Citation Nr: A25041275 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 210830-181233 DATE: May 6, 2025 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for radiculopathy of the right upper extremity is granted. An increased rating of 50 percent, but no higher, is granted for lumbar spine degenerative arthritis with sacroiliac weakness and degenerative disc disease, from March 2, 2019, subject to the regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for allergic rhinitis is remanded. Entitlement to an increased rating for cervical spine degenerative arthritis is remanded. FINDINGS OF FACT 1. The Veteran's sleep apnea onset during active duty service. 2. The diagnosed radiculopathy of the right upper extremity is caused by the Veteran's service-connected cervical spine degenerative arthritis. 3. At its most severe, the Veteran's lumbar spine degenerative arthritis with sacroiliac weakness and degenerative disc disease is the equivalent of unfavorable ankylosis of the thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for service connection for radiculopathy of the right upper extremity as secondary to cervical spine degenerative arthritis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. 3. The criteria for an increased rating of 50 percent, but no higher, have been met for lumbar spine degenerative arthritis with sacroiliac weakness and degenerative disc disease, from March 2, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2007 to June 2007 and August 2010 to August 2011. These matters are before the Board of Veterans' Appeals (Board) on appeal from October 2020 and November 2020 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In an October 2020 rating decision, the RO denied service connection for sleep apnea and allergic rhinitis and denied an increased rating for cervical spine degenerative arthritis. In a November 2020 rating decision, the RO restored a 40 percent rating but denied a higher rating for lumbar spine, degenerative arthritis with sacroiliac weakness and degenerative disc disease. In August 2021, the Veteran filed a VA Form 10182 and selected the Evidence Submission docket. Accordingly, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the VA Form 10182, Notice of Disagreement. 38 C.F.R. § 20.303. Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for sleep apnea The Veteran contends that he has obstructive sleep apnea which onset during his service. Turning to the requirements for service connection, the Veteran has a diagnosis of obstructive sleep apnea from the University of Iowa Hospital Clinic diagnosed obstructive sleep apnea based on an August 2017 sleep study. See Medical Treatment Record - Non-Government Facility, March 3, 2019, p18-19. The Veteran has reported that during active duty service, fellow servicemembers told him that he snored in his sleep. See VA Form 10182 Notice of Disagreement, p8. A private doctor K.J. provided a favorable medical opinion which is supported by a rationale and citations to medical literature. See VA Form 10182 Notice of Disagreement, p8. There is no medical evidence to the contrary. Therefore, the three requirements have been satisfied for service connection for sleep apnea. 2. Entitlement to service connection for radiculopathy of the right upper extremity The August 2021 brief contends that the Veteran should be granted separate compensable ratings for radiculopathy of the right upper extremity and for bilateral thoracic outlet syndrome (see below) as part of the claim for an increased rating for the cervical spine condition. Note 1 to the General Rating Formula for the Spine states that associated neurologic abnormalities should be evaluated separately under the appropriate diagnostic codes. 38 C.F.R. § 4.71a. The private medical opinion of August 2021 opined that the radiculopathy of the right upper extremity is caused by the Veteran's service-connected neck condition. As a result, the Board will consider that claim in this decision. Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence of (1) a current disability for which service connection is sought; (2) an already service-connected disability; and (3) that the disability for which service connection is sought was either (a) caused or (b) aggravated by the already service-connected disability. 38 C.F.R. § 3.310(a), (b). In an August 2019 Disability Benefits Questionnaire for neck conditions, the Veteran had moderate intermittent pain and paresthesias and mild numbness in his bilateral upper extremities. The examiner did not indicate the severity of the radiculopathy. The private medical opinion of August 2021 was based on a review of the Veteran's treatment records. The private doctor noted that the Veteran had a history of cervical degenerative disc disease and degenerative joint disease with an October 2020 MRI showing stenosis at the C6-7 level, which is the location of a cervical spinal nerve. She also noted the April 2019 examination findings. Finally, she noted that during physical therapy treatment in 2019, 2020, and 2021, the physical therapist found signs of right cervical paraspinous musculature tightness as well as reports of pain. The doctor diagnosed C7 right cervical radiculopathy and opined that it was at least as likely as not caused by the Veteran's cervical spine disability. Applying the criteria for secondary service connection, the private doctor diagnosed C7 right cervical radiculopathy in her August 2021 opinion. The Veteran is service connected for cervical spine degenerative arthritis. The first two requirements for secondary service connection have been met. 38 C.F.R. § 3.310. Turning to the third requirement, the August 2021 private medical opinion stated that the right upper extremity radiculopathy is more likely than not caused by the service-connected cervical spine degenerative arthritis. See VA Form 10182 Notice of Disagreement, August 30, 2021, p18. The opinion is supported by a medical rationale and there is no medical evidence indicating otherwise. Therefore, service connection is established on a secondary basis. The Board notes that the representative, in the August 2021 brief, contends that the Veteran should also be granted a separate compensable rating for bilateral thoracic outlet syndrome as part of the claim for an increased rating for the cervical spine condition. If this is a new or supplement claim as to this issue, the appellant should file such a claim. Increased ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. See 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45. 1. Entitlement to an increased rating for lumbar spine degenerative arthritis with sacroiliac weakness and degenerative disc disease, from March 2, 2019, which is currently rated 40 percent disabling On March 2, 2019, the Veteran filed the present claim for an increased rating for lumbar spine degenerative arthritis. The Veteran's lumbar spine degenerative disease is rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. The Formula directs that a 40 percent rating is warranted for forward flexion of the thoracolumbar spine is 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is provided where a veteran has unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (5) states that 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. Under the IVDS Rating Formula, a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Effective February 7, 2021, the rating criteria for the musculoskeletal system was revised. In regard to DC 5243, the criteria were amended to state that for Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign code 5242 to all other disc diagnoses. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5243). From February 7, 2021, the Board will apply the most favorable DC. In this case, it is most favorable to the Veteran to rate the lumbar spine disability under the General Rating Formula for the spine and IVDS. Turning to the evidence during the appeal period, January 2019 private treatment records show that the Veteran was treated for low back pain as well as intermittent numbness and tingling along both upper extremities. The Veteran reported constant low back pain (6/10) with severe flare ups. The doctor diagnosed thoracic outlet syndrome, degenerative disc disease of the lumbar spine, and lumbosacral facet arthropathy, with hip symptoms and musculoskeletal pain as well. A February 2019 private treatment record noted the Veteran's report of worsening back pain. VA completed a Disability Benefits Questionnaire for Back Conditions in April 2019. Based on an in-person examination and review of the VA e-folder, the examiner diagnosed degenerative arthritis of the spine. The Veteran said that his condition had worsened and current symptoms included pain, tightness, soreness, aching, stiffness, pinching, and spasms of the right lumbar region. The Veteran had a lumbar ablation earlier in April 2019 and was doing physical therapy for relief, and using several medications. The Veteran reported flare ups twice weekly lasting 1-2 days. Functional loss included inability to lift more than 20 pounds or walk, stand, or sit for long periods. Initial range of motion testing showed forward flexion of 0 to 80 degrees, extension to 15 degrees, left lateral rotation to 20 degrees, and right lateral flexion, left lateral flexion, and right lateral rotation each to 30 degrees. He reported pain on all movements and on weight-bearing. There was localized tenderness to palpation at the T12 vertebra. There was no change to his range of motion after three repetitions. The examiner did not describe range of motion with repeated use over time or during flare ups, stating that he found no rational basis for notation (page 14). The Veteran had guarding and muscle spasms, both of which resulted in an abnormal gait or spinal contour. Additional factors of disability included interference with sitting and standing. The examiner found no radicular symptoms or other neurologic abnormalities. The Veteran had IVDS but no bed rest prescribed by a physician in the past 12 months. Private treatment records from the University of Iowa Hospitals and Clinics show that the Veteran continued to receive treatment for back pain, including an injection in July 2020. VA completed a second Disability Benefits Questionnaire for Back Conditions in November 2020. The Veteran reported worsening symptoms, with daily flare ups which limited his movement and increased his pain, lasting 45 minutes or more. He said that during the flare ups he was unable to stand up straight. Initial range of motion testing revealed forward flexion to 35 degrees, extension to 10, right and left lateral flexion to 10 degrees each, and right and left lateral rotation to 20 degrees each. The Veteran had pain on all movement which caused functional loss, as well as tenderness at thoracic vertebrae 12. There was no change after three repetitions. With repeated use over time and also during flare ups, the Veteran reported forward flexion to 30 degrees, extension and right and left lateral flexion of 10 degrees each, and right and left lateral rotation of 10 degrees each. The Veteran had both muscle spasm and guarding, both of which resulted in an abnormal gait or spinal contour. There were no additional factors contributing to his disability. Muscle strength and reflexes were normal. The Veteran had moderate paresthesias and/or dysesthesias in his bilateral lower extremities, and no other neurologic abnormalities. Functional impairment included inability to sit or stand for long periods or lift more than 25 pounds. The Veteran had no bed rest prescribed by a physician in the past 12 months. VA obtained an addendum opinion in November 2020. The April 2019 examiner was asked about additional measurements for range of motion during that examination, and he stated that he was unable to add information. A private doctor provided a medical opinion in August 2021. Concerning the lumbar spine, she noted that the Veteran reported mild weekly back spasms, and severe spasms three or four times a year which resulted in falling and left him unable to walk. The Veteran told her that, during these severe spasms, "physically my entire back is in a fixed position. It will not move. Usually in this state I am hunched over." The doctor opined that these severe spasms constitute "severe and prolonged episodes of muscle spasm that are equivalent to unfavorable ankylosis of the thoracolumbar spine." Applying the rating criteria, the range of motion at its most limited according to the November Disability Benefits Questionnaire was during flare ups and with repeated use over time, with a forward flexion of 30 degrees and 65 degrees combined. Applying the General Rating Formula, this warrants a 40 percent disability rating. 38 C.F.R. § 4.71a. As the Veteran's August 2021 brief pointed out, the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Here, the lay statements described an inability to walk or stand, and the August 2021 medical opinion concluded that the Veteran had "severe and prolonged episodes of muscle spasm that are equivalent to unfavorable ankylosis of the thoracolumbar spine." The VA medical opinions stated that the Veteran's spine was not ankylosed but did not adequately describe his impairment during flare ups. The April 2019 report omitted that information and the November 2020 examination described a very limited range of motion which was nonetheless not ankylosis. As both the August 2021 private opinion and the November 2020 VA opinion relied entirely on the Veteran's self-report of his range of motion during flare ups, they hold equal probative value on this issue. The Board will give the benefit of the doubt to the Veteran and grant a 50 percent rating based on the equivalent of unfavorable ankylosis of the thoracolumbar spine. In evaluating the Veteran's increased rating claim, the Board must also address the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). The April 2019 examiner noted that the back condition interfered with the Veteran's sitting and standing. The November 2020 examiner noted no additional factors contributing to his disability. The Veteran's level of functional loss in his limitations in sitting and standing are already contemplated in the assigned 50 percent rating, and, as the Veteran is fully capable of moving when he is not having a severe flare up, the evidence does not more nearly approximate unfavorable ankylosis of the entire spine, or the functional equivalent thereof. Therefore, a higher rating is not warranted under the provisions of 38 C.F.R. §§ 4.40 and 4.45. There was no evidence of incapacitating episodes due to intervertebral disc syndrome; therefore, a rating in excess of 50 percent based on incapacitating episodes is not warranted for this period. Regarding neurological impairment, the November 2020 VA examination for back conditions found that the Veteran had radiculopathy in his bilateral lower extremities but no other neurological abnormalities. The Veteran has been granted separate ratings for radiculopathy of his bilateral lower extremities. Therefore, the weight of the evidence is against a finding that the Veteran is entitled to any additional separate compensable ratings for neurological impairment for this period. A higher, 100 percent rating is not warranted. The Veteran has not contested and there is no medical or other evidence to indicate that he has unfavorable ankylosis of the entire spine, or the functional equivalent thereof. REASONS FOR REMAND 1. Entitlement to service connection for allergic rhinitis is remanded. The Veteran contends that he has allergic rhinitis which was caused by exposure to toxic irritants during his service in Afghanistan. In a May 2020 brief, the Veteran contended that service connection was warranted because the June 2019 rating decision had stated that a medical nexus had been established. In October 2020, the RO issued a rating decision overturning its previous finding, stating "this statement regarding a nexus being established was made in error." The Veteran's second brief stated that allergic rhinitis is to be presumptively service connected for Gulf War veterans. See VA Form 10182 Notice of Disagreement, August 30, 2021. However, allergic rhinitis is not one of the disabilities presumptively service connected under 38 U.S.C. § 1120(b). VA has not completed an examination or medical opinion for the Veteran's diagnosed rhinitis. As the Veteran served in Southwest Asia and it is presumed that he was exposed to airborne contaminants, an examination and medical opinion are warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The failure to obtain an examination and medical opinion was a pre-decisional duty to assist error, and remand is required. 2. Entitlement to an increased rating for cervical spine degenerative arthritis The Veteran filed this claim in March 2019. VA obtained one examination of the Veteran's neck, in April 2019. The examiner measured the initial range of motion but did not measure or inquire about the cervical spine range of motion with repeated use over time. See C&P Exam, April 26, 2019, p13 (stating "there remains no rational basis to make a notation regarding any additional losses of function or motion when it comes to repetitive use.") VA obtained a new examination of the back in November 2020 which corrected a similar omission, but VA did not obtain a new examination for the neck. The April 2019 examination was not in compliance with the Court's holdings in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), because the examiner did not inquire about the Veteran's range of motion with repeated use over time and during flare-ups. Therefore, the examination was inadequate for VA purposes. The reliance of the April 2019 examination was a pre-decisional duty to assist error which must be corrected on remand. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination for the allergic rhinitis. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a) Does the Veteran have allergic rhinitis or chronic rhinitis? (b) Is the Veteran's disability at least as likely as not related to service, including exposure to airborne contaminants during active duty service? Provide a rationale to support the opinion(s). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected cervical spine degenerative arthritis. 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. (Continued on the next page) ? In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, 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). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, 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). J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.