Citation Nr: 1325328 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 09-41 369 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a claimed innocently acquired psychiatric disorder, to include depression and anxiety. 2. Entitlement to service connection for claimed hypertension. 3. Entitlement to service connection for claimed neurological condition of the bilateral lower extremities. 4. Entitlement to service connection for claimed varicose veins of the left lower extremity. 5. Entitlement to service connection for claimed sleep apnea. 6. Entitlement to an increased initial rating for the service-connected right knee meniscus tear status-post arthroscopy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1970, from August 1978 to December 1978, and from August 1981 to September 1997. He also served with the National Guard. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the RO. In April 2012, the Board granted service connection for cervical spine degenerative changes. The remaining issues were remanded for additional development. In November 2012, the RO granted service connection for varicose veins of the right lower extremity (claimed as a condition involving the lower extremities, to include neuropathy). The RO stated that this was a full grant of the issue on appeal; however, in the December 2012 Supplemental Statement of the Case, it listed the issue of service connection for claimed condition involving the bilateral lower extremities, to include neuropathy and left lower extremity varicose veins. In reviewing the Supplemental Statement of the Case, it appears to consider the issues of service connection for left leg varicose veins and for a neurological condition, specifically bilateral radiculopathy. Neurological conditions (such as neuropathy and radiculopathy) and varicose veins involve different body systems and diagnostic codes (peripheral nerve disease versus diseases of the arteries and veins). With consideration of the RO's recent grant and for purposes of clarity, the Board has rephrased the issues as stated on first page of this document. The Virtual VA eFolder has been reviewed. In April 2012, the Board referred the issue of service connection for a lumbar spine disorder. While this issue was somewhat addressed in the December 2012 Supplemental Statement of the Case, it does not appear that a rating decision was furnished and the issue is again referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. A claim of service connection for bilateral hearing loss has also been raised by the record. This issue has not been adjudicated by the AOJ and is also referred for appropriate action. The issues of service connection for a claimed neurological condition of the lower extremities, varicose veins of the left lower extremity, and sleep apnea are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The currently demonstrated depressive disorder is shown as likely as not to have had its clinical onset during the Veteran's active service. 2. The currently demonstrated hypertension is shown as likely as not to have had its clinical onset during the Veteran's active service. 3. The Veteran's service-connected right knee meniscus tear status-post arthroscopy is shown to be symptomatic and productive of a disability picture that more nearly approximates that of frequent episodes of joint pain and right knee giving way. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, his acquire psychiatric disability manifested by a depressive disorder is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. By extending the benefit of the doubt to the Veteran, his disability manifested by hypertension is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for the assignment of an initial 10 percent rating, and no more, for service-connected right knee meniscus tear status-post arthroscopy are met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, to include Diagnostic Code 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As set forth below, the Board is granting service connection for an acquired psychiatric disorder and hypertension. In light of these favorable decisions, a full discussion of how VA satisfied its duty to notify and to assist with regard to these matters is not required at this time. With regard to the remaining issue decided, the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. In October 2007, VA sent the Veteran a letter notifying him of the information and evidence needed to substantiate and complete a service connection claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. This letter also provided notice of how VA assigns disability ratings and effective dates. The evaluation for the service-connected right knee meniscus tear stems from the initial grant of service connection and is a downstream issue. As service connection, an initial rating, and an effective date have been assigned, the notice requirements have been met. The Veteran has been advised of applicable rating criteria during the appeal and the claim was most recently readjudicated in the December 2012 Supplemental Statement of the Case. VA has also satisfied its duty to assist. The claims folder contains the Veteran's service treatment records and VA medical center records. The claims folder also contains various private medical records. In this regard, the Board observes that the Veteran was apparently routinely treated by a private physician during his active service. Pursuant to the April 2012 remand, the RO was to take appropriate steps to obtain outstanding records, to specifically include those from Dr. G.R. In April 2012, the AMC asked the Veteran to submit an authorization for release of records from this provider. He was also offered the option to send in the records himself. A May 2012 AMC note indicates that the Veteran was contacted and stated that he sent the authorization for Dr. G.R. The AMC subsequently received a statement from the Veteran, which included records from Dr. G.R. The Board is unable to locate a specific authorization for this provider and assumes that the Veteran was referring to his submission of records. The Veteran was provided VA examinations to determine the severity of his service-connected right knee disability in May 2008 and April 2012. These examinations included the necessary findings for evaluating the Veteran's right knee disability and address functional impairment. The examinations are considered adequate. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Analysis Service connection In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(a), service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus'requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection will be presumed for certain chronic diseases, including hypertension, if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Innocently acquired psychiatric disorder In September 2007, the Veteran submitted a claim of service connection for a "depression condition." In October 2008, the RO denied service connection for depression and the Veteran subsequently perfected an appeal of this decision. In his VA Form 9, the Veteran argued that his depressive symptoms started during the calendar years 1995 through 1997, basically due to three events: his son suffering a severe infection and being sent to Walter Reed for surgery; the tragic stabbing death of another son; and the death of his mother due to severe Alzheimer's disease. He reported that he retired one year early because he was not fully functional and then fell into a very depressed state following retirement. In April 2012, the Board recharacterized the issue as service connection for an innocently acquired psychiatric disorder, to include depression and anxiety. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The service treatment records include a March 1996 "Health Risk Appraisal Profile" (HRAP) noting that the Veteran had experienced significant depression in the past year and reported experiencing a lot of stress. On retirement examination in August 1997, the Veteran's mental health was reported as normal on clinical evaluation. The Veteran denied having depression, excessive worry, or nervous trouble of any sort. A July 1998 private record showed that the Veteran was depressed. He was prescribed Paxil and Xanax. An August 1998 statement from Dr. G.R. certified that the Veteran was under treatment for situational depression. The major precipitating factor was the assassination of his son with the following arrest and trial of the murderers. The private treatment records showed that the Veteran was hospitalized in June 1999 for a severe depressive state. He had been having episodes of frequent anguish for the past 2 months and had a past history of disease was listed as the "death (killing of stepson)". The summary noted a history of depression and a diagnosis of recurrent severe major depression. A July 1999 statement from Dr. G.R. reported that the Veteran had been her patient for the last 5 years and was treated for various conditions, including major depression and had been under severe stress during the last 4 years. One son was brutally murdered in January 1997; his mother died in May 1997; his other son required multiple surgeries due to a massive infection in the inguinal region. The examiner stated that this resulted in severe stress and that he then developed depression. An August 1999 statement from a private psychiatrist noted that the Veteran had been his patient since June 1999 after he was referred by a hospital psychiatrist where he was under care after the depressive symptoms of many years led to an emotional crisis that motivated him to look for emergency help. The severe family crises and other risk factors were discussed. It was noted that all of these situations and risk factors had interacted upon the Veteran in a very insidious way bringing about a persistent sad mood and other symptoms. A June 2010 statement from Dr. S.P.C., a psychiatrist, stated that the Veteran's life had been struck with tragedy that caused several recurrent depressive episodes since around 1997. The Veteran's stressful experiences were set forth. It was noted that he requested an early retirement because he was already having depressive symptoms. In summary, the physician stated that the Veteran suffered from a severe recurrent depressive disorder, as shown by the multiple episodes since 1999 and maybe even before he sought treatment. In a July 2010 statement, C.C.-S. stated that he had known the Veteran since 1963 and had served with him on various occasions during service. He noted that, during the period of 1995 to 1997, the Veteran suffered 3 major personal situations that affected his emotional stamina: his son's illness, his mother's death, and another son's murder. He further stated that following retirement, the Veteran suffered cyclical depression episodes. The Veteran underwent a VA mental disorders examination in April 2012. The diagnosis was that of depressive disorder, not otherwise specified. The Veteran reported that, following the murder of his son, he had sleeping difficulties and sadness and had not been the same person since then. He had also been dealing with his mother's death and the medical illness of his other son. Following review of the claims folder and examination and interview of the Veteran, the examiner opined that the claimed psychiatric condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In support of his opinion, the examiner provided the following rationale: After careful review of C-file and medical records, it was found that: there was no evidence of psychiatric complaints, psychiatric findings, nor psychiatric treatment prior to the military service, there was no evidence of psychiatric complaints, psychiatric findings, nor psychiatric treatment during to (sic) the military service. Although documentation from Dr. [S.] dated on June 11, 2010, indicate[d] veteran's (sic) with history of depression since 1997, veteran sought psychiatric care in 1999. Consistent identified stressors documented ha[d] been son's medical illness, son's murder, death of his mother occurred near or in 1997.["] No significant social or occupational difficulties documented. As set forth, the VA opinion is negative and does not support the claim. The Board acknowledges this opinion, but after careful consideration, finds it to be of limited probative value for the purpose of deciding this appeal. That is, while it acknowledges the Veteran's in-service personal stressors or tragedies, and the statements from private providers, it essentially discounts this information based on a finding that there were no psychiatric complaints or treatment during service. In reviewing service records, there was evidence in March 1996 that the Veteran was experiencing stress and depression. While he apparently denied symptoms at retirement, other evidence of record consistently documented his in-service crises, to include the stabbing death of his son and relates the onset of depression to those incidents. The Board finds no reason to doubt the credibility of the private medical statements and further notes that the Veteran is competent to report the symptoms of depression and when they started. See Layno v. Brown, 6 Vet. App. 464, 469 (1994) (Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection.") In reviewing the entire record, the Board finds the evidence to be in relative equipoise in showing that the Veteran's disability manifested by chronic depression as likely as not began during his period of active service. In resolving all reasonable doubt in the Veteran's favor, service connection for a depressive disorder is warranted. See 38 C.F.R. § 3.102. The most recent examination included only a diagnosis of depressive disorder, for which service connection is being granted herein. To the extent the record may contain other Axis I diagnoses, the Board observes that such are rated under the same General Rating Formula for Mental Disorders (38 C.F.R. § 4.130 , Diagnostic Codes 9201-9440). Thus, the Board finds a separate discussion of any other diagnosed psychiatric disorder unnecessary. See 38 C.F.R. §§ 4.14 (evaluation of the same disability under various diagnoses is to be avoided); Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009) (regarding whether separate ratings would ever be warranted for variously diagnosed psychiatric disabilities). Hypertension In October 2008, the RO denied the Veteran's claim of service connection for high blood pressure. The Veteran disagreed with the decision, arguing that high blood pressure was incurred while on active duty. He subsequently perfected this appeal. In the June 2013 informal hearing presentation, the representative questioned how much weight was assigned to private treatment records, particularly those dealing with timeframe during the Veteran's period of service. The representative also pointed out that elevated blood pressure readings were recorded within one year of service. A service treatment record dated in May 1993 showed a blood pressure reading of 128/94. It was noted that blood pressure was slightly elevated and should be followed up. An April 1994 HRAP indicated that the Veteran's blood pressure was mildly high. On examination in March 1996, the Veteran's blood pressure was reported as 140/86. A corresponding HRAP again noted that blood pressure was mildly high. On retirement examination in August 1997, the Veteran's blood pressure reading was recorded as 130/90. A chest x-ray study showed prominence of the right mediastinal border raising suspicion for dilatation of the ascending aorta. It was noted that this might be seen with patients who had prolonged hypertension; however, one should also consider post-stenotic dilatation from aortic stenosis. A review of the private records shows that, in November 1990, the Veteran's blood pressure was recorded as 140/90. An August 1996 record showed that the Veteran was seen with complaints of chest pain. His blood pressure was 160/96. Impression was that of chest pain and hypertension. A November 1998 statement from Dr. G.R. to Dr. M. indicated that the Veteran "ha[d] untreated hypertension (he did not take tabs you gave him)." A February 1999 private record showed a blood pressure of 150/96. It was noted that he had hypertension but did not take medication because his brother-in-law was taking hypertensive tablets and stopped. The records pertaining to his June 1999 psychiatric hospitalization noted a history of hypertension. A July 1999 statement from Dr. G.R. indicated that the Veteran had been his patient for the last 5 years and was under treatment for various conditions, including hypertension. A November 1999 statement from Dr. D.D. noted uncontrolled blood pressure with readings of 130/100 and 150/100. The Veteran underwent a VA examination in April 2012. Diagnosis was listed as hypertension with date of diagnosis as 1999. The examiner stated that the Veteran reported having problems with his blood pressure since his years in service but it was not until several years ago that he was told he had hypertension and was started on oral medication. The examiner opined that the Veteran's hypertension was less likely as not caused by or a result of his active military service. In support of this statement, she provided the following rationale: After carefully reviewing Veteran's C-file, there [was] no evidence of a diagnosis of hypertension nor of treatment for it during Veteran's military service. The medical certificate given by Dr. [G.R.], issued on 07/24/1999 mention[ed] that Veteran ha[d] been under her care for the past 5 years (first seen on 12/06/1994) and that he ha[d] history of hypertension, together with other conditions but [did] not mention when the hypertension started nor what type of treatment he was on. On April 30, 2001 Veteran [came] seeking treatment and for a first evaluation at the VA primary care clinics with the following: "chief complaints: indicated he would like to have [follow-up] care for health maintenance. [History] bronchial asthma, [left] inguinal hernia, [right] knee arthroscopy." On that occasion he [did] not mention having hypertension nor of being in treatment for it. As set forth, the VA opinion is negative and does not support the claim. The Board acknowledges this opinion, but after careful consideration, finds it to be of limited probative value for the purpose of deciding this appeal. The examiner essentially bases her opinion on the absence of in-service findings. However, there is no reference to the August 1997 x-ray study suggesting the possibility of prolonged hypertension or the service records noting mildly high blood pressure. Additionally, at the time of the April 2012 examination, the examiner did not have access to the private records received in May 2012. In particular, the August 1996 record (which was during a period of active service) showing a blood pressure reading of 160/96 and including a diagnosis of hypertension. The Board also acknowledges the examiner's comment that the Veteran was seen by VA in April 2001, but did not report hypertension at that time. Regardless, and as discussed, there is evidence of uncontrolled blood pressure and hypertension prior to that date. As such, in reviewing the entire record, the Board finds the evidence to be in relative equipoise in showing that the Veteran's hypertension as likely as not had its beginning during his extensive period of active service. In resolving all reasonable doubt in the Veteran's favor, service connection for hypertension is warranted. See 38 C.F.R. § 3.102. Increased evaluation In October 2008, the RO granted service connection for right and left knee osteoarthritis and assigned a 10 percent evaluation beginning on September 27, 2007. Service connection for right knee meniscus tear status post arthroscopy was also granted and assigned a noncompensable evaluation effective on October 1, 2007. The Veteran disagreed with the decision. As to osteoarthritis of the bilateral knees, he argued that each knee should be separately rated. With regard to the right knee meniscus tear, he reported that he had instability of the right knee and swelling. In September 2009, the RO assigned separate 10 percent evaluations for the osteoarthritis of each knee. The rating decision stated that this was considered a total grant of the benefits sought since it was his contention that a 10 percent evaluation should be assigned. The Veteran subsequently perfected an appeal regarding the evaluation assigned for the service-connected right knee meniscus tear status-post arthroscopy. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran's disability, the higher evaluation 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. VA regulations, set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The United States Court of Appeals for Veterans Claims (Court) has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." 38 C.F.R. § 4.40. VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. 38 C.F.R. § 4.14. In that regard, separate evaluations may be assigned for non-overlapping manifestations of knee disability. See e.g. VAOPGCPREC 9-2004, published at 69 Fed. Reg. 59,990 (Oct. 6, 2004) (separate ratings for limitation of flexion and extension of the knee); VAOPGCPREC 9-98, published at 63 Fed. Reg. 56,703-04 (Oct. 22, 1998) (separate ratings for instability and limitation of motion); VAOPGCPREC 23-97, published at 62 Fed. Reg. 63,604 (Dec. 1, 1997) (to the same effect). In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation is disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran suffered a medial meniscus tear during service and in April 1995, underwent a right knee arthroscopy. The Veteran underwent a right knee MRI in June 2007. The impression included that of a chronic partial tear of the posterior cruciate ligament. Blunting of the body of the medial meniscus and abnormal oblique linear signal involving the posterior horn extending to the periphery were also noted. The possibility of a meniscal re-tear was raised. It was noted, however, that postsurgical changes might have an identical MR appearance as a meniscal tear. The MRI also noted diffuse high grade chondromalacia of the medial tibial plateau weight-bearing articular surface; diffuse moderate chondromalacia of the medial femoral condyle weight bearing articular surface; and popliteal cyst. On VA examination in May 2008, the Veteran reported having intermittent bilateral knee pain. He complained of crepitation and increased pain when squatting. He denied locking or swelling. No episodes of dislocation or recurrent subluxation were noted. No assistive devices were needed. On examination, the Veteran's right knee range of motion was noted to be from 0 degrees of extension to 130 degrees of flexion. Manual muscle test was 5/5 in flexion and extension. There was no swelling or effusion. There was tenderness to palpation at the medial joint line. Stability tests were negative. There was no ankylosis. The X-ray studies showed moderate osteophytic changes of both knees; and suspected small right suprapatellar effusion. The diagnosis was that of right knee meniscus tear status post right knee arthroscopy 1995; and right knee moderate osteoarthritis. In his December 2008 Notice of Disagreement, the Veteran argued that his condition warranted a higher evaluation. He reported having right knee instability and swelling. He also reported using a cane and walker to ambulate. The Veteran most recently underwent a VA examination in April 2012. The Veteran reported worsening right knee pain, increased sensation of instability, frequent crepitation, and a decreased range of motion. Walking caused increased right knee pain, and he complained of the right knee occasionally giving way. On examination, the Veteran's right knee flexion was to 130 degrees, with pain beginning at 90 degrees. Extension was performed to 0 degrees, with no evidence of painful motion. There was no additional loss of motion following repetitive use testing. There was tenderness to palpation. Muscle strength was 5/5 in flexion and extension. Joint stability tests were reported as normal. There was no evidence of recurrent patellar subluxation or dislocation. The examiner noted that the Veteran had a previous meniscal tear with frequent episodes of joint pain. The residuals of the meniscectomy were described as giving way of the right knee and pain. No assistive devices were used. There was no x-ray evidence of patellar subluxation. Regarding impact on employment, the examiner noted that the Veteran should work at a sedentary or semi-sedentary job when he should not have to lift 15 pounds or more, bend repetitively at the knee, climb stairs or ladders, stand for more than 15 minutes or walk for more than 15 consecutive minutes. The Veteran's right knee meniscus tear status post arthroscopy is currently assigned a noncompensable evaluation under Diagnostic Code 5258. Under these criteria, a 20 percent evaluation is warranted when there is cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. A May 2008 x-ray study suspected small right suprapatellar effusion, but effusion was not shown on clinical examination. The Veteran denied locking at that time. The recent examination described frequent episodes of pain, but was negative for frequent episodes of locking or effusion. Thus, the evidence establish the presence of a level of disability that warrants a 20 percent evaluation under Diagnostic Code 5258. In determining whether a compensable evaluation is warranted, the Board will consider alternative diagnostic codes. A 10 percent evaluation is assigned for cartilage, semilunar, removal of, symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259. As noted, the Veteran underwent right knee arthroscopy for a meniscus tear during active service. The evidence of record tends to show that he has residuals related to this. The most recent examination specifically stated that the Veteran had residual signs or symptoms due to a meniscectomy, described as pain and giving way. To the extent that the service-connected residual right knee meniscus tear status-post arthroscopy is shown to be symptomatic, the disability picture is found to more nearly resemble the criteria for the assignment a 10 percent evaluation under Diagnostic Code 5259. While Diagnostic Code 5259 contemplates limitation of motion, the Board emphasizes that the 10 percent evaluation is being assigned based on the surgical residuals as described on VA examination and not based on limitation of motion, which will be discussed further. See 38 C.F.R. § 4.14. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a , Diagnostic Code 5260. Evaluations for limitation of knee extension are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. As set forth, the Veteran is currently assigned a 10 percent evaluation for right knee osteoarthritis, which contemplates limited and painful motion. With regard to right knee osteoarthritis, the September 2009 decision assigning the 10 percent evaluation was considered a complete grant of the benefit sought. Accordingly, the Board finds that the issue of the right knee osteoarthritis is for consideration. The Board observes, however, that right knee range of motion is reported as from 0 to 130 degrees. Although there is evidence of pain, there was no additional limitation following repetitive use. Compensable limitation of motion was not shown in either flexion or extension. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Under 38 C.F.R. § 4.71a , Diagnostic Code 5257, a 10 percent rating is warranted for slight impairment of the knee due to recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate impairment of the knee due to recurrent subluxation or lateral instability. A maximum 30 percent rating is warranted for severe impairment of the knee due to recurrent subluxation or lateral instability. The Board acknowledges the Veteran's repeated complaints of right knee instability or giving way. The Veteran is competent to report these symptoms. See Layno. Nonetheless, stability testing has been repeatedly described as normal and recurrent subluxation is not shown. The Board finds the objective findings, as set forth on VA examinations, to be more probative than the Veteran's unsupported lay statements and an increased or additional rating under this diagnostic code is not warranted. Additionally, as discussed, the Veteran's complaints of giving way are contemplated in the 10 percent rating assigned herein under Diagnostic Code 5259. There is no evidence of ankylosis of the knee or malunion of the tibia and fibula and Diagnostic Codes 5256 and 5262 are not for application. At no time during the appeal period has the Veteran's service-connected right knee meniscus tear status-post arthroscopy been more than 10 percent disabling and staged ratings are not warranted. See Fenderson. The Board acknowledges the April 2010 private medical statement suggesting that the Veteran was permanently and totally disabled. The April 2012 VA mental disorders examination, however, indicates that the Veteran was working and indicated that work was his therapy. The more recent evidence suggests that the Veteran is gainfully employed and under these circumstances, the Board declines to infer a claim of entitlement to a total disability rating based on individual unemployability. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). ORDER Service connection for a depressive disorder is granted. Service connection for hypertension is granted. An increased rating of 10 percent, but no higher for the service-connected right knee meniscus tear status-post arthroscopy is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND VA has a duty to assist the Veteran with the development of his claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Bilateral lower extremities In September 2007, the Veteran submitted a claim of service connection for "neuropathic in both legs." In October 2008, the RO denied service connection for neuropathy in both legs. The Veteran disagreed with the decision and subsequently perfected this appeal. In April 2012, the Board rephrased the issue as service connection for claimed condition involving the bilateral lower extremities, to include neuropathy. Pursuant to the remand directives, the Veteran was to be provided a VA examination to determine the nature and likely etiology of the claimed bilateral leg disorder, to include consideration of varicose veins. The Veteran underwent a VA examination in April 2012 when the lower extremities were found to have varicose veins and clinical S1 radiculopathy. The examiner reviewed the claims folder and specifically referenced a November 1990 private EMG/NCS of the lower extremities, which showed: Evidence of mild (early) neuropathic changes on both common peroneal nerves (common finding on this superficial nerve compress[ed] by the extensor retinaculum). There [was] evidence of central L5 root-cord compression, the left side chronic radiculopathy. Regarding the bilateral clinical S1 radiculopathy, the examiner stated: [T]here [was] no evidence in his service medical record that the bilateral S1 radiculopathy occurred due to any injury or back condition during his military career, bilateral S1 radiculopathy [was] not at least as likely due to his military service. He ha[d] a lumbar MRI in 2011 showing diffuse circumferential annular bulging at L1-L2, L2-L3, L3-L4 and L4-L5 levels secondary to disc bulging and facet arthrosis (after military service 9-1-2011) which [was] at least as likely as not the cause of the bilateral S1 radiculopathy. The examiner, however, failed to address whether the current diagnosis was related to the November 1990 EMG/NCS findings. While this test was conducted by a private physician, it was accomplished during the Veteran's period of active service. The Veteran's retirement examination was negative for any neurologic abnormalities of the lower extremities. An August 2011 electrodiagnostic examination, however, showed findings compatible with chronic left L5 radiculopathy. On review, additional medical opinion is needed to clarify whether current peripheral nerve findings are related to the in-service findings. Regarding the left lower extremity varicose veins, the examiner stated the following: Left lower extremity varicose veins at least as likely as not existed prior to induction into the armed forces. There [was] evidence in the reports of medical history on induction and later on during his military career where [the Veteran] report[ed] having had venous stripping in his left leg when he was 14 years old. ... There [was] no evidence in his service medical record or during physical examination today of increase in severity of his preexisting left lower extremity varicose veins represented by permanent aggravation beyond natural progression of this condition. On review, this opinion is not adequate. In this regard, the Board notes that, in cases where the disease or injury at issue is not "noted" on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner, supra. If this burden is met, then the Veteran is not entitled to service connection benefits. Wagner at 1096. An additional opinion, which considers the appropriate evidentiary standards, is needed to determine whether the presumption of soundness has been rebutted. Sleep apnea In September 2007, the Veteran submitted a claim of service connection for sleep apnea. He reported that his condition started in 1997. In October 2008, the RO denied the claim. The Veteran subsequently perfected this appeal. On VA examination in April 2012, the diagnosis was that of obstructive sleep apnea. The Veteran reported having sleep problems for several years that got worse after multiple problems due to personal stressors. After multiple treatment options to improve his sleep pattern, he was evaluated and in 2005 had a study done which revealed sleep apnea. Following examination and review of the record, the examiner opined that the Veteran's sleep apnea disorder was less likely as not caused by or a result of his active military service. In support of this opinion, the examiner stated: There [was] no evidence in Veteran's C-file of any sleep disturbances or complains (sic) during military service. The sleep disorder problems complains (sic) started many years after his separation from active duty. On review, the examiner's opinion appears to be based in large part on a finding that the sleep disorder complaints started "many years" after separation from active duty. However, additional records were received in May 2012, following the VA examination, which appear to suggest a much earlier onset. For example, a November 1998 statement from Dr. G.R. indicated that the Veteran "also ha[d] what suggest[ed] to be sleep apnea syndrome." A January 1999 private medical record noted a subjective complaint of sleep apnea and that "study confirm[ed]." A November 1999 statement from Dr. D.D. noted borderline obstructive sleep apnea and that a CPAP was not indicated at this time. The Veteran has reported problems sleeping during and since military service and is competent to report these difficulties. See Layno. Under these circumstances, the Board finds it necessary to return the VA examination for addendum following review of the additional records. Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated action to refer the Veteran's file to the April 2012 VA examiner for an additional opinion as to the nature and likely etiology of bilateral S1 radiculopathy. An additional physical examination is not needed, unless considered necessary by the examiner. If the April 2012 VA examiner is unavailable, the requested opinion should be obtained from a similarly qualified examiner. The examiner is specifically requested to provide an opinion as to whether it is at least as likely as not that the currently diagnosed bilateral clinical S1 radiculopathy is related to his period of active service or events therein. Specifically, whether the current disability is the same as or otherwise related to that shown on EMG/NCS testing in November 1990. A complete rationale must be offered for any opinion provided. 2. The RO also should take all indicated action to refer the Veteran's claims file to the April 2012 VA examiner for additional opinion as to the nature and likely etiology of the claimed varicose veins of the left lower extremity. An additional physical examination is not needed, unless considered necessary by the examiner. If the April 2012 VA examiner is unavailable, the requested opinion should be obtained from a similarly qualified examiner. The examiner is specifically requested to address the following questions: (a) Is there clear and unmistakable (obvious or manifest) evidence that varicose veins of the left lower extremity existed prior to service? (b) If so, is there clear and unmistakable (obvious or manifest) evidence that such disorder was not aggravated during service. (c) If there is not clear and unmistakable evidence that such disorder existed prior to service, is it at least as likely as not that any current varicose veins of the left lower extremity are due to his active service or events therein. A complete rationale must be offered for any opinion provided. 3. The RO then should take all indicated action to refer the Veteran's claims file to the April 2012 VA examiner for additional opinion as to the nature and likely etiology of claimed sleep apnea. An additional physical examination is not needed, unless considered necessary by the examiner. If the April 2012 VA examiner is unavailable, the requested opinion should be obtained from a similarly qualified examiner. The examiner is specifically requested to review all evidence of record, to include the additional private evidence received in May 2012 and referenced herein, and provide an opinion as to whether it is at least as likely as not that the currently diagnosed sleep apnea had its clinical onset during the Veteran's period of active service or events therein. The examiner is further advised that the Veteran is competent to report sleep disturbances and his lay statements should be considered. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A complete rationale must be offered for any opinion provided. 4. After the development requested has been completed, the RO should review the examination reports to ensure that they are in compliance with the directives of this REMAND. If the reports are deficient in any manner, the RO should implement corrective procedures. 5. After completing the requested action and any additional development deemed appropriate, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs