of left lower extremity peripheral neuropathy is due to his service-connected diabetes mellitus. 7. The Veteran's currently diagnosed sleep apnea is due obesity caused by his service-connected back disability. 8. The Veteran's back disability is manifested by forward flexion to 65 degrees; and incapacitation episodes having a duration of 6 weeks or more that were severe enough to require prescribed bed rest. CONCLUSIONS OF LAW 1. The criteria for service connection for CAD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for peripheral neuropathy of the right upper extremity are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for peripheral neuropathy of the left upper extremity are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. [The criteria for service connection for peripheral neuropathy of the right lower extremity are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for peripheral neuropathy of the left lower extremity are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for sleep apnea as secondary to service-connected back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 8. The criteria for entitlement to a 60 percent evaluation, but no higher, for a back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from June 1972 to April 1977. This matter comes before the Board of Veterans' Appeals (Board) from April 2014 and May 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). Unfortunately, a complete transcript could not be produced due to audio malfunction. The Veteran was offered another hearing, but the Veteran declined a new hearing and asked that the case be considered on the evidence of record. Service Connection 1. Entitlement to service connection for coronary artery disease (CAD) 2. Entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure, 3. Entitlement to service connection right upper extremity peripheral neuropathy as secondary to diabetes mellitus 4. Entitlement to service connection left upper extremity peripheral neuropathy as secondary to diabetes mellitus 5. Entitlement to service connection for right lower extremity peripheral neuropathy as secondary to diabetes mellitus 6. Entitlement to service connection for left lower extremity peripheral neuropathy as secondary to diabetes mellitus The Veteran believes his coronary artery disease, diabetes mellitus, type II, peripheral neuropathy of the upper extremities and peripheral neuropathy of the lower extremities are related to exposure to Agent Orange during his service in Korea. Under 38 C.F.R. § 3.307(a)(6)(iv), the presumption of herbicide exposure is extended to any Veteran who served in a unit that operated in the Korean demilitarized zone (DMZ) and served between September 1, 1967, and August 31, 1971. VA and the Department of Defense (DoD) have compiled of a list of units who operated in the Korean DMZ during this time. The Veteran's unit was not listed as a unit who operated in the DMZ during that time. The Veteran has reported that he was in the DMZ in 1973. The Veteran reported that during service, he was out in the field near the Imjin River that was near Camp Edwards. He believes he was in the Korean Demilitarized Zone (DMZ). He reported that he was a Heavy Wheel and Track vehicle repairman in his first tour and a first Sergent driver in his second tour. He noted that he traveled to just about every camp north of Camp Casey. He was in the field twice just south of Imjim river for training. He remembers seeing a Korean worker driving around Camp Edwards compound fence line with a 55-gallon drum in the back of a truck spraying something and no vegetation grew where he sprayed. The Veteran submitted a statement from a fellow soldier in his unit who also remembers seeing South Korean personnel spraying a mist of liquid onto grass and onto brush foliage. His DD 214 corroborates that he was an auto repairman. VA submitted evidence provided by the Veteran to the Defense Personnel Records Information Retrieval System (DPRIS). The response from DPRIS noted that the Veteran's Battalion was located at Camp Edwards, South Korea during 1973. However, the records did not document the use, storage, spraying or transportation of herbicide to include Agent Orange. The record did not specifically note duties performed near DMZ. Despite this, other evidence suggests that he was exposed to herbicide during service. The U.S. Court of Appeals for the Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, the Veteran was located at a camp north of Seoul, Korea. In September 2019, Dr. M. provided an opinion that the Veteran's diabetes mellitus, heart condition and peripheral neuropathy of the upper and lower extremities were at least as likely as not due to his exposure to Agent Orange and dioxin during his time in service. The physician explained that the Veteran was a heavy wheel mechanic in Korea and his duties included repairing military vehicles near the DMZ and digging foxholes near DMZ where the VA acknowledges Agent Orange was used for a few years. The physician opined that while he did not serve during the presumptive period, the Veteran served a short, reasonable time after the presumptive period of Agent Orange exposure. His duties included crawling in the dirt under the vehicles in order to replace or repair transmission, back duel axles, and/or engines, as well as anything else that needed replacing or repairing. He recalls that before vehicles could be brought to the unit, he would have to clean them off using water from the Imjin River. The physician noted the Veteran's statements and the fellow soldier's statements. The physician referenced that the Environmental Protection Agency reported that dioxin can remain in the soil for over 10 years. Thus, the contamination from past herbicide was still at concern when the Veteran was in Korea. The physician had reviewed the Veteran's medical records and noted that treating physicians had acknowledged his exposure to herbicides when treating him. The physician also noted no other family history or risk factor for the claimed disabilities. The physician noted that ischemic heart disease, diabetes mellitus and bilateral lower and upper peripheral neuropathy are conditions which are well-known to be caused by dioxins and are admitted as such by the VA. The physician found that the Veteran served in Korea within a 3 to 4 year period of spraying. The physician provided a reasoned opinion based on research and the Veteran's medical history. He concluded that the Veteran's disabilities were related to the Veteran's military service. The Board finds the Veteran's statements about his service in South Korea and working in the DMZ to be credible. There are no medical opinions against the finding that the Veteran's disabilities are not due to herbicide exposure during service. The Board finds the September 2019 opinion to be probative and based on the scientific, medical and personnel records available. As for peripheral neuropathy, the Board notes that VA treatment records note diagnoses of idiopathic peripheral neuropathy, and several VA treatment records note diabetic neuropathy. See July 2017, August 2017, and September 2017 VA treatment record. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current diabetic neuropathy is due to his service-connected diabetes mellitus. Furthermore, the September 2019 examiner found that his peripheral neuropathy was directly related to herbicide exposure during service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for neuropathy of the upper and lower extremities is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. Resolving all doubt in the Veteran's favor, the Board finds that service connection is warranted for coronary artery disease, diabetes mellitus, type II, and upper and lower peripheral neuropathy. 7. Entitlement to service connection for sleep apnea The Veteran contends that his sleep apnea is secondary to his service-connected back disability. Here, the Veteran is diagnosed with sleep apnea. See December 2017 VA treatment record. Service connection is also in effect for a back disability. The remaining factor is whether the disability is proximately due to or the result of a service-connected disease or injury. The Veteran's service treatment records show that at the time of his December 1972 enlistment examination, he weighed 239 pounds. An April 1977 report of medical examination shows a weight of 278 pounds. In an August 2019 evaluation for sleep apnea, the Veteran weighed 313 pounds. A December 2017 VA treatment record notes a diagnosis of severe obstructive sleep apnea. The Veteran was educated on health hazards associated with obesity and how obesity is linked to sleep apnea. He uses a CPAP machine. The record includes a positive medical opinion from the Veteran's chiropractor dated in August 2019. The physician noted that weight gain, even with fluctuation, is a known contributing factor to obstructive sleep apnea. The physician noted supporting medical literature discussing weight fluctuation and sleep apnea. The physician stated that the Veteran has had chronic back pain due to his service-connected back condition. His inability to exercise secondary to his back pain has contributing to his morbid obesity which is the major cause of sleep apnea. The physician opined that the Veteran's sleep apnea was at least as likely as not proximately due to, or the result of his obesity and this obesity was a direct result of his chronic back pain. Although obesity itself is not considered a disease or injury for which direct or secondary service connection may be granted, obesity can act as an intermediate step to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. See Marcelino v. Shulkin, No. 16-2149, 2018 U.S. App. Vet. Claims LEXIS 64, at (Vet. App. Jan. 23, 2018); VAOPGCPREC 1-2017. Specifically, VA's General Counsel has held that where it is shown that a service-connected disability causes a veteran to become obese and that obesity, in turn, is a substantial factor in causing additional disability, which disability, but for the veteran's obesity, would not have occurred, the resulting additional disability can be service-connected on a secondary basis. VAOPGCPREC 1-2017. The Board finds that obesity is the intermediate step here as the Veteran's positive medical opinion shows his service-connected disability contributed to the Veteran's obesity. The positive medical opinion further shows that the Veteran's obesity, as a result of a service-connected disability, was a substantial factor in the cause of the sleep apnea and the sleep apnea would not have occurred but for the obesity caused by the service-connected disabilities. The service treatment records demonstrate that the Veteran had significant weight gain between his enlistment and present day, and the medical opinion has associated the Veteran's weight gain with decreased activity related to pain and caused by his service-connected back disability. The medical opinion acknowledges that obesity is a substantial factor in developing sleep apnea. The medical opinion found that the Veteran's obesity was caused by his service-connected disability. That said, in this case, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's sleep apnea is proximately due to or aggravated by her service-connected disability, to include with obesity as an intermediate step. Accordingly, resolving doubt in favor of the Veteran, the Board finds that the criteria for secondary service connection have been met. 8. Entitlement to a 60 percent evaluation for a back disability The Veteran contends that he is entitled to a higher rating for his back disability. The Veteran's thoracolumbar back sprain and degenerative spine disease with stenosis, herniated disc and IDVS is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS 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 for IVDS 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 for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. The Veteran is also rated under DC 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 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 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 kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, 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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The April 2014 Back Disability Benefits Questionnaire (DBQ) notes that the Veteran has a least 6 weeks of incapacitating episodes severe enough to require prescribed bed rest and treatment by a physician. Therefore, the Board finds that a 60 percent evaluation is warranted under Formula for Rating IVDS Based on Incapacitating Episodes. As this is the highest schedular rating based on incapacitating episodes, there is no basis to award a higher evaluation under Diagnostic Code 5243. The preponderance of the evidence is also against a rating in excess of 60 percent for his back disability under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran had increased pain two to three times per month and that flare-ups last 1 to 2 weeks, the Veteran's spine disability would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. Upon examination, flexion of the thoracolumbar spine was to 70 degrees with pain at 65 degrees. The Board acknowledges that the Veteran submitted a Back DBQ in August 2019. The Board does not find that this examination is adequate as the flare-up section does provide adequate details of the Veteran's flare-ups. Even if the Board considered the findings in the examination, the DBQ did not show that the Veteran had unfavorable ankylosis of his spine. The Board finds that the April 2014 Back DBQ is adequate and has evaluated his back disability based on the results of this examination findings. Regarding neurological impairment, the Veteran has already been granted service connection for right and left lower extremity radiculopathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Higher evaluations for radiculopathy of his lower extremities are being remanded below. For the foregoing reasons, the evidence shows that a 60 percent evaluation, but no higher, is warranted for the Veteran's back disability. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to a higher evaluation than 20 percent for right lower extremity radiculopathy is remanded. 2. Entitlement to a higher evaluation than 20 percent for left lower extremity radiculopathy is remanded. In the March 2021 brief, the Veteran's attorney argues that the Veteran's bilaterally lower extremity nerve damage is at least moderately severe in at least two distinct nerve groups capable of separate ratings bilaterally. Specifically, both the femoral and sciatic nerves are impacted. The attorney appears to argue that the Veteran's radiculopathy has worsened since that April 2014 Back DBQ which only noted moderate radiculopathy severity of the femoral and sciatic nerve. The attorney and the Veteran submitted a new Back DBQ in August 2019. This examination is inadequate. The examiner failed to answer whether the Veteran had muscle atrophy (question 8B) or the severity of radiculopathy in the lower extremities (questions 13H). For these reasons, the Board finds that a new examination is needed. The AOJ is alerted that separate evaluations are required for the Veteran's femoral nerve and the sciatic nerve for the right and left lower extremities. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. In McClendon v. Nicholson, 20 Vet. App. 79 (2006), the Court reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. § 3.159(c). The three salient benchmarks are: competent evidence of a current disability or recurrent symptoms; establishment of an in-service event, injury, or disease; and indication that the current disability may be associated with an in-service event. The Veteran claims that his COPD is due to his military service or began during service. The record shows that the Veteran has a current COPD diagnosis. Therefore, the Board finds that the evidence of record triggers VA's duty to provide an examination and obtain an opinion. See 38 C.F.R. § 3.159(c). 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) In his September 2014 notice of disagreement, the Veteran reported that he was unable to work due to his spine disability. The Board finds that the Veteran has inferred a claim for TDIU. His TDIU claim must be developed prior to adjudication. The AOJ should properly notify the Veteran of how to substantiate a claim for entitlement to TDIU and provide him with VA Form 21-8940. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left lower extremity radiculopathy and the right lower extremity radiculopathy. 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 test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). 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). 2. The AOJ is reminded to provide separate evaluations for the sciatic nerve and femoral nerve for the right and left lower extremities. 3. Schedule the Veteran for a VA examination for his COPD. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's COPD at least as likely as not related to service? Provide a rationale to support the opinion(s). Is the Veteran's COPD at least as likely as not proximately due to a service-connected disability? Is the Veteran's COPD at least as likely as not aggravated, i.e., worsened beyond its natural progression, by a service-connected disability? (Continued on the next page) 4. Properly notify the Veteran of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. 5. Readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his attorney should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tahirih S. Samadani, 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.