Citation Nr: 22018954 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-54 477 DATE: March 30, 2022 ORDER Entitlement to a rating in excess of 20 percent for persistent right neck pain, status-post neck trauma with chip fracture at C5, to include arthritis is denied. REMANDED Entitlement to rating in excess of 10 percent for persistent right knee pain, status-post arthroscopic surgery twice and open surgery once, to include arthritis is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran's persistent right neck pain, status-post neck trauma with chip fracture at C5, to include arthritis manifested as was manifested by, at worst, forward flexion of the cervical spine to 30 degrees even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without ankylosis of the spine, intervertebral disc syndrome or bowel or bladder impairment. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for persistent right neck pain, status-post neck trauma with chip fracture at C5, to include arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 1980 to August 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs Regional Office (RO). The Veteran filed a new claim for increased evaluation in September 2014. The claim was denied in the March 2015 rating decision referenced above. The Veteran then filed a timely notice of disagreement, appealing his case to the Board. The matter has now come before the Board for further appellate action. The Board notes that the Veteran had requested a Board hearing regarding these matters. The Veteran was scheduled for the requested hearing in September 2021. However, he withdrew his request for a hearing in a July 2021 correspondence. The Board therefore considers his hearing request to be withdrawn. 1. Entitlement to a rating in excess of 20 percent for persistent right neck pain is denied. The Veteran asserts that he is entitled to an increased rating for his persistent right neck pain, specifically because his symptoms are more severe than contemplated by the currently assigned ratings. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because 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. 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 appellant working or seeking work. 38 C.F.R. § 4.2. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 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 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). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's cervical condition is rated under Diagnostic Code 5237, which assigns ratings for cervical spine based upon the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a. In regard to the General Rating Formula for Diseases and Injuries of the Spine as applied to the cervical spine disability, a 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical 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 assigned for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243). 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. Plate V, 38 C.F.R. § 4.71a. 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 (0 degrees) always represents favorable ankylosis. See C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The period on appeal begins from September 2014 onward. As such, the Board will review all evidence from September 2014 in order to determine whether the Veteran's evaluation has been properly assigned and whether higher ratings may be warranted. Turning to the evidence, the Board has reviewed VA treatment records from 2014 onward documenting ongoing pain in the neck and right shoulder region. Muscle spasm is noted. Tenderness upon palpation is also documented. Weakness, numbness or tingling of the neck/shoulder region is not shown. The Veteran was provided a VA examination for his neck in August 2017. The examiner conducted range of motion testing and made findings of forward flexion of the neck to 30 degrees and extension of the neck to 30 degrees. Pain was noted upon examination and found to cause functional loss. Evidence of pain upon weight bearing was not found. The Veteran was able to perform repetitive use testing with at least three repetitions, and without additional loss of function or range of motion. The Veteran was found to exhibit muscle spasms, but not resulting abnormal gait or abnormal spinal contour. Guarding was not found. In a September 2017 rating decision, the RO increased the Veteran's evaluation for his persistent neck pain to 20 percent, effective September 14, 2014. This was done on the basis of the August 2017 VA examination's range of motion findings of flexion to 30 degrees. 38 C.F.R. § 4.71a. The Board acknowledges that the August 2017 VA examination, which is the most recent VA examination of record for the Veteran's neck/cervical spine, is nearly five years old. However, the Board notes that generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Additionally, the Veteran has not alleged, nor does the record indicate, that the Veteran's condition has worsened beyond the August 2017 examination. The Veteran indicated in his March 2015 VA Form 21-0958 that his condition had worsened and the August 2017 examination was provided to assess the level of worsening and current severity of the Veteran's neck condition. There is no indication in the record, through lay or medical evidence, that the condition has worsened beyond the findings of the August 2017 examination. Further, the Board finds that the August 2017 examination is adequate for rating purposes. The examiner testing for pain upon weight-bearing. The examiner also conducted all range of motion testing including repetitive use testing. Regarding flare-ups, the Board acknowledges that the VA examiner was not able to provide an opinion regarding additional functional impairment during flare-ups, however, the Veteran was able to describe his symptoms during a flare-up and the impact of such. Specifically, the examiners elicited information from the Veteran regarding the severity, frequency, duration and functional loss manifestations of flare-ups. Therefore, the Board finds that all information required for rating purposes was provided. The Board also finds that the examination is in compliance with the Court of Appeals for Veterans' Claims (Court's) holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the VA examiners did not test the opposite joint; however, the spine does not have an opposite joint. Upon review, the Board finds that a rating in excess of 20 percent is not warranted for any point during the appeal period. The Veteran's examination revealed findings of forward flexion of the cervical spine, to include as due to flare-ups or repeated use over time, was no worse than 30 degrees. To warrant the higher 30 percent rating, the Veteran's cervical spine degenerative disc disease and arthritis would need to manifest as forward flexion of 15 degrees or less, or favorable ankylosis of the entire cervical spine. At no time during any of the examinations did the Veteran exhibit forward flexion of 15 degrees or less to include pain, repetitive motion, repeated use after time, or flare-ups as well as other factors discussed in DeLuca. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. None of the clinical records reflect such criteria as required for a higher rating based on range of motion. Id. The Board has considered the Veteran's ongoing pain in the neck and shoulder region, and such pain is well-supported by the medical record. In this regard, the Board has considered the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, supra. However, objective medical findings, as in the VA examinations of record have not shown further loss or range of motion or other functional impairment due to pain, beyond that which is already contemplated in the Veteran's currently assigned evaluation. See DeLuca v. Brown, supra; Mitchell v. Shinseki, supra; 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran's examinations have been consistently negative for ankylosis and the Veteran has retained range of motion in the cervical spine. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Therefore, the Board finds that, at no time during the appeal period has the Veteran's service-connected cervical spine injury changes resulted in ankylosis warranting a higher rating. The Board has considered whether a higher evaluation could be assigned for any period on appeal under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In this case, there is no evidence that the Veteran has had incapacitating episodes as defined by VA regulations. Rather, the Veteran has not alleged, nor does the evidence show, that the Veteran has a diagnosis of IVDS that resulted in medically prescribed bedrest. At all times, the Veteran did not have a diagnosis of IVDS. Accordingly, a higher or separate rating is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In addition to considering the orthopedic manifestations of a spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. However, the Veteran has not alleged, and the evidence does not show, that he has bladder impairment or bowel impairment as a result of his service-connected cervical spine injury. Some radiating pain from the neck to shoulder is shown but is shown to be localized to the neck/shoulder region and is not shown to extend to the extremities. Therefore, a higher or separate rating based upon neurological impairments is not warranted. The Veteran's belief that he is entitled to a higher rating for his persistent neck pain is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination report and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran's general belief that he is entitled to a higher rating. The Board acknowledges the statements of the Veteran that his persistent neck pain is worse than rated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board finds, however, that neither the Veteran's statements, nor medical evidence demonstrates that the criteria for a higher rating have been met during the period on appeal. Specifically, as noted above, the Veteran's range of motion is described, and the Veteran has not been shown to have ankylosis of the spine at any time. In addition, the Veteran was able to describe his symptoms during flare-ups, following repetitive-use, the impact of his symptoms on his daily life, and the severity, frequency, duration and functional loss manifestations of flare-ups. The Board also acknowledges that the Veteran's VA treatment records note complaints of and treatment for a variety of disabilities. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned, and the disability has been stable throughout each appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total disability rating based upon individual unemployability (TDIU) rating, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The Board notes that the August 2017 VA examination noted the Veteran working full-time, albeit with some functional limitations due to his persistent neck pain. In this regard, the Board notes that the Veteran's currently assigned rating is meant to compensate for the types of functional limitations placed on the Veteran, including and particularly limitations placed on his occupational ability. Therefore, the issue of entitlement to a TDIU has not been raised. Accordingly, the Board finds that the weight of the evidence is against the assignment of a rating higher than 20 percent for persistent neck pain and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 2. Entitlement to rating in excess of 10 percent for persistent right knee pain, status-post arthroscopic surgery twice and open surgery once, to include arthritis is remanded. The Veteran asserts that he is entitled to an increased rating for his persistent right knee pain, specifically because his symptoms are more severe than contemplated by the currently assigned ratings. Specifically, the Veteran contends that a 20 percent rating is warranted due to instability and subluxation from surgeries. His persistent right knee pain is currently rated based upon limitation of motion. Turning to the evidence, the Veteran was provided a VA examination for his right knee in August 2017. The examiner conducted range of motion testing and made findings of flexion to 120 degrees and extension to 120 degrees for the right knee. The examination was negative for any findings of subluxation and instability. However, the examiner also noted that the Veteran required a knee brace on a "regular basis". Further, the examiner noted the Veteran's reports that his knee "gives out" at least one per month. Additionally, the medical record consistently supports the Veteran's multiple surgeries in the right knee and need for a brace to assist in ambulation. Given that the amended criteria for Diagnostic Code 5257 provide higher ratings upon a showing of recurrent knee instability after surgical repair requiring the use of a brace or walker, the Board finds that a new updated examination to assess the current level of severity of the Veteran's persistent right knee pain is warranted. Such an examination should answer whether the Veteran suffers from instability of the knee (and to which degree, i.e. slight, moderate, or severe) and further confirm that he requires the use of a brace or assistive device due to his knee instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Accordingly, the Board finds that an updated examination is warranted to answer the above questions and determine the current severity of the Veteran's service connected persistent right knee pain. 1. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran contends that his obstructive sleep apnea is the result of his service or had its onset during his service. A June 2015 statement from H.H., who served with the Veteran, indicated that the author had noticed on multiple occasions during their service that the Veteran stopped breathing when he slept and would wake up gasping for air. The author related that he witnessed this pattern occurring multiple times over three years from 1997 to 2000. Service treatment records are silent for any complaints, treatments, or diagnoses relating to obstructive sleep apnea. Service treatment records do show that the Veteran was treated for a snoring complaint in 1990. The Veteran has himself contended that he had also had snoring and difficulty breathing while sleeping during his deployment to Albania in 1999. This was observed by his fellow servicemembers who were sharing a tent with him. Post-service treatment records include treatment for snoring, referral to a sleep study, and a subsequent diagnosis of obstructive sleep apnea, all in 2015. The sleep study referral notes sleep-related apnea and "gasping or choking". The Veteran was provided a VA examination for his sleep apnea in April 2017. The examiner provided a negative nexus opinion opining that it was less likely than not (less than 50 percent probability) that the Veteran's obstructive sleep apnea was incurred in or caused by his service. The examiner supported their opinion with the rationale that the Veteran's service records showed only a limited instance of evaluation for snoring, with the Veteran being recommended to sleep on his side and that the Veteran did not return for additional treatment or raise any further concerns regarding snoring while in-service. The examiner noted that the Veteran was first diagnosed with sleep apnea 15 years after separation from service. The examiner explained that snoring is not an accurate or definitive predictor of sleep apnea given that snoring is very common amongst people; the vast majority of whom do not have sleep apnea. The examiner further reasoned that it is more likely that the Veteran's condition is related to aging and natural factors. Upon review, the Board finds the April 2017 VA examiner's opinion to be inadequate. The examiner did not adequately address the lay evidence of record, including the lay reports of the Veteran and corroborative statements submitted by his fellow servicemember H.H. in support of the Veteran's claim. Both the Veteran and H.H. have asserted that the Veteran had suffered from difficulty breathing during his sleep and would wake up gasping for air on multiple occasions over at least a three year period in-service. However, the examiner's opinion focused only on snoring, stating that in-service snoring is not indicative of later sleep apnea. The opinion did not address the reports of in-service difficulty breathing and waking up gasping for air; and whether such in-service symptomatology could be related to the Veteran's current sleep apnea disorder. Thus, the Board finds the examiner's opinion is inadequate and does not adequately inform the Board in making this decision. The Board finds that remand is warranted to allow for an addendum opinion addressing the lay evidence of record, particularly the Veteran's reports of difficulty breathing and gasping for air, as further corroborated by the statement submitted by H.H. Accordingly, the matter is remanded to allow for such an opinion to be obtained. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination to address the severity of the Veteran's persistent right knee pain. A complete copy of the claims file must be made available to the examiner, including a copy of this remand. The need for further in-person examination is left to the discretion of the examiner. The examiner should identify the current nature and severity of all manifestations of the Veteran's persistent right knee pain and comment upon the functional impairment resulting from the Veteran's persistent right knee pain, to include instability. The examiner should test for pain on motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If such testing cannot be completed, the examiner should indicate whey this is so. The examiner must fully indicate whether or not there is any evidence of pain in any of the above, as such was not provided in the previous examination. A rationale for any opinion offered should be provided. 3. Following the receipt of outstanding records, forward the Veteran's entire claims, along with a copy of this Remand, to appropriate clinicians to obtain addendum opinions regarding the etiology of the Veteran's claimed obstructive sleep apnea. The need for further in-person examination is left to the discretion of the examiner. The examiner is asked to furnish an opinion with respect to the following question: Is it at least as likely as not (50 percent or greater probability) that any current obstructive sleep apnea had its onset during service, or is otherwise related to such service? The examiner must specifically address the Veteran's and H.H.'s reports of the Veteran's having difficulty breathing while sleeping and waking up gasping for air during service. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, 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.