Citation Nr: 22016709 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 14-43 527 DATE: March 23, 2022 ORDER Entitlement to an effective date of October 7, 2011, for the grant of service connection for left lower extremity neuropathy, involving the sciatic nerve, with an initial evaluation of 20 percent, is granted. Entitlement to an effective date of October 7, 2011, for the grant of service connection for right lower extremity neuropathy, involving the sciatic nerve, with an initial evaluation of 10 percent, is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to a rating in excess of 40 percent for a lumbar disability is remanded. Entitlement to an initial rating in excess of 20 percent for left lower extremity neuropathy is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity neuropathy is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection for his left lower extremity neuropathy was received on October 7, 2011. 2. The Veteran's claim for service connection for his right lower extremity neuropathy was received on October 7, 2011. CONCLUSIONS OF LAW 1. The criteria for an effective date of October 7, 2011, for the grant of service connection for left lower extremity neuropathy, with an initial evaluation of 20 percent, are met. 38 U.S.C. §§ 5107, 5110, 7105; 38 C.F.R. §§ 3.102, 3.105, 3.400. 2. The criteria for an effective date of October 7, 2011, for the grant of service connection for right lower extremity neuropathy, with an initial evaluation of 10 percent, are met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1986 to August 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal of July 2012 and September 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The issues of service connection for sleep apnea, a left ankle condition, and a right ankle condition were previously before the Board in July 2021. The Board remanded those issues for further development. The RO issued a supplement statement of the case in November 2021. Those issues have returned to the Board for further appellate review. In a February 2019 Board decision, a rating of 40 percent, but no higher, for a lumbar disability was granted, effective October 7, 2011; an initial rating of 20 percent, but no higher, for left lower extremity lumbar radiculopathy was granted, effective September 27, 2012; and an initial rating of 10 percent, but no higher, for right lower extremity lumbar radiculopathy was granted, effective September 27, 2012. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an August 2021 Order, the Court granted a Joint Motion for Partial Remand (JMPR), thereby vacating and remanding the Board's denial of an evaluation in excess of 40 percent for a lumbar disability, denial of a rating in excess of 20 percent for left lower extremity neuropathy, denial of a rating in excess of 10 percent for right lower extremity neuropathy, and the assignment of September 27, 2012, as the effective dates for the left and right lower extremity neuropathy ratings. Effective Date 1. Earlier effective date left lower extremity 2. Earlier effective date right lower extremity The Veteran believes that an earlier effective date for the evaluations of his bilateral lower extremity neuropathy should be assigned because he submitted his claim for service connection for left and right lower extremity neuropathy on October 7, 2011, as part of his claim for an increased rating for the lumbar disability. Therefore, October 7, 2011, should be the effective date. The effective date of an initial rating for disability compensation is the day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). In this case, the Veteran submitted a claim for service connection for left and right lower extremity neuropathy on September 27, 2012. However, an increased rating claim for his service-connected lumbar disability was received on October 7, 2011. The Board notes that the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, Note (1) provides: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Consideration of service connection and the assignment of initial ratings for lower extremity neuropathy secondary to a service-connected lumbar disability is part and parcel of an increased rating claim for a lumbar disability. As such, the claim received on October 7, 2011, for an increased rating for the lumbar disability, included consideration of any neurologic abnormalities associated with the lumbar disability on appeal. Therefore, the date of receipt of the claims for service connection for left and right lower extremity neuropathy was October 7, 2011. The record demonstrates that the Veteran had numbness in his lower legs going back to February 1999. See Memorandum for Medical Evaluation Board, February 1999. A statement in support of claim was received in August 1999, whereby the Veteran states that he had a nerve condition in his legs due to his spinal disc condition. Therefore, the record demonstrates that the Veteran's neuropathy symptoms were present before submission of the October 7, 2011. As such, the appropriate effective dates for the initial ratings for left and right lower extremity neuropathy are October 7, 2011, as that is the date of receipt of claim and is later than the date the bilateral neuropathy arose. Accordingly, entitlement to an effective date of October 7, 2011, for the grant of service connection for left lower extremity neuropathy, involving the sciatic nerve, with an initial evaluation of 20 percent, is granted; and entitlement to an effective date of October 7, 2011, for the grant of service connection for right lower extremity neuropathy, involving the sciatic nerve, with an initial evaluation of 10 percent, is granted. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded The Veteran contends that his sleep apnea began during his military service, when he and his wife noticed he snored and would choke during his sleep. In the alternative, he contends that his sleep apnea is secondary to his service-connected gastroesophageal reflux disease (GERD), post-traumatic stress disorder (PTSD), sinusitis, medication he has taken for his service-connected conditions, and weight gain directly attributable to his service-connected conditions. A remand confers on the claimant, as a matter of law, the right to compliance with the remand order and imposes upon the VA a concomitant duty to ensure compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). In keeping with this, once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In February 2019, the Board remanded the issue of service connection for sleep apnea to obtain a new VA examination. In June 2020, a VA sleep apnea examination was provided. The examiner opined that the Veteran's sleep apnea is less likely than not related to his military service. The rationale stated that "there is no objective evidence of the Veteran ever being diagnosed with obstructed sleep apnea during active duty. Diagnosis was not made until January 2013. A nexus has not been established." However, a lack of evidence cannot be corroborating to conclude that there is no relationship between the Veteran's current disability and his military service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The opinion also failed to address the Veteran's statements that he noticed waking up from snoring and choking during his military service. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"). As the examiner failed to address critical lay evidence, the Board must conclude that significant facts were not considered in providing the June 2020 opinion. As such, the opinion is inadequate. In July 2021, the Board remanded the issue again in order to obtain a VA addendum opinion considering secondary service connection and a new witness statement from the Veteran's wife. A VA sleep apnea addendum opinion was provided in November 2021. The examiner opined that Veteran's sleep apnea is less likely than not related to his military service. The rationale stated that a lay person cannot diagnose a condition and lay testimony does not constitute credible diagnosable medical evidence. It was acknowledged that the Veteran's wife reported snoring and other possible sleep apnea symptoms, but the examiner focused on the fact that the Veteran was not diagnosed with sleep apnea until 14 years after separation. The examiner also interjected the assumption that a condition of such longevity would have been diagnosed or worked up over that time span. The examiner's rationale is based on a lack of evidence, which is insufficient to support a finding of no nexus. See Dalton. Furthermore, the examiner did not address the Veteran's statements that he noticed awaking from snoring and choking while he was in service, and the examiner found the testimony of the Veteran's wife to not be credible without any basis for making such a finding. The job of the examiner is not to adjudicate the claim, but to consider all the facts and determine if on a medical basis, given those facts, it is at least as likely as not that the Veteran's sleep apnea is related to his military service. Such a determination must consider lay statements. See Layno. The examiner's opinion must be supported by the facts and well rationalized medical analysis. See Nieves-Rodriguez. Here, the examiner failed to earnestly account for important facts in evidence. In considering secondary service connection and aggravation of sleep apnea by a service-connected disability, the examiner found that sleep apnea was less likely than not secondary to, or aggravated by, a service-connected disability. The rationale was that obstructive sleep apnea happens when breathing is either stopped or reduced during sleep because of a narrowing or blockage of the upper airway, and the Veteran's service-connected disabilities do not cause a physical obstruction or worsen a physical obstruction. The examiner failed to provide thorough medical analysis, including medical literature to support the conclusions. The Veteran stated in his contentions that his service-connected conditions, such as GERD, PTSD, and sinusitis, are known to cause or aggravate sleep apnea. He has also stated that the use of medications for his service-connected conditions, including sleeping agents, has caused, or aggravated, his sleep apnea. The examiner provided only a conclusory opinion regarding whether the Veteran's service-connected conditions at least as likely as not caused, or aggravated, his sleep apnea, and as such, did not adequately address the Veteran's contention with well rationalized medical analysis. See Id. Moreover, the examiner omitted any discussion as to whether the Veteran's medication for his service-connected disabilities at least as likely as not caused, or aggravated, his sleep apnea. Furthermore, the Veteran has specifically contended that his weight has caused or aggravated his sleep apnea. On January 6, 2017, the General Counsel issued a precedential opinion which held that obesity could be an "intermediate step" between a service-connected disability and a current disability and thus satisfy the causal link between the two. VAOGCPREC 1-2017. In such cases where the issue is raised, the adjudicator should resolve three issues: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for the obesity caused by the service-connected disability. VAOGCPREC 1-2017. The VA examiner failed to address whether the Veteran's obesity was an intermediate step between his service-connected conditions, to include the use of prescribed medications for those conditions, and his sleep apnea. Based on the foregoing reasons, the VA opinions are inadequate, and remand is warranted for further development. The Veteran should be afforded a new examination to allow him the opportunity to provide any additional information to the examiner that he feels is necessary. 2. Entitlement to service connection for a left ankle disability is remanded 3. Entitlement to service connection for a right ankle disability is remanded The Veteran maintains that he repeatedly twisted his bilateral ankles during his military service and that following a motor vehicle accident during his service he has had continuing pain in his bilateral ankles, such that they would give out easily, making it difficult to walk and stand. The Veteran attributes the ongoing pain in his bilateral ankles directly to his military service because the pain has continued since his time in service. In July 2021, the Board remanded the issues of service connection for a left and right ankle disability because the October 2020 examiner found no diagnoses for the bilateral ankles, but a September 2013 examination diagnosed the Veteran with bilateral ankle sprain and indicated functional loss. Thus, there was a discrepancy in the findings. In November 2021, a VA ankles addendum opinion was provided. The examiner opined that the Veteran's claimed bilateral ankle conditions were less likely than not related to his military service. The rationale was that although there was evidence of ankle injuries in military service, there was no evidence of chronicity of care and there was no care for the ankle conditions until 2012. The examiner based the conclusion on a lack of evidence and an assumption that medical care would have been sought. As discussed above, this type of rationale is inadequate. See Dalton; see also Nieves-Rodriguez. Additionally, in considering whether the Veteran had any functional impact due to his reported bilateral ankle pain, the examiner simply stated that the 2020 examiner did not document functional impact. The examiner did not address the July 2021 directive that stated, "the examiner should specifically comment on the September 2013 VA examination report showing a diagnosis of a bilateral ankle sprain and functional loss." As such, the opinion does not substantially comply with the July 2021 Board remand. Furthermore, given the evidence in file that the Veteran has gained weight due to his service-connected disabilities and the multiple orthopedic conditions he is service connected for, the record reasonably raises the possibility that the Veteran's bilateral ankle conditions are secondary to, or aggravated by, his service-connected lumbar disability, lower extremity neuropathy, and bilateral patellofemoral syndrome. As such, a VA ankles examination should consider whether his bilateral ankle conditions are secondary to, or aggravated by, his service-connected conditions. Based on the foregoing, remand is warranted for further development. 4. Entitlement to a rating in excess of 40 percent for a lumbar disability is remanded The Veteran further contends that he is entitled to a higher rating for his lumbar disability because during flare-ups he has functional ankylosis of the lumbar spine. He also believes that higher ratings for his bilateral lower extremity should be assigned, and consideration of separate evaluations for the femoral and sciatic nerves should be given. The Veteran was afforded VA back examinations in February 2013 and October 2014. The February 2013 examination described the Veteran as having the inability to move with flare-ups, and the October 2014 examiner noted that the lack of mobility occurs frequently. Although neither of the examiners determined that the Veteran had ankylosis, the examiners did not consider whether the Veteran's symptoms showed the functional equivalent of favorable or unfavorable ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (stating that the rating criteria for a lumbar spine disability can be met with evidence of the functional equivalent of ankylosis during a flare-up). On remand, the new examiner must consider whether the evidence of record, to include the Veteran's lay statements, shows the functional equivalent to favorable or unfavorable ankylosis. Furthermore, the Veteran was most recently afforded a VA back examination in October 2014, over seven years ago. Medical records from December 2020 show that the Veteran has had worsening of his back symptoms. Given the significant period of time since the Veteran has been provided a VA back examination, and evidence showing worsening of his back condition, the Veteran is entitled to a current VA back examination to assess the current level of disability for lumbar disability. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Based on the following, remand is necessary for further development to appropriately determine the severity of the Veteran's lumbar disability throughout the period on appeal. 5. Entitlement to a rating in excess of 20 percent for left lower extremity neuropathy is remanded. 6. Entitlement to a rating in excess of 10 percent for right lower extremity neuropathy is remanded The Veteran was most recently afforded a VA lower extremity peripheral neuropathy examination in December 2017, over four years ago. December 2020 medical records reveal that the Veteran has had worsening back pain and worsening numbness/weakness in his legs. Given that the evidence shows worsening of his bilateral lower extremity neuropathy that needs to be considered, the Veteran is entitled to a current VA lower extremity peripheral neuropathy examination to assess the current level of disability. See Id. Furthermore, as addressed by the August 2021 JMPR granted by the Court, separate ratings based on the femoral nerve should be considered, and the findings of the October 2014 VA examination, which indicate the Veteran had moderate left lower extremity radiculopathy involving both the femoral and sciatic nerves must be addressed. Based on the following, remand is necessary for further development to appropriately determine the severity of the Veteran's bilateral lower extremity neuropathy throughout the period on appeal. The matters are REMANDED for the following action: 1. Associate with the case file any relevant outstanding VA medical records. 2. After the development above is complete, schedule the Veteran for a VA examination with an appropriate examiner, preferably a specialist, for the issuance of a medical opinion as to the nature and etiology of his sleep apnea. The examiner should thoroughly review the Veteran's entire claims file, including a copy of this Remand. 1) The examiner should provide the following: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was incurred in or is otherwise related to active service? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was caused OR aggravated by any service-connected disease or injury, to include use of medication for the service-connected disabilities? The examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression versus a temporary flare-up of symptoms. 2) The examiner must address obesity as an intermediate step between the Veteran's service-connected disabilities and his sleep apnea. The examiner is asked to specifically address the following: a) Opine whether a service-connected disease or injury, to include medications for those conditions, caused the Veteran to become overweight; b) Opine whether any service-connected disease or injury, to include medications for those conditions, aggravated the Veteran's weight; c) If a service-connected disability, to include medication for the disability, caused the Veteran to become overweight or aggravated his weight, opine whether the Veteran's weight was a substantial factor in causing the Veteran's sleep apnea; and d) Opine whether the Veteran's sleep apnea would not have occurred but for the weight caused or aggravated by the Veteran's service-connected disability. The examiner is reminded that a lack of evidence cannot be corroborating to conclude that there is no relationship between the Veteran's current disability and his military service. The examiner is advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be considered, along with the other evidence of record, in formulating the requested opinions. The examiner must address the Veteran's testimony as to in-service snoring and choking during sleep, as well as his wife-s statement that she noticed his sleep issues during his military service. A complete rationale for any opinions expressed should be set forth. The examiner must not rely on the lack of treatment or complaints of sleep apnea in service alone. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. The Veteran should be scheduled for an examination with an appropriate examiner, preferably a specialist, for the purpose of obtaining diagnoses, and nature and etiology of his right and left ankle conditions. The examiner should obtain a complete, pertinent, history from the Veteran and review the claims file in conjunction with the examination, including this remand, giving particular attention to the Veteran's VA treatment records, lay assertions, and the pertinent medical evidence. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. 1. The examiner is asked to provide the following: a) Identify all currently diagnosed ankle conditions. In determining the diagnoses, the examiner should note that the term "current" means occurring at any time during the pendency of the Veteran's claim, that is, from April 2013 onward. Additionally, the examiner must address the September 2013 VA examination that diagnosed bilateral ankle sprains and indicated functional loss. b) If diagnoses of the bilateral ankle conditions cannot be established, the examiner must specifically state whether there is any functional impairment associated with the Veteran's symptoms. Please complete the "Functional Impact" section of the report of examination. If there is functional impairment, please offer an opinion as to the following questions based on such functional impairment. c) Based on the examination and review of the record, the examiner is asked to provide an opinion whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's bilateral ankle conditions were incurred in or caused by the claimed in-service injury, event, or illness. d) Based on the examination and review of the record, the examiner is also asked to provide an opinion whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's bilateral ankle conditions (1) were caused by any of his service-connected disabilities; or (2) were aggravated by any of his service-connected disabilities, to include use of medications for his service-connected conditions. The examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression versus a temporary flare-up of symptoms. 2. The examiner must address obesity as an intermediate step between the Veteran's service-connected conditions and his bilateral ankle conditions. The examiner is specifically asked to address the following: a) Opine whether a service-connected disease or injury, to include medications for those conditions, caused the Veteran to become overweight; b) Opine whether any service-connected disease or injury, to include medications for those conditions, aggravated the Veteran's weight; c) If a service-connected disability, to include medication for the disability, caused the Veteran to become overweight or aggravated his weight, opine whether the Veteran's weight was a substantial factor in causing the Veteran's bilateral ankle conditions; and d) Opine whether the Veteran's bilateral ankle conditions would not have occurred but for the weight caused or aggravated by the Veteran's service-connected disability. The examiner is reminded that a lack of evidence cannot be corroborating to conclude that there is no relationship between the Veteran's current disability and his military service. The examiner must be advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and chronic nature of his symptoms, must be considered, along with the other evidence of record, in formulating the requested opinions. The examiner(s) are advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression versus a temporary flare-up of symptoms. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. Schedule the Veteran for a new VA examination to determine the current severity and manifestations of his lumbar disability and bilateral lower extremity neuropathy. 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. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is instructed to review all pertinent records associated with the claims file. The examiner must consider whether the evidence of record, to include the Veteran's lay statements, shows the functional equivalent to favorable or unfavorable ankylosis. The examiner must consider and address the findings of the October 2014 VA examination, which indicate the Veteran had moderate left lower extremity radiculopathy involving both the femoral and sciatic nerves. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. The examiner should report all signs and symptoms necessary for evaluating the Veteran's lumbar disability and bilateral lower extremity neuropathy under the rating criteria. The examiner should also provide the range of motion in degrees. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the reports. The examiner shall elicit information from the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups. If it is determined that the Veteran does not have flare-ups, an explanation for that determination must be provided, and specifically, why such a determination is consistent with the Veteran's reports. It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to his disability. 38 C.F.R. § 4.40, 4.45, 4.59. In this regard, the examiner must indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, 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.