Citation Nr: 1335711	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  10-07 198	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to an initial compensable disability rating for bilateral hearing loss.

2.  Entitlement to an initial disability rating higher that 10 percent for left knee degenerative arthritis.

3.  Entitlement to service connection for sleep apnea.

4.  Entitlement to service connection for restless leg syndrome.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Bridgid D. Cleary, Counsel

INTRODUCTION

The Veteran had active service from October 1962 to October 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Sioux Falls, South Dakota, that, in pertinent part, granted service connection for bilateral hearing loss and left knee degenerative arthritis, and denied service connection for sleep apnea and restless leg syndrome.   The Veteran expressed disagreement with the assigned initial disability ratings and with the denials of service connection and perfected an appeal.  Jurisdiction of this matter is currently with the RO located in Houston, Texas.

The Veteran was scheduled for a Travel Board hearing on September 26, 2013.  He did not report for that hearing.  As the record does not contain further explanation as to why he failed to report to this scheduled hearing the Board deems the request for a hearing to be withdrawn.  See 38 C.F.R. § 20.704 (2013).

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.


FINDINGS OF FACT

1.  The Veteran's bilateral hearing loss is characterized by no worse than level II hearing loss in both ears.

2.  The Veteran's left knee arthritis is confirmed by multiple X-rays and results in pain and limitation of motion to no less than 5 degrees extension and 90 degrees flexion.

3.  Sleep apnea did not have its clinical onset in service and is not otherwise related to active service.

4.  The Veteran does not have restless leg syndrome that had its clinical onset in service or that is otherwise related to active service.


CONCLUSIONS OF LAW

1.  The schedular criteria for an initial compensable disability rating for bilateral hearing loss are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2013).

2.  The schedular criteria for an initial disability rating higher that 10 percent for left knee degenerative arthritis are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.50, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2013).

3.  Sleep apnea was not incurred in or aggravated in service.  38 U.S.C.A. §§ 101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.303 (2013).

4.  Restless leg syndrome was not incurred in or aggravated in service.  38 U.S.C.A. §§ 101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).
Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Veteran's bilateral hearing loss and left knee claims arise from an appeal of the initial disability rating following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed under VCAA with regard to these issues.

With regard to the service connection claims, the Veteran was sent a letter in January 2008 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal.  The letter also explained what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, no further development is required with respect to the duty to notify.

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration.

These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

With respect to the third factor above, the United States Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service.  The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In this case, the service treatment records are silent as to any complaints or treatment for sleep apnea or restless leg syndrome.  Moreover, the post-service evidence does not indicate any current complaints or treatment referable to either condition until several years following separation.  Furthermore, the records contains no competent medical evidence suggesting a causal relationship between a current disability and active service.  Additionally, the Veteran's lay statements, as will be discussed in more detail below, indicate a post-service onset of these conditions.  For all of these reasons, the evidence does not indicate that the claimed disability may be related to active service such as to require an examination, even under the low threshold of McLendon.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file.  These files together comprise the claims file.  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Increased Disability Ratings

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

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2013).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, the Veteran is appealing the initial assignment of a disability rating, as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time.  Fenderson v. West, 12 Vet. App. 119 (1999).  Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by VA must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. 4.6 (2013).  Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6 (2013).

It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2013) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.10, 4.40, 4.45 (2013).  VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated  functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.  DeLuca v. Brown, 8 Vet. App. 202 (1995).

Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  When rating spine disabilities, the Board must discuss any additional limitation of motion that a Veteran has due to pain, weakness, or fatigue.  See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2011).

The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups.  The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered.  However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic code provisions predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59 (2013). 

Bilateral Hearing Loss

As noted in the introduction, service connection for bilateral hearing loss was granted in July 2008.  At that time, the Veteran's bilateral hearing loss was awarded a noncompensable disability rating, effective November 29, 2007.  The Veteran has appealed that initial rating.

Evaluations of hearing loss range from noncompensable to 100 percent, based upon 
organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  38 C.F.R. § 4.85(a), (d).  The rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. § 4.85, Diagnostic Code 6100.

VA treatment records and the Veteran's lay statements note that the Veteran wears hearing aids to cope with his hearing loss.

The Veteran underwent a March 2008 VA examination in conjunction with this claim.  At that time his pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
15
20
40
40
29
LEFT
15
20
55
70
40

Speech recognition was 96 percent in the right ear and 88 percent in the left ear.

Under Table VI, the right ear is assigned Roman numeral I and the left ear assigned Roman numeral II.  Under Table VII, if the poorer ear is rated II and the better ear is rated I, then a 0 percent rating is warranted.  See 38 C.F.R. § 4.85.  

Specific provisions are in effect for "exceptional patterns of hearing impairment," specifically cases where the pure tone thresholds at each of the four specified frequencies are 55 decibels or more, or where the pure tone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86.  Neither of these patterns is shown.

The Veteran underwent an April 2012 VA examination in conjunction with this claim.  At that time his pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
20
20
50
50
35
LEFT
25
30
70
70
49

Speech recognition was 88 percent in the right ear and 86 percent in the left ear.  The Veteran reported experiencing some difficulty communicating in certain situations such as informal conversations with friends and family.  The examiner also noted that the Veteran would likely experience significant difficulty conversing in the presence of background noise, but his disability was not significant enough that it would interfere with his ability to gain or maintain employment.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report in addition to dictating objective test results).

Under Table VI, both ears are assigned Roman numeral II.  Under Table VII, if both ears are rated II, then a zero percent disability rating is warranted.  See 38 C.F.R. § 4.85.  Again, these results do not show an exceptional patterns of hearing impairment that would trigger the provisions of 38 C.F.R. § 4.86.

Based on the objective data of record, there is no support for assignment of a compensable rating for the Veteran's bilateral hearing loss.  The VA examinations showed hearing loss, but did not reveal audiometric results sufficient to warrant a 10 percent disability rating under 38 C.F.R. § 4.85.  A significant increase in hearing impairment of both ears would be necessary to warrant a 10 percent disability rating.  Specifically, the worse ear would have to show Level IV impairment while the better ear would have to show Level III impairment, but hearing loss at that level is not reflected in the record.  The Board has also considered the Veteran's lay statements and notes that they are not inconsistent with the examination results, which reflects hearing loss, but not to a degree that is compensable under VA regulations.  Therefore, entitlement to an initial compensable disability rating for bilateral hearing loss is not warranted.


Left Knee

Service connected for left knee degenerative arthritis was awarded in a July 2008 rating decision.  At that time, the Veteran's left knee disability was awarded an initial 10 percent disability rating, effective November 29, 2007, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5099-5014.  The Veteran disagreed with the initial disability rating assigned to his service-connected disability, which is the basis of the current appeal.  

Separate disability rating may be assigned for separate symptoms, such as arthritis and instability.  See VAOPGCPREC 23-97 (July 1, 1997).  Specifically, VA's General Counsel has held that a Veteran would be entitled to separate disability rating under both Diagnostic Code 5257and Diagnostic Code 5003 when instability and arthritis resulting in limitation of motion are present.  See VAOPCGPREC 9-98 (Aug. 14, 1998).  During the pendency of this appeal, the RO granted a separate staged disability rating for instability of the left knee.  Specifically, a January 2013 rating decision awarded the Veteran a 20 percent disability rating for left knee instability from September 22, 2010, to April 1, 2012, and a 10 percent disability rating from April 2, 2012.  Likewise, the Veteran has been awarded a separate noncompensable disability rating for left knee scar associated with the left knee degenerative arthritis.  The Veteran has not appealed these initial disability ratings.  Thus, the Board will limit its discussion to the aspect of the Veteran's left knee disability that has been appealed.

Degenerative arthritis is evaluated under Diagnostic Code 5003.  38 C.F.R. § 4.71a.  This diagnostic code provision allows compensation of arthritis established by X-ray findings to be rated either based on the limitation of motion of the affected joint or based on X-ray findings.  38 C.F.R. § 4.471a, Diagnostic Code 5003.  In order to warrant the next higher 20 percent disability rating under this diagnostic code, the Veteran's left knee disability must be characterized by arthritis established by X-ray evidence with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  Id.

In order to warrant a higher disability rating based on limitation of motion, the Veteran's left knee disability must meet the criteria of Diagnostic Code 5260 (for limitation of flexion) and/or Diagnostic Code 5261 (for limitation of extension).  If the criteria for a compensable disability rating under both these diagnostic codes are met, separate ratings may be assigned.  VAOPGCPREC 9-2004 (September 17, 2004), 69 Fed. Reg. 59990 (2004).

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

Under Diagnostic Code 5260, a 10 percent rating will be assigned for limitation of flexion of the knee to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the knee to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the knee to 15 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260.  Diagnostic Code 5261 dictates that extension limited to 10 degrees is 10 percent disabling, extension limited to 15 degrees is 20 percent disabling, and extension limited to 20 degrees is 30 percent disabling.  38 C.F.R. § 4.71a, Diagnostic Code 5261.

Throughout the appeal period, the Veteran has consistently reported left knee pain.  Likewise throughout the appeal period, X-ray evidence has confirmed arthritis.

In a December 2007 letter, the Veteran's private physician stated that the Veteran's left knee arthritis caused painful swelling on a daily basis.

In January 2008, the Veteran underwent arthroscopy to repair meniscal tears.

In June 2008, the Veteran underwent a VA examination in conjunction with the underlying service connection claim.  The Veteran reported constant crushing, burning, aching, sharp, and sticking pain at a level of nine on a scale of 10.  He was able to function during the pain and the pain could be alleviated with over-the-counter medication.  He was unable to run and had to wear a brace on his knee.  Physical examination showed tenderness, guarding of movement, and crepitus, but no signs of edema, effusion, weakness, redness, or heat.  There was no subluxation, genu recurvatum, or locking pain.  His range of motion was from zero degrees extension to 105 degrees flexion.  Joint function was additionally limited by pain on repetitive use, but no additional limitation of motion was found.  Left knee function was not additionally limited by fatigue, weakness, lack of endurance, or incoordination.  Stability testing was within normal limits.  He walked with a limp.  He also had four scars on his left knee.

VA treatment records from October 2009 note the Veteran's symptoms of left knee pain, crepitus, popping, and instability.  This record also notes that the Veteran would walk for exercise.

Private treatment records dated September 2010 note the Veteran's reported left knee instability.  His range of motion was from zero to 135 degrees.  There was pain along medial and lateral joint line, but no swelling, effusion, crepitus, or patellar grind.  Lachman, anterior drawer, and pivot shift tests were positive.  His motor strength and light touch sensation were intact.  The physician noted that anterior cruciate ligament (ACL) reconstruction surgery had failed, and the Veteran's knee was now unstable and becoming more arthritic.  Total knee replacement was likely in the Veteran's future.

VA outpatient treatment records dated in October 2010 again note the Veteran's reported knee pain.  He was not wearing his left knee brace at the time of this visit.  He reported walking (slowly) one to one and a half miles a day for exercise.

In an April 2012 letter, the Veteran's private physician stated that the Veteran's left knee was unstable despite multiple ACL surgeries.  He was unable to walk for more than a block because of his pain and prolonged standing caused significant pain.  The physician characterized the Veteran's knee pain as moderately severe.  The accompanying treatment records showed a range of motion from zero to 100 degrees.  The Veteran's gait was normal and his skin was intact.  There was swelling and tenderness to palpation along medial and lateral joint line, but no effusion, crepitus, or patellar grind.  Anterior drawer and pivot shift tests were positive.  His motor strength and light touch sensation were intact.  

The April 2012 VA examination shows full left knee extension without objective evidence of painful motion and extension to 90 degrees, with pain beginning at 70 degrees.  No additional limitation of motion was found after repetitive testing, but symptoms of less movement than normal, weakened movement, pain on movement, deformity, instability of station, and interference with standing, sitting, and weight-bearing were noted.  There was no pain on palpation.  Muscle strength was reduced to 4/5.  There was some posterior and medial-lateral instability.  There was no evidence or history of recurrent patellar subluxation/dislocation.  The Veteran did not have a meniscal condition.  He did have a history of ACL tear requiring surgeries in 1995 and 2007.  While the Veteran did have scarring related to this disability, these scars were not painful, unstable, affecting an area greater than 39 square cm (6 square inches).  The Veteran regularly used assistive devices (brace and cane) to ambulate.

In an October 2012 letter, the Veteran's private physician noted that his range of motion of the left knee was from 5 to 130 degrees and X-ray evidence confirmed arthritis.

The Veteran's range of motion has been recorded as no worse than five degrees extension and no worse than 90 degrees flexion, with pain beginning at 70 degrees, but without additional limitation of motion after repetitive use.  The Veteran's limitation of motion of the left knee is not sufficient to warrant compensation under Diagnostic Code 5260, which requires limitation of flexion to 45 degrees or less, or Diagnostic Code 5261, which requires limitation of extension to 10 degrees or more, much less separate compensable disability ratings under both, even with consideration of painful motion and any other functional loss.  Moreover, there is no finding of ankylosis that would warrant an evaluation under Diagnostic Code 5256.  Thus, the Veteran's limitation of motion of the left knee does not warrant a disability rating in excess of the current 10 percent rating.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261.

The Board has also considered whether evaluation under another diagnostic code is appropriate.  In this regard, there is no evidence of genu recurvatum or impairment of the tibia or fibula.  Thus, rating under Diagnostic Codes 5262 or 5263 is not warranted.  There is no evidence of a meniscus condition with cartilage dislocation or removal.  As such, a separate compensable disability rating under Diagnostic Code 5258 or 5259 is not warranted.

Additionally, the Board has considered the statements of the Veteran as to the extent of his current symptoms.  He is certainly competent to report that his symptoms are worse.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals.

As explained above, the preponderance of the evidence is against the assignment of a disability rating in excess of the currently assigned 10 percent for the Veteran's left knee arthritis.  Again, the Veteran is currently in receipt of separate disability ratings for both instability and scars, which he has not appealed.  The Board interprets the Veteran's failure to appeal those ratings as evidence that the Veteran does not disagree with them.  Therefore, no additional discussion of his left knee symptoms relating to instability or scars is necessary.  The Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against a higher rating, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Extraschedular Considerations

The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1).

An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture.  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the 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 or frequent periods of hospitalization.  Id. at 115-116.  When either of those elements has been satisfied, 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.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.

In this case, the schedular evaluation is not inadequate.  An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disabilities, such as exceptional patterns of hearing loss or ankylosis, but the medical evidence reflects that those manifestations are not present in this case.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder.  Indeed, the Veteran's symptoms of hearing impairment and loss of motion are specifically covered in the rating criteria and the Veteran's additional left knee symptoms of instability and scars are contemplated by his separate ratings for these aspects.  As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order.

Service connection

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013).

In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).  The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases).  In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013).

The Board must assess the credibility and weight of all the evidence, including the 
medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

Sleep Apnea

Private treatment records show a diagnosis of obstructive sleep apnea in December 2005.  Although the Veteran reportedly believed that this was a misdiagnosis, VA treatment records still note a diagnosis of sleep apnea by history.  See generally VA treatment records.  Thus, the current disability requirement is satisfied.

The Veteran's service treatment records do not show complaints of or treatment for sleep apnea during service.  In his February 2008 statement, the Veteran stated that his claimed symptoms began shortly after his separation from service.  In this way, the record shows neither an in-service occurrence or aggravation of a disease or injury, nor continuity of symptomatology between a current disorder and service.  Absent such a showing, service connection is not warranted.

In short, the claim of service connection for sleep apnea must be denied.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

Restless Leg Syndrome

The record does not show that the Veteran currently has restless leg syndrome or a similar disability.  The medical evidence dated during the pendency of this claim does not show a diagnosis of or treatment for restless leg syndrome.  See McLain, 21 Vet. App. 319.  The only medical reference to restless leg syndrome in the claims file is the Veteran's private split-night polysomnography report dated December 2005, which noted periodic limb movement and suggested that this symptom may be either restless leg syndrome or secondary to another disorder such as peripheral neuropathy or anemia with ferritin deficiency.  The VA and private treatment records during the appeal period are silent with regard to treatment for or a diagnosis of restless leg syndrome.  Moreover, the Veteran has not provided lay evidence of symptoms of this disability during the relevant appeal period.  In the absence of evidence that the Veteran currently has restless leg syndrome there can be no award of service connection.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer  v. Derwinski, 3 Vet. App. 223, 225 (1992).  Consequently, service connection for restless leg syndrome is not warranted.


ORDER

An initial compensable disability rating for bilateral hearing loss is denied.

An initial disability rating higher that 10 percent for left knee degenerative arthritis is denied.

Service connection for sleep apnea is denied.

Service connection for restless leg syndrome is denied.




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DEMETRIOS G. ORFANOUDIS
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs