SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

PAULA B. MCCARRON · 2025 · Case ID: A25019541

MIXED

Summary

The Veteran served in the United States Army from September 1986 to March 1990. The Veteran sought review of a March 2022 rating decision, appealing the denial of service connection for hypertension, type II diabetes mellitus, GERD (seeking increased rating), cervical strain with degenerative joint disease and IVDS (seeking increased rating), right upper extremity radiculopathy (seeking increased rating), and left upper extremity radiculopathy (seeking increased rating). The Veteran was granted service connection for obstructive sleep apnea as secondary to his service-connected lumbosacral spine disability, with obesity as an intermediate step, affording the Veteran the benefit of the doubt. The Board found persuasive evidence weighing against service connection for hypertension and type II diabetes mellitus, citing the lack of relation to service or aggravation by service-connected disability, including obesity. For GERD, cervical strain, and both radiculopathy claims, the Board found the evidence did not support the criteria for a rating higher than previously assigned, specifically noting the manifestation of symptoms did not meet the severity required for an increased rating. Service connection for obstructive sleep apnea was granted. All other claims were denied.

Rationale

Obstructive sleep apnea granted as secondary to service-connected lumbosacral spine disability; Obesity considered intermediate step; Benefit of the doubt afforded to Veteran

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

230323-395358

Full Decision Text

Citation Nr: A25019541
Decision Date: 03/04/25 Archive Date: 03/04/25

DOCKET NO. 230323-395358
DATE: March 4, 2025

ORDER

Entitlement to service connection for obstructive sleep apnea is granted.

Entitlement to service connection for hypertension is denied.

Entitlement to service connection for diabetes mellitus, type II, is denied.

Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is denied.

Entitlement to a rating in excess of 20 percent for cervical strain with degenerative joint disease and intervertebral disc syndrome (IVDS) is denied.

Entitlement to a rating in excess of 20 percent for right (dominant) upper extremity radiculopathy is denied.

Entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy is denied.

FINDINGS OF FACT

1. Affording the Veteran the benefit of the doubt, his obstructive sleep apnea is proximately due to his service-connected lumbosacral spine disability, with obesity as an intermediate step.

2. The evidence of record persuasively weighs against a finding that the Veteran's hypertension is related to or aggravated by active service or a service-connected disability, to include obesity as an intermediate step.

3. The evidence of record persuasively weighs against a finding that the Veteran's diabetes mellitus, type II, is related to or aggravated by active service or a service-connected disability, to include obesity as an intermediate step.

4. During the appellate time period, the evidence does not support that the Veteran's GERD was manifested by symptoms of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.

5. During the appellate time period, the evidence does not support that the Veteran's cervical spine disability manifested in forward flexion of the cervical spine of 15 degrees or less or favorable or unfavorable ankylosis of the entire cervical spine.

6. During the appellate time period, the Veteran's right and left upper extremity radiculopathy was manifested by mild pain and paresthesias and/or dysesthesias.

CONCLUSIONS OF LAW

1. The criteria for service connection for obstructive sleep apnea as secondary to his service-connected lumbosacral spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

2. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

3. The criteria for service connection for diabetes mellitus, type II, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

4. The criteria for a rating greater than 10 percent for GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.114, Diagnostic Code (DC) 7399-7346.

5. The criteria for a rating greater than 20 percent for cervical strain with degenerative joint disease and IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5243.

6. The criteria for a rating greater than 20 percent for right upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8510.

7. The criteria for a rating greater than 20 percent for left upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8510.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the United States Army
. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8510.

7. The criteria for a rating greater than 20 percent for left upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8510.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the United States Army from September 1986 to March 1990.

In October 2022, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a March 2022 rating decision. In January 2023, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior March 2022 decision. Therefore, the Board may only consider the evidence of record at the time of the March 2022 decision.

In the March 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the March 2022 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

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).

Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995).

The general requirements for direct and secondary service connection notwithstanding, VA's Office of General Counsel (OGC) issued a precedential opinion addressing questions regarding whether obesity may be considered a disease for the purposes of service connection under 38 U.S.C. §§ 1110 and 1131, and whether obesity may be considered a disability for purposes of secondary service connection. In general, VAOPGCPREC 1-2017 concluded that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and, therefore, may not be service connected on a direct or secondary basis. The opinion noted that particularities of body type, such as being overweight or underweight, did not, of themselves, constitute disease or disability subject to service connection. Id. The opinion further held that, because it occurred over
whether obesity may be considered a disease for the purposes of service connection under 38 U.S.C. §§ 1110 and 1131, and whether obesity may be considered a disability for purposes of secondary service connection. In general, VAOPGCPREC 1-2017 concluded that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and, therefore, may not be service connected on a direct or secondary basis. The opinion noted that particularities of body type, such as being overweight or underweight, did not, of themselves, constitute disease or disability subject to service connection. Id. The opinion further held that, because it occurred over an extended period of time, the onset of obesity cannot qualify as an in-service event for the purposes of establishing service connection.

Obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. VAOPGCPREC 1-2017 (Jan 6, 2017). In order to meet this criterion, the Veteran must demonstrate that a previously service-connected disability caused the Veteran to become obese; that obesity was a substantial factor in causing secondary disability; and the secondary disability would not have occurred but for the obesity. Id.

In Walsh v. Wilkie, 32 Vet. App. 300 (2020), the Court held that the General Counsel Precedent Opinion 1-2017, not only applies when a service-connected disability causes obesity, but also when a service-connected disability aggravates obesity. When raised by the record, the Board must consider whether obesity was aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310. Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000).

1. Entitlement to service connection for sleep apnea

The Veteran contends that his current sleep apnea disability was incurred in service, otherwise caused by service, or was caused or aggravated by his service-connected lumbosacral spine disability, with obesity as an intermediate step.

The Veteran's service treatment records include no complaints, treatment, or diagnosis of sleep apnea. In a February 1990 Report of Medical Examination prior to separation from active service, the Veteran's weight was 200 pounds. In a contemporaneous Report of Medical History, the Veteran a history of recurrent muscular back pain.

A March 1993 VA examination report included the Veteran's report of ongoing back pain, which was constant and intensified by heavy lifting. Testing was normal and the Veteran had a normal gait and hopped normally on each foot. Lumbosacral range of motion testing showed forward flexion to 95 degrees, extension to 35 degrees, right and left lateral flexion each to 40 degrees, and right and left lateral rotation each to 35 degrees. The diagnoses included chronic cervical and lumbosacral sprains.

A June 1995 VA examination report included the Veteran's report that he worked as an assistant manager at McDonald's. He took ibuprofen for lower back pain, which helped the pain. On testing, the examiner indicated that the Veteran had "excellent" movement of the back, with forward flexion to 90 degrees, lateral bending to 30 degrees, extension to 20 degrees, and lateral rotation to 70 degrees. The Veteran did not report pain during range of motion testing or on palpation of the spine.

An August 1995 letter from a private physician indicated that the Veteran's current employment was of a rather sedentary nature, but that he occasionally developed right-sided lumbar pain if he attempted to lift heavy objects. The physician concluded, "I believe his limitations are real, despite a benign exam today."

In a November 1998 Report of Medical Examination, the Veteran had a noted weight of 220 pounds.

During a January 2004 VA medical examination, the Veteran was noted to weigh 300 pounds and that he had weighed 200 pounds in 1991. He did not do any specific exercises but was on his feet all day long at work. The Veteran had worked for 13 years for McDonald's as a manager and currently was working as a manager, training for Joint Food Services. The Veteran was able to walk briskly in the hallway without any assistive device and demonstrated a normal gait and posture. The Veteran could dress and undress himself and get on the examination table without difficulty.

A February 2004 letter from the Veteran's sister indicated that the Veteran had ongoing problems with the back over the last 10 years. He could not participate in any sports because of frequent back pain.

A March 2004 private
had weighed 200 pounds in 1991. He did not do any specific exercises but was on his feet all day long at work. The Veteran had worked for 13 years for McDonald's as a manager and currently was working as a manager, training for Joint Food Services. The Veteran was able to walk briskly in the hallway without any assistive device and demonstrated a normal gait and posture. The Veteran could dress and undress himself and get on the examination table without difficulty.

A March 2004 private treatment record included the Veteran's report of ongoing back symptoms, with constant pain that he described as 8 out of 10. The pain interfered with sleep, daily routine, standing, and bending. On testing, the low back was tender to palpation. X-rays showed mild bony spurring of the lumbar spine.

In a January 2011 statement, the Veteran indicated that he was using a CPAP machine.

The Veteran was afforded a VA examination in August 2011. The examiner diagnosed obstructive sleep apnea. The Veteran reported onset in approximately 2003. He had a sleep study done at that time because he was tired all the time and had been told he snored loudly and would gasp for breath in his sleep. The treatment provider at the time diagnosed sleep apnea and provided a CPAP. Following examination, the examiner concluded that the Veteran's sleep apnea was less likely than not caused or aggravated by his service-connected tension headaches. The rationale was that there was no data in medical literature that provided a link between headaches and sleep apnea. The sleep apnea most likely was secondary to the Veteran's morbid obesity and smoking, which were conclusively linked as major contributors to sleep apnea.

In support of his claim, the Veteran submitted a December 2020 private opinion that concluded it was at least as likely as not that the Veteran's weight gain and obesity were due to and/or related to his service-connected lumbosacral sprain with degenerative joint disease. Furthermore, it was at least as likely as not that the Veteran's obstructive sleep apnea with CPAP was secondary to, related to, and/or aggravated by the weight gain and obesity from the service-connected lumbosacral sprain with degenerative joint disease. Finally, it was at least as likely as not that without the Veteran's weight gain and obesity his obstructive sleep apnea with CPAP would not have occurred. The opinion noted that the Veteran had weighed 187 pounds on entrance into active service, 200 pounds on separation, and currently weighed 300 pounds with a BMI of 40.7, meeting the national standard set by the CDC for obesity. The physician concluded, "This is evidence of progressive weight gain and a current obesity condition which chronologically developed after the musculoskeletal symptomatology related to his service-connected condition." The physician noted that there were multiple studies within the medical literature indicating that chronic partial sleep loss, to include insomnia and frequent night-time awakenings, increased the risk of obesity and weight gain. Sleep loss resulted in metabolic and endocrine alterations, including decreased glucose tolerance, decreased insulin sensitivity with loss in beta cell function (leading to an elevated risk of diabetes), elevated sympathovagal balance, increased evening concentrations of cortisol, increased levels of ghrelin that signaled caloric need, decreased levels of leptin causing a reduction in satiety, and increased hunger and appetite related to internal misperception of insufficient energy availability. These issues led to an increased BMI. "Due to the persistent pain of his service-connected Lumbosacral Sprain with Degenerative Joint Disease, he was unable to be as active as he was before his musculoskeletal conditions and subsequently began to progressively gain weight." The physician cited to a study documenting that the deposition of fat around the pharyngeal airway was likely to increase the collapsibility of the pharyngeal airway and obesity resulted in weakening of the upper airway muscles. Lack of sleep tended to result in an increased risk of weight gain, due to various factors. In addition, "Obesity is such a high risk factor for OSA, that even a one standard deviation increase in body mass index (BSI) has been associated with a 4-fold increase in the prevalence of OSA. Indeed, to further make the point, with severe obesity (BMI > 40), the prevalence of OSA ranges between 40% and 90%." The physician also noted that in January 2017 the Acting General Counsel for VA confirmed that obesity could be an
likely to increase the collapsibility of the pharyngeal airway and obesity resulted in weakening of the upper airway muscles. Lack of sleep tended to result in an increased risk of weight gain, due to various factors. In addition, "Obesity is such a high risk factor for OSA, that even a one standard deviation increase in body mass index (BSI) has been associated with a 4-fold increase in the prevalence of OSA. Indeed, to further make the point, with severe obesity (BMI > 40), the prevalence of OSA ranges between 40% and 90%." The physician also noted that in January 2017 the Acting General Counsel for VA confirmed that obesity could be an intermediate step between a veteran's service-connected disabilities and the veteran's currently claimed disability condition on a secondary basis. The Veteran had gained 113 pounds from active duty to the present and supported a conclusion that the Veteran's obesity was an intermediate step between the service-connected lumbosacral spine disability and the claimed sleep apnea.

In a December 2020 statement, the Veteran contended that the pain of his service-connected lumbosacral spine disability made it difficult to fall or stay asleep. The sleep apnea involved symptoms of pausing breathing while sleeping, snoring, headaches upon awakening, poor concentration, and daytime fatigue. The Veteran also stated, "Due to my mental health condition and fatigue, I have also been less motivated to exercise which has also caused my weight gain. Additionally, my mental health condition has led me to make poor food choices and eat high calorie foods. I weighed 187 lbs at military entrance, 200 lbs upon military separation, and currently weigh 300 lbs."

The Veteran was afforded a VA examination in January 2021. The examiner discussed a January 2021 sleep study and its results. The examiner noted a diagnosis of obstructive sleep apnea based on the January 2021 sleep study. The Veteran reported symptoms of snoring, excessive daytime sleepiness, and kicking during sleep. The Veteran had a body mass index (BMI) of 42.53. Following examination, the examiner concluded that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by service. The rationale was that the Veteran's medical records did not show evidence of obstructive sleep apnea during active service or within one year of separation from service. The medical professional cited to the Mayo Clinic for the proposition that obstructive sleep apnea was a structural condition that caused relaxation of the muscles of the upper airway during sleep. Primary risk factors for obstructive sleep apnea included obesity and increased neck circumference. Records indicated that the Veteran had a BMI of over 42, which placed him at a high risk for obstructive sleep apnea.

A March 2021 VA medical opinion concluded that it was less likely than not that the Veteran's sleep apnea was proximately due to or the result of the Veteran's service-connected low back disability. The rationale stated, "Based on review of the provided medical records, there is no evidence in the provided medical records documenting that [t]he Veteran's lumbar condition directly or indirectly caused Sleep apnea. Furthermore, there is no plausible pathophysiologic mechanism discussed in the medical literature and known medical principles that would explain such a causal relationship between these conditions."

Another March 2021 VA medical opinion concluded, "Based on review of the provided medical records, there is no evidence in the provided medical records documenting that the Veteran's lumbar condition directly or indirectly caused sleep apnea. Furthermore, there is no plausible pathophysiologic mechanism discussed in the medical literature and known medical principles that would explain such a causal relationship between these conditions. The claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition. Obesity is a known risk factor for OSA, but there is no evidence in the provided records that the Veteran's 'poor food choices' caused the obesity or OSA. Obesity is a multifactorial condition. It has been demonstrated in the medical literature that exercise is not the predominant treatment of obesity, but rather the patient's diet is responsible for 90-95% of the weight gain."

A July 2021 private opinion concluded that it was at least as likely as not that the Veteran's current obstructive sleep apnea with CPAP was secondary to, related to, and/or aggravated by his service-connected conditions to include lumbosacral sprain with degenerative joint disease with subsequent sleep disturbance and weight gain / obesity. The rationale noted that, "Due to the chronic pain in the veteran's back, he has participated in less physical activities and has led a more sedentary lifestyle, which is a contributing factor to his weight gain. Individuals suffering from chronic pain are at a higher risk for gaining weight and becoming obese due to several factors which include decreased activity due to pain. Dansie et al. (2014) confirmed that, 'adults with CWP (chronic widespread pain) participate in less moderate-to-vigorous PA (physical activities) than individuals without chronic pain.' There are also many studies confirming the relationship between chronic pain and weight gain / obesity. One study by Marcus DA (2004) concludes, 'Weight is associated with co-morbid disability, depression, and reduced quality of life for physical function in chronic pain patients.' Okifuji and Hare (2015) state, 'Chronic pain is one of the major reasons that obese patients list for their weight gain. Frustration associated with functional limitation may lead to overeating. Other common adverse effects of chronic pain, such as sedentary lifestyle, poor sleep, and side effects of medications, may also contribute to weight gain in chronic pain patients.'" The opinion noted that the Veteran had previously reported that his musculoskeletal pain kept him from exercising. A 2016 study had concluded, "Chronic pain is associated with symptoms that may impair a patient's quality of life, including emotional distress, fatigue, and sleep disturbance. There is a high prevalence of concomitant pain and sleep disturbance." The opinion cited to studies for the proposition that the medical literature was clear that chronic musculoskeletal pain caused disturbances of both the onset and maintenance of restful sleep. In addition, the Veteran's prescribed medication for his chronic pain had the potential for respiratory depression that, at the very least, aggravated his obstructive sleep apnea. The Veteran had a total weight gain of approximately 13 pounds during service and an additional weight gain of 100 pounds after service, which occurred after the lumbosacral sprain with degenerative joint disease. The opinion discussed multiple studies linking obstructive sleep apnea and obesity. The opinion discussed how obesity could be an intermediate step between a service-connected disability and a current disability.

A December 2021 submission from the Veteran's attorney representative claimed that multiple studies had documented that obesity was known to predispose patients to obstructive sleep apnea (OSA). One study, for example, found that "men were more likely to have an increase in Respiratory Disturbance Index (RDI) with a given increase in weight than were women, and this was not explained by differences in starting weight, waist circumference, age, or ethnicity." Another study concluded that "obesity is one of the leading risk-factors for OSA." Yet another study determined that, "The pathophysiology of OSA is intimately linked to obesity. Anatomic and functional considerations of the pharyngeal airway, the [central nervous system], central obesity, and leptin likely interact in the development of OSA in obese individuals." An additional study concluded that, "Longitudinal data collected by the Wisconsin Sleep Cohort Study over a 4-year period have shown that weight change is an important determinant of disease progression and regression. Compared with participants with a stable weight, those that have a 10% increase in their weight had on average a 32% increase in their AHI and a sixfold risk of developing moderate to severe obstructive sleep apnea." That same study indicated, "Increases in body weight can alter normal upper airway mechanics during sleep through several distinct mechanisms including: (1) increased parapharyngeal fat deposition resulting in a smaller upper airway, (2) alterations in neural compensatory mechanisms that maintain airway patency, (3) respiratory control system instability, and (4) reduction in functional residual capacity with a resultant decrease in the stabilizing caudal traction on the upper airway. Given that the pathophysiology of obstructive sleep apnea is intimately linked with obesity with an estimated 58% of the moderate to severe cases to severe cares attributable to a BMI greater than or equal to 25 kg/m2."

obstructive sleep apnea." That same study indicated, "Increases in body weight can alter normal upper airway mechanics during sleep through several distinct mechanisms including: (1) increased parapharyngeal fat deposition resulting in a smaller upper airway, (2) alterations in neural compensatory mechanisms that maintain airway patency, (3) respiratory control system instability, and (4) reduction in functional residual capacity with a resultant decrease in the stabilizing caudal traction on the upper airway. Given that the pathophysiology of obstructive sleep apnea is intimately linked with obesity with an estimated 58% of the moderate to severe cases to severe cares attributable to a BMI greater than or equal to 25 kg/m2."

A March 2022 VA medical opinion found that it was less likely than not that the sleep apnea was proximately due to or the result of the Veteran's service-connected lumbosacral sprain with degenerative joint disease. The rationale stated that the conditions of obstructive sleep apnea and lumbosacral sprain with degenerative joint disease were not medically related. The obstructive sleep apnea was a separate entity entirely from the lumbosacral sprain with degenerative joint disease and unrelated to it. A thorough review of medical literature failed to demonstrate a causal relationship. A nexus had not been established. The medical professional noted that the Veteran had been diagnosed with obstructive sleep apnea in January 2021 and had been awarded service connection for lumbosacral sprain with degenerative joint disease. The Veteran had reported in a lay statement he had weighed 187 pounds in entrance into service, 200 pounds at separation, and currently weighed 300 pounds. The medical professional indicated that the Veteran had weighed 200 pounds with a BMI of 27.1 at separation from service, which was considered overweight. The medical professional concluded, "It is my opinion that Veteran's service connected lumbosacral sprain with degenerative joint disease was not a substantial factor in him gaining weight as he was gaining while [on] active duty, prior to the development of his lower back conditions. According to up to date [s]tudies suggest that the genetic contribution to adult body mass index (BMI) is 40 to 70 percent in most individuals. Although his obesity contributed to his development or worsening of obstructive sleep apnea there is no evidence that his orthopedic conditions of lumbosacral sprain with [degenerative joint disease] was a substantial factor in his weight gain as this gain was seen in service and upon separation from service and is most likely a genetic or high caloric source."

Thus, there is significant medical evidence both for and against the Veteran's claim that his obstructive sleep apnea was caused or aggravated by his service-connected lumbosacral spine disability, with obesity as an intermediate step. The private opinions cited to numerous studies in support of the proposition that individuals such as the Veteran who suffer from chronic musculoskeletal pain (such as the Veteran's low back pain) are more likely to become obese and that obesity greatly increases the likelihood of developing obstructive sleep apnea. The negative VA opinions failed to discuss the studies cited in the private opinions. The March 2022 negative VA opinion relied on the fact that the Veteran had a BMI of 27.1 on separation from service before the onset of his back disability. The AOJ, however, in granting entitlement to service connection for the low back disability (in an April 1993 rating decision) found that the Veteran's low back disability began during active service. As such, some or all of the Veteran's weight gain during service could be associated with the low back disability. In any case, the bare assertion in the March 2022 VA medical opinion that there was no evidence that the Veteran's low back disability was a substantial factor in his weight gain failed to consider or reconcile the studies cited by the private medical opinions for the proposition that chronic musculoskeletal pain was associated with an increased likelihood of becoming obese. In light of the foregoing, the Board will afford the Veteran the benefit of the doubt that his obstructive sleep apnea was caused or aggravated by his service-connected lumbosacral spine disability, with obesity as an intermediate step, and concludes that entitlement to service connection for obstructive sleep apnea is warranted.

2. Entitlement to service connection for hypertension

The Veteran contends that his current hypertension was caused or aggravated by his service-connected lumbosacral spine disability, with obesity as an intermediate step.

The Veteran's service treatment records include no complaints, treatment, or diagnosis of hypertension or chronic symptoms related thereto. In a February 1990 Report of Medical Examination prior to separation from active service, the Veteran's blood pressure was 120/70
, the Board will afford the Veteran the benefit of the doubt that his obstructive sleep apnea was caused or aggravated by his service-connected lumbosacral spine disability, with obesity as an intermediate step, and concludes that entitlement to service connection for obstructive sleep apnea is warranted.

2. Entitlement to service connection for hypertension

The Veteran contends that his current hypertension was caused or aggravated by his service-connected lumbosacral spine disability, with obesity as an intermediate step.

In a November 1998 Report of Medical History, the Veteran denied a history of high or low blood pressure. A contemporaneous Report of Medical Examination included a blood pressure reading of 120/80.

During a January 2004 VA examination, the Veteran indicated that he had been told by private treatment providers that he had borderline hypertension but was not being treated for hypertension or receiving medication. The examiner's diagnoses included hypertension, not on any treatment.

A December 2021 statement from the Veteran indicated that, "I am seeking service connection for my Hypertension secondary to my service-connected Lumbosacral Sprain with Degenerative Joint Disease, which keeps me from exercising and has caused weight gain. I weighed 185 lbs at military entrance, 225 lbs at separation, and currently weigh 308 lbs. I have experienced the following symptoms: fatigue and exhaustion. The symptoms led me to seek treatment from my doctor; afterwards I was diagnosed with Hypertension and prescribed Benazepril."

Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection.

Thus, the question for the Board is whether the Veteran's current hypertension was proximately due to or the result of or was aggravated beyond its natural progress by a service-connected disability. The Board concludes that the hypertension was not.

The sole evidence in support of the Veteran's claim are his lay contentions that his current hypertension was caused or aggravated by his service-connected low back disability, with obesity as an intermediate step. The Veteran in this case is not competent to provide a nexus opinion regarding causation or aggravation. The issue is medically complex, as it requires knowledge of anatomical relationships, pathology, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives the Veteran's contentions regarding the etiology of his hypertension no probative weight.

Accordingly, the most probative evidence of record persuasively weighs against the claim of entitlement to service connection for hypertension. As the most probative evidence of record persuasively weighs against entitlement to service connection, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

3. Entitlement to service connection for diabetes mellitus, type II

The Veteran contends that his current diabetes mellitus, type II, was caused or aggravated by his service-connected lumbosacral spine disability, with obesity as an intermediate step.

The Veteran's service treatment records include no complaints, treatment, or diagnosis of diabetes mellitus. In a February 1990 Report of Medical Examination prior to separation from active service, a urinalysis was negative for albumin or sugar. In a contemporaneous Report of Medical History, the Veteran indicated that he did not know if he had a history of high or low blood pressure.

A November 1998 Report of Medical Examination included urinalysis results that were negative for albumin or sugar.

In September 2016, the Veteran denied any history of diabetes.

In January 2018, during mental health treatment the Veteran indicated that he had recently been diagnosed with pre-diabetes. Another January 2018 record stated that the Veteran's A1C levels had progressed to 6.5 and the Veteran admitted to gaining weight. The treatment provider diagnosed new onset diabetes mellitus and started the Veteran on metformin.

A December 2021 statement from the Veteran indicated that, "I am seeking service connection for my Diabetes Mellitus Type II secondary to my service-connected L
of high or low blood pressure.

A November 1998 Report of Medical Examination included urinalysis results that were negative for albumin or sugar.

In September 2016, the Veteran denied any history of diabetes.

A December 2021 statement from the Veteran indicated that, "I am seeking service connection for my Diabetes Mellitus Type II secondary to my service-connected Lumbosacral Sprain with Degenerative Joint Disease, which keeps me from exercising and has caused weight gain. I weighed 185 lbs at military entrance, 225 lbs at separation, and currently weigh 308 lbs. I have experienced the following symptoms related to Diabetes Type II: increased appetite, fatigue, numbness and tingling in my extremities, and frequent urination. The symptoms led me to seek treatment from my doctor; afterwards I was diagnosed with Diabetes Type II and prescribed Glucophage (metformin). Due to my Diabetes Type II, my medical provider has also ordered diabetic diet as treatment."

Thus, the question for the Board is whether the Veteran's current diabetes mellitus, type II, was proximately due to or the result of, or was aggravated beyond its natural progress by a service-connected disability. The Board concludes that the diabetes mellitus, type II, was not.

The sole evidence in support of the Veteran's claim are his lay contentions that his current diabetes mellitus was caused or aggravated by his service-connected low back disability, with obesity as an intermediate step. The Veteran in this case is not competent to provide a nexus opinion regarding causation or aggravation. The issue is medically complex, as it requires knowledge of anatomical relationships, pathology, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives the Veteran's contentions regarding the etiology of his diabetes mellitus no probative weight.

Accordingly, the most probative evidence of record persuasively weighs against the claim of entitlement to service connection. As the most probative evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

Increased Ratings

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

1. Entitlement to a rating in excess of 10 percent from November 23, 2021, to March 8, 2022, for GERD

Effective May 19, 2024, VA amended the schedule of ratings for the digestive system and created DC 7206 for GERD. Prior to May 19, 2024, GERD did not have its own DC and VA often rated it by analogy to
for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

1. Entitlement to a rating in excess of 10 percent from November 23, 2021, to March 8, 2022, for GERD

Effective May 19, 2024, VA amended the schedule of ratings for the digestive system and created DC 7206 for GERD. Prior to May 19, 2024, GERD did not have its own DC and VA often rated it by analogy to hiatal hernia under DC 7346. Further, effective May 19, 2024, VA amended DC 7346 for hiatal hernia, and now directs VA adjudicators to rate such disabilities pursuant under DC 7203 for stricture of the esophagus. DC 7203's rating criteria mirror those presented in the new DC 7206. That said, as the above amendments took effect after the period on appeal, the Board will consider and apply the pre-May 19, 2024, rating criteria.

The Veteran's GERD disability is rated under DC 7399-7346, as analogous to hiatal hernia. The Veteran contends that a higher rating is warranted. The Board will consider whether a higher rating is warranted for the above-listed time period, as well as whether there was a clear increase in disability within one year of the November 23, 2021, intent to file a claim for increased rating.

Pursuant to DC 7346, a 10 percent disability rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A maximum 60 percent evaluation is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.

In accordance with 38 C.F.R. § 4.114, ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the DC which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. To determine the predominant disability, determine the evaluation each condition would support on its own. The condition that has the highest disability rating is the predominant disability.

DC 7346 does not provide definitions for the terms "considerable" and "severe." "Considerable" is defined as "large in extent or degree." Merriam-Webster's Collegiate Dictionary 267 (11th ed. 2012). "Severe" is defined as "very painful or harmful." Id. at 1140. Lastly, "material" is generally defined as "having real importance or great consequences." Id.

In assigning a rating under DC 7346, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The rating criteria are not successive or cumulative with that of the lower rating. See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009); see also Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006) (stating that disabilities rated by analogy will not show all objective criteria of the analogous rating).

The Board notes that the criteria under DC 7346 for a 30 percent rating are conjunctive, not disjunctive; thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). A single evaluation will be assigned under the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. See 38 C.F.R. § 4.114.

A key difference between a 10 percent and 30 percent rating is the severity of the symptoms, with a 10 percent rating having symptoms of less severity and a 30 percent rating having
not disjunctive; thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). A single evaluation will be assigned under the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. See 38 C.F.R. § 4.114.

A key difference between a 10 percent and 30 percent rating is the severity of the symptoms, with a 10 percent rating having symptoms of less severity and a 30 percent rating having symptoms productive of considerable impairment of health. A veteran can have some or all the symptoms listed in the criteria for a 30 percent rating but if they are not productive of considerable impairment of health then they do not warrant a 30 percent rating.

Prior to the period on appeal, in March 2021, the Veteran denied any hematuria, abdominal pain, nausea, vomiting, diarrhea, or trauma. The Veteran did have right upper side pain and pain with deep breathing, which was not attributed to the GERD. In June 2021, the Veteran reported that GERD symptoms occasionally occurred at night and on those occasions made sleeping difficult. But most nights the Veteran got 7 to 8 hours of sleep and felt rested during the day.

The Veteran was afforded a VA examination in December 2021. The Veteran's GERD required the use of continuous medication (Famotadine once per day). Signs and symptoms of GERD included pyrosis, reflux, and regurgitation. The Veteran had no esophageal stricture, no spasm of the esophagus, and no acquired diverticulum of the esophagus. The Veteran had no associated scars. The Veteran's GERD did not affect his ability to work.

The Board finds that the Veteran's reports of irregular GERD symptoms that at times would affect sleep, but generally permitted 7 to 8 hours of restful sleep per night most closely approximates the currently assigned 10 percent rating. A 30 percent rating is not warranted under DC 7346 because the evidence does not demonstrate symptoms of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The medical evidence indicates that the main effect of the Veteran's GERD is intermittent episodes of pyrosis, reflux, and regurgitation. To the extent that the Veteran experienced symptoms, the lay and medical evidence does not support a finding that the symptoms were productive of considerable impairment of health. At most, the symptoms appear to have intermittently affected sleep and sleep quality, but the for the most part did not affect sleep or other functioning. Based on the foregoing, a rating greater than 10 percent is not warranted for any period on appeal.

The Board has reviewed the remaining DCs relating to disabilities of the digestive system but finds that they are inapplicable in this case. See 38 C.F.R. § 4.114.

In conclusion, the Board finds that the facts do not support a disability rating in excess of 10 percent for any period on appeal. As the evidence of record persuasively weighs against a higher rating the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (2021).

2. Entitlement to a rating in excess of 20 percent from November 23, 2021, to March 8, 2022, for cervical strain with degenerative joint disease and IVDS

The Veteran is seeking a higher rating for his cervical spine disability. The Board will consider whether a higher rating is warranted for the above-listed time period, as well as whether there was a clear increase within one year of the November 23, 2021, intent to file a claim for increased rating.

Effective February 7, 2021, VA amended the rating criteria for disabilities of arthritis and the spine.

The Veteran's cervical strain with degenerative joint disease and IVDS is currently rated under 38 C.F.R. § 4.71a, DC 5243, for intervertebral disc syndrome (IVDS). DC 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in
time period, as well as whether there was a clear increase within one year of the November 23, 2021, intent to file a claim for increased rating.

Effective February 7, 2021, VA amended the rating criteria for disabilities of arthritis and the spine.

The Veteran's cervical strain with degenerative joint disease and IVDS is currently rated under 38 C.F.R. § 4.71a, DC 5243, for intervertebral disc syndrome (IVDS). DC 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25.

Effective February 7, 2021, DC 5243 was amended to read: "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses."

The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes.

Note 1 to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1.

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5.

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 (1995); 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).

In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

Prior to the period on appeal, in April 2021, the Veteran described chronic neck and back pain that was about the same as previously. In June 2021, the Veteran described chronic neck and back pain that was unchanged.

The Veteran was afforded a VA examination in December 2021. The Veteran described flare-ups of the neck with overactivity involving turning the head. The neck flare-ups were mild to moderate in nature and would last for the remainder of the day when they occurred. The neck flare-ups were alleviated by rest. The neck resulted in functional loss because the Veteran was limited in prolonged activities that involved standing and turning the head. Range of motion testing of the cervical spine showed forward flexion to 35 degrees, extension to 35 degrees, right and left lateral flexion each to 30 degrees, and right and left lateral rotation each to 40 degrees. The Veteran had pain in all areas of motion. The Veteran had passive motion that was the same as active motion. The Veteran had evidence of pain in nonweight-bearing and active and passive motion that did not result in functional loss. The Veteran had no crepitus and no further loss of motion following repetitive motion testing. The examiner estimated that with repeated use over time and during flare-ups that the Veteran would have cervical motion to 30 degrees of forward flexion, extension, and right and left lateral flexion and right and left lateral rotation each to 40 degrees. The Veteran had no tenderness, guarding, or muscle spasms of the cervical spine. The Veteran had normal muscle strength and no muscle atrophy. The Veteran had no ankylosis and no other neurologic abnormalities (other than the peripheral neuropathy symptoms discussed below). The Veteran had IVDS of the cervical spine, but no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. The Veteran used no assistive devices for the neck. The examiner concluded that the Veteran's neck disability did
cervical motion to 30 degrees of forward flexion, extension, and right and left lateral flexion and right and left lateral rotation each to 40 degrees. The Veteran had no tenderness, guarding, or muscle spasms of the cervical spine. The Veteran had normal muscle strength and no muscle atrophy. The Veteran had no ankylosis and no other neurologic abnormalities (other than the peripheral neuropathy symptoms discussed below). The Veteran had IVDS of the cervical spine, but no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. The Veteran used no assistive devices for the neck. The examiner concluded that the Veteran's neck disability did not impact his ability to perform any type of occupational tasks. The Board finds as a fact in this case that the examination is adequate for evaluation purposes. It conformed with the requirements set forth in Correia, as the examiner discussed pain in the neck with non-weight bearing, as well as passive and active motion. The report also complied with the requirements set forth in Sharp, as the Veteran discussed the effects of flare-ups on the spine, to include the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares.

Later in December 2021, the Veteran described chronic neck and back pain that was worsening.

The Board finds that the evidence of record persuasively weighs against a rating in excess of 20 percent for cervical strain with degenerative joint disease and IVDS based on incapacitating episodes. The Veteran had IVDS, but the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating.

The evidence of record also persuasively weighs against a rating in excess of 20 percent for cervical strain with degenerative joint disease and IVDS under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to neck pain with prolonged physical activities, such as standing or turning the head. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. Testing in December 2021 showed cervical spine forward flexion to 35 degrees and, based on the Veteran's description of symptoms during flare-ups and with repeated use over time and the testing results at the time, the examiner estimated that with repeated use over time and during flare-ups that cervical spine forward motion would be further limited to 30 degrees.

The Veteran's functional loss was considered, as the medical evidence shows that the Veteran has reported ongoing chronic neck pain. 38 C.F.R. §§ 4.40, 4.45. However, the examiner generally took limitation caused by pain into account in the findings of range of motion. Thus, the degree of additional limitation caused by pain is already contemplated in the disability rating currently assigned. There is otherwise no evidence of impairment of motor skills, muscle function, or strength. Consequently, the Board finds that a higher compensable rating based on functional loss is not warranted.

The Board notes DCs 5003 and 5010 provide for ratings for degenerative disc disease or arthritis. DC 5003 is used where there is evidence of arthritis and some limitation of motion, but not enough limitation of motion to be compensable under the appropriate DC. As discussed above, the Veteran's disability rating under DC 5243 has been based on limitation of motion and a separate rating under DC 5003 or 5010 would be for the same symptomatology. As separate ratings may not be assigned for the same symptomatology, a separate 10 percent rating under DC 5003 or 5010 for the Veteran's limitation of motion is not warranted in this case.

Regarding neurological impairment, the Veteran has been awarded service connection for right and left upper extremity radiculopathy, each rated as 20 percent disabling. Claims for increased ratings for those disabilities are evaluated immediately below. The lay and medical evidence of record otherwise is against a finding that the Veteran has any other neurological abnormality associated with his spine disability.

For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 20 percent for cervical strain with degenerative joint disease and IVDS. As the evidence of record persuasively weighs against a rating in excess of 20 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3
ity radiculopathy, each rated as 20 percent disabling. Claims for increased ratings for those disabilities are evaluated immediately below. The lay and medical evidence of record otherwise is against a finding that the Veteran has any other neurological abnormality associated with his spine disability.

3. Entitlement to a rating in excess of 20 percent from November 23, 2021, to March 8, 2022, for right (dominant) upper extremity radiculopathy

4. Entitlement to a rating in excess of 20 percent from November 23, 2021, to March 8, 2022, for left upper extremity radiculopathy

The Veteran's right and left upper extremity radiculopathy disabilities are rated under DC 8510, based on paralysis of the upper radicular group. The Veteran contends that higher ratings are warranted. The Board will consider whether higher ratings are warranted for the above-listed time period, as well as whether there was a clear increase in disability within one year of the November 23, 2021, intent to file a claim for increased rating.

Under 38 C.F.R. § 4.124a, DC 8510, mild incomplete paralysis of the upper radicular group is rated as 20 percent disabling on the major side and 20 percent on the minor side; moderate incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side; and severe incomplete paralysis is rated 50 percent disabling on the major side and 40 percent on the minor side. Complete paralysis of the upper radicular group, with all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected, is rated 70 percent disabling on the major side and 60 percent on the minor side.

Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. Rather than applying a mechanical formula, the Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124.

Descriptive words such as "mild," "moderate," and "severe" are not defined in the Rating Schedule. As with any regulatory interpretation where the terms are not defined in the regulation, we presume those terms carry their ordinary dictionary meaning. See Moody v. Wilkie, 30 Vet. App. 329, 336 (2018). The Board finds that these terms are unambiguous and, therefore, a plain dictionary meaning is an appropriate definition. Cf. Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019); see also 38 C.F.R. § 4.6 (noting, in general, the Board does not evaluate evidence by applying a mechanical formula, but rather conscientiously to the end that its decisions are equitable and just). According to Merriam Webster's Collegiate Dictionary 999 (11th Ed. 2007), "mild" means gentle in nature or temperate. "Moderate" means limited in scope or effect or average in amount, intensity, quality, or degree. Webster's New World Dictionary (2nd ed. 1999), 1012. "Severe" means very painful or harmful or of a great degree. Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

The term "incomplete paralysis" indicates a
mild" means gentle in nature or temperate. "Moderate" means limited in scope or effect or average in amount, intensity, quality, or degree. Webster's New World Dictionary (2nd ed. 1999), 1012. "Severe" means very painful or harmful or of a great degree. Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017).

The Veteran was afforded a VA examination in December 2021. The Veteran's right and left upper extremity radiculopathy included symptoms of pain and tingling radiating from the neck, to the shoulders, and then to the bilateral arms. The Veteran was right hand dominant. Symptoms included mild right and left upper extremity intermittent pain and mild paresthesias and/or dysesthesias. On testing, the Veteran had normal bilateral upper extremity muscle strength, no muscle atrophy, normal bilateral upper extremity reflexes, and normal bilateral upper extremity sensation. The Veteran had no trophic changes. The examiner concluded that the Veteran had mild, incomplete paralysis of the right and left upper radicular group (fifth and sixth cervicals). The Veteran used no assistive devices for the upper extremities. The right and left upper extremity peripheral neuropathy did not affect the Veteran's ability to work.

The Veteran is rated as 20 percent disabling for his right major extremity and as 20 percent disabling for his left minor extremity under DC 8510. These ratings correspond to mild, incomplete paralysis of the upper radicular group for the relevant extremity. The evidence of record does not suggest that the Veteran's right or left upper extremity radiculopathy is more severe than currently rated for any period on appeal. As noted above, the Veteran reported mild symptomatology during examination and he had normal muscle strength, normal reflexes, and normal sensation. In light of the foregoing, the Board finds that the level of impairment is most analogous to mild incomplete paralysis and that a higher rating under DC 8510 is not warranted for either extremity for any period on appeal.

The Board has considered all other potentially applicable DCs, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different DC is not warranted.

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For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for ratings in excess of 20 percent for right and left upper extremity radiculopathy. As the evidence of record persuasively weighs against ratings in excess of 20 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (2021).

PAULA B. McCARRON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C. J. Houbeck, 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.

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