series: legacy

judge_norm: MICHAEL A PAPPAS

judge_role: Veterans Law Judge

disposition: denied

text:
Citation Nr: 24005000
Decision Date: 02/01/24	Archive Date: 02/01/24

DOCKET NO. 17-22 342
DATE: February 1, 2024

ISSUES

1. Entitlement to an increased disability in excess of 20 percent prior to January 18, 2023 for a low back disability, and in excess of 40 percent thereafter.

2. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities for the period prior to October 11, 2018.

ORDER

Affording the Veteran the benefit of the doubt, for the period prior to January 18, 2023, entitlement to a disability rating of 40 percent, but no higher, for a low back disability is granted, subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to a disability rating in excess of 40 percent for a low back disability from January 18, 2023, is denied.

REMANDED

Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities for the period prior to October 11, 2018 is remanded.

FINDINGS OF FACT

1. Affording the Veteran the benefit of the doubt, the adequate evidence of record, to include lay statements, indicate that the Veteran's low back disability manifests 30 degrees or less of forward flexion throughout the entire period on appeal. The evidence does not reveal unfavorable ankylosis of the entire thoracolumbar spine at any point during the appeal period.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a 40 percent rating for a low back disability, and no higher, prior to January 18, 2023 have been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. � 4.1, 4.3, 4.7, 4.20, 4.71a, Diagnostic Code 5237.

2. The criteria for entitlement to a rating, in excess of 40 percent, for a low back disability have not been met at any point during the appeal period. 38 U.S.C. �� 1155, 5107; 38 C.F.R. � 4.1, 4.3, 4.7, 4.20, 4.71a, Diagnostic Code 5237.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the Army from November 1977 to November 1999.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In August 2021, the Veteran appeared before the undersigned Veterans Law Judge to present testimony. A transcript of the hearing has been associated with the Veteran's claims file.

By way of background, in November 2021, December 2022 and September 2023 the Board, in pertinent part, remanded this matter for further development, to include affording the Veteran new VA examinations to evaluate the severity of his service-connected low back disability.

In a February 2023 rating decision, the Veteran's disability rating for his low back disability was increased to 40 percent, effective January 18, 2023, the date of a VA examination.  See also, July 21, 2023, Supplemental Statement of the Case (SSOC).

As this increase did not constitute a full grant of the benefit sought for the entire appeal period, the Veteran's claim for a higher evaluation remains in appellate status and the issue is hereby characterized reflected on the title page of this decision. See AB v. Brown, 6 Vet. App. 35, 38-39.

In the September 2023 decision, the Board acknowledged the Veteran's request for a second Board hearing.  The Board determined however that the Veteran had not presented good cause to warrant a grant for a second hearing as the Veteran's central argument was that he was not present at examinations subsequent to a January 2023 Back Conditions examination-and as such, the VA examiner was unable to observe the scope and severity of his limitations due to his service connected back disability. See August 24, 2023, VA Form 9; See also, August 203, 2023, Correspondence from the Veteran.

Pursuant to 38 C.F.R. � 20.700(a), an appellant is limited to one Board hearing following the filing of a Notice of Disagreement (NOD) with a decision of the Agency of Original Jurisdiction (AOJ). Requests for additional hearings may be granted for good cause shown. 38 C.F.R. � 20.700(a).

As the Board was remanding the Veteran's claim in its September 2023 decision for an additional in-person examination, the Board determined that the Veteran's central argument was being addressed. The Board observes that following the September 2023 remand, the Veteran was afforded a November 2023 in-person VA examination that addressed the scope and severity of his limitations due to his service connected back disability. As will be explained below, the Board found this examination adequate for purposes of this adjudication. The Board finds there has been substantial compliance with its prior directives.  Stegall v. West, 11 Vet. App. 168 (1998).

The Board also notes that a February 2019 rating decision granted TDIU based on the Veteran's service-connected post-traumatic stress disorder (PTSD), effective October 11, 2018.

As the issue of entitlement to TDIU was raised by the record as part of the Veteran's underlying increased rating claim for his service-connected low back disability and TDIU has not been granted for the entire period on appeal, the issue of entitlement to TDIU prior to October 11, 2018 remains on appeal.

Entitlement to an increased disability in excess of 20 percent prior to January 18, 2023 for a low back disability, and in excess of 40 percent thereafter.

The Veteran asserts that a higher disability rating is warranted for his low back disability.  See February 2014, Notice of Disagreement (NOD), where the Veteran claims that his medical records depict chronic spasms and limited movement and warranted a 40 percent disability evaluation.

At his August 2021 Board Hearing, the Veteran described difficulty with forward flexion, strain with getting out of bed, a reduced range of motion (ROM), and painful flare ups that limit his motion further. The Veteran testified that he cannot bend forward to touch his ankles, and that some days he has difficulty even touching his knees. The Veteran testified that the pain in his back is about an eight out of ten, and that he has "some really bad days." See Board Hearing transcript, pgs. 5-7.

The Veteran is currently rated at 20 percent disabling prior to January 18, 2023 2022, and 40 percent thereafter under DC 5237. Disabilities of the spine are to be evaluated under the general rating formula for rating diseases and injuries of the spine. 38 C.F.R. � 4.71a, DC 52.

Increased Ratings

Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. �� 1155; 38 C.F.R. �� 4.1, 4.2, 4.10.

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Veteran. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. �� 4.1, 4.2, 4.10.

In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. � 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. � 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. � 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. � 5110.

Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

Prior to the regulatory change, DC 5237 provided a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion not greater than 120 degrees or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.

A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.

After the regulation changes effective February 7, 2021, the rating criteria remain the same.

Unfavorable ankylosis is defined as "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; 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 neurological symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always considered favorable ankylosis. Id.

Recently, the U.S. Court of Appeals for Veterans Claims (Court) held that the requirement of ankylosis in the General Rating Formula for Injuries and Diseases of the Spine can be met with evidence of the functional equivalent of ankylosis (i.e. functional immobility of the joint) during a flare-up. Chavis v. McDonough, 34 Vet. App. 1 (2021).

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. � 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. � 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, 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 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of �4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the � 4.71a criteria.").

Under 38 C.F.R. � 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. � 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

Any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic codes. 38 C.F.R. � 4.71a, Note (1).

As this is a non-initial increased rating claim, appeal period before the Board is from February 6, 2013 the date of his increased rating claim, plus the one-year "look back" period. Gaston v. Shinseki, 605 F.3d 979, 982 Fed. Cir. (2010).

Discussion

In September 2012 physical therapy treatment records (look back period), it was reported the Veteran has pain, decreased range of motion and strength associated with diagnosis which limited his ability to perform ADL's and work-related activities.

Regarding range of motion, forward flexion was limited to 30 degrees with pain;10 degrees with stiffness. The physical therapist documented left side bending limited to 11 degrees; right side-bending to 12 degrees.  Pain was noted on extension and right lateral flexion.  The physical therapist noted decreased range of motion, decreased strength, functional ability and difficulty with ambulation. See September 2012, Meadows Therapy, Patient evaluation.

In October 2012 physical therapy treatment records, it was reported the Veteran has moderate tightness of right lumbar paraspinals and mild tightness of the left side.  The Veteran reported an inability to sleep the night before due to pain stated he required the assistance of family member to drive him to therapy appointment due to pain.

Forward flexion was limited to 30 degrees with pain;10 degrees with stiffness. The physical therapist noted left side bending limited to 11 degrees; right side-bending to 12 degrees.  The physical therapist noted decreased range of motion, decreased strength, functional ability and difficulty with ambulation. See October 2012, Meadows Therapy, Patient Visit Notes

In a January 2013 discharge summary from physical therapy, it was reported the Veteran had pain in his lower back, and that the Veteran progressed minimally with PT treatment.  It was reported the Veteran has moderate tightness of right lumbar paraspinals and mild tightness of the left side; there were no functional improvements to report. The physical therapist documented the range of motion measurement reflected in an October 2012 (Forward flexion limited to 30 degrees with pain;10 degrees with stiffness; left side bending limited to 11 degrees; right side-bending to 12 degrees) and noted the Veteran did not achieve perceived improvement of 25 percent in 2 weeks. See January 2013, Meadow's Therapy, Discharge summary.

In an October 2014 VA examination, the Veteran was diagnosed with chronic low back strain. The examiner noted the Veteran's daily lower back pain and stiffness especially upon awakening, difficulty bending over, muscle spasms, lies in supine position otherwise, has to lie in lateral position.  The Veteran did not endorse flare-ups.

Forward flexion was limited to 45 degrees; extension was limited to 25 degrees; right lateral flexion was limited to 30 degrees; left lateral flexion was limited to 30 degrees; and right and left lateral rotation were limited to 30 degrees. There was also evidence of pain on weightbearing and localized tenderness or pain. There was no additional functional loss after repetitive use testing.

The examiner noted that the back disability caused less movement than normal and there was pain on movement.  The Veteran did not have muscle spasms resulting in an abnormal gait or abnormal spinal contour. The Veteran did have muscle spasms.  The examiner reported the Veteran's spasms did not result in an abnormal gait or abnormal spinal contour.  Muscle strength testing was normal.  There was no muscle atrophy.

There was no ankylosis of the spine.  There was no radiculopathy.  The examiner reported that the Veteran has no pain, weakness, fatigability or incoordination that would significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. The examiner also reported the Veteran has no additional limitation due to pain, weakness, fatigability or incoordination during flare-ups or when the joint is used repeatedly over a period of time.

Addressing functional impact with respect to the Veteran's ability to work, the examiner reported the Veteran has pain, difficulty with heavy lifting, carrying and repetitive bending. See October 2014, Back Conditions examination.

In a February 2019 VA examination, the Veteran was diagnosed with degenerative arthritis of the spine, intervertebral disc syndrome and spinal stenosis. The Veteran reported almost any motion causes pain, twisting, bending forward, sitting for more than 30 minutes, standing or walking for more than 10 minutes, trying to clean, make my bed, trying to lift anything or pull on anything, carrying anything like laundry.  The Veteran reported he has muscle spasms.

The Veteran endorsed flare-ups and stated that when they occur, he has to lie down and rest.  The Veteran reported his flare-ups occur almost daily, lasting a few hours.

Forward flexion was limited to 40 degrees; extension was limited to 15 degrees; right lateral flexion was limited to 15 degrees; left lateral flexion was limited to 15 degrees; and right and left lateral rotation were limited to 15 degrees.

There was also evidence of pain on weightbearing and localized tenderness or pain.

There was no additional functional loss after repetitive use testing. The examiner did not report any estimated additional range of motion lost after repetitive use over time. Regarding flare-ups, the examiner reported there is no persistent evidence of record, considered to be valid or reproducible for rating purposes, that indicates a loss of function during these conditions.

The Veteran did have muscle spasms.  The examiner noted the Veteran's spasms they did not result in an abnormal gait or abnormal spinal contour.  Muscle strength testing was normal.

There was no muscle atrophy. There was no ankylosis of the spine. There was radiculopathy in the lower extremities. There was no ankylosis of the spine. The examiner reported there was IVDS; however, there were no episodes of bed rest during the past 12 months.

Addressing functional impact, the examiner reported pain is daily from IVDS, degenerative arthritis, spinal stenosis and chronic low back strain.  See February 2019, Back Conditions examination.

In its November 2021 remand, the Board found the February 2019 examination inadequate for rating purposes whereas the examiner documented the Veteran endorsed flare-ups, almost daily, lasting a few hours; however, there was no documented estimated range of motion loss due to flare-ups.  See November 2021, BVA decision, pg. 5.

Following the November 2021 remand, the Veteran was afforded a May 2022 VA examination to determine the current severity of his service connected back disability. The Veteran did not endorse flare-ups. The Veteran reported he has trouble standing and walking greater than 15 minutes and lifting greater than 5 pounds.

Range of motion testing revealed forward flexion limited to 45 degrees; and extension, right and left lateral flexion, and right and left lateral rotation limited to 15 degrees. Pain was noted on all ranges of motion. The examiner reported the Veteran was no additional range of motion loss after repetitive use testing.

With repetitive use over time, forward flexion was limited to 40 degrees; and extension, right and left lateral flexion, and right and left lateral rotation limited to 10 degrees.

The examiner did not note whether the Veteran had spasms.  Muscle strength testing was normal. There was no muscle atrophy. There was no ankylosis of the spine. There was moderate radiculopathy in the lower left extremities. There was no ankylosis of the spine. The examiner reported there was no IVDS and the Veteran did not have any other neurologic abnormalities.

Addressing functional impact, the examiner reported the Veteran has trouble standing and walking greater than 15 minutes and lifting greater than 5 pounds.  See May 2022, Back Conditions examination.

In its December 2022 remand, the Board determined that the May 2022 examiner failed to discuss the Veteran's reports of flare-ups from his February 2019 VA examination or provide any comment from the procured evidence whether pain, fatigability, weakness lack of endurance or incoordination significantly limit functional ability with flare-ups. See December BVA decision, pg. 12.

Following the December 2022 Board Remand, the Veteran was afforded a January 2023, VA examination.  The Veteran was diagnosed with degenerative arthritis of the spine, lumbosacral strain and vertebral fracture.  The Veteran did not endorse flare-ups. The Veteran reported that his back condition, limits all of his daily functions.  The Veteran reported his wife assists him with everyday functions.  There was no additional functional loss after repetitive use testing.

Forward flexion was limited to 30 degrees; extension was limited to 15 degrees; right lateral flexion was limited to 15degrees; left lateral flexion was limited to 15 degrees; and right and left lateral rotation were limited to 15 degrees.

For repeated use over time, forward flexion was limited to 20 degrees; extension was limited to 10 degrees; right lateral flexion was limited to 10 degrees; left lateral flexion was limited to 10 degrees; and right and left lateral rotation were limited to 10 degrees.

Addressing flare-ups, the examiner reported the Veteran did not report flare-ups and that his pain appears to be that it is mostly constant, so periods of flare-ups may not reasonably apply to him.

The Veteran did have muscle spasms.  The examiner reported the Veteran's spasms did not result in an abnormal gait or abnormal spinal contour.  Muscle strength testing was normal.  There was no muscle atrophy.  The examiner reported the Veteran did not have any other neurologic abnormalities or findings. The examiner reported the Veteran did not have IVDS.  Addressing functional impact, the examiner reported the Veteran has difficulty lifting, bending, sitting, standing, walking.  See, January 18, 2023, Back Conditions examination.

Following the January 2023 examination, the Veteran was afforded addendum medical opinions in March 2023, May 2023 and July 2023 to determine whether there would be additional functional limitations during periods of flare-ups. In a March 2023 addendum, the examiner was unable to provide an estimated opinion of additional functional limitations, without resorting to mere speculation. See March 2023 Addendum.

In the May 2023 and July 2023 addendum opinions the examiner determined that the Veteran had no additional functional limitations during periods of flare-ups and no additional loss of motion based on a record review of the January 2023 Back Conditions examination.

In its September 2023 remand, the Board noted that it was not clear the addendum opinion (s) included consideration of all the procured evidence of record, including lay statements from the Veteran, in the absence of an in-person examination, or a telehealth interview. This was a primary contention from the Veteran who requested a Board hearing for the purpose of conveying his dissatisfaction in not being afforded an in-person examination to address this issue. See September 2023, BVA Decision, pg. 5.

Following the Board's September 2023 remand, the Veteran was afforded an additional VA, in-person examination in November 2023 to address the severity of his service connected back disability. On medical history, the Veteran stated that he has continued to have lower back pain. The Veteran stated he has steroid injections, physical therapy and pain management for treatment. The Veteran stated that these treatment methods have helped but have not completely resolved his chronic back pain.

The Veteran endorsed pain flares, a couple of times monthly, with a duration of 2-3 days.  The Veteran stated that he has a problem standing for long periods of time, doing extensive walking and is unable to do any running. The Veteran stated that he is unable to bend over, or lift anything heavy.  He stated that range of motion in his lower back is limited.

Forward flexion was limited to 20 degrees; extension was limited to 10 degrees; right lateral flexion was limited to 10 degrees; left lateral flexion was limited to 10 degrees; and right and left lateral rotation were limited to 15 degrees. There was also evidence of pain on active and passive range of motion.

The Veteran was not able to perform repetitive use testing due to his increased pain level.

Repeated use over time: Forward flexion was limited to 15 degrees; extension was limited to 10 degrees; right lateral flexion was limited to 10 degrees; left lateral flexion was limited to 10 degrees; and right and left lateral rotation were limited to 10 degrees. Pain was noted on extension and right lateral flexion.

Flare-ups: Forward flexion was limited to 15 degrees; extension was limited to 10 degrees; right lateral flexion was limited to 10 degrees; left lateral flexion was limited to 10 degrees; and right and left lateral rotation were limited to 10 degrees.

Factors contributing to his low disability included interference with sitting, standing and disturbance of locomotion.

The Veteran did have localized tenderness, guarding or muscle spasms.  The examiner reported the Veteran's localized tenderness did not result in an abnormal gait or abnormal spinal contour.  The examiner did report the Veteran's guarding did result in an abnormal gait or abnormal spinal contour.  Muscle strength testing was 4/5.

There was no muscle atrophy.  The examiner reported the Veteran had moderate lower extremity radiculopathy. The examiner reported the Veteran did not have ankylosis of the spine.  The examiner reported the Veteran did not have any other neurologic abnormalities or findings.  The examiner reported the Veteran did not have IVDS.

Addressing functional impact, the examiner restated that the Veteran has a problem standing for long periods, doing extensive walking, and is unable to run. The examiner restated the Veteran's report that he is unable to bend over, or lift anything heavy and that range of motion in the lower back is limited. See, November 17, 2023, Back Conditions examination.

Analysis

The Board finds sufficient lay and clinical evidence upon which to conclude that the Veteran's low back disability has been manifested by, at worst, pain and flexion limited to 30 degrees or less throughout the period on appeal. See January 2013, Meadows Therapy, Discharge Summary re: forward flexion limited to 30 degrees with pain;10 degrees with stiffness; See also, January 18, 2023, Back Conditions examination; November 17, 2023, Back Conditions examination.

The Board recognizes that the RO staged the Veteran's disability rating based on the clinical findings of the January 18, 2023 Back Conditions examination, which upon objective evaluation, demonstrated a worsening of the Veteran's low back disability since January 18, 2023.  The Board finds however that the January 2023 and November 2023 ack Conditions combined more accurately depict the scope and severity of the Veteran's Back disability during the entire course of this appeal, to include consideration of the Veteran's August 2021 Board hearing testimony where he described difficulty with forward flexion, strain with getting out of bed, and a reduced range of motion with painful flare ups.

For the period prior to January 18, 2023, the Board also factors the Veteran's physical therapy notes, referenced during the look-back period, observing that the Veteran's back disability range of motion was documented as forward flexion to 30 degrees-and did not improve during the course of multiple sessions. See, e.g., January 2013, Meadow's Therapy, Discharge summary.

Additionally, the Board notes that the November 2023 Back Condition was the only examination of record during the appeal period that fully addressed the Veteran's estimated range of motion during what was described as the Veteran's "pain flares", as well as his estimated range of motion with repetitive use over time. See November 2023, Back Conditions examination, pgs. 2, 6-8 re: pain flares, and range of motion with repetitive use over time and with flare ups. Hence, the Board finds this examination adequate and probative for purposes of this adjudication for the entire period on appeal. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017).

Conversely, the Board finds there is no evidence, however, of unfavorable ankylosis, the functional equivalent of ankylosis, including during flareups, nor is there evidence of incapacitating episodes requiring prescribed bedrest.

 As referenced above, a 50 percent rating is appropriate where the evidence shows unfavorable ankylosis of the entire thoracolumbar spine. In addition, the functional equivalent of ankylosis during flare-ups, pursuant to 38C.F.R. � 4.40 and 4.45, can satisfy the criteria for a rating based on ankylosis. See Chavis supra.

Notwithstanding, the clinical evidence, including examination reports and clinical records, consistently indicates that unfavorable ankylosis is not present, including during flare-ups or after repeated use over time. See e.g., October 2014, Back Conditions examination, pg. 4; See also, November 2023, Back Conditions examination, pgs. 1-3, 6-7 (probative as to the severity of the Veteran's back disability for the period on appeal).

Indeed, the November 2023 Back Conditions examiner noted that the Veteran was limited to, at worst, 15 degrees of forward flexion with flares, which indicates the Veteran still has some remaining motion in his spine. Id. at pgs. 6-7.

This is not indicative of ankylosis. The Board acknowledges the Veteran's report of pain, reduced motion, and functional limitation, particularly during flare-ups. However, this symptomology has already been accounted for in the Board's analysis above and is encompassed by the 40 percent rating already assigned. A rating in excess of 40 percent is therefore not warranted.

Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for his lumbar spine disability. See 38 C.F.R. � 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

With regard to separate ratings for any neurological abnormalities associated with the Veteran's service-connected back disability, the Veteran has already been assigned separate ratings for radiculopathy in his lower extremities. See November 2023, Rating Decision. The record reflects that the Veteran did not have any bowel or bladder impairment, or any other neurological abnormalities associated with the Veteran's service-connected back disability.

In sum, affording the Veteran the benefit of the doubt, the adequate evidence of record, to include lay statements, indicate that the Veteran's low back disability manifests 30 degrees or less of forward flexion throughout the entire period on appeal. The evidence does not reveal unfavorable ankylosis of the entire thoracolumbar spine at any point during the appeal period.

The weight of the competent evidence is not in approximate balance or nearly equal in the Veteran's favor that there was unfavorable ankylosis of the spine during the period on appeal, and a rating in excess of 40 percent is therefore not warranted. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). As such, the benefit of the doubt doctrine is inapplicable. 38 C.F.R. � 4.3. For these reasons, the claim is denied.

REASONS FOR REMAND

As noted above in the introduction of this decision, the AOJ granted TDIU from October 11, 2018 based on the Veteran's service-connected PTSD; however, this is only part of the appeal period. When a veteran appeals for a higher disability rating and it is coupled with evidence of unemployability, the issue of entitlement to TDIU is raised for the entire appeal period. See Harper, 30 Vet. App. at 361 (2018). Therefore, as the issue of entitlement to TDIU has been raised and not granted in full, the period prior to October 11, 2018 is still on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009).

Total disability will be considered to exist where there presently is any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. � 3.340. Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. � 4.16 (a). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements.

Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. �� 3.340, 3.341, 4.16(a).

In determining whether a veteran can secure, follow, and maintain a substantially gainful occupation, the Board must consider: (1) the Veteran's occupational history, education, skill, and training; (2) whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

Additionally, "substantially gainful employment" is employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. � 4.16 (a). Additionally, employment "in a protected environment" is not sufficient to establish substantially gainful occupation. See 38 C.F.R. � 4.16 (a). Although the meaning of "employment in a protected environment" is not clear from the plain language, such employment frequently involves accommodations for the employee. See Cantrell v. Shulkin, 28 Vet. App. 382, 390-391 (2017).

The Veteran meets the schedular criteria for TDIU for the period from February 6, 2013. See January 2023 Rating Decision Codesheet.

On his VA Form 21-8940 submitted in January 2019, the Veteran indicated that he last worked in August 2011 as an assistant director for a detention center. The Veteran also reports he worked more than 40 hours per week from June 2013 to October 2014, earning $36,000 annually, and that he lost 400 days due to illness.  Here, it is not clear when the Veteran's employment ends. See January 2019, VA Form 21-8940, Veterans Application of Increased Compensation Based on Unemployability.

To avoid any prejudice to the Veteran, the Board finds that information regarding the Veteran's employment history, such as when he was last employed, and whether it was full time employment, is needed prior to adjudication of the claim for TDIU for the period prior to October 11, 2018.

While VA has a statutory duty to assist in developing evidence pertinent to a claim, a Veteran also has a duty to assist and cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991).

VA's duty must be understood as a duty to assist a Veteran in developing a claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21Vet. App.?565 (2008). The Veteran is notified that it is the Veteran's responsibility to cooperate in the development of the claim. The Veteran is placed on notice that pursuant to 38 C.F.R. � 3.655 failure to cooperate with any examination may result in an adverse determination. Connolly v. Derwinski, 1 Vet. App. 566 (1991).

Accordingly, this matter is REMANDED for the following action:

1. Send the Veteran and representative a letter requesting that the Veteran furnish any additional information or evidence pertinent to the claim for TDIU for the period prior to October 11, 2018, to include completion of VA Form 21-8940. The letter should specifically notify the Veteran of the criteria to establish entitlement to TDIU and supply the form to apply for TDIU. Take all appropriate action needed to develop employment information related to the TDIU claim, to include the nature, hours, and income relating to any part time work for the period specified (prior to October 11, 2018).

2. After completing all of the above, and any additional development deemed warranted, readjudicate the claims on appeal. If the benefits sought are not granted, the Veteran and his representative must be furnished a Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

Michael A. Pappas

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Little, 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.


judge_norm: RYAN T KESSEL

benefit: pension

text:
Citation Nr: 24006000
Decision Date: 02/03/24	Archive Date: 02/03/24

DOCKET NO. 15-42 744
DATE: February 3, 2024

ORDER

A survivor's special monthly pension (SMP) is denied.

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FINDING OF FACT

The appellant's countable income exceeds the applicable maximum annual pension rate (MAPR).

CONCLUSION OF LAW

The criteria for entitlement to payment of a survivor's pension are not met.  38 U.S.C. �� 1503, 1541; 38 C.F.R. �� 3.3, 3.21, 3.23, 3.271, 3.272.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 1945 to November 1946.  The Veteran died in July 2004 and the appellant is his surviving spouse.

The case is on appeal from a November 2014 decision.

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

A survivor's SMP.

Legal Criteria

Basic entitlement to pension exists if, among other things, the claimant's income is not in excess of the MAPR specified in 38 C.F.R. � 3.23.  38 U.S.C. � 1541; 38 C.F.R. � 3.3(a)(3).  The MAPR is given the same force and effect as if published in VA regulations.  38 C.F.R. � 3.21.  The MAPR is revised every December 1st and is applicable for the following 12-month period.  The MAPR shall be reduced by the amount of the countable annual income of the surviving spouse.  38 U.S.C. �� 1503, 1541; 38 C.F.R. �� 3.3, 3.23(b).

In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included during the 12-month annualization period in which received, except for listed exclusions.  38 U.S.C. � 1503(a); 38 C.F.R. � 3.271(a).  Income from the Social Security Administration (SSA) is not specifically excluded under 38 C.F.R. � 3.272 and is therefore included as countable income.

For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by a claimant for unreimbursed medical expenses that were "in excess of 5 percent of the applicable maximum annual pension rate or rates...as in effect during the 12-month annualization period in which the medical expenses were paid."  38 C.F.R. � 3.272(g)(1)(iii).  In order to be excluded from income, these medical expenses must be paid during the time period at issue, regardless of when they were incurred.  In addition, they must be out-of-pocket expenses paid by the surviving spouse for which the surviving spouse received no reimbursement, such as through an insurance company.  However, the medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income.

For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by a claimant for unreimbursed medical expenses that were "in excess of 5 percent of the applicable maximum annual pension rate or rates...as in effect during the 12-month annualization period in which the medical expenses were paid."  38 C.F.R. � 3.272(g)(1)(iii).  In order to be excluded from income, these medical expenses must be paid during the time period at issue, regardless of when they were incurred, and must be out-of-pocket expenses for which the claimant received no reimbursement, such as through an insurance company.  However, the medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income.

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Analysis

The appellant initially claimed pension benefits in March 2010.  In an April 2011 decision, pension benefits were granted from April 2010 to March 2011 based in part on expenses of the Veteran's last illness claimed by the appellant that were used to offset her income for the initial 12 months.  See 38 C.F.R. � 3.262(m), (o), (p).  Thereafter, pension benefits ended in April 2011 because the appellant's countable income exceeded the applicable MAPRs.

In a July 2012 rating decision, the appellant was found to require aid and attendance of another.

Later in July 2012, the appellant's SSA income and Medicare expense information was associated with the file.  This shows that her annualized income for 2012 was $15,574.80 and she had an annualized Medicare expense of $1,198.80.

The claim on appeal was submitted in April 2013.

In June 2013, the appellant's SSA income and Medicare expense information was associated with the file.  This shows that her annualized income for 2013 was $15,838.80 and she had an annualized Medicare expense of $1,258.80.

In October 2013, the appellant submitted a form indicating unreimbursed medication expenses of $115.55 for 2013.

In July 2014, the appellant submitted an unpaid medical bill in the amount of $1,088.44.  However, this cannot be used to reduce her income as she has not submitted documentation indicating that she has actually paid for this medical expense.

In June 2015, the appellant submitted an invoice from the facility where she lives.  The invoice shows expenses for room and board as well as meals.  The invoice does not indicate that any of the charges are for medical items or performance of activities of daily living or instrumental activities of daily living.  Therefore, these items are not medical expenses for the purpose of pension eligibility.

The March 2016 VA Form 9 on appeal was filed in regard to a September 2015 statement of the case (SOC) that addressed survivor's pension eligibility from 2012 through the end of 2013.

The Board finds a survivor's SMP is not warranted because the appellant's countable income exceeds the applicable MAPR.  In this regard, 2012, the applicable MAPR was $13,138.  The appellant's annualized SSA income was $15,574.80.  Including the Medicare premiums and the documented medication expenses, the appellant had $1,314.35 in unreimbursed medical expenses for this period.  Subtracting $656 (5 percent of the applicable MAPR) results in a total unreimbursed medical expense deduction of $658.35.  Total income minus the medical expense deduction leaves an adjusted income of $14,939.45, which is in excess of the applicable MAPR.

(Continued on the next page)

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For 2013, the applicable MAPR was $13,362.  The appellant's annualized SSA income was $15,838.80.  Based on the Medicare premiums, the appellant had  $1,258.80 in unreimbursed medical expenses for this period.  Subtracting $668 (5 percent of the applicable MAPR) results in a total unreimbursed medical expense deduction of $590.80.  Total income minus the medical expense deduction leaves an adjusted income of $15,248, which is in excess of the applicable MAPR.

Thus, the Board finds that the appellant's countable income exceeds the applicable MAPR.  Accordingly, the evidence is persuasively against the claim.  As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and a survivor's SMP is not warranted.  See 38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.

RYAN T. KESSEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Jimerfield

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.


judge_norm: L HOWELL

disposition: granted

condition: knee

condition: back

text:
Citation Nr: 24007000
Decision Date: 02/08/24	Archive Date: 02/08/24

DOCKET NO. 16-09 347
DATE: February 8, 2024

ORDER

A 10 percent rating, but no more, for left knee instability, prior to April 10, 2021, is granted.

A rating in excess of 10 percent for left knee instability is denied.

A rating in excess of 10 percent for left knee chondromalacia, status/post cartilage restoration surgery is denied.

A rating in excess of 10 percent for a lumbosacral strain prior to April 10, 2021, is denied.

A rating in excess of 20 percent for a lumbosacral strain since April 10, 2021, is denied.

FINDINGS OF FACT

1. The Veteran served on active duty from April 1994 to April 2014; he has been 100 percent disabled since April 2023.

2. A left knee disability has been manifested by subjective complaints of pain and stiffness on exertion with occasional buckling; objective findings included restricted range of motion with flexion, instability, and X-ray evidence of degenerative changes.

3. Prior to April 10, 2021, a lumbar spine disability was manifested by subjective complaints of stiffness and soreness; objective findings included forward flexion to be, at worst, 90 degrees, the combined range of motion of the thoracolumbar spine to be, at worst, 180 degrees, and no muscle spasm, guarding, or intervertebral disc syndrome (IVDS).

4. Since April 10, 2021, a lumbar spine disability has been manifested by subjective complaints of pain that worsened with activity; objective findings include forward flexion to be, at worst, 55 degrees, and no ankylosis or IVDS.

CONCLUSIONS OF LAW

1. The criteria for a 10 percent rating, but no more, for left knee instability, for the entirety of the appeal period have been met. 38 U.S.C. �� 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. �� 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, Diagnostic Code (DC) 5257 (2023); 38 C.F.R. � 4.71a, DC 5257 (2020).

2. The criteria for a rating in excess of 10 percent for left knee instability for the entirety of the appeal period have not been met. 38 U.S.C. �� 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. �� 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, Diagnostic Code (DC) 5257 (2023); 38 C.F.R. � 4.71a, DC 5257 (2020).

3. The criteria for a rating in excess of 10 percent for left knee chondromalacia, status/post cartilage restoration surgery have not been met. 38 U.S.C. �� 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. �� 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, (DCs) 5003, 5010, 5256-5263 (2023); 38 C.F.R. � 4.71a, DCs 5003, 5010, 5256-5263 (2020).

4. The criteria for a rating in excess of 10 percent for a lumbosacral strain prior to April 10, 2021, have not been met. 38 U.S.C. �� 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. �� 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, DC 5237 (2023).

5. The criteria for a rating in excess of 20 percent for lumbosacral strain since April 10, 2021, have not been met. 38 U.S.C. �� 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. �� 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, DC 5237 (2023).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran testified before the undersigned Veterans Law Judge in October 2018. A copy of the transcript has been associated with the claims file.

In May 2019, the Board denied compensable ratings for lumbar spine and left knee disabilities. The Veteran appealed to the Veterans Claims Court. In April 2020, the Court Clerk granted a Joint Motion for Remand (JMR) and returned the appeal to the Board. In October 2020, the Board remanded the claims in conjunction with the order specified by the Court Clerk.

In April 2021, the agency of original jurisdiction (AOJ) granted a 10 percent rating for a lumbar spine disability prior to April 2021, a 20 percent rating for a lumbar spine disability since April 2021, a 10 percent rating for left knee for arthritis with painful motion, and a separate 10 percent rating for left knee instability since April 10, 2021.

In July 2021, the Board denied higher ratings for a lumbosacral strain and residuals of cartilage restoration surgery of the left knee. The Veteran again appealed to the Veterans Court. In November 2022, the Court Clerk granted a second JMR. The Board subsequently remanded the claim to the AOJ. Following the ordered development, the appeals return to the Board for adjudication.

The November 2022 JMR and resulting March 2023 Board remand were issued in part to ensure the AOJ made sufficient efforts to obtain outstanding treatment records from F.E. Warren Airforce Base. The AOJ sent the Veteran an April 2023 development letter and attached forms to obtain authorization to retrieve the outstanding treatment records. He did not return the authorization form to the AOJ.

In November 2023, the AOJ made requests from the facility for active duty treatment records, rather than for ongoing treatment after separation. Later that same month, a Final Attempt Letter was sent to the Veteran detailing that the AOJ had attempted to obtain authorization from him, had tried to retrieve some records itself and was unsuccessful, and that the responsibility now fell to him to submit the records on his own. This represents sufficient compliance with the March 2023 Board remand instructions, as well as fulfills the duty to assist in attempting to obtain outstanding records. Thus, the AOJ substantially complied with the March 2023 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998).

Additionally, the Veteran has previously been sent a development letter containing VA Forms 21-4142a for release to obtain outstanding medical records in October 2020, and multiple decisions from the Board and Court have discussed these outstanding records. The Veteran has thus received ample notice that the records were outstanding, that the AOJ has been attempting to obtain authorization to obtain them, and failing the grant of such authorization, the responsibility of submitting the records, should he wish to do so, falls to the Veteran. The duty to assist is not a one-way street, and the VA has fulfilled its duty to notify and attempt and retrieve these records. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. � 4.1.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. � 1155; 38 C.F.R. Part 4.

Left Knee Disabilities

The Veteran is currently rated under DC 5010-5260 for painful motion at 10 percent for the entire appeal period, and separately rated at 10 percent under DC 5257 for instability from April 10, 2021. The Board will address all potential rating criteria under which either separate or higher ratings may be granted to express the symptomology of the Veteran's service-connected left knee disability.

During the pendency of the appeal, the rating criteria for evaluating musculo-skeletal disabilities under 38 C.F.R. � 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. � 5110(g). If the amended version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. � 5110(g) can be no earlier than the effective date of that change.

If the pre-amended regulation is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. � 5110. Therefore, the Board will consider the claim under the pre-amended criteria prior to February 7, 2021, and both the pre-amended and amended rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

Under the pre-amended regulations, a 10 percent rating was warranted when the objective medical evidence shows:

"	slight recurrent subluxation or lateral instability;

"	symptomatic removal of semilunar cartilage;

"	flexion limited to 45 degrees;

"	extension limited to 5 degrees;

"	malunion with slight knee or ankle disability;

"	genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objective demonstrated); or,

"	in the absence of a rating for painful movement, X-ray evidence of arthritis with involvement of 2 or more major joints or 2 or more minor joint groups.

Under the revised criteria, a 10 percent rating is warranted when the objective medical evidence shows:

"	a sprain, incomplete ligament tear, or complete ligament tear causing persistent instability, without a prescription from a medical provider for an assistive device for bracing or ambulation;

"	a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without a history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker;

"	symptomatic removal of semilunar cartilage;

"	flexion limited to 45 degrees;

"	extension limited to 10 degrees;

"	genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objective demonstrated); or,

"	in the absence of a rating for painful movement, X-ray evidence of arthritis with involvement of 2 or more major joints or 2 or more minor joint groups.

Under the pre-amended regulations, a 20 percent rating was warranted when the objective medical evidence shows:

"	moderate recurrent subluxation or lateral instability;

"	dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint;

"	flexion of the leg limited to 30 degrees;

"	extension of the leg limited to 15 degrees;

"	malunion of the tibia or fibula with moderate knee or ankle disability;

"	medial tibial stress syndrome (MTSS), or shin splints, requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both extremities; or,

"	in the absence of a rating for painful movement, X-ray evidence of arthritis with involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations.

Under the revised criteria, a 20 percent rating is warranted when the objective medical evidence shows:

"	a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker;

"	dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint;

"	one of the following:

- sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or

- unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation

"	flexion of the leg limited to 30 degrees;

"	extension of the leg limited to 15 degrees;

"	MTSS, or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity; or,

"	in the absence of a rating for painful movement, X-ray evidence of arthritis with involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations.

If describing different symptoms, multiple diagnostic code may be assigned to express as single service-connected knee disability. However, if multiple compensable ratings are assigned for the same manifestation, this results in unlawful pyramiding which should be avoided. 38 C.F.R. � 4.14.

Turning to the evidence, prior to April 10, 2021, the Veteran was not assigned a separate diagnostic code for instability; however, in an August 2015 VA examination, he discussed that the left knee sometimes felt unstable. The examiner did not measure any instability but the Veteran also repeated during the October 2018 Board hearing that the left knee would give way.

Although left knee recurrent subluxation or persistent instability of the left knee was noted by the VA examiner who conducted the April 2021 examination, the Veteran indicated that his symptoms had not worsened, and that he continued to experience a history of instability or recurrent subluxation to include intermittent buckling, as described during his October 2018 Board hearing.

He is competent to make lay observations as to the instability of his knee and his statements have been consistent throughout the appeal period. As such, resolving all reasonable doubt in his favor a 10 percent rating for the entirety of the appeal period under DC 5257, rather than just from April 10, 2021, is warranted and the appeal to that extent is granted.

As to whether a higher rating is warranted for instability, under the pre-amended criteria, moderate recurrent subluxation and instability has not been shown. Although the Veteran stated he had some instability in the left knee during the August 2015 VA examination, he stated it occurred only sometimes.  Additionally, neither recurrent subluxation nor lateral instability was observed by the August 2015 VA examiner.

In contrast, the April 2021 VA examiner noted recurrent subluxation or persistent instability, which the Veteran described as intermittent buckling. Further, the examiner stated that there was no recurrent subluxation or patellar instability, but there was mild (as opposed to moderate or severe) left knee lateral instability, specifically +1 for both left knee medial and lateral instability.

A review of the remaining medical records associated with the claims file fails to show moderate recurrent subluxation or persistent instability. As such, the medical evidence does not support a higher rating under the pre-amended criteria.

Under the amended criteria, while the Veteran experienced a failed repair of a complete ligament tear, as confirmed in the August 2021 VA examination, causing instability, the evidence fails to show a medical provider prescribed a brace or assistive device for ambulation. The April 2021 VA examiner specifically noted that no such brace or assistive device had been prescribed for the left knee.

Prior to the effective date of the new regulations, the Veteran told the August 2015 VA examiner he sometimes used a brace on occasions depending on the work he would be doing on a specific day; however, it was not stated whether this was prescribed by a medical provider and whether he continued to use one after February 7, 2021, when the amended regulations became effective. A review of his available medical records similarly fails to show that he was prescribed an assistive device for left knee instability.

Under the same diagnostic code, a rating of 20 percent may be warranted for patellar instability. While the Veteran has been diagnosed with a condition of the patellofemoral complex with chondromalacia and a patellofemoral resurfacing procedure was performed in February 2013, the April 2021 VA examiner found no patellar instability in the left knee and denied recurrent patellar dislocation of the left knee.

Further, as noted above, the Veteran has not been prescribed a brace or assistive device to assist with instability of his knee, either due to a meniscal condition or patellofemoral complex condition. A review of the available VA and private medical records similarly fail to show a medical provider prescribed such an assistive device. As such, the medical evidence does not support a higher rating under DC 5257 for instability under the amended rating criteria.

Turning next to cartilage conditions under DCs 5259 and DCs 5258, there has been no change in this diagnostic code in the amended regulations. A separate rating of 10 percent is not currently warranted, as although the Veteran had a meniscectomy, and the April 2021 VA examiner noted frequent episodes of joint pain and joint effusion, the Veteran is already compensated for these symptoms.

As the 10 percent rating under DC 5010-5260 is for painful motion, rather than for measured limitation of motion, to award a separate 10 percent rating for pain following the removal of semilunar cartilage would result in unlawful pyramiding. Thus, a higher rating is not warranted on this basis.

Additionally, to the extent these symptoms present as instability and weakness, as of this decision a 10 percent rating under DC 5257 for the entirety of the appeal period for instability, weakness, and buckling is warranted. Thus, neither the August 2015 nor the April 2021 VA examiner have established separate symptomatology caused by the removal of semilunar cartilage for which the Veteran is not already compensated under a different diagnostic code.

Next, a higher 20 percent rating under DC 5258 may be awarded but requires dislocated semilunar cartilage. The August 2015 VA examiner and April 2021 VA examiner found no dislocated semilunar cartilage. Similarly, available VA and private medical records fail to note dislocated semilunar cartilage. As such, the medical evidence does not support either a separate rating under DC 5259 or a higher one under DC 5258.

As to whether a separate rating is warranted for genu recurvatum, this diagnostic code did not change in the amended regulations. The August 2015 VA examiner did not make any note of genu recurvatum. More definitively, the April 2021 VA examiner affirmatively denied that the Veteran had genu recurvatum. As it was also not shown in any other medical records associated with the claims file. As such, the medical evidence does not support a separate rating for genu recurvatum.

As for whether a separate 10 percent rating or a higher 20 percent rating is warranted for limitation of motion, the diagnostic codes for limitation of motion have not changed in the amended regulations. As noted, the Veteran's rating under DC 5260 is for painful motion on flexion. While he may receive multiple ratings for flexion and extension should their measured limitations be sufficient as designated under DCs 5260 and 5261, he is not entitled to multiple ratings to express painful motion.

Here, the August 2015 VA examiner measured flexion and extension as normal, with no limitations, but did not estimate if there would be any changes after repeated use over time or during flareups. As the August 2015 VA examiner failed to make these additional measurements required by law, the resulting finding of normal range of motion during that examination is given lesser probative weight on this point.

However, the April 2021 VA examiner measured flexion as limited to 115 degrees initially, 120 after observed repetitive use, and estimated flexion after repeated use over time to be 115 degrees, and during flareups to be 100 degrees. Extension was measured as normal at 0 degrees, with no changes during estimated repeated use over time or during flareups.

A review of all other medical records fails to show measured range of motion of the left knee. May 2016 VA medical records show normal range of motion for the knee. As such the medical evidence does not support awarding either separate ratings for flexion or extension, or a higher rating for one or the other, under either version of the musculoskeletal diagnostic code.

The provisions of DC 5262 were updated by the amended rating criteria. As noted above, in the pre-amended regulations, malunion of the tibia and fibula with a slight knee or ankle disability is rated at 10 percent, and a moderate disability is rated at 20 percent. However, both August 2015 and April 2021 VA examiners found no impairment of the tibia and fibula. Similarly, available VA and private medical record also found no impairment of the tibia and fibula, to include malunion or nonunion. As such, the medical evidence does not support higher or separate ratings under the pre-amended version of DC 5262.

For the amended regulations, malunion of the tibia and fibula are rated under DCs 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle. However, as established in the paragraph above, the medical evidence fails to show malunion of the tibia and fibula. As such, a separate rating by analogy under these diagnostic codes is not for application.

Additionally, separate or higher ratings may be awarded for MTSS or shin splints. Again, both August 2015 and April 2021 VA examiners affirmatively denied the Veteran had diagnoses of either MTSS or shin splints during the appeal period. A review of the available medical records similarly fails to show a diagnosis of either MTSS or shin splints. As such, the medical evidence does not support a higher or separate rating under the amended rating criteria of DC 5262.

As to arthritis, degenerative arthritis of the left knee was initially noted in the August 2015 VA examination. The Veteran is already rated at 10 percent for arthritis with painful motion on flexion, so no separate 10 percent rating may be applied. As to a 20 percent rating under either version of the diagnostic codes, neither the August 2015 VA examiner nor the April 2021 VA examiner noted evidence of arthritis in two or more minor or major joints causing occasional incapacitating exacerbations. Similarly, a review of the available medical records similarly fails to show such exacerbations. As such, the medical evidence fails to support a higher rating due to arthritis.

Lumbosacral Strain

Lumbosacral spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. � 4.71a, DCs 5237-5243. IVDS is rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. � 4.25. The Veteran has been rated under DC 5237 and the Board will consider all relevant diagnostic codes.

While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, DC 5237, under which the Veteran's spine disability is rated, was not changed. Similarly, the regulations addressing arthritis have not been changed. Although the regulations for IVDS have been amended, the medical evidence does not reflect a diagnosis of IVDS for the lumbar spine so those regulations will only be addressed to establish the lack of a current diagnosis.

As stated, the Veteran's low back disability has been rated at 10 percent under DC 5237 for a lumbosacral strain prior to April 10, 2014, and 20 percent thereafter. A rating in excess of 10 percent will be warranted when the objective medical evidence shows the following:

"	forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees (20 percent);

"	combined range of motion of the thoracolumbar spine not greater than 120 degrees (20 percent);

"	muscle spasms or guarding that is severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent);

"	incapacitating episodes of IVDS having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent);  or,

"	degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations (20 percent).

A rating in excess of 20 percent will be warranted when the objective medical evidence shows the following:

"	forward flexion of the thoracolumbar spine 30 degrees or less (40 percent);

"	favorable ankylosis of the entire thoracolumbar spine (40 percent); or,

"	incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent).

Turning to the evidence prior to April 10, 2021, as stated above, the Veteran does not have a diagnosis of IVDS. An April 2015 VA examiner found no diagnosis of IVDS. The remainder of available medical records during this portion of the appeal period similarly fail to show a diagnosis of IVDS, to include the April 2021 VA examiner. Thus, the medical evidence does not support a higher rating due to IVDS.

Next, an April 2015 VA examiner found no muscle spasms or guarding, nor was any shown in the medical records for this period. He described back pain, fatigue, weakness, and lack of endurance in an October 2015 correspondence, but the Veteran did not specifically allege that he had muscle spasms or guarding in his back. As such, a higher rating due to either muscle spasms or guarding is not supported by the medical evidence.

As to limitation of motion, an April 2015 VA examiner found that his lumbar spine range of motion was normal, and that he did not report flareups. However, the examiner did not estimate if there would be any change in range of motion with repetitive use over time, or with weight bearing or non-weight bearing. Finally, May 2016 VA medical records show no joint abnormalities and full range of motion in his back. No measurements of limitation of flexion were otherwise associated with the claims file during this portion of the appeal period.

While the April 2015 VA examiner's failure to estimate change in range of motion during flareups or after repeated use gives it lesser probative value the level of range of motion, the Veteran has failed to submit or give authorization for VA to obtain the records showing treatment records that otherwise may show limitation of motion.

The only other medical record from this time period is the May 2016 VA medical records that showed full range of motion, and although the Veteran stated range of motion reduced depending on what he was doing during the day in October 2015 correspondence, it lacks specificity as to what level his range of motion may be impaired. As such, the medical evidence does not support a rating in excess of 10 percent for limitation of motion prior to April 10, 2021.

Next, while an April 2015 X-ray confirmed the presence of degenerative changes of the lumbar spine, no medical professional has found that involvement of two or more major or minor joints has caused incapacitating episodes, nor is this shown in the medical records. As such, the medical records fail to show that a higher rating was warranted prior to April 10, 2021.

For the period since April 10, 2021, the April 2021 VA examiners affirmatively found no diagnosis of IVDS. The remainder of the medical records associated with the claims file similarly fail to show a diagnosis of IVDs. Thus, a higher rating due to IVDS either the pre- or amended regulations is not for application.

Next, ankylosis has not been claimed nor has it been shown throughout the appeal period. Both April 2015 and April 2021 VA examiners affirmatively denied that the Veteran's lumbar spine was ankylosed at any position. In October 2015 correspondence, he discussed back pain and fatigue, but did not claim that the lumbar spine was at any fixed angle. He similarly failed to allege ankylosis during the October 2018 Board hearing. As such, the evidence fails to support that a higher rating is due to ankylosis.

As to limitation of flexion, the April 2021 VA examiner measured flexion as initially limited to 70 degrees, 65 degrees after observed repetitive use, an estimated 60 degrees after repeated use over time and 55 degrees during flareups. The examiner explained that passive range of motion testing was medically contraindicated because it could only be performed safely with multiple examiners without risk to the Veteran. No other medical records during this portion of the appeal period included measurements of range of motion restrictions.

Thus, the April 2021 VA examination, given the breadth of its measurements as well as estimations of flexions based on the Veteran's testimony, is particularly probative. Thus, the medical evidence does not support a higher rating due to limitation of motion of the lumbar spine.

With regard to all appeals, the Board has considered the Veteran's lay statements and testimony that his disabilities are worse. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Specifically, his October 2015 correspondence and October 2018 Board hearing testimony have been incorporated in the analysis of his claims. However, the medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated and are therefore more probative evidence.

Based on the above, the separate 10 percent rating for instability of the left knee for the entirety of the appeal period is granted as discussed, but the evidence does not support higher or separate ratings for the left knee, or higher ratings for the lumbar spine, and these claims are denied.

Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

L. HOWELL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Brendan Evans, 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.


judge_norm: BETHANY L BUCK

condition: gi

text:
Citation Nr: 24008000
Decision Date: 02/15/24	Archive Date: 02/15/24

DOCKET NO. 18-38 393A
DATE: February 15, 2024

ORDER

Entitlement to service connection for hemorrhoids is granted.

Entitlement to service connection for Sleep Apnea Syndromes, including Obstructive, Central, Mixed, (OSA) is granted.

FINDINGS OF FACT

1. The Veteran has continuously suffered from hemorrhoids that were first diagnosed in service.

2. The Veteran's OSA is causally related to his service.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for hemorrhoids have been met. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303.

2. The criteria for entitlement to service connection for OSA have been met. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably on active duty in the United States Air Force from March 1977 to February 2005, retiring as a Chief Master Sergeant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

This claim was previously before the Board in March 2023, wherein the Board reopened the claims and remanded the Veteran's claim for additional development. These matters are properly before the Board.

SERVICE CONNECTION

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. � 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

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 veteran. See 38 U.S.C. � 5107; 38 C.F.R. � 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

1. Entitlement to service connection for hemorrhoids in granted.

The Veteran contends that he suffers from hemorrhoids, which first manifested in service.

The Board concludes that the Veteran has a current disability that was diagnosed in service. 38 U.S.C. �� 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. � 3.303(a).

In June 2004, while the Veteran was an active duty member of the United States Air Force, the Veteran underwent a colonoscopy at a military medical facility and was diagnosed with internal hemorrhoids. See September 2004 VA examination and April 2013 service treatment records (STRs). The Veteran's lay statements and private treatment records show he has continued to experience hemorrhoids through the period on appeal. See June 2013, December 2015, and May 2022 medical treatment records - non-government facility (private provider documentation of signs, symptoms, repeated diagnoses, and surgeries, from March 2006 through September 2022).

Accordingly, the Board finds that the Veteran was diagnosed with hemorrhoids in service and has a current hemorrhoid diagnosis. Thus, the question becomes whether the current hemorrhoid disability is related to the in-service hemorrhoid diagnosis.

The evidence against the claim includes a November 2023 VA examination with corresponding opinions on direct, secondary, and presumption of service connection under Toxic Exposure Risk Activity (TERA) and Gulf War service as well as a December 2023 addendum opinion. The VA examiner concluded that the Veteran did not have any signs or symptoms of hemorrhoids during service. In reaching this conclusion, the examiner stated that the Veteran's records were silent for reports of signs, symptoms, or diagnoses of hemorrhoids in service. The VA examiner applied this conclusion to all seven opinions rendered. See November 6, 2023, VA opinions: direct, Gulf War presumption, secondary all conditions, secondary to service connected fibromyalgia, aggravation by service connected fibromyalgia, and secondary to gastroesophageal reflux disease (GERD). See also November 28, 2023, VA opinion, direct service connection. See also December 11, 2023, VA addendum opinion.

However, as stated above, the Veteran's STRs include an in-service procedure and specific diagnosis of internal hemorrhoids. See service treatment records (STRs) dated in February 2000, March 2002, September 2003, and June 2004. Thus, the Board finds that the VA examiner's opinions (all) are based on an inaccurate factual premise and as such, lack probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value).

There is positive evidence of record that tends to associate the Veteran's current hemorrhoid disability with his in-service hemorrhoid diagnosis.

The Board finds that hemorrhoids are readily subject to lay observation and as such, the Veteran is competent to report the onset and history of his hemorrhoids. See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

The Veteran has made consistent statements describing his hemorrhoids from service through the period on appeal; placing the onset of his hemorrhoids during service in the United States Air Force with the condition continuing through the period on appeal. The Veteran has made these statements during treatment examinations, compensation and pension (C&P) examination, and by direct statements submitted to the VA as part of the claim for service connection. Moreover, the record includes STRs and post-service private treatment records that support the Veteran's lay statements. See July 2004 VA form 21-526 (original claim for service connection); September 2004 VA examination (finding of experience with monthly hemorrhoids); April 2013 STRs (September 26, 2003, report of medical history and June 29, 2004, diagnosis of hemorrhoids); January 2014 VA form 21-4138 (history of symptoms), June 2013, December 2015, and May 2022 medical treatment record - non-government facility (multiple records documenting hemorrhoids between 2005 and 2022).

The Board finds the Veteran is competent to report the onset and continuity of his symptoms and the Board finds no reason to doubt the credibility of these statements. See 38 C.F.R. � 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

Therefore, the Board finds the Veteran's statements throughout the appeal period to be consistent and corroborated by medical evidence of record. As such, the Board finds the Veteran's statements credible. Further, there are no probative conflicting statements in the record and there is no evidence suggesting the Veteran was untruthful or mistaken in his account of his hemorrhoid disability. See Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006).

Upon review of the record, for the reasons discussed above, and with any doubt resolved in the Veteran's favor, the Board finds that the Veteran has a current hemorrhoid condition, and the hemorrhoids had their onset in service. Service connection is warranted. 38 U.S.C. � 5107; 38 C.F.R. � 3.102.

2. Entitlement to service connection for Sleep Apnea Syndromes to include Obstructive, Central, Mixed (OSA), is granted.

The Veteran contends that his OSA is causally related to his service.

The Veteran's medical records document he has been diagnosed with OSA, since at least February 2010. The Veteran was seen by his primary care provider in July 2007 complaining of "not sleeping," and reported the onset of his sleeping problems as "a while," prompting the provider to order a sleep study at that time. In February 2010, the same provider indicated the Veteran had an earlier diagnosis of "OSA" and that he was "compliant" with his treatment. See June 2013 medical treatment record - non-government facility. In addition, the Veteran's record includes a February 2017 polysomnography (sleep) study with diagnoses of OSA, obesity, and hypertension. See February 2018 medical treatment record - non-government facility. The Veteran's representative submitted a statement that the Veteran has been prescribed a continuous positive airway pressure (CPAP) machine since October 9, 2007. See November 2021 Correspondence. Therefore, the Board finds the Veteran has a current diagnosis of OSA.

As to the question of whether the Veteran suffered and in-service incurrence, injury, or event, the Board finds that the Veteran exhibited risk factors for and symptoms of OSA while in service.

By statute, all veterans are presumed to have entered service in sound condition except as to those defects, infirmities or disorders noted at the time of examination, acceptance and enrollment. 38 U.S.C. � 1111. If a condition was not noted at the time of entrance and is later noted in service, it is presumed to have arisen in and as a result of service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). See also Vanerson v. West, 12 Vet. App. 254, 258 (1999) (explaining that clear and unmistakable evidence means evidence that "cannot be misinterpreted and misunderstood"). If a condition first noted in service is nevertheless shown by clear and unmistakable evidence to have preexisted service, it is presumed to have been aggravated in service. Wagner, 370 F.3d at 1096. In order to rebut the presumption of soundness where a condition is first noted in service, the Secretary must point to clear and unmistakable evidence that the condition both preexisted and was not aggravated by service. Id.

The Veteran was afforded an entrance examination in October 1976. The Veteran indicated that he had "no," trouble sleeping ever, under report or medical history. Nothing was noted as a pre-existing disease or defect. The examiner only noted "leg cramps after martial arts," "hairline fracture in hand, no difficulty now," and specifically noted the Veteran denied sleepwalking. The examiner found the Veteran was "qualified," for service. The Board notes, the Veteran's entrance examination record shows he weighed 140 pounds when he entered service. The Veteran's STRs show a drastic increase in weight over the course of his service. See June 2013 STRs.

The Veteran's record shows he was deployed to the Persian Gulf from August 1990 to March 1991 and exposed to toxic materials during both deployment and non-deployment service. See February 2005 DD-214. See also November 2013 Correspondence. See also December 2022 and January 2023VA memoranda. See also September 2023 TERA memorandum.  In September 1993, the Veteran's weight was recorded at 188 pounds, and he was diagnosed with elevated cholesterol. In October 2003, his weight was recorded as 203 pounds. See November 2013 STRs. In May 2004, the Veteran weighed 195 pounds and his military provider diagnosed him as, "overweight," and referred the Veteran for a nutritional medicine consultation. See June 2013 STRs. From his entrance examination to his separation physical, the Veteran's STRs show he gained over 50 pounds during his service.

Accordingly, the Board finds the Veteran has a current diagnosis of OSA and that his symptoms and risk factors of OSA during service, to include verified exposure to toxic materials, constitute an in-service incurrence, injury, or event. Thus, the question becomes whether the Veteran's OSA disability is related to his in-service incurrence, injury, or event.

The evidence against the claim includes a November 2023 VA examination with three corresponding opinions on direct service connection, presumption of service connection under Toxic Exposure Risk Activity (TERA), and presumption of service connection due to service in the Persian Gulf. The examiner did not opine on secondary service connection.

As to direct service connection, the examiner offered a brief negative nexus opinion due to "lack of substantiating evidence," and concluded there was no "chronicity during or after service." However, the examiner failed to discuss any of the specific symptoms or risk factors shown in the Veteran's STRs or private treatment records or explain why they are not related to his current OSA condition. See November 2023 C&P

As to the Gulf War and TERA opinions, the examiner input identical language for both opinions stating, "[t]he TERA memo was reviewed, noting the veteran did participate in a TERA (Gulf War, deployment and nondeployment related exposures). The VA has recognized some illnesses that may present as a result of service in certain areas/periods. Studies have shown that Gulf War veterans may have sleep difficulties and that sleep apnea could be related, however there is currently no definitive research to suggest as causal relationship (sic). It is less likely than not that the veterans obstructive sleep apnea is due to toxic exposure risk activities." The examiner also included a general definition and description of OSA symptoms, specifically listing OSA risk factors, "obesity, large tonsils, neck circumference, changes in hormone levels, smoking, hypertension, [and] genetics." See November 2023 C&P examination.

In addition, the examiner included a link to a VA website describing the relationship between OSA and Gulf War service, stating, "VA published a report in 2015 that showed that among VA users, the prevalence of sleep apnea was highest among Gulf War Veterans when compared to other Veteran groups," and "another VA study suggested a relationship between insomnia severity, subjective sleep quality, and risk for obstructive sleep apnea in Veterans with Gulf War illness." Nonetheless, the examiner failed to apply the medical literature to the Veteran's medical history and records and did not opine whether the Veteran's OSA is caused by his service connected fibromyalgia, explained also as Gulf War illness. See November 2023 C&P examination (Sleep Apnea in Gulf War Veterans - Public Health (va.gov). See also April 2014 C&P addendum opinion (Veteran's service connected "fibromyalgia is likely diagnosable but medically unexplained chronic multisystem illness of unknown etiology").

Nonetheless, the examiner still did not reference or discuss the Veteran's specific symptoms, risk factors, available medical records, and verified toxic exposures, or analyze why his service in the Persian Gulf did not cause his OSA, See November 2023 C&P examination.

Accordingly, the Board find's all three November 2023 OSA opinions were conclusory and unsupported in that they relied solely upon the medical literature, without providing a reasoned medical explanation as to how said literature applies to the specific facts and circumstances of the Veteran's claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Thus, the Board finds the three November 2023 VA medical opinions to be inadequate and assigns them low probative value.

There is positive evidence of record that tends to associate the Veteran's current OSA disability with his service. Significantly, the Veteran's STRs and post service medical records show years of risk factors and symptoms associated with the Veteran's OSA beginning in service and continuing through the period on appeal.

Following service, the Veteran's weight continued to fluctuate between 188 and 200 pounds, just as he experienced during service. His private treatment records document the Veteran's weight at 196 pounds in June 2006 and at 200 pounds in February 2017, when he was diagnosed as "obese." See June 2013 and May 2023 medical treatment records - non-government facility. See also February 2018 medical treatment record - non-government facility. Moreover, the Veteran's weight when he was diagnosed with obesity is less than the 203 pounds recorded during service in October 2003. See November 2013 STRs. See also February 2018 medical treatment record - non-government facility. The Board recalls that the November 2023 examiner specified "obesity" among the risk factors for OSA. See November 2023 C&P examinations.

During a November 2013 VA examination, the Veteran stated he had been having sleep difficulties for "several years" and that while he was in the military, he woke up at 5am daily but near the end [of his service] he would wake up even earlier. The November 2013 VA examiner opined that, "the Veteran's sleep impairment is likely related to his depression and also partly a symptom of his depression."  See January 2014 C&P examination. In November 2021, the Veteran submitted a statement asserting he began experiencing sleep disturbances during his deployment to the Persian Gulf in 1990. See November 2021 Correspondence.

The Veteran is competent to report the sleep apnea symptoms that others related to him, as well as his continuous sleep apnea symptoms since military service and separation from service. Jandreau, 492 F.3d at 1377 (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan, 451 F.3d 1331, 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The Veteran's competent and consistent statements are supported by his STRs which evidence in-service symptoms and risk factors; and by post-service private treatment records that show the same symptoms and risk factors continued through the period on appeal. There is no evidence that explicitly contradicts the Veteran's reports; thus, they are credible.

The Board finds that in this case, the Veteran's consistent and credible lay statements indicating symptoms in and since separation from service, combined with the diagnosis of sleep apnea, and documented in-service OSA symptoms and risk factors, are sufficient to establish that the Veteran's sleep apnea had its onset in service. Furthermore, as was reasoned in Maples v. Wilkie, No. 18-2016, 2019 U.S. App. Vet. Claims LEXIS 199 (Feb. 11, 2019) (mem dec) (Falvey, J.), sleep apnea is the type of disability for which lay evidence can be sufficient to support a claim for service connection. Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain).

Accordingly, the Board finds the Veteran's theory of in-service incurrence the most persuasive, credible evidence of record. Thus, the Board resolves all reasonable doubt in the Veteran's favor and find that service connection for OSA is warranted.

Bethany L. Buck

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Webb, Katherine S.

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.


judge_norm: KRISTI L GUNN

disposition: remanded

condition: ptsd

text:
Citation Nr: 24010000
Decision Date: 02/29/24	Archive Date: 02/29/24

DOCKET NO. 20-26 963
DATE: February 29, 2024

REMANDED

Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from January 1982 to June 1986.

Preliminarily, the Board notes that when a Veteran makes a claim for a psychiatric disability, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board has recharacterized the issue into a claim for any acquired psychiatric disability. Id.

Entitlement to service connection for an acquired psychiatric disability, to include PTSD and anxiety, is remanded.

The Veteran was provided a VA PTSD examination in June 2018. In pertinent part, the examiner noted that he was "refraining from making a diagnosis at this time, and the veteran needs to be re-scheduled after the VA has obtained his hospitalization records from GW. VBA is to obtain the records, to be crystal clear." However, there is no indication in the record that VA attempted to obtain these records from the Veteran in spite of saying such in the October 2018 rating decision on appeal.

Further, the Board notes that while the Veteran first indicated a claim for PTSD, it has seen been recharacterized as a claim for any acquired psychiatric disorder, largely due to the Veteran's indication in a September 2018 claim for compensation.  As such and coupled with the Veteran's contention that his condition is the result of witnessing a helicopter crash in flight school, a remand is required for further development.

The matters are REMANDED for the following action:

1. Ask the Veteran to complete a VA Form 21-4142 for George Washington Hospital medical records.  Make two requests for the authorized records from said medical facility, unless it is clear after the first request that a second request would be futile.

2. After the previous development, schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of any acquired psychological disability. The examiner should review the entire claims file and this remand in conjunction with the examination.

(a.) For any acquired psychological disability found to be diagnosed, the examiner should state whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any such disability had its onset in service or is etiologically related to service, supporting any opinions offered with a complete rationale.

(b.) In providing the opinion, the examiner must address any relevant lay statements of record, including the Veteran's statements describing the stressor event and the June 2018 VA examination. The examiner is informed that the Veteran is competent to report observable lay symptoms and continuity.

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. A. Elliott II, 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.