Citation Nr: 1335167 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-10 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for sleep apnea, claimed as chronic fatigue syndrome. 2. Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease (DJD). 3. Entitlement to a disability rating in excess of 10 percent for left knee DJD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1965 to June 1969, from September 1969 to September 1971, from May 1977 to July 1977, from August 1980 to August 1982, and from August 1985 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in March 2006 and September 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board remanded the issues in September 2010 to obtain treatment records from the Veteran's private orthopedist, and to afford the Veteran a VA examination and nexus opinion. The records were obtained. The examinations were performed February 2011. Although the examiner could not provide the requested opinion regarding sleep apnea, in light of the grant of service connection in the decision below, the Board finds that the Veteran is not prejudiced. Therefore, an additional remand is not required to ensure compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, it is observed that the other issues the Board remanded in 2010, were subsequently granted. As such, they are no longer on appeal. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's sleep apnea manifested during service. 2. The preponderance of the evidence shows that the Veteran's right knee disability manifests with flexion greater than 30 degrees, full extension, and without ankylosis or instability. 3. The preponderance of the evidence shows that the Veteran's left knee disability manifests with flexion greater than 30 degrees, full extension, and without ankylosis or instability. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for a disability rating in excess of 10 percent for DJD of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (2012). 3. The criteria for a disability rating in excess of 10 percent for DJD of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In this decision, the Board grants service connection for sleep apnea. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary regarding this issue. The notice requirements of the VCAA call for VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The record shows that through VCAA letters dated June 2005, April 2008, June 2008, the Veteran was informed of the information and evidence necessary to substantiate the claims. The Veteran was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. The case was readjudicated in October 2012. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA treatment records, VA examination reports, and lay evidence. No additional pertinent evidence has been identified by the Veteran. With the VCAA requirements having been met, the Board my proceed to a decision on the claims. Service Connection - Sleep Apnea Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. 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. 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 C.F.R. § 7104(a) (West 2002). Moreover, the 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). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). 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). The Veteran contends he has chronic fatigue syndrome as he experienced daytime somnolence and fatigue during service. Medical records fail to show a diagnosis of chronic fatigue syndrome. The Court has indicated that in the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet.App. 223 (1992). Therefore, service connection for chronic fatigue syndrome is not warranted. However, the Veteran's claimed symptoms were attributed to sleep apnea which was first diagnosed in 1999. As the Veteran's diagnosed sleep apnea could account for the Veteran's described symptoms, the Board remanded the issue to obtain a VA opinion as to whether the Veteran's sleep apnea was manifested during or causally related to service. The examiner reviewed the Veteran's records, examined the Veteran, and provided an opinion in February 2010. The examiner found that any attempt to identify a relationship to service is a matter of mere speculation. The examiner noted that the Veteran denied a history of symptoms suspicious for obstructive sleep apnea other than fatigue and an increased need for naps while in service and treatment for the sleep apnea has not improved the Veteran's complaints of fatigue. If the fatigue condition were in fact due to sleep apnea that had its onset in service, it would be reasonable to expect at least some improvement in daytime energy level and requirements for naps. By the Veteran's report there was no change in his fatigue/increased daytime nap requirement with the institution of the treatment for the sleep apnea condition (CPAP). Therefore, the examiner found that he cannot state with any medical certainty when the Veteran's sleep apnea had its onset. The Board notes that the examiner based his inability to provide a nexus opinion on the lack of improvement upon treatment with a CPAP machine. The Board finds this argument to be less than persuasive as a basis to deny the claim. The record clearly shows that the Veteran very rarely used the CPAP machine as he did not like it and could not sleep comfortably with it on. He claimed it caused nasal congestion and other problems. In May 2004, he specifically stated that he does not want to use the CPAP machine. In April 2005, he noted that he does not use the CPAP machine. In January 2010, he stated that he used the CPAP machine only occasionally as he does not like it. Although the examiner's inference is that the lack of improvement in the Veteran's complaints of fatigue after treatment for sleep apnea, shows that the Veteran's complaints are not related to sleep apnea, the Veteran would first have to actively use the CPAP treatment for positive results to be seen. The Veteran is competent to report symptoms of fatigue and daytime somnolence. The VA examiner in February 2008 noted that the Veteran's symptoms are a result of his sleep apnea. The examiner in February 2010 could not provide an explanation without resorting to speculation, in part because he expected successful treatment of the Veteran's sleep apnea without noting that the Veteran had been refusing treatment. Therefore, resolving the question in the Veteran's favor yields the conclusion that the Veteran's current sleep apnea was incurred in service. Increased Rating - Bilateral Knees 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 U.S.C.A. § 1155; 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. § 4.7. In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). As the Veteran's knee disability claims stem from the same factual background and are addressed with the same rating criteria, the Board will address them simultaneously. The Veteran's knees are rated under Diagnostic Code 5010 for traumatic arthritis. Diagnostic Code 5010 directs the rater to use Diagnostic Code 5003 when rating traumatic arthritis. That diagnostic code states that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, the Veteran should be rated at 10 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups and 20 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Board then turns to the regulations regarding limitation of motion of the knee. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5260, the limitation of flexion of the leg to 15 degrees warrants a 30 percent rating, to 30 degrees warrants a 20 percent rating, to 45 degrees warrants a 10 percent rating, and to 60 degrees warrants a noncompensable (0 percent) rating. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, the limitation of extension of the leg to 45 degrees warrants a 50 percent rating, to 30 degrees warrants a 40 percent rating, to 20 degrees warrants a 30 percent rating, to 15 degrees warrants a 20 percent rating, to 10 degrees warrants a 10 percent rating, and to 5 degrees warrants a noncompensable (0 percent) rating. 38 C.F.R. § 4.71a. It should be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Veteran was afforded a VA examination in July 2005. Physical examination showed crepitus on flexion and extension. Range of motion was 0 to 100 degrees with no change on repetitive motion. There was no ligament instability. X-rays showed mild degenerative changes. The Veteran was afforded another VA examination in November 2005. The Veteran reported constant pain in both knees with intermittent swelling and stiffness. They do not lock up, but occasionally give way. The physical examination showed range of motion from 0 to 105 degrees on the right side and 0 to 100 degrees on the left side. Pain was the primary limiting factor, and repetitive motion brought out increased pain, fatigue, and weakness. The May 2008 VA examination shows full right knee extension, and right knee flexion to 90 degrees with pain at 40 degrees and full left knee extension, with left knee flexion to 70 degrees with pain at 30 degrees. The examiner noted no additional loss of motion on repetitive use bilaterally. The examiner noted no effusion, dislocation, locking, or instability bilaterally. An August 2009 VA treatment record showed pain and swelling of the knees In March 2010, the Veteran underwent arthroscopic partial medial meniscectomy of the left and right knees. In February 2011, a VA treatment record showed some discomfort in his knees, but improvement since the arthroscopy on both knees in March 2010. The examiner noted nontender, stable knees with full range of motion. A February 2011 VA examination showed daily pain, but no deformity, giving way, instability, weakness, incoordination, dislocation, subluxation, or locking episodes. The examiner noted left knee range of motion from 0 to 100 degrees and right knee range of motion from 0 to 90 degrees. The examiner noted objective evidence of pain following repetitive motion, but found no additional limitation after the repetitions. The Board notes that the Veteran's range of motion findings at no point support a disability rating in excess of 10 percent for either right knee. Extension has been full for each knee, and the Veteran's flexion remains above 30 degrees. In this regard, it is noted that the May 2008 VA examination, showed left knee flexion to 70 degrees with pain at 30 degrees. However, motion or other function was not shown to be impeded by this discomfort, so an increased rating for limitation of flexion is not warranted. The Board notes that the VA examiners specifically addressed the criteria set forth in DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's range of motion the bilateral knees was not found to be additionally limited by incoordination, fatigue, weakness, or lack of endurance on repetitive use, beyond the measurements taken into consideration in rating the disability. 38 C.F.R. §§ 4.40, 4.45. Thus, these considerations do not provide a basis for an increased rating. The Board has considered other possibly applicable disability ratings, but notes no ankylosis, recurrent subluxation or lateral instability, or dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion. Therefore Diagnostic Codes 5256, 5257, and 5258 are not applicable. 38 C.F.R. § 4.71a. Based on the evidence of record, the Board finds that the preponderance of the evidence is against the claim of entitlement to a disability rating in excess of 10 percent for the right and left knee. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002). Extraschedular Consideration The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2011). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The Board finds that the rating criteria contemplate the Veteran's disabilities. The Veteran's knee disabilities are manifested by pain and limitation of motion. These manifestations are contemplated in the applicable rating criteria. As such, the Board finds that the Veteran has not described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluations. Rather, his description of his knee disability symptoms is consistent with the degree of disability addressed by such evaluations. Therefore, the rating criteria are adequate to evaluate the Veteran's disabilities and referral for consideration of an extraschedular rating is not warranted. Finally, the Court has held that entitlement to total disability based on individual unemployability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Here, TDIU has been granted in August 2011. Therefore, that issue will not be considered in this decision. ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to a disability rating in excess of 10 percent for right knee DJD is denied. Entitlement to a disability rating in excess of 10 percent for left knee DJD is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs