Citation Nr: 1334983 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 05-39 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. What evaluation is warranted for traumatic left knee arthritis, status post left knee arthroplasty, from August 1, 2012, currently evaluated as 30 percent disabling. 2. What evaluation is warranted for left knee instability from June 9, 2011, currently evaluated as 10 percent disabling. 3. Entitlement to service connection for sleep apnea. 4. Entitlement to service connection for a lumbar disorder, to include spondylosis. 5. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from June 1959 to June 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in March 2005 and October 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This matter was previously before the Board in October 2012 at which time the case was remanded for a Board video conference hearing which took place in January 2013. A transcript of the hearing is located in the Veteran's Virtual VA folder. In May 2013 the Board remanded the issues on appeal for additional medical records and/or VA examinations. There has been substantial compliance with the Board's remand directives. Also on appeal at that time was the issue of entitlement to service connection for hypertensive vascular disease. However, the RO subsequently granted this claim in September 2013. As this represents a full grant of the benefits sought with respect to this issue, it is no longer on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The issues of entitlement to service connection for a lumbar disorder, to include spondylosis, and total disability evaluation based on individual unemployability due to service connected disorders are being remanded and are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Since June 9, 2011, the Veteran's left knee instability has been no more than slight. 2. Since August 1, 2012, residuals of a total left knee replacement have not been manifested by severe painful motion or weakness. 3. Sleep apnea is not attributable to service. CONCLUSIONS OF LAW 1. Since June 9, 2011, the criteria for a rating higher than 10 percent for left knee instability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2013). 2. Since August 1, 2012, the criteria for a rating higher than 30 percent for residuals of a total left knee replacement are not met. 38 U.S.C.A. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5256-5263 (2013). 3. Sleep apnea was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 VA has fulfilled its duty to notify the appellant in this case with respect to the issues being decided herein. In a July 2004 letter, the RO informed the claimant of the applicable laws and regulations, the evidence needed to substantiate the claims, and which party was responsible for obtaining the evidence. 38 C.F.R. § 3.159. Thus, the notice required by the VCAA and implementing regulations was furnished to the claimant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The Board also finds that all necessary assistance has been provided to the appellant including requesting information regarding pertinent medical treatment he may have received and requesting records from the identified providers. In terms of VA examinations, the Veteran has been afforded pertinent VA examinations, the reports of which contain sufficient findings with which to properly decide these claims. Lastly, the appellant was provided with an opportunity to testify before the Board which he did in January 2013. Under these circumstances, VA has fulfilled its duty to notify and assist the appellant in the claims on appeal, and adjudication of these claims at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Analysis A. Increased Evaluations for Left Knee Instability and Arthritis Facts A VA operative report in June 2011 shows that the Veteran underwent left total knee arthroplasty for osteoarthritis. The indications for the operation were to improve pain and functional outcome. This report shows that following the operation the Veteran was transferred to the post anesthesia care unit in stable condition with no known complications. The discharge summary notes that he tolerated the procedure well. A June 2011 VA orthopedic follow up note shows that incision on the left knee was healed with no tenderness to palpation. Active range of left knee motion was from 0 to 100 degrees. VA outpatient records show that the Veteran underwent 30 days of kinesiotherapy for range of motion and strengthening of the left knee beginning in June 2011 and ending in July 2011. Kinesiotherapy records during this period show that the Veteran made good/excellent progress achieving his therapy goals. In August 2011, the Veteran reported to the VA outpatient clinic for an orthopedic follow up. He was noted to be doing well and only complained of some mild pain/tenderness to palpation on the medial aspect of the knee as well as some reported tightness discomfort of the tibial tuberosity. He denied pain with ambulation and reported good range of motion. He was noted to be happy with his knee. Tenderness to palpation was noted over the medial aspect of the knee. The operative incision was healing well with no erythema, induration or signs of infection. Range of motion was 0 to 110 degrees flexion extension. X-rays showed left total knee arthroplasty without hardware complication. There was soft tissue swelling and joint effusion in the left knee. The Veteran was assessed as status post total knee arthroplasty in June 2011, doing well. The Veteran testified at a Board video conference hearing in January 2013 that he underwent a left total knee arthroplasty in June 2011 due to pain and limited mobility and was waiting for his left knee to be completely rehabilitated before undergoing right knee surgery. At a VA examination of the lower extremities in June 2013, the Veteran was diagnosed as having left knee total knee replacement, stable joint no instability. The Veteran described his left knee as being "alright" following his June 2011 total left knee arthroplasty, but complained that it sometimes was numb. He denied that he was receiving any treatment for this knee. Functionally the knee was noted to be tender and sore/painful when kneeling due to the pressure of his body weight. Left knee flexion was 105 degrees with no objective evidence of painful motion, and extension was 0 degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions. There was no functional loss and/or impairment of the left knee or lower leg. There was no joint line or soft tissue tenderness or pain to palpation. Strength was 5/5. Joint stability tests were normal. There was no history of recurrent patellar subluxation or dislocation. The examiner noted that range of motion was greater than 90 degree goal in the left knee, the stable joint total knee arthroplasty, and no instability. He relayed the Veteran's report that he could not work for anyone "because of the knee and back standing gets heavy in the back." Pertinent Criteria Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, the United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Code 5055, a 100 percent rating is assigned for one year following implantation of a knee prosthesis for a service-connected knee disability, followed thereafter by a 60 percent rating when there are chronic residuals consisting of severe painful motion or weakness. With intermediate degrees of residual weakness, pain, or limitation of motion, a rating is made by analogy to Diagnostic Codes (Codes) 5256, 5261, and 5262. The minimum rating is 30 percent under Code 5255. 38 C.F.R. § 4.71a, Code 5055. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Degenerative and traumatic arthritis, established by X-ray findings, are rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. If the limitation of motion of the involved joint(s) is noncompensable under the appropriate diagnostic code(s), a rating of 10 percent is for application for each major joint affected by limitation of motion, to be combined, not added. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Limitation of motion of the knee is rated under either Diagnostic Code 5260 (limitation of flexion) or Diagnostic Code 5261 (limitation of extension). Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, flexion limited to 60 degrees is assigned a noncompensable evaluation, flexion limited to 45 degrees a 10 percent rating, and a 20 percent rating is assigned when flexion is limited to 30 degrees. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, extension limited to 5 degrees is assigned a noncompensable rating, extension limited to 10 degrees is assigned a 10 percent disabling, and extension limited to 15 degrees is assigned a 20 percent rating. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.1, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Instability of the knee is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under that Diagnostic Code a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. Knee disabilities may also be rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263. Under Diagnostic Code 5256, ratings of up to 60 percent are available for ankylosis of the knee. Under Diagnostic Code 5258, a 20 percent rating may be assigned for dislocation of the semi lunar cartilage, with frequent episodes of "locking", pain, and effusion into the joint. Under Diagnostic Code 5259, a 10 percent rating may be assigned for symptomatic removal of semi lunar cartilage. Under Diagnostic Code 5262, ratings of 10 and 20 percent, respectively, are assigned for malunion of the tibia and fibula with slight or moderate knee or ankle disability respectively. VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disability includes both limitation of motion due to arthritis and instability, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998). The General Counsel subsequently opined in VAOPGCPREC 9-98 (August 14, 1998) that for a knee disability rated under Code 5257 to warrant a separate rating for arthritis based on X- ray findings and limitation of motion, limitation of motion under Code 5260 or Code 5261 need not be compensable but must at least meet the criteria for a zero percent rating. VA's General Counsel further explained that, if a veteran has a disability rating under Code 5257 for instability of the knee, a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VA General Counsel has also held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). Discussion Left Knee Instability From June 9, 2011 As noted, the Veteran is assigned a separate 10 percent rating for slight instability in the left knee. Since June 9, 2011, however, the evidence preponderates against entitlement to a higher rating. Following left total knee replacement on June 9, 2011, the Veteran was evaluated at a VA outpatient clinic in August 2011. No specific mention was made regarding instability, and the Veteran was noted to be "doing well". More telling is a June 2013 VA examination report showing that knee joint stability tests were normal and there was no patellar subluxation or dislocation. The examiner reported that the Veteran had stable joint knee arthroplasty and no instability. Thus, in view of this evidence and the lack of any evidence to the contrary, to include the lack of any documented assertions by the Veteran of left knee instability since June 9, 2011, the Board finds that the evidence preponderates against entitlement to a higher than 10 percent rating due to instability of the left knee. Simply put, there is no evidence of moderate recurrent subluxation or lateral instability for the entire period from June 9, 2011. As such, the claim is denied. Regarding Diagnostic Code 5258, the Veteran's left knee disorder is not manifested by a dislocation of semi-lunar cartilage. Hence, an analogous rating is not warranted under this code. Moreover, in the absence of evidence of disability comparable to ankylosis or impairment of the tibia or fibula, Diagnostic Codes 5256 or 5262, respectively, are not applicable. 38 C.F.R. § 4.71a. As the preponderance of the evidence is against this claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b). In arriving at this conclusion, the Board has considered whether assignment of "staged" ratings under Hart, was appropriate. Left Knee Arthritis From August 1, 2012 The Veteran's left knee arthritis is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5055 as a knee replacement with prosthesis. In order to warrant a rating in excess of 30 percent for the Veteran's service-connected left knee arthritis, the Veteran would have to be found to have chronic residuals of a left knee replacement consisting of severe painful motion or weakness, ankylosis of the knee in flexion between 10 degrees and 20 degrees, limitation of knee extension to 30 degrees, nonunion of the tibia and fibula with loose motion and the need for a brace, or some combination of levels of limitation of extension, limitation of flexion, subluxation, or instability which equals a rating in excess of 30 percent. Keeping the above criteria in mind, the evidence shows that the Veteran's post operative residuals of a total left knee replacement are appropriately rated as 30 percent disabling. At a June 2013 examination the Veteran stated that his knee was "alright" and "doing good", except for occasional numbness. He did report that the knee was tender and sore when kneeling. Findings revealed left knee range of motion from 0 to 105 degrees with no objective evidence of painful motion. The Veteran was able to perform the same range of motion on repetitive-use testing with three repetitions. He did not have any functional loss or tenderness or joint line/soft tissue pain on palpation. The appellant's left knee demonstrated normal strength of 5/5. The examiner remarked that the Veteran's range of motion in the left knee was greater than the 90 degree goal. The foregoing findings preponderate against finding entitlement to the criteria for a 60 percent rating under Code 5055. While the Veteran is competent to report left knee tenderness and soreness when kneeling, as well as occasional numbness, and while these assertions are found to be credible, they do not approximate chronic residuals consisting of severe painful motion or weakness in the affected extremity. Moreover, the findings do not support a higher rating by analogy under Codes 5261 or 5262, even when functional loss is considered due to symptoms such as pain. This is so based on the actual limitation of left knee motion demonstrated at the June 2013 examination of 0 degrees extension and 105 degrees flexion as well as findings of no objective evidence of painful motion and no functional loss. Moreover, as the 30 percent rating under Code 5055 contemplates painful range of motion, a separate rating for arthritis would constitute prohibited pyramiding and is thus not warranted. 38 C.F.R. § 4.14. For the reasons articulated, the preponderance of the evidence is against entitlement to a rating higher than 30 percent for left knee arthritis for the entire period from August 1, 2012. As the preponderance of the evidence is against this claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b). In arriving at this conclusion, the Board has considered whether assignment of "staged" ratings under Hart, was appropriate. Extraschedular Consideration Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). The Board must specifically address whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242, 244 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F. 3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). There is no evidence of exceptional factors in this appeal with regard to the Veteran's service-connected left knee disability. The symptoms of his disability include numbness and soreness and tenderness when kneeling. These symptoms are contemplated by the diagnostic criteria set forth in Codes 5055 and 5256 to 5263. Thus, referral for consideration of an extraschedular evaluation is not warranted. 38 C.F.R. § 3.321(b)(1). B. Service Connection for Sleep Apnea Facts The Veteran's service treatment records do not show any complaints or treatment related to snoring, sleep problems or, specifically, sleep apnea. His October 1978 retirement examination report does not include sleep apnea in the list of significant medical history, and in an October 1978 Report of Medical History the appellant denied having frequent trouble sleeping. A May 1994 outpatient record from otolaryngology shows that the Veteran complained of a nine month history of snoring and feeling like he had dyspnea at night. His wife reported loud snoring and apneic periods at night. The Veteran denied weight changes over the past year and said he feels rested when he arises. He was assessed as having possible sleep apnea. A subsequent treatment record in May 1994 shows that the Veteran had consults for a pulmonary function test and cephalogram and that the tests were normal. This record notes that he was to undergo a sleep study for one night and return to the sleep disorder clinic. Medical records from Brooks Army Medical Center show that the Veteran was admitted in July 1995 where he underwent a tonsillectomy and uvulopalatopharyngoplasty for obstructive sleep apnea. It was noted that he participated in a sleep study. It was also noted that he had a long history of heroic snoring and apneic episodes witnessed by his wife. An October 1999 outpatient record reflects the Veteran's request to be reevaluated for his sleep apnea since he continued to snore and his wife complained about it. Records in November and December 1999 show that he was being scheduled for surgery, i.e., septoplasty, nasal, and turbinectomy, cautery, partial or complete, due to sleep apnea and nasal septum, deviated. Medical records from Brooks Army Medical Center in December 1999 show that the Veteran returned to the Ear, Nose and Throat service for bilateral nasal obstruction and new onset heroic snoring. He was diagnosed as having obstructive sleep apnea and nasal obstruction. A nasal septoplasty and bilateral inferior turbinoplasty were performed. The Veteran filed a claim of entitlement to service connection for sleep apnea in July 2004. At an April 2006 hearing before a Decision Review Officer the Veteran testified that he had a sleep test at Brooks Army Medical Center. He said he could not remember what time it was, but it was in the 1980s. He said that he had a problem with snoring and not breathing and started having headaches in the morning and did not know what was going on. He said he was put on a sleep apnea test overnight and was told what was happening. He said he doctor told him he needed surgery and that's when they took his tonsils out and cut off his pallet tongue. He reported that he did not currently have any problems with sleep apnea. VA outpatient lists from October 2011 to April 2013 contain problem/active lists that include obstructive sleep apnea. The Veteran testified at a January 2013 Board video conference hearing that while he was on active duty fellow servicemen as well as his wife expressed concern over his snoring and breathing at night. He said this condition made him sleepy during the day. He said he had sleep apnea in service, but just did not know it then and was first diagnosed with the disability at a sleep clinic at Brooks Army Medical Center in 1990 or 1991. He reported undergoing a tonsillectomy following the diagnosis. A VA examiner in June 2013 noted that he reviewed the claims file and reported that the Veteran had obstructive sleep apnea diagnosed during the period from 1990 to 1992. He said the condition had been revealed by a sleep study and that medication was not required to control the condition, nor was a breathing device required. He also noted that the condition was treated with surgery which helped a lot and that the Veteran had no daytime tiredness. He observed that the Veteran did not have any current findings, signs and/or symptoms attributable to sleep apnea. He opined that the condition was less likely than not incurred in or caused by service and explained that the condition had been diagnosed several years after the Veteran retired from service. Law and Regulations As an initial matter, the Board notes that the Veteran is not asserting, nor does the evidence show, that sleep apnea is the result of engaging in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not applicable. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (2013). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(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." Davidson v. Shinseki, 581 F. 3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Where there is a chronic disease shown in service, 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). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). This regulatory provision 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). In this case, as sleep apnea is not a disease identified as chronic in the relevant statute and regulation; 38 C.F.R. § 3.303(b) is inapplicable. The requirement that there be a current disability is satisfied when a claimant has a disability at the time a claim for VA is filed or during the pendency of that claim, even in cases where the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Discussion There are no contemporaneously documented inservice complaints, treatment or diagnoses for sleep apnea. Indeed, the Veteran's October 1978 retirement examination report does not include sleep apnea in the list of significant medical history, and an October 1978 Report of Medical History shows that he denied having frequent trouble sleeping. The first notation of sleep apnea in the medical records is a postservice record, dated in May 1994, over 15 years after service. This record reflects the Veteran's report of a nine month history of snoring and feeling like he had dyspnea at night. He was assessed as having possible sleep apnea. Records show that sometime thereafter, prior to July 1995, he underwent a sleep study at Brooks Army Medical Center and was found to have obstructive sleep apnea. He underwent a tonsillectomy for this condition in July 1995 and due to continuing symptoms, underwent a nasal septoplasty and bilateral inferior turbinoplasty in December 1999, with improved symptoms thereafter. With respect to whether there is a link between the Veteran's postservice diagnosis of sleep apnea and service, a June 2013 VA examiner concluded that the appellant's obstructive sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, which in this case includes inservice exposure to firefighting chemicals. In rendering his opinion, he reviewed the Veteran's claims file showing his history as a fire protection supervisor in service and a firefighter after service, from 1980 until his retirement in 2000. He reasoned that sleep apnea was not diagnosed until several years after he retired from service. This is in fact consistent with the May 1994 VA outpatient record reflecting a diagnosis of possible sleep apnea, along with the Veteran's complaint of a nine month history of snoring and feeling like he had dyspnea at night. As noted, the Veteran is competent to report problems with snoring in service. However, a diagnosis of obstructive sleep apnea as well as a medical opinion addressing its etiology requires medical training which the appellant as a lay person does not possess. In contrast to his lay opinion of a nexus, there is the specific and reasoned opinion of the VA examiner in June 2013 negating a nexus between the postservice diagnosis of obstructive sleep apnea and service. For the foregoing reasons, the preponderance of the evidence is against a finding of entitlement to service connection for sleep apnea. 38 U.S.C.A. §§ 1110, 1131. As such, the benefit-of-the doubt rule does not apply and the claim is denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to an evaluation greater than 30 percent for traumatic right knee arthritis from August 1, 2012, is denied. Entitlement to an evaluation greater than 10 percent for right knee instability from June 9, 2011, is denied. Entitlement to service connection for sleep apnea is denied. REMAND In May 2013, the Veteran submitted additional evidence relevant to his claim for service connection for a back disability, to include back treatment records from Brooks Army Medical Center dated in August and September 2003. This evidence is located in a temporary folder and is not listed or discussed in the most recent supplemental statement of the case issued in September 2013. While the RO/AMC is not required to analyze and discuss the entire evidence of record in order to ensure that all relevant and favorable evidence has been considered, the fact that this relevant evidence is not listed on the September 2013 supplemental statement of the case is evidence that the RO/AMC has not reviewed it. 38 C.F.R. § 19.31; see also Gonzalez v. West, 218 F. 3d 1378, 1380-81 (2000). Accordingly, since such evidence was in existence at the time of the most recent Supplemental Statement of the Case in September 2013, and there is no indication that it was reviewed by the RO/AMC in conjunction with the issuance of the most recent supplemental statement of the case, a remand is required so that the AMC can consider this evidence in the first instance. Id. The Court has held that entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F. 3d 1106, 1109-10 (2009) (holding that an inferred claim for individual unemployability benefits is raised as part of an increased rating claim only when the Roberson requirements are met). The evidence shows that the Veteran retired from work as a firefighter in 2000. A VA examiner who conducted an examination of his knees in June 2013 marked "yes" to the question of whether the Veteran's knee/lower leg impacted his ability to work. He went on to relay the Veteran's report that he is unable to work because of his knee and back disorders. Hence, while the issue of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders was not certified for appeal, or initially addressed by the RO, in light of the binding precedent set forth in Rice, the Board is compelled to remand this issue. Accordingly, the case is REMANDED for the following action: 1. After completing any additional development deemed appropriate with respect to the issue of entitlement to service connection for a lumbar disorder, to include spondylosis, the RO/AMC is to readjudicate the issue. All applicable laws, regulations, and theories of entitlement should be considered. The RO/AMC's readjudication should reflect consideration of the medical records located in the temporary folder, to include records dated in September and October 2003, along with any evidence obtained in conjunction with this remand. If the benefit sought on appeal remains denied, the appellant should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 2. Thereafter, and after completing any necessary development pursuant to the VCAA, the AMC/RO must adjudicate the claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. Should this claim be denied the AMC/RO must provide the appellant with a supplemental statement of the case and an opportunity to respond. Thereafter, this issue is to be recertified to the Board. The appellant and his representative have 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs