Citation Nr: 25004331 Decision Date: 04/01/25 Archive Date: 04/01/25 DOCKET NO. 20-30 479 DATE: April 1, 2025 ORDER An initial rating in excess of 10 percent for lumbar degenerative arthritis (back disability) prior to September 29, 2020, is denied. REMANDED The claim for service connection for sleep apnea is remanded. FINDING OF FACT Prior to September 29, 2020, the Veteran's back disability was at its worst limited to 65 degrees with forward flexion and 165 degrees with combined range of motion. At no time prior to September 29, 2020, was the Veteran's forward flexion functionally limited to 60 degrees or less or his combined range of motion limited to 120 degrees or less. Additionally, he did not have guarding or muscle spasm severe enough to result in an abnormal gait or abnormal spinal contour, he had not been prescribed bed rest due to IVDS, and he did not have ankylosis. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for a back disability prior to September 29, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, DC 5242-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Coast Guard Reserve from May 1982 to July 1982. He served on active duty in the Air National Guard from March 1994 to November 1994, October 1995 to September 1996, October 1996 to September 1997, May 2000 to September 2000, October 2001 to April 2002, and January 2003 to July 2003. He served on active duty in the Air Force Reserve from September 2008 to September 2009 and November 2009 to March 2011. The Veteran also had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). The matter is on appeal before the Board of Veterans' Appeals (Board) from a February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a March 2024 decision, the Board previously denied a rating in excess of 10 percent for a back disability prior to September 29, 2020, and denied service connection for sleep apnea. The Veteran appealed the portions of the March 2024 Board decision denying a rating in excess of 10 percent for a back disability prior to September 29, 2020, and denying service connection for sleep apnea to the United States Court of Appeals for Veterans Claims (Court or CAVC). In a November 2024 Joint Motion for Partial Remand (JMPR), the parties agreed that the portions of the March 2024 Board decision denying an initial rating in excess of 10 percent for a back disability prior to September 29, 2020, and denying service connection for sleep apnea should be vacated and the claims remanded for further development. This decision is written in accordance with the findings from the November 2024 JMPR. Initial Increased Rating Back Disability By way of history, the Veteran was granted service connection for a back disability in a February 2017 rating decision with a 10 percent rating effective January 26, 2016. He submitted a Notice of Disagreement (NOD) in April 2017, in which he disagreed with the initial 10 percent rating assigned for his back disability. In an October 2020 rating decision, the Veteran was granted a 20 percent rating for his back disability effective September 29, 2020. Following the issuance of a Statement of the Case (SOC) in October 2020, the Veteran filed a Form 9 Appeal to the Board in November 2020. In a March 2024 Board decision, an initial rating in excess of 10 percent for a back disability prior to September 29, 2020, and in excess of 20 percent, thereafter, was denied. As noted above, the Veteran appealed the portion of the March 2024 Board decision denying an initial rating in excess of 10 percent for a back disability prior to September 29, 2020, to CAVC. He did not appeal the portion of the March 2024 Board decision denying a rating in excess of 20 percent for a back disability for the period on appeal beginning September 29, 2020, and thereafter. In the November 2024 JMPR, the parties agreed that the portion of the March 2024 Board decision denying an initial rating in excess of 10 percent for a back disability prior to September 29, 2020, should be vacated and the claim remanded for further development. Specifically, in the November 2024 JMPR, the Court directed that on remand the Board must address in its opinion a September 20, 2018, VA integrative pain service consult record, in particular a notation that the Veteran's flexion and extension was very limited, or a loss of about five percent or less due to pain. This decision is being written in accordance with the findings in the November 2024 JMPR. The issue before the Board for adjudication is an initial rating in excess of 10 percent for a back disability prior to September 29, 2020. The Veteran's back disability is rated under DC 5242-5243. Spinal disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, DC 5243. 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, DC 5243, Note 1. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5242-5243. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. During the period on appeal prior to September 29, 2020, the Veteran underwent two VA examinations, one in June 2016 and one in May 2017. At the June 2016 VA examination, the Veteran reported off and on daily lower back pain that is worse in the morning and with activity. He denied both flare-ups and functional impairment of his back. The Veteran's initial range of motion with forward flexion was indicated to be to 65 degrees, and his combined range of motion was 200 degrees. There was evidence of pain with forward flexion, extension, and left lateral flexion, however, it did not result in any additional functional loss. There was neither evidence of pain with weight bearing, nor evidence of pain or tenderness on palpation of the back. The Veteran underwent repetitive use testing, and there was no additional loss of function or range of motion. The examiner indicated that the Veteran was being examined after repeated use over time, and found that pain, weakness, fatigability, and incoordination would not significantly limit functional ability with repeated use over a period of time. The Veteran did not have guarding or muscle spasm of the back. The Veteran's strength, reflexes, and senses were normal. The Veteran did not have muscle atrophy, radiculopathy, ankylosis, IVDS, a thoracolumbar vertebral fracture with loss of 50 percent or more of height, or any other neurologic abnormalities related to his back condition. Imaging studies were available documenting arthritis. The Veteran denied the use of an assistive device. The Veteran's VA treatment records reflect that he was seen by primary care on June 28, 2016, for a complaint of low back pain. An examination of the Veteran's lower back showed low back pain/tenderness of the lumbar back area/paraspinal mm L3-4. He had full range of motion. At the May 2017 VA examination, the Veteran reported functional impairment with his back. He described low back pain associated with sitting or standing for 20 minutes or more, walking for 30 minutes or more, and bending, lifting, and carrying loads heavier than 20 pounds. He denied flare-ups with his back. The Veteran's initial range of motion with forward flexion was indicated to be to 65 degrees, and his combined range of motion was 165 degrees. The examiner indicated that the Veteran's range of motion contributed to functional loss and explained that the Veteran's decreased range of motion is consistent with and contributes to his reported symptoms and functional impairment as described. Pain was noted with flexion, right lateral rotation, and left lateral rotation. There was neither evidence of pain with weight bearing, nor evidence of pain or tenderness on palpation of the back. The Veteran underwent repetitive use testing, and there was no additional loss of function or range of motion. The examiner noted that the Veteran was not being examined immediately after repetitive use over time, and indicated that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner found that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran did not have guarding or muscle spasm of the back. The Veteran's strength and senses were normal. His reflexes were 1+ hypoactive bilaterally at the knee and ankle. The examiner noted the Veteran to have a mild bilateral lower extremity radiculopathy, for which the Veteran has been granted service connection. The examiner indicated that the Veteran did have IVDS, however, he did not have 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 Veteran did not have muscle atrophy, ankylosis, a thoracolumbar vertebral fracture with loss of 50 percent or more of height, or any other neurologic abnormalities related to his back condition. Imaging studies were available documenting arthritis. The Veteran reported the occasional use of a back brace. The Veteran was seen on June 1, 2017, for a VA physical medicine rehabilitation consultation, at which it was noted that his back pain had been present intermittently since 1994. It is located in a band-like are of his low back and will intermittently radiate down his posterior right leg. His back pain is improved with a back brace, naproxen, and heat, and worsened with prolonged sitting, standing, and exercise. An examination showed difficulty with sitting and standing. The Veteran's posture, alignment, and gait were normal. The Veteran's flexion was noted to be 25 percent of normal and to be limited by pain, and his extension was 50 percent of normal and limited by pain. The Veteran was seen on September 20, 2018, for a VA integrative pain service consult for a complaint of lower back pain. The Veteran reported having lower back pain since 1994, with several previous pain flare-ups, one in 2009. He noted that he is mindful of activities to avoid straining his back. He relayed his pain is steady, but flare-ups can be intense. On Sunday September 8, 2018, he indicated that while lying down he woke up due to a sudden intense pain radiating down to his right hip and down his leg. After several days of no improvement, he visited the ER where he was given medication. Since then, his pain had somewhat improved. He noted that he constantly repositions, utilizes a heating pad for 20 minutes, and a cushion. He described the pain as a constant achy pain, and with quick movements or changes in position it feels as though it is an electrical shooting pain. Aggravating factors included prolonged standing for 20 minutes or more, prolonged sitting for 15 minutes or more, prolonged walking was bothersome, twisting, bending forward, going up and down stairs, and walking on an incline. Alleviating factors included a steady slow pace with ambulation to be tolerable, rest, lying down flat on his back, heating pad for short periods of time, ice packs, bengay cream, over the counter creams that heat up, and menthol balms. An examination revealed no erythema or edema. There was tenderness over the L4-5, L5-S1 mid spine, and right para spinals. Range of motion was noted for flexion and extension to be "very limited" by about five percent or less due to pain. His strength was normal, his sensations were normal except they were decreased at the lateral right calves, and his reflexes were normal. The Veteran was noted to ambulate with a cane. The Veteran was seen on January 10, 2019, for a VA pain management appointment for a complaint of lower back pain. The Veteran was noted to have undergone two sessions of acupuncture, one the day prior and the first one in November. After his second session he noted feeling relaxed. He rated his back pain at three to four out of ten. He relayed altering his lifestyle to be seated more, because standing more than 20 minutes is painful. He does reposition to accommodate pain. He noted concern regarding mobility, however, he stated he was hopeful with his acupuncture. He utilizes a back brace for support, lidocaine patches, and indicted that he utilizes a tens unit, which also helps some. He relayed some issues with sleeping due to pain. An examination revealed the Veteran's gait to be within normal limits. There was no erythema or edema. There was tenderness at L3-4, L5-S1 mid spine, L4-5, and L5-S1 bilateral paraspinals. Range of motion was noted to be restricted more with extension than with flexion, and it was indicated to be due to pain. His strength, sensations, and reflexes were normal. The Veteran was seen on February 7, 2019, for a VA pain management appointment for a complaint of lower back pain. He was noted to have been seen the prior day for another acupuncture session, however he did not notice much difference yet. He did indicate that he planned to continue. He continues to utilize a brace, a tens unit, and lidocaine patches. An examination revealed an antalgic gait. There was no erythema or edema. There was tenderness at L2-3 mid spine, L4-5, L5-S1 mid spine and right paraspinals. Range of motion was noted to be restricted more with extension than flexion, and both were limited due to pain. His strength, sensations, and reflexes were normal. The Veteran was seen on April 8, 2019, for a VA pain management appointment for a complaint of lower back pain. The Veteran reported constant low back pain. His pain is exacerbated by activity and improves with rest and frequent position changes. Pain is also improved temporarily with lidocaine patches and acupuncture. When his pain is more severe, he utilizes a cane. An examination revealed no erythema or edema. There was tenderness over the bilateral lower lumbar L4, and L5 paraspinals. Range of motion with flexion was decreased by 25 percent with eliciting pain, and his extension was to 15 degrees past neutral with pain. His strength, sensations, and reflexes were normal. The Veteran's gait was normal. Based upon the foregoing evidence, an initial rating in excess of 10 percent for the Veteran's back disability prior to September 29, 2020, is not warranted. At its worst, during the May 2017 VA examination, the Veteran's forward flexion was found to be limited to 65 degrees, and his combined range of motion was 165 degrees. He was not found to have guarding or muscle spasm severe enough to result in an abnormal gait or abnormal spinal contour. He had not been prescribed bed rest due to IVDS, and he did not have ankylosis. In addition, the Veteran's VA treatment records, including the September 20, 2018, integrative pain consultation, do not show range of motion to be functionally limited to 60 degrees or less with flexion. At the September 20, 2018, integrative pain consultation, while the Veteran's flexion and extension were noted to be "very limited" this was also indicated to be by about 5 percent, which from a 90-degree starting point for normal flexion would equate to about 85.5 degrees for flexion and from a 30-degree starting point for normal extension would equate to about 28.5 degrees for extension. Even at the April 8, 2019, appointment, where the Veteran's flexion was indicated to be limited by 25 percent, his flexion is not shown to be functionally limited to 60 degrees or less. A 25 percent reduction in flexion from the 90-degree normal starting point for flexion would equate to about 67.5 degrees. Thus, the Veteran's range of motion with flexion was shown to be limited the most at the May 2017 VA examination to 65 degrees, which does not reach the 60 degrees or less required for a rating higher than 10 percent based upon limitation of flexion. Regarding combined range of motion, at the May 2017 VA examination, the Veteran's extension was to 20 degrees, which is five degrees more than the 15 degrees shown at the April 2019 VA pain management appointment. However, the difference of 5 degrees would not reduce the Veteran's combined range of motion of 165 degrees shown at the May 2017 VA examination to 120 degrees or less as is required for a rating higher than 10 percent based upon combined range of motion. Additionally, while the Veteran's VA treatment records do reflect the Veteran's use of a back brace, and the occasional use of a cane, there was only one notation at a February 7, 2019, VA pain management appointment of an antalgic gait. There were also no findings that either muscle spasm or guarding were the cause of the antalgic gait during the February 7, 2019, appointment. Otherwise, the Veteran's gait has consistently been indicated to be normal throughout the appeal period. Thus, the evidence does not show muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, to warrant a rating higher than 10 percent. The Veteran's VA treatment records also do not show at any time during the period on appeal prior to September 29, 2020, that the Veteran has ever been prescribed bed rest due to IVDS or that he has had ankylosis. The Board acknowledges that the Veteran has utilized lidocaine patches, as well as over the counter pain relievers, a tens unit, and has undergone occasional acupuncture during the appeal period, however, the evidence does not show, even when discounting any ameliorative effects, that the Veteran's back disability has been functionally limited to an extent to warrant a rating in excess of 10 percent at any time during the period on appeal prior to September 29, 2020. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and § 4.45 for the Veteran's back disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Nevertheless, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or § 4.45 is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). As explained above, even when limitations from pain, weakness, fatiguability, incoordination, or repetitive use are factored in, the Veteran's range of motion and functional ability has not been shown to be functionally limited to an extent to warrant a rating in excess of 10 percent at any time during the period on appeal prior to September 29, 2020. Accordingly, an initial rating in excess of 10 percent for a back disability prior to September 29, 2020, is denied. In reaching this conclusion, the Board noted that at the May 2017 VA examination, the Veteran was indicated to have a mild bilateral lower extremity radiculopathy. In a February 2020 rating decision, the Veteran was granted service connection for both his right and left lower extremity radiculopathy effective May 2017. Of note, the Board generally lacks jurisdiction to review the unappealed issues. As discussed, an appeal is initiated by filing a NOD with the rating action and perfected by a subsequently filed substantive appeal (VA Form 9). See 38 U.S.C. § 7105; 38 C.F.R. § 20.200. As such, the Board's jurisdiction is largely derived from a NOD and a subsequent substantive appeal. Buckley v. West, 12 Vet. App. 76, 82 (1998). To that end, a recent precedential decision of the United States Court of Appeals for Veterans' Claims (Court) held that an increased rating claim for spine disability in certain circumstances may entail an implied claim for an increased rating for radiculopathy, which the claimant has not specifically raised in his notice of disagreement. Chavis v. McDonough, 34 Vet. App. 1 (2021). As an initial point, the Court acknowledged that it was not holding that the issue of higher evaluations for radiculopathy are always part of claims seeking higher evaluations for the underlying spine disability. See id. at FN17. Thus, it is not a hard and fast rule that the Board must consider increased ratings for radiculopathy in all increased rating spine cases. The issue then becomes whether this case is so analogous to Chavis as to mandate a review of the ratings assigned for the Veteran's radiculopathy. The Board finds that for the reasons elaborated below, this case is sufficiently distinguishable from Chavis that radiculopathy need not be considered in this case. Chavis involved a pro se appellant, unlike here, where the Veteran is represented by a sophisticated private attorney, who is presumed to know how to litigate a VA claim. The Court took special notice that a major, if not the main, reason that radiculopathy was on appeal in Chavis was on account of VA's duty to sympathetically construe broadly worded, pro se filings. This is clearly not the case here. It is also noted that this appeal is returned to the Board for further adjudication from a November 2024 JMPR where the Court did not address radiculopathy. As such, the Board lacks jurisdiction to review an assigned rating for radiculopathy. Should the severity of the Veteran's radiculopathy become worse in the future, he may at any time file a supplemental claim for an increased rating. REASONS FOR REMAND Service Connection Sleep Apnea As noted above, the Board previously denied service connection for sleep apnea in a March 2024 decision. The Veteran appealed the portion of the March 2024 Board decision denying service connection for sleep apnea to CAVC, and in a November 2024 JMPR, the parties agreed that the portion of the March 2024 Board decision denying service connection for sleep apnea should be vacated and the issue remanded for further development. Specifically, in the November 2024 JMPR, the Court found that the October 2020 VA medical opinion was inadequate, because the examiner had relied predominantly on the date of the Veteran's diagnosis for sleep apnea occurring when he was not on active service, without fully addressing the Veteran's statements that while in service he went without sleep for long periods of time, and he snored. Thus, the Board was directed to obtain a new medical opinion to determine whether the Veteran's sleep apnea is directly related to his reported in-service lack of sleep and snoring. The Court also noted that the evidence did suggest that the Veteran's sleep apnea may have pre-existed his November 2009 to March 2011 period of service, and therefore, a medical opinion concerning aggravation of a pre-existing disability is also required. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion to determine the etiology of the Veteran's sleep apnea. If a physical examination is necessary to answer the Board's questions, then one should be scheduled. The examiner should answer the following questions: (a.) Is there clear and unmistakable evidence that the Veteran's sleep apnea pre-existed military service? Why or why not? The examiner is advised that "clear and unmistakable" means that the conclusion is undebatable, unconditional, unqualified, and cannot be misinterpreted or misunderstood. (b.) If there is clear and unmistakable evidence that sleep apnea pre-existed service, the examiner is asked to opine whether there is clear and unmistakable evidence that the pre-existing disorder was not aggravated by service (meaning that any increase in the disability was not beyond the natural progression of the disorder)? Why or why not? (c.) If the Veteran's sleep apnea did not clearly and unmistakably preexist the Veteran's service, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's sleep apnea began in or was otherwise caused by his active military service? Why or why not? For further clarity regarding the above questions (a, b, and c), the examiner should review the November 2024 JMPR (See CAVC Decision received 11/20/2024). The examiner should also review and discuss the Veteran's STRs (See STRs received 09/29/2016 p. 76 out of 229), his private treatment records (See Medical Treatment Record - Non- Government Facility received 08/01/2016 pp. 9 and 11 out of 19), and a lay statement submitted in October 2016 (See Correspondence received 10/28/16). Ann K. Minami Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, 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.