Citation Nr: 21042050 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 11-06 936 DATE: July 11, 2021 ORDER Entitlement to service connection for a sleep disorder, to include a psychological disorder and sleep apnea, is denied. Entitlement to a compensable evaluation for hemorrhoids is denied. Entitlement to an evaluation in excess of 10 percent for right ankle sprain is denied. REMANDED Entitlement to a total disability rating due to individual employability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's sleep disorder is not secondary to service-connected bipolar disorder, and is not otherwise related to an in-service injury or disease. 2. The Veteran's hemorrhoids are moderate. 3. The Veteran's right ankle sprain is not manifested by at least marked limitation of motion under the old or new rating criteria. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a sleep disorder, to include a psychological disorder and sleep apnea, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a compensable rating for service-connected hemorrhoids are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.7, 4.20, 4.113, 4.114, Diagnostic Code (DC) 7336. 3. The criteria for entitlement to a rating in excess of 10 percent for service-connected right ankle sprain are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7 (2019); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (prior to February 7, 2021); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (since February 7, 2021) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1997 to May 1999. The Board remanded these matters in September 2018. The Board again remanded these matters in June 2020 to obtain updated VA examinations, medical opinions, and VA treatment records. There has been substantial compliance with the prior remand directives and the matters are again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (permanently worsened in severity beyond its natural progress) by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). 1. Entitlement to service connection for a sleep disorder, to include a psychological disorder and sleep apnea The Veteran contends that he suffers from a sleep disorder that is directly related to service, or is caused by or aggravated by his service-connected bipolar disorder. Evidence The Veteran was provided with a VA mental disorders examination in March 2012. The examiner diagnosed the Veteran with bipolar disorder, personality disorder, and alcohol abuse in partial remission. The examiner found no clinical evidence to support that the Veteran's sleep problems were related to service. Pursuant to the September 2018 Board remand, VA obtained an addendum VA medical opinion in September 2019. After reviewing the Veteran's medical history, the September 2019 examiner concluded that the Veteran's sleep disorder was less likely than not related to service. The examiner noted that the Veteran's sleep difficulties are best explained by his bipolar disorder diagnosis and personality disorder traits and do not warrant a separate diagnosis. The examiner noted that the Veteran's service treatment records are absent for complaints of sleep problems. The examiner also noted that the Veteran's post-military treatment records contain some complaints about sleep within the context of his bipolar disorder. Pursuant to the June 2020 remand, VA obtained an addendum medical opinion in September 2020. The September 2020 found that there was no aggravation of the Veteran's obstructive sleep apnea (OSA), as the medical records consistently noted a "moderate" level of severity. The examiner therefore concluded that was no aggravation of the Veteran's OSA by his service-connected bipolar disorder. In November 2020, the Veteran underwent a sleep study which revealed a diagnosis of moderate OSA. However, the sleep study analysis report provided no opinion regarding the etiology of this condition. In December 2020, the Veteran was provided with a VA sleep apnea examination. The examiner reviewed the Veteran's medical history and conducted an in-person examination of the Veteran. The examiner noted a diagnosis of OSA. The Veteran reported that he has not used his CPAP machine since November 2019. The Board acknowledges that the December 2020 examiner wrote an opinion stating that the Veteran's OSA was aggravated by his bipolar condition. However, in February 2021, the VA examiner wrote a clarification stating that the December 2020 opinion was in error. The examiner clarified that there was no causative link between the Veteran's OSA and his mental health condition. The examiner cited to medical literature to support this opinion. The examiner also found no credible medical evidence to support the suggestion that the anatomical condition of OSA can be aggravated by mental health conditions such as bipolar disorder. Therefore, the examiner concluded that the Veteran's OSA was not caused by or aggravated by his service-connected bipolar disorder. Analysis The Board acknowledges the lay statements made by the Veteran that his sleep apnea is related to service. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, a layperson without the appropriate medical training and expertise is simply not competent to provide a probative opinion on a complex medical matter, such as an etiological relationship between any current disability and military service or a service-connected disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The examiner who conducted December 2020 VA sleep apnea examination reviewed the record, interviewed the Veteran, and examined the Veteran. The examiner's February 20201 clarification opinion was based on the specific facts of this case as presented in the record and by the Veteran at an in-person examination. The examiner reviewed the record and provided appropriate rationales are factually accurate, fully articulated, and soundly reasoned. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Accordingly, the Board accepts the VA examiner's February 2021 clarification opinion as the most probative evidence as whether it is less likely than not that the Veteran's OSA is related to service or to a service-connected disability. In sum, the competent evidence of record weighs against the Veteran's assertion that his obstructive sleep apnea was incurred in service or is secondarily related to his service-connected bipolar disorder. Although grateful for the Veteran's honorable service, the Board concludes that the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. In this case, as explained below, uniform evaluations are warranted. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 2. Entitlement to a compensable evaluation for hemorrhoids The Veteran contends that he entitled to a compensable rating (greater than zero percent disabling) for his service-connected hemorrhoids. Diagnostic Criteria Hemorrhoids are rated according to 38 C.F.R. § 4.114 DC 7336, which provides a noncompensable rating (zero percent) when hemorrhoids are mild or moderate. A 10 percent rating is assigned for large or thrombotic, irreducible hemorrhoids with excessive redundant tissue evidencing frequent exacerbations. A 20 percent rating is assigned for hemorrhoids with persistent bleeding and with secondary anemia or fissures. Words such as "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Evidence The Veteran was provided with a VA examination for his hemorrhoids in March 2012. The Veteran reported rectal pain at rest, ambulating, or with bowel movements. He also complained of pain, itching, and rectal bleeding with bowel movements. There was a history of bleeding but no thrombosis. At the time of the in-person examination, there were no hemorrhoids present. The Veteran was provided with another VA hemorrhoids examination in April 2012. The Veteran reported that he started having problems with hemorrhoids while in service. He was seen and treated with topical agents such as preparation H. Since then, he has had flare-ups including burning, itching, bleeding, and trouble going to the bathroom. The examiner found that the Veteran's hemorrhoids were of mild to moderate severity and that he did not have persistent bleeding. The Veteran was provided with another VA hemorrhoids examination in July 2012. The Veteran reported experiencing hemorrhoids since service, with flare-ups including burning, itching, bleeding, and trouble going to bathroom. The examiner found no persistent bleeding or anemia. VA treatment records from August 2018 note that the Veteran's hemorrhoids were currently asymptomatic and were being treated with over-the-counter medication. The Veteran was provided with another VA hemorrhoids examination in September 2019. The examiner found mild to moderate symptoms, including intermittent bleeding or burning. The condition was treated with preparation H but not surgery. A physical examination revealed small or moderate external hemorrhoids. Analysis The medical evidence shows that the Veteran's hemorrhoids are moderate. As there are no large, thrombotic, or irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences, a 10 percent disability rating is not warranted. As there is no persistent bleeding with secondary anemia, and there are no anal fissures, a 20 percent disability rating is not warranted. As the preponderance of the evidence is against the finding that the Veteran's hemorrhoids warrant a compensable rating, the Veteran's claim must be denied, and the benefit of the doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 3. Entitlement to an evaluation in excess of 10 percent for right ankle sprain The Veteran contends that he is entitled to a rating in excess of 10 percent for his service-connected right ankle disability. Diagnostic Criteria During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. Id. The Veteran's service-connected right ankle sprain is currently rated under Diagnostic Code 5271. See 38 C.F.R. § 4.71a. Review of the portion of the rating schedule that addresses the musculoskeletal system revised, effective February 7, 2021, shows that Diagnostic Codes 5271 was changed. As a result, the Board will consider the Veteran's claim under Diagnostic Code 5271 pursuant to the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. Again, the criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, Diagnostic Code 5271 provides the following rating criteria for limitation of motion of the ankle: a 10 percent rating is assigned for moderate limited motion, and a 20 percent rating, the maximum available, is assigned for marked limited motion. The rating schedule does not define the terms "moderate" or "marked," as used in Diagnostic Code 5271 to describe the degree of deformity of the ankle. Instead, adjudicators must evaluate all of the evidence and render a decision that is "equitable and just." 38 C.F.R. § 4.6. As of February 7, 2021, under the amended criteria, Diagnostic Code 5271 provides the following rating criteria for limitation of motion of the ankle: a 10 percent rating is assigned for moderate (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) limited motion, and a 20 percent rating, the maximum available, is assigned for marked (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) limited motion. For VA compensation purposes, normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II (prior to and since February 7, 2021). Additionally, 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.") Evidence The Veteran was provided with a VA examination of the right ankle in March 2012. Range of motion testing found plantar flexion to 45 degrees or greater and dorsiflexion to 20 degrees or greater. There was no objective evidence of pain. After three repetitions, plantar flexion was to 30 degrees, and dorsiflexion was to 15 degrees. The Veteran was provided with another VA examination of the right ankle in April 2012. Range of motion testing found plantar flexion to 45 degrees or greater and dorsiflexion to 20 degrees or greater. There was no objective evidence of pain. After three repetitions, there was no change in range of motion. The Veteran was provided with another VA examination of the right ankle in July 2012. The Veteran reported flare-ups after walking which cause pain. Range of motion testing found plantar flexion to 45 degrees or greater and dorsiflexion to 20 degrees or greater. There was no objective evidence of pain. After three repetitions, there was no change in range of motion. The examiner found no functional loss or functional impairment of the ankle. The Veteran was provided with another VA examination of the ankle in September 2019. The Veteran reported flare-ups which cause increased pain. The Veteran also reported that he cannot run or walk for long distances. Range of motion testing found plantar flexion to 40 degrees or greater and dorsiflexion to 20 degrees. There was no evidence of localized tenderness, pain on palpation, or pain on weight bearing. There was no additional loss of function or range of motion after three repetitions. Muscle strength testing and joint stability testing were normal, and there was no ankylosis. The Veteran was provided with another VA examination of the ankle in September 2020. The Veteran reported flare-ups of the right ankle occurring two to three times per week. The right ankle flare-ups are mild and last a week at times. The right ankle flare-ups are precipitated by stepping on it wrong or standing for long periods at time. The right ankle flare-ups are alleviated by icing it, heating pads, and resting. The Veteran also reported he is unable to walk, run, or climb stairs for long periods of time. Range of motion testing found plantar flexion to 20 degrees or greater and dorsiflexion to 15 degrees. There was no evidence of localized tenderness, pain on palpation, or pain on weight bearing. After three repetitions, range of motion testing found plantar flexion to 15 degrees and dorsiflexion to 10 degrees. Muscle strength testing and joint stability testing were normal, and there was no ankylosis. Analysis The Board finds that the functional equivalent of marked limitation (under the old rating criteria) or marked limitation by less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion (under the new rating criteria) was not shown at any time, even when considering the Veteran's reported symptomatology for the service-connected right ankle sprain. His ankle demonstrated decreased range of motion, including during flare-ups, which is contemplated in the currently assigned 10 percent disability rating under the old and new rating criteria. To meet the next-higher and maximum rating of 20 percent, marked limitation (under the old rating criteria) or marked limitation by less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion (under the new rating criteria) would need to have been shown. See 38 C.F.R. § 4.71a, Diagnostic Code 5271 (prior to and since February 7, 2021). Moreover, the Veteran's reported symptomatology did not, when viewed in conjunction with the medical evidence, tend to establish additional limitations of motion to the degree that would warrant the next-higher and maximum rating of 20 percent at any time during the appeal period under 38 C.F.R. §§ 4.40, 4.45 and the holdings in DeLuca and Mitchell. As such, the Board finds that a rating in excess of 10 percent for the service-connected right ankle sprain is not warranted at any time during the appeal period. See 38 C.F.R. §§ 4.6, 4.71a, Diagnostic Code 5271 (prior to and since February 7, 2021). REASONS FOR REMAND Entitlement to a total disability rating due to individual employability (TDIU) is remanded. A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). In exceptional circumstances, where the Veteran does not meet the percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b). The Veteran is service-connected for bipolar disorder, rated as 50 percent disabling, right ankle sprain, rated as 10 percent disabling, left ankle sprain, rated as 10 percent disabling, and hemorrhoids, rated as noncompensable (zero percent disabling). The Veteran's combined rating is 60 percent. During the period on appeal, the Veteran did not meet the percentage requirements for eligibility to receive TDIU benefits. 38 C.F.R. § 4.16(a). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). If a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service, for extra-schedular consideration, all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b); Bowling v. Principi, 15 Vet. App. (2001); Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran has submitted evidence that his service-connected disabilities would potentially limit his ability to maintain substantially gainful employment, including an August 2012 private psychologist assessment related to his claim for Social Security Disability benefits. Although Social Security Disability determinations are not binding on VA, such determinations may constitute probative evidence as concerning questions pertinent to VA's adjudication of the claim. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). In September 2020, a private psychologist conducted a psychological disability examination and concluded that the Veteran's present psychological condition would preclude employment. Therefore, referral to the Director of Compensation Service is warranted for review of the evidence and consideration of whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. The matter is REMANDED for the following action: Refer the Veteran's claim to VA's Director of Compensation Service for extraschedular consideration of entitlement to TDIU in accordance with 38 C.F.R. § 4.16(b). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, 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.