Citation Nr: 1323033	
Decision Date: 07/18/13    Archive Date: 07/24/13

DOCKET NO.  09-05 417	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for sleep apnea.  

2.  Entitlement to service connection for chronic sleep impairment (claimed as sleep degradation).  

3.  Entitlement to an initial disability rating higher than 10 percent for an acquired psychiatric disorder.

4.  Entitlement to an initial disability rating higher than 10 percent for residuals, right knee injury.

5.  Entitlement to an initial disability rating higher than 10 percent for migraine headaches.

6.  Entitlement to an initial compensable rating prior to November 17, 2011, and to an initial disability rating higher than 50 percent effective November 17, 2011, for service-connected maxillary frontal sinusitis.  

7.  Entitlement to an initial compensable rating prior to November 17, 2011, and to an initial disability rating higher than 10 percent effective November 17, 2011, for service-connected allergic rhinitis.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

P. Childers, Counsel


INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran served on active duty from January 1988 to September 1991, including service in the Persian Gulf in January 1991.

This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in October 2007, April 2012, and August 2012 by a Department of Veterans Affairs (VA) Regional Office (RO).  Jurisdiction is presently with the Montgomery RO.  The October 2007 rating decision, which was issued by the St. Petersburg RO, denied service connection for sleep degradation.  The April 2012 rating decision, the Appeals Management Center (AMC), granted service connection for sinusitis with an assigned noncompensable rating until November 17, 2011, when a 50 percent rating was assigned.  The AMC also granted service connection for rhinitis with an assigned noncompensable rating until November 17, 2011, when a 10 percent rating was assigned.  The August 2012 rating decision, which was issued by the Montgomery RO, granted service connection for an acquired psychiatric disorder with an assigned rating of 10 percent; service connection for migraine headaches with an assigned rating of 10 percent; and service connection for residuals of a right knee injury with an assigned rating of 10 percent.

In September 2011, and again in June, 2012, the Board remanded the claims for further procedural and evidentiary development, including provision to the Veteran of VA examinations.  No further action to ensure compliance with the Board's remand directives is required.  Stegall v. West, 11 Vet. App. 268 (1998).  

In February 2013, the Veteran requested the opportunity to testify by video-conference before a Veterans Law Judge; however, in a signed April 2013 statement, he withdrew this request.  In addition, in June 2013 he submitted additional evidence that was accompanied by a waiver of RO consideration; this evidence will be considered in the adjudication of this appeal.


FINDINGS OF FACT

1.  The preponderance of the lay and medical evidence shows that the Veteran's sleep apnea was not present in service or until many years thereafter; and it is not related to service or to an incident of service origin, including to his service-connected sinusitis and rhinitis disabilities.  

2.  The Veteran's complaints of sleep degradation/deprivation/insomnia is a chronic sleep impairment symptom of his service-connected psychiatric disability.  

3.  The Veteran's psychiatric disability has been productive of chronic sleep impairment (insomnia), irritability, reclusiveness, and mild memory loss throughout the appeal period; however, the preponderance of the evidence shows that the disability has not been productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships

4.  The Veteran's right knee disability has not been productive of flexion less than 45 degrees, extension greater than zero, or lateral instability or subluxations; but it been productive of less than full flexion and pain on motion throughout the appeal.

5.  The Veteran's migraine headaches disability is productive of characteristic prostrating attacks on the average of once every couple of months.

6.  The Veteran has expressed his satisfaction with a rating of 50 percent for his service-connected sinusitis disability, and with a rating of 10 percent for his service-connected rhinitis disability; and the evidence supports a rating of 50 percent for sinusitis and 10 percent for rhinitis throughout the appeal.


CONCLUSIONS OF LAW

1.  Sleep apnea was not incurred in or aggravated by service or a service-connected disability; and it may not be presumed to have been incurred during service.  38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310, 3.317 (2012).

2.  As the Veteran's claimed sleep degradation/sleep deprivation/insomnia is already rated under his service-connected psychiatric disability, the appeal for service connection for this complaint is dismissed.  38 U.S.C.A. § 7105 (West 2002). 

3.  The criteria for an initial disability rating of 30 percent, but no more, for an acquired psychiatric disability have been met throughout the appeal period.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9499-9411 (2012). 

4.  The criteria for an initial disability rating higher than 10 percent for residuals, right knee injury, have not met at any time during the appeal period.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5010, 5260-61, 5257 (2012). 

5.  The criteria for an initial disability rating higher than 10 percent for migraine headaches have not been met at any time during the appeal period.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012).

6.  There being no justiciable case or controversy, the appeal for an initial disability rating higher than 50 percent for sinusitis beginning November 17, 2011, is dismissed.  38 U.S.C.A. § 7105 (West 2002).  

7.  There being no justiciable case or controversy, the appeal for an initial disability rating higher than 10 percent for allergic rhinitis beginning November 17, 2011, is dismissed.  38 U.S.C.A. § 7105 (West 2002).  

8.  The criteria for a rating of 50 percent for sinusitis from May 2, 2007, to November 17, 2011, are met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.97, Diagnostic Code 6513 (2012).

9.  The criteria for a rating of 10 percent, but no more, for allergic rhinitis from May 2, 2007, to November 17, 2011, are met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.97, Diagnostic Code 6522 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty to notify the claimant of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  

The notice requirements were accomplished in letters dated in July 2007 and October 2011.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006).  The Veteran was apprised of the information and evidence needed to substantiate his claim for service connection, including the information and evidence to be submitted by him and the information and evidence to be obtained by VA.  He was also apprised of how disability evaluations and effective dates are assigned, and of the type of evidence that impacts those determinations.  Although VCAA notice pertaining to secondary service connection was not sent, the Veteran was not prejudiced by this error because he had a meaningfully opportunity to participate effectively in the processing of the claim.  The Veteran argued the theory of secondary service connection during the appeal period, and the RO in turn accorded the Veteran a VA examination with a request for a medical opinion as to whether the Veteran's sleep apnea was caused or aggravated by a service-connected disability; which the examiner provided.  The Veteran was then afforded the opportunity to submit additional argument; the matter was ultimately readjudicated and a Supplemental Statement of the Case issued in February 2013.

As the purpose of the VCAA notice was to notify the Veteran of the information and evidence not of record that was necessary to substantiate the claim of service connection on a secondary basis, namely, evidence that the Veteran's sleep degradation was caused by or aggravated by his service-connected sinusitis or rhinitis, and as VA developed the record to assist the Veteran in support of this theory of entitlement, the Veteran was not harmed as the Veteran's interest that the VCAA notice was designed to protect was not affected; that is, the essential fairness of the adjudication was not affected because of adequate notice of the need to submit evidence and argument (cured by Veteran's actual knowledge that certain evidence, namely, a nexus between a service-connected disability and a nonservice-connected disorder, was needed to substantiate the claim); and the Veteran had the opportunity to submit such evidence and argument (cured by VA obtaining a medical examination and opinion on the issue).  Based on the facts and circumstances of the entire record, the Board finds no evidence that the Veteran was prejudiced by a lack of VCAA notice pertaining to secondary service connection. 

As for the other issues resolved in this decision, namely, higher rating for migraine headaches, a right knee disability, a psychiatric disability, sinusitis, and rhinitis stem from the initial grant of service connection.  Where, as here, the benefit sought has been granted and the initial rating has been assigned, the claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  In other words, once the underlying service connection claim has been granted, the filing of a notice of disagreement with the RO's decision regarding the assigned rating does not trigger additional 38 U.S.C.A. § 5103(a) notice.  Thus, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in a claim for a higher rating following the initial grant of service connection.  Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008).

As for VA's duty to assist, VA has associated with the claims file the service treatment records and reports of his post-service care.  The Veteran has also been afforded numerous VA examinations, and offered the opportunity to testify at a hearing before the Board; which he initially accepted, but later declined.

As the Veteran has not identified any additional evidence pertinent to the claims, and as there are no additional records to obtain, the Board concludes that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of his claims.  

II.  Service Connection Claim

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 C.F.R. § 3.303(a).  Disorders diagnosed after service may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d).  

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability, which includes the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability.  See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995).  To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516- 17 (1995).

Because the Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War, service connection may also be established under 38 U.S.C.A. § 1117 (West 2002 & Supp. 2012) and 38 C.F.R. § 3.317 (2012).  Under those provisions, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of Operations during the Persian Gulf War.  For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of Operations or to a degree of 10 percent or more not later than December 31, 2016.  38 C.F.R. § 3.317(a)(1).  

For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities:  (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection.

An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis.  In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. at 8-9.  Further, lay persons are competent to report objective signs of illness.  Id.  To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar.  See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006).  

A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness.  A "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities."  Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  38 C.F.R. § 3.317(a)(2)(ii).

Presumptive service connection is warranted for certain infectious diseases:  (i) Brucellosis; ii) Campylobacter jejuni; (iii) Coxiella burnetii (Q fever); (iv) Malaria; (v) Mycobacterium tuberculosis; (vi) Nontyphoid Salmonella; (vii) Shigella; (viii) Visceral leishmaniasis; and (ix) West Nile virus.  38 C.F.R. § 3.317(c)(1-2).  The diseases listed in paragraph 38 C.F.R. § 3.317(c)(2) will be considered to have been incurred in or aggravated by service under the circumstances outlined in paragraphs (c)(3)(i) and (ii) of this section even though there is no evidence of such disease during the period of service.  

With three exceptions, the diseases listed in 38 C.F.R. § 3.317(c)(2) must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service as specified in paragraph (c)(3)(ii) of this section.  Malaria must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service or at a time when standard or accepted treatises indicate that the incubation period commenced during a qualifying period of service.  There is no time limit for visceral leishmaniasis or tuberculosis to have become manifest to a degree of 10 percent or more. 

Further, if a Veteran who has or had an infectious disease identified in column A of 38 C.F.R. § 3.317(d)(2) also has a condition identified in column B of that section as potentially related to that infectious disease, VA must determine, based on the evidence in each case, whether the column B condition was caused by the infectious disease for purposes of paying disability compensation.  This does not preclude a finding that other manifestations of disability or secondary conditions were caused by an infectious disease.  If a Veteran presumed service connected for one of the diseases listed in paragraph (c)(2) of this section is diagnosed with one of the diseases listed in column "B" in the table within the time period specified for the disease in the same table, if a time period is specified or, otherwise, at any time, VA will request a medical opinion as to whether it is at least as likely as not that the condition was caused by the Veteran having had the associated disease in column "A" in that same table. 

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(3).  Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following:  (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b).  

For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a)(4).

In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and the medical evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence); see also Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same).  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.  See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990).  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

Analysis

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

Preliminarily, the Board notes that the provisions of 38 C.F.R. § 3.317 do not apply as to this claim since sleep apnea is not is an undiagnosed disorder or a medically unexplained chronic multi symptom illness; and since it is not a diagnosed illness that the Secretary has determined warrants a presumption of service connection.

The evidence confirms that the Veteran presently suffers from sleep impairment, including sleep apnea; however, the earliest evidence in the claims file of sleep apnea derives from the 2011 VA examination, long after the Veteran's separation from active duty service.  There is also no probative evidence of record that relates the Veteran's sleep apnea to service.  VA examiners in November 2011 and November 2012 both stated that the Veteran's obstructive sleep apnea is not related to service since there were no complaints or diagnosis in service; and the Board accords this evidence, which is uncontradicted by any other lay or medical evidence of record, great weight.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (The Board, as fact finder, must determine the probative value or weight of the evidence).  As such, the Board finds that the preponderance of the evidence is against a finding that the Veteran's sleep apnea is related to service.  

As for the Veteran's proposition that his sleep apnea may be related to his service-connected sinusitis and/or rhinitis disabilities, the Veteran is not competent to offer an opinion on the relationship between one medical condition and another.  See Kahana; see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). 

By contrast, a VA examiner has determined that there is no relationship between the Veteran's sleep apnea and his service-connected sinusitis and rhinitis, i.e., that the Veteran's sleep apnea was not caused, and is not aggravated, by his service-connected disabilities.  Thus, the Board finds that the preponderance of the evidence is against service connection for sleep apnea under the direct (38 C.F.R. § 3.303) and secondary (38 C.F.R. § 3.310) theory of entitlement and the benefit of the doubt standard of proof does not apply.  Gilbert, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b)); 38 C.F.R. § 3.102.  

As regards the Veteran's complaints of extreme wakefulness/sleep deprivation, according to the medical evidence of record, the Veteran's insomnia is a symptom of his psychiatric disability and in the August 2012 rating decision on appeal this sleep impairment was acknowledged to be a symptom of the Veteran's service-connected psychiatric disability and in fact is a basis of a higher rating for the condition, as will be discussed below.

III.  Higher Rating Claims

Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Separate diagnostic codes identify the various disabilities.  Id.  It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor.  38 C.F.R. § 4.3.  If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already 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 (1994).  Here, the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time.  Fenderson v. West, 12 Vet. App. 119 (1999).  Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Fenderson, 12 Vet. App. 119, 126; Hart, 21 Vet. App. 505.

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14 (2012).  Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.  Id.; Esteban v. Brown, 6 Vet. App. 259 (1994).

All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6, 4.7.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim, or whether a preponderance of the evidence is against the claim.  Gilbert, 1 Vet. App. 49.

Psychiatric disability

In a rating decision dated in August 2012, the RO granted service connection for an acquired psychiatric disorder and assigned a 10 percent rating effective May 2, 2007.  The Veteran has appealed the assigned rating.  

The Veteran's psychiatric disorder has been evaluated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9499-9411, throughout the appeal period.  

Under the provisions of 38 C.F.R. § 4.130, a 10 percent rating is warranted where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.  38 C.F.R. § 4.130, Diagnostic Code 9411.  

A 30 percent evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events).  Id.  

The criteria for the next higher rating of 50 percent are occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  Id.  

A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships.  38 C.F.R. § 4.130, Diagnostic Code 9411.  

The highest rating of 100 percent is warranted where there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.

Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. 4.6.  Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6. 

Use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation.   Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the veteran's symptoms.  See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013) 

Global assessment of functioning (GAF) scores, which reflect the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health, are also useful indicators of the severity of a mental disorder.  See DSM-IV.  

GAF scores between 91-100 are indicative of no symptoms; i.e., there is superior functioning in a wide range of activities; life's problems never seem to get out of hand; the individual is sought out by others because of his or her many positive qualities.  GAF scores between 81-90 denote absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members).  A score between 71-80 means that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).

An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned.  The percentage evaluation is to be based on all the evidence that bears on occupational and social impairment.  38 C.F.R. § 4.126.  
For the reasons that follow the Board finds that the preponderance of the evidence supports a rating of 30 percent, but no more, under the assigned diagnostic criteria (Diagnostic Code 9411) at all times during the appeal period.  
On VA examination in November 2011, the examiner stated that the Veteran was functioning very well, without impairment, in all areas of his life; however, the examiner did note the Veteran's complaint of chronic sleep impairment, which the examiner identified as insomnia.  In addition, in a statement dated in November 2011 the Veteran's spouse stated that his sleep pattern was a great concern, and that he only slept about 3 hours each daily.  She also lamented that he had become an introvert and was irritable and frustrated, and added that his ability to recall memorable events or occasions appeared to be decreasing.  And in separate statements dated in July 2012, the Veteran's mother and two of the Veteran's friends also stated that the Veteran never seemed to sleep since his separation from service.  The Board finds no reason to doubt the veracity of any of this lay evidence, particularly as each witness explained his/her reasons for his opinion.  Thus, notwithstanding a found GAF of 90 during the November 2011 examination, when interpreted in light of the whole recorded history and reconciling the various reports into a consistent picture, the Board finds that the evidence portrays a consistent pattern of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to the Veteran's chronic sleep impairment, irritability, reclusiveness, and mild memory loss.  38 C.F.R. §§ 4.3, 4.7.  The criteria for a rating of 30 percent have therefore been met throughout the appeal.  
The Veteran finds that the preponderance of the evidence, however, shows that the Veteran does not suffer from the kinds of symptoms contemplated by the next higher rating of 50 percent, such as panic attacks more than once a week, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, etc.; nor the severity of symptoms contemplated by a rating of 50 percent or more, as demonstrated by his GAF of 90.  Vazquez-Claudio.  As such, the Board finds that the criteria for a rating of 50 or more are not met at any time during the appeal and a staged rating is in turn not warranted.  Fenderson, 12 Vet. App. 119.

Right knee

In a rating decision dated in August 2012, the RO granted service connection for residuals, right knee injury and assigned a 10 percent rating effective May 2, 2007.  The Veteran has appealed the assigned rating.

The Veteran's right knee disability has been rated under the provisions of Diagnostic Code 5010-5261 throughout the appeal period.  

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  The U.S. Court of Appeals for Veterans Claims (Court) has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability.  DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45.

Diagnostic Code 5010 provides for evaluation as degenerative arthritis under Diagnostic Code 5003.  See 38 C.F.R. § 4.71a.  Under Diagnostic Code 5003, for degenerative arthritis established by x-ray findings, a Veteran is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  A 10 percent rating is appropriate upon x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent rating is appropriate upon x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  However, when limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or groups of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003.  Limitation of motion must be objective confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  

Limitation of motion of the knee is rated under either Diagnostic Code 5260 (limitation of flexion) or Diagnostic Code 5261 (limitation of extension).  A separate rating may be assigned for each, that is, for limitation of flexion and for limitation of extension.  37 C.F.R. § 4.71a.; see also VAOPGCPREC 9-04.

Under Diagnostic Code 5260, flexion limited to 45 degrees is 10 percent disabling; flexion limited to 30 degrees is 20 percent disabling; and flexion limited to 15 degrees is 30 percent disabling.  Id.  

Under Diagnostic Code 5261, extension limited to 5 degrees is zero percent disabling; extension limited to 10 degrees is 10 percent disabling; extension limited to 15 degrees is 20 percent disabling; and extension limited to 20 degrees is 30 percent disabling.  Id.  

In addition to the foregoing, Diagnostic Code 5257 provides for a 10 percent rating for either slight recurrent subluxation or slight lateral instability.  38 C.F.R. § 4.71a, Diagnostic Code 5257.  Moderate recurrent subluxation or moderate lateral instability is rated 20 percent disabling.  Id.  Severe recurrent subluxation or severe lateral instability is rated 30 percent disabling.  Id.  

Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion.  38 C.F.R. § 4.71, Plate II.

Diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, 4.59.  Johnson v. Brown, 9 Vet. App. 7 (1997); and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  

Analysis

Although there is less than full range of motion of the motion of the right knee, the criteria for a minimum rating of 10 percent under Diagnostic Code 5260 are not met as there is no evidence of flexion limited to 45 degrees at any time during the appeal period.  There is also no limitation of extension, and no lateral instability or subluxation of the right knee, so a rating of 10 percent or more under Diagnostic Codes 5261 and 5257 is not warranted.  However, according to the 2011 VA examiner, there is additional limitation of motion after repetitive use as well as pain on motion of the right knee.  VA examiners in February and October 2012 also found functional loss/impairment of the right knee, including less movement than normal, and pain on movement.  Therefore, in accordance with DeLuca, and according the Veteran all reasonable doubt, the Board finds that a rating of 10 percent based on limitation of motion secondary to pain, as has already been awarded by the RO, is warranted.  DeLuca, 8 Vet. App. 202, 206; see also Burton v. Shinseki, 25 Vet. App. 1 (2011).  There is no basis for a rating higher than 10 percent.

Migraine headaches

In a rating decision dated in August 2012, the RO granted service connection for migraine headaches with a 10 percent rating effective May 2, 2007.  The Veteran has appealed the assigned rating.

The Veteran's migraine headaches disability has been rated under the provisions of Diagnostic Code 8100 at all times during the appeal period.  

Under Diagnostic Code 8100, a 10 percent rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in 2 months over last several months.  38 C.F.R. § 4.124a, Diagnostic Code 8100.  A 30 percent rating for migraine headaches is warranted where there are characteristic prostrating attacks occurring on an average once a month over last several months.  Id.  A maximum rating of 50 percent is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  Id.  

Analysis

Although the Veteran has a diagnosis of migraine headaches, according to the November 2011 examiner the Veteran's prostrating attacks of headache pain are on the frequency of once every couple of months, which belies a rating of 30 percent.  In this regard the Board notes that while the Veteran states that he gets a headache every few days, he also suffers from headaches related to his service-connected sinusitis disability, which is rated as 50 percent disabling.  Indeed, the Veteran admits that his headaches are usually relieved with over-the-counter medication.  Moreover, according to the November 2011 VA examiner, the Veteran's migraine headache condition does not impact his ability to work; and the Board notes that the Veteran does not take prescription medication for his headaches pain and he has been gainfully employed throughout the appeal period.  Accordingly, based on the lay evidence of record, the Board finds that the criteria for the next higher rating of 30 percent under Diagnostic Code 8100 are not met at any time during the appeal period and a staged rating is in turn not warranted.

Rhinitis & Sinusitis

In a rating decision dated in April 2012, the AMC granted service connection for maxillary frontal sinusitis with a noncompensable rating until November 17, 2011, when a 50 percent rating was assigned; and service connection for allergic rhinitis with a noncompensable rating until November 17, 2011, when a 10 percent rating was assigned.

In a notice of disagreement dated in May 2012 the Veteran the Veteran expressed his satisfaction with the assigned 10 percent rating for his service-connected rhinitis, and the assigned 50 percent rating for his service-connected sinusitis.  His only dispute was that these ratings should have been effective throughout the entire appeal period, from the date of service connection; e.g., May 2, 2007.  

In a Statement of the Case dated in February 2013 the RO identified the issues as entitlement to an initial disability rating higher than 0 percent prior to November 17, 2011, and higher than 50 percent effective November 17, 2011, for maxillary frontal sinusitis; and entitlement to an initial disability rating higher than 0 percent prior to November 17, 2011, and higher than 50 percent effective November 17, 2011, for allergic rhinitis.  The Veteran filed a substantive appeal to this Statement of the Case.

In correspondence dated in June 2013 the Veteran again expressed his satisfaction with the assigned 10 percent rating for his service-connected rhinitis, and the assigned 50 percent rating for his service-connected sinusitis, and reiterated that his only dispute was that these ratings should have been effective from the May 2, 2007, date of service connection.  

As the June 2013 correspondence clearly evinces the Veteran's satisfaction with the assigned 10 percent rating for his service-connected allergic rhinitis disability effective November 17, 2011, and the assigned 50 percent rating for his service-connected maxillary frontal sinusitis disability effective November 17, 2011, there remain no allegations of errors of fact or law for appellate consideration in this matter.  The appeals for an initial disability rating higher than 10 percent beginning November 17, 2011, for rhinitis, and for an initial disability rating higher than 50 percent beginning November 17, 2011, for sinusitis, are therefore dismissed.  See AB, 6 Vet. App. 35, 39 (a veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise).  Consequently, the only issue remaining is whether a compensable rating prior to November 17, 2011, for the Veteran's service-connected rhinitis disability and his service-connected sinusitis disability is warranted.

The Veteran's sinusitis disability has been rated under the provisions of Diagnostic Code 6513, and his rhinitis disability has been rated under the provisions of Diagnostic Code 6522, throughout the appeal period.  

Under the General Rating Formula for Sinusitis (Diagnostic Codes 6510 through 6514), a maximum rating of 50 percent is warranted following radical surgery with chronic osteomyelitis, or when there is near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries.  38 C.F.R. § 4.97, Diagnostic Code 6513.

Diagnostic Code 6522 outlines the rating criteria for allergic rhinitis.  Pursuant to Diagnostic Code 6522, a 10 percent rating is assigned based on evidence of allergic rhinitis without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side.  The next higher rating of 30 percent requires evidence of nasal polyps.  38 C.F.R. § 4.97, Diagnostic Code 6522.

Based on a full review of the evidence of record, the Board finds that the criteria for a 50 percent rating for sinusitis, and for a 10 percent rating for rhinitis, have been met throughout the appeal period.  38 C.F.R. §§ 4.3, 4.7. 

On VA sinusitis/rhinitis examination in November 2011, the Veteran complained of headaches, near constant sinusitis, sinus pain and tenderness, and purulent discharge, nasal congestion and excess nasal mucous.  Physical examination found greater than 50 percent obstruction on both sides due to rhinitis, but no nasal polyps.  Diagnosis was chronic sinusitis and allergic rhinitis.  It is upon this examination evidence that the AMC awarded service connection and based its assignment of a 10 percent rating for rhinitis and a 50 percent rating for sinusitis; effective the date of this examination.

The Veteran argues that his symptoms at the time of the November 2011 examination were the same as they were when he filed his claim in 2007, and points out that he was not accorded a VA examination until 2011.  The Board finds the Veteran's argument persuasive since private medical records dating from April 2007 do indeed relate complaints of itchy red eyes, runny nose, recurrent sinus congestion, sinus pain and pressure on both sides, headache, purulent discharge, and other symptoms (though no polyps); particularly during allergy seasons; diagnosed as sinusitis and rhinitis.  Accordingly, based on the evidence of record, and according the Veteran all reasonable doubt, the Board finds that the criteria for a 10 percent rating for rhinitis, and a 50 percent rating for sinusitis, have been met throughout the appeal period.  38 C.F.R. § 4.3. 

IV.  Extraschedular and TDIU consideration

In exceptional cases, an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

The Board is also mindful that in an initial rating claim, a claim for TDIU [total disability rating for compensation based on individual unemployability] is part of an increased rating claim when such claim is raised by the record (Rice v. Shinseki, 22 Vet. App. 447 (2009)). 

In this case the evidence shows that the assigned schedular rating criteria adequately contemplate the Veteran's symptoms, and there are no symptoms attributable to the Veteran's service-connected psychiatric disorder, knee, migraine headaches, sinusitis, or rhinitis that are left uncompensated or unaccounted for by the assignment of a schedular rating.  As the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular rating is adequate, and referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted. 

Additionally, the Veteran does not report, and the evidence does not show, that his service-connected psychiatric disorder, knee, migraine headaches, sinusitis, or rhinitis disabilities alone are, jointly or severally, of sufficient severity to produce unemployability (and, indeed, the Veteran is engaged in substantially gainful employment), so the Board need not address the matter of entitlement to TDIU.  See 38 C.F.R. § 4.16; see also Rice, 22 Vet. App. 447. 








ORDER

Service connection for sleep apnea is denied.  

The appeal for service connection for chronic sleep impairment/sleep deprivation/sleep degradation, diagnosed as insomnia, is dismissed.

An initial disability rating of 30 percent for an acquired psychiatric disorder is granted, subject to the laws and regulations governing the award of monetary benefits.

An initial disability rating higher than 10 percent for migraine headaches is denied.

An initial disability rating higher than 10 percent for residuals of a right knee injury is denied.

An initial disability rating of 10 percent from May 2, 2007, to November 17, 2011, for rhinitis is granted, subject to the laws and regulations governing the award of monetary benefits.

An initial disability rating of 50 percent from May 2, 2007, to November 17, 2011, for sinusitis is granted, subject to the laws and regulations governing the award of monetary benefits.

The appeal for an initial disability rating higher than 50 percent for sinusitis is dismissed.

The appeal for an initial disability rating higher than 10 percent for rhinitis is dismissed.


____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs