Citation Nr: 21042804 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-44 743 DATE: July 13, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for a cervical spine disorder is denied. Entitlement to an evaluation in excess of 20 percent for right upper extremity radiculopathy is denied. REMANDED Service connection for sleep apnea. FINDINGS OF FACT 1. During the period on appeal, the Veteran's cervical spine disorder did not result in forward flexion to 15 degrees or less or any ankylosis of the cervical spine. 2. During the period on appeal, the Veteran's right upper extremity radiculopathy most closely approximated mild incomplete paralysis of the lower radicular group; the evidence of record does not demonstrate that the Veteran's right upper extremity radiculopathy symptoms approximated moderate, severe, or complete paralysis of the lower radicular group. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for a cervical spine disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for an evaluation in excess of 10 percent for right upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, DC 8512. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1985 to May 1985 and from April 1988 to August 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in October 2013 and August 2020 by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board remanded the case for additional development. In an August 2020 rating decision issued during the pending of this appeal, the RO granted the Veteran service connection for right upper extremity radiculopathy associated with his cervical spine disorder. Therefore, the Veteran's right upper extremity radiculopathy is considered part of the Veteran's appeal for an increased rating for a cervical spine disorder. Additional evidence was received subsequent to the most recent supplemental statement of the case issued in August 2020. As the evidence is not pertinent to the claim decided herein, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the diagnostic code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). 1. Increased Rating for a Cervical Spine Disorder The Veteran contends that he is entitled to an evaluation in excess of 20 percent for a cervical spine disorder. In the October 2013 rating decision currently on appeal, the RO granted the Veteran an increased rating of 20 percent under Diagnostic Code (DC) 5242, effective December 31, 2012. The 20 percent evaluation applies to the entire period currently on appeal. B. Discussion DC 5242 pertains to degenerative arthritis of the spine and is evaluated under the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Such provides for a 10 percent rating when there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; a combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 170 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 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1): Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. The regulations pertaining to the rating criteria for musculoskeletal disorders were revised during the pendency of this appeal. In situations such as this, the Board considers both the former and the current schedular criteria; although if an increased rating is warranted under the revised criteria, that award may not be made effective before the effective date of the change, even though there is no prohibition against assigning a rating under the older criteria for the entire period on appeal. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), to the extent it held that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to appellant should apply). In this case, DC 5242 was previously designated for degenerative arthritis of the spine. Under the revised criteria, DC 5242 now covers degenerative arthritis and degenerative disc disease other than IVDS. However, DC 5242 still falls under the General Rating Formula, which was not revised. See 83 Fed. Reg. 32592 (Jul. 13, 2018). The change in the law does not impact the Board's evaluation of the Veteran's cervical spine disorder in this case. Intervertebral disc syndrome (IVDS) may be evaluated under either the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The IVDS Rating Formula provides that a 10 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. B. Discussion Turning to the evidence of record, in an October 2014 notice of disagreement (NOD), the Veteran reported that he has suffered increasing neck pain. For the past several months, he had been awakened periodically from sleep by his right arm numbness and/or pain. Over the past two months, the condition had increased to nightly frequency. In an October 2014 VA Physician Note, the Veteran complained of a stiff neck, and he reported that he wakes at times with numbness in his right arm. The examiner noted complaints of neck, shoulder, and right arm pain and numbness increased recently, consistent with neck degenerative joint disease (DJD). A November 2014 VA Primary Care Education Note, the examiner gave an impression of mild cervical spondylosis. The examiner stated that he did not think pain clinic injections would be appropriate for the Veteran's neck since there was relatively little nerve root compromise showing. In a January 2015 VA Pain Note, the Veteran complained of radicular neck pain for four or five months that was causing him some discomfort. The examiner noted that an MRI showed that, at C5-C6, there was a minimal posterior disc osteophyte complex with mild right neuroforaminal stenosis but no significant spinal canal stenosis. In a January 2016 VA Pain Medication Management Note, the Veteran reported increased pain and spasms in the cervical spine and shoulders. The examiner gave an assessment of cervical spine pain at C5-C7 with spasms. In a June 2016 VA Pain Note, the Veteran reported a history of neck pain dating back to approximately 1997 while serving in the military police. The Veteran reported that he continued to serve as a security officer; and over the years, he has been involved in physically demanding activities that have contributed to the gradual progression of symptoms. The Veteran stated that his most bothersome pain lately is in the left mid to lower cervical region. In a May 2017 VA Pain Note, the Veteran reported that the neck pain was worse in morning upon awakening, and the pain radiated to the bilateral shoulders but not to the upper extremities head. At a September 2013 VA examination for the neck, the VA examiner diagnosed the Veteran with DDD of the cervical spine. The Veteran reported that he had stabbing neck pain with popping. The Veteran had forward flexion range of motion (ROM) to 30 degrees; extension ROM to 35 degrees; right and lateral flexion ROM to 30 degrees; and right and left lateral rotation ROM to 60 degrees. There was no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with three repetitions, and there was no additional limitation in ROM of the cervical spine (neck). There was no localized tenderness or pain to palpation for joints or soft tissue and no guarding or muscle spasms. The Veteran did not report flare-ups of the cervical spine. The Veteran did not have radiculopathy or intervertebral disc syndrome (IVDS). At a November 2019 VA examination, the VA examiner diagnosed the Veteran with DDD of the cervical spine with arthritis and radiculopathy, as well as IVDS. The Veteran reported current symptoms of posterior neck pain that radiated to the left shoulder. The Veteran had forward flexion range of motion (ROM) to 35 degrees; extension ROM to 30 degrees; right and left lateral flexion ROM to 35 degrees; right lateral rotation ROM to 60 degrees; and left lateral rotation ROM to 55 degrees. The ROM itself contributed to functional loss in that he had difficulty turning his head from side to side. Pain was noted on examination, and the pain caused functional loss. Forward flexion ROM, extension ROM, right left lateral flexion ROM, and right and left lateral rotation ROM exhibited pain. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine (neck) located in the right posterior lateral neck with mild severity, and there was evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with three repetitions, and there was no additional limitation in ROM of the cervical spine. The Veteran was not being examined immediately after repetitive use over time, but the examination was medically consistent with the Veteran's statements describing loss with repetitive use over time. Pain and fatigue significantly limited functional ability with repeated use over time. The examiner stated that there was no further loss of ROM anticipated with repeated use over time; there was only increased symptoms such as pain and fatigability. The Veteran denied flare-ups. Muscle strength was normal, and a reflex examination was normal. Sensation to light touch was decreased on the right side in the right shoulder area (C5), inner and outer forearm (C6-T1), and hand and fingers (C6-8). There was no muscle atrophy, ankylosis, guarding, or muscle spasm. There was objective evidence of pain when the neck was used in non-weight-bearing. There was no objective evidence of pain on passive ROM testing. Passive ROM of the neck was the same as active ROM. The Veteran had IVDS of the cervical spine, but he had not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Board has additionally reviewed the Veteran's other medical treatment records from the period on appeal, and the findings are substantially similar to those noted in the VA examinations and other medical evidence described above. Based on the foregoing, the Board finds that a rating in excess of 20 percent for the Veteran's cervical spine disorder is not warranted. In this regard, the record reflects that the Veteran's cervical spine disorder does not result in forward flexion limited to 15 degrees or less, as would be required for an evaluation in excess of 20 percent, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as result of repetitive motion and/or flare-ups. Specifically, his forward flexion was limited to, at most, 30 degrees, even in contemplation of the aforementioned factors. Additionally, there is no indication that he has IVDS with incapacitating episodes or associated objective neurological abnormalities such that a higher rating is warranted under the IVDS Formula. The Board acknowledges the Veteran's assertions that his cervical spine disorder is of a sufficient severity so as to warrant a higher disability rating. Even fully considering his reports of pain and other functional limitations, the next higher disability level is not more nearly approximated. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. Therefore, the Veteran's claim for an evaluation in excess of 20 percent for a cervical spine disorder must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Increased Rating for Right Upper Extremity Radiculopathy The Veteran contends he is entitled to an evaluation in excess of 20 percent for right upper extremity radiculopathy. In an August 2020 rating decision, the RO granted the Veteran service connection for right upper extremity radiculopathy with a 20 percent evaluation under Diagnostic Code (DC) 8512, effective December 31, 2012. The 20 percent evaluation for right upper extremity radiculopathy applies to the entire period on appeal. The evidence of record reflects that the Veteran is right-handed. A. Applicable Law Under DC 8512, which concerns disabilities of the peripheral nerves in the lower radicular group, a 20 percent rating is warranted for a mild incomplete paralysis of the lower radicular group; a 40 percent evaluation is warranted for moderate incomplete paralysis of the lower radicular group; and a 50 percent evaluation is warranted for severe incomplete paralysis of the lower radicular group. Complete paralysis of the lower radicular group, with all extrinsic muscles of hand, and some or all of flexors of wrist and fingers, paralyzed (substantial loss of use of hand), is rated 70 percent disabling. See 38 C.F.R. § 4.124a, DC 8512. The table below provides general guidelines for each level of incomplete paralysis of the upper and lower peripheral nerves. See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660, at *33-34 (Vet. App. Apr. 16, 2021); see also Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). Degree of Incomplete Paralysis Description Mild As this is the lowest level of evaluation for each nerve this is the default assigned based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment for SC purposes. In general look for a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. Moderate Moderate is the maximum evaluation reserved for the most significant cases of sensory-only impairment (38 C.F.R. § 4.124a). o Symptoms will likely be described by the claimants and medically graded as significantly disabling. o In such cases a larger area in the nerve distribution may be affected by sensory symptoms. Other sign/symptom combinations that may fall into the moderate category include o combinations of significant sensory changes and reflex or motor changes of a lower degree, or o motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. Moderate is also the maximum evaluation that can be assigned for o neuritis not characterized by organic changes referred to in 38 C.F.R. § 4.123, or o neuralgia characterized usually by a dull and intermittent pain in the distribution of a nerve (38 C.F.R. § 4.124). Moderately Severe The moderately severe evaluation level is only applicable for involvement of the sciatic nerve. This is the maximum rating for sciatic nerve neuritis not characterized by the organic changes specified in 38 C.F.R. § 4.123. Motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected. Atrophy may be present. However, for marked muscular atrophy see the criteria for a severe evaluation under 38 C.F.R. § 4.124a, DC 8520. Severe In general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. For the sciatic nerve (38 C.F.R. § 4.124a, DC 8520) marked muscular atrophy is expected. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve (38 C.F.R. § 4.123). See VBA Manual M21-1, III.iv.4.N.4.c., Assigning Level of Incomplete Paralysis, Neuritis or Neuralgia. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). B. Discussion At a September 2013 VA examination, the examiner found no signs or symptoms of radiculopathy. The Veteran's muscle strength and reflex and sensory exams were normal. At an October 2014 VA Physical Emergency Department Note, the Veteran had cervical radiculopathy and right arm paresthesia. In an October 2014 VA Physician Note, the Veteran complained of stiffness in the neck; he reported that he wakes at times with numbness in his right arm. In a November 2014 VA Primary Care Nursing Note, the Veteran complained of neck pain that radiated to his right arm and caused numbness. A November 2014 Primary Care Education Note, the examiner gave an impression of mild cervical spondylosis. The examiner stated that he did not think pain clinic injections would be appropriate for the Veteran's neck since there was relatively little nerve root compromise showing. In a January 2015 VA Pain Note, the Veteran reported some radicular neck pain for the past four or five months that caused him some discomfort. In a March 2015 VA Pain Note, the Veteran reported ongoing neck pain associated with occasional radiation into the bilateral shoulders and numbness of the right hand. At a November 2019 VA examination, the Veteran reported radiculopathy symptoms in the right upper extremity, including mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness. The radiculopathy involved the C7 nerve root (middle radicular group) and the C8-T1 nerve roots (lower radicular group). The VA examiner found that the radiculopathy was mild on the right side. The left side was not affected. The Board has reviewed the Veteran's other medical treatment records from the period on appeal, and the findings are substantially similar to those noted in the VA examinations and other medical evidence described above. The evidence of record demonstrates that, during the period on appeal, the Veteran exhibited mild right upper extremity radiculopathy. The evidence of record demonstrates that the Veteran's right upper extremity radiculopathy was found to be no more than mild during the period on appeal. The evidence of record does not demonstrate that the Veteran had moderate or severe incomplete paralysis of the lower radicular group, as would be required for an evaluation in excess of 20 percent under DC 8512. There is also no evidence of complete paralysis of the lower radicular group at any point during the period on appeal. See 38 C.F.R. §§ 4.7, 4.124a, DC 8512. Therefore, for the period on appeal, the Veteran is appropriately assigned a 20 percent evaluation for right upper extremity radiculopathy. The Board acknowledges that the Veteran's radiculopathy also involves the middle radicular group (C7). However, to award the Veteran a separate rating under DC 8511 for the same symptoms would constitute impermissible pyramiding. The Board acknowledges the Veteran's assertions that his right upper extremity radiculopathy is of a sufficient severity so as to warrant a higher disability rating. Even fully accounting for his statements, a higher disability level is not more nearly approximated. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. Therefore, the Veteran's claim for an evaluation in excess of 20 percent for right upper extremity radiculopathy must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Service connection for sleep apnea. This issue is remanded for a new VA opinion. The Board previously remanded this claim to obtain an opinion addressing whether the Veteran's sleep apnea may be secondary to medication for his service-connected disabilities. Upon remand, a VA examiner in November 2019 determined that the Veteran's sleep apnea was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The VA examiner explained that opioid use such as tramadol increases the risk for sleep-related disorders in a dose-dependent fashion; however, there is no established connection of these prescription medications causing sleep apnea. Obstructive sleep apnea is characterized by recurrent, functional collapse of the airway causing reduced or complete cessation of airflow despite ongoing breathing efforts. Risk factors include age, being male, excess weight, narrowed airway, and smoking. Thus, the Veteran's sleep apnea is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran taking prescription medication for long-term pain management, such as tramadol and meloxicam, for service-connected spine disabilities. The VA examiner also found that the Veteran's sleep apnea was less likely than not (less than 50 percent probability) aggravated beyond its natural progression by the Veteran taking prescription medication for long-term pain management for his service-connected spine disabilities. The examiner stated that the evidence of record does not reflect increased manifestations beyond that of sleep apnea's natural progression. The examiner also noted the Veteran's report that his sleep apnea condition had its onset in 2009 beginning with fatigue and difficulty breathing while sleeping, and he still experienced these symptoms. The VA examiner found that the Veteran's sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. The VA examiner explained that, after reviewing medical records, there was not enough evidence to support the Veteran's claim; and there was a lack of complaints, diagnosis, or treatment for sleep apnea during service. The Board observes that this opinion is internally inconsistent. On the one hand, the examiner found "not enough evidence to support" a direct nexus to service. On the other hand, the examiner indicated that the service treatment records (STRs) did not reflect increased manifestations beyond that of the natural progression. This latter statement appears to indicate that the condition was present during service but did not worsen beyond the natural progression during service. It is not clear if this was the examiner's intended meaning, and no further discussion informs the Board as to the examiner's intent. As such, remand for clarification is needed. Furthermore, the Veteran was diagnosed with sleep apnea by a January 2012 sleep study. That sleep study report states that his medical history was significant for depression/anxiety. No opinion was otherwise given as to the significance of the depression/anxiety, but this notation in the report indicates to the Board that the provider found the depression/anxiety to be pertinent to the assessment of sleep apnea. The Veteran is currently service-connected for unspecified depressive disorder (previously rated as chronic pain disorder with social anxiety). Hence, the January 2012 provider's notation indicates that there may be a secondary relationship between the service-connected disability and sleep apnea. The VA examiner did not address this issue. The matters are REMANDED for the following action: Arrange for the relevant information in the Veteran's claims folder to be returned to the examiner who conducted the November 2019 VA examination (or a suitable substitute if such examiner is unavailable), for the purpose of preparing an addendum opinion regarding the claimed sleep apnea condition. (The need for an additional in-person examination should be determined by the examiner.) The examiner is asked to address each of the following: (a.) Whether the diagnosis is at least as likely as not related to an in-service injury, event, or disease. In doing so, the examiner is asked to clarify the comment that "[s]ervice treatment records do not reflect increase[d] manifestations beyond that of sleep apnea natural progression." The examiner is asked to explain whether this statement means evidence of sleep apnea was found in the service treatment records (STRs). (b.) Whether the current condition is at least as likely as not (1) proximately due to a different medical condition, or (2) aggravated beyond its natural progression by a different medical condition. If so, the examiner is asked to identify the primary medical condition. In answering this question, the examiner is asked to consider a January 2012 sleep study, which states that the Veteran's medical history was significant for depression/anxiety. The examiner should address why depression/anxiety is significant in evaluating sleep apnea, and whether there is a secondary relationship between sleep apnea and the Veteran's service-connected depressive disorder. In answering these questions, the examiner is asked to consider the statements from the Veteran regarding his history of symptoms. The examiner is asked to explain why his statements make it more or less likely that a condition started during service or is secondary to a service-connected disability. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dawn A. Leung, 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.