Citation Nr: 1609679 Decision Date: 03/10/16 Archive Date: 03/22/16 DOCKET NO. 14-24 966A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a compensable disability rating for right knee degenerative joint disease (DJD) and meniscus injury. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: John Berry, Attorney ATTORNEY FOR THE BOARD S. Spitzer, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1985 to August 1987 and from October 1989 to October 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In January 2016, the Veteran filed a VA Form 9, substantive appeal, perfecting his appeal regarding the issues of increased initial disability ratings for cervical radiculopathy of the right and left upper extremities, cervical spine degenerative disc disease, fibromyalgia, radiculopathy of the right and left lower extremities, and right ankle strain; an increased disability rating for osteoarthritis of the lumbar spine; and entitlement to service connection for memory loss, left wrist strain, left ankle strain, left elbow pain, left shoulder pain, right wrist strain, and hypertrophic gastritis. At present, these issues have not been certified to the Board for appellate disposition. Certification is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue. 38 C.F.R. § 19.35 (2015). However, when an appeal is certified to the Board for appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36, 20.1304(a). As the required notifications have not been sent in regard to the VA Form 9 filed in January 2016, the Board declines to take any further action on these issues at this time. This delay is needed to ensure that the Veteran is afforded full due process in the appeal. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (due process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed.Cir.2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed). The issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Effective October 14, 2011, the evidence shows painful but non-compensable motion due to arthritis of the right knee, without evidence of instability or subluxation. CONCLUSION OF LAW Effective October 14, 2011, the criteria for a disability rating of 10 percent, but no higher, for the Veteran's right knee DJD with meniscus injury are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The notice requirements of the VCAA require 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) (2015). Here, VCAA notice was provided by an August 2011 letter. The case was last readjudicated in June 2014. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent post-service treatment records and providing examinations when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained. The Veteran's STRs have been obtained, as well as various post-service private treatment records. Additionally, the Veteran was provided with a VA examination for his claim in October 2011. The examination was performed by a medical professional and included an interview of the Veteran. The Board finds that the examination findings and the examination report are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board notes that while the Veteran has not undergone a VA examination since October 2011, the record contains private treatment records which document the condition of the Veteran's right knee since October 2011, including range of motion testing. Finally, the Board observes that the Veteran's representative submitted relevant medical evidence in June 2014 and August 2015, after the last adjudication of the appeal by the RO. While the August 2015 evidence was accompanied by a waiver of RO review, the June 2014 evidence was not. However, the substantive appeal in this case was received after February 2, 2013, falling within the scope of a change in the law effectuated by Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law 112-154, and the preliminary interpretative guidance provided to the ROs via Veterans Benefits Administration Fast Letter 14-02 (evidence submitted by the appellant and/or representative where the substantive appeal is filed on or after February 2, 2013, may be considered without a waiver for initial RO review). Solicitation of a waiver for the evidence submitted in June 2014 is therefore not required. See 38 C.F.R. §§ 19.31, 19.37 (2015). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Right Knee Disability A December 2007 rating decision granted service connection for the Veteran's right knee disability, characterized as chondromalacia of the right knee and assigned a noncompensable disability evaluation effective November 1, 2007. The Veteran filed the instant claim for an increased rating in June 2011. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The 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 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 disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2015); see also 38 C.F.R. §§ 4.45, 4.59 (2015). 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). Under Diagnostic Code (DC) 5260, limitation of flexion of the leg to 15 degrees warrants a 30 percent rating; limitation to 30 degrees warrants a 20 percent rating; limitation to 45 degrees warrants a 10 percent rating; and limitation to 60 degrees warrants a noncompensable, or 0 percent, rating. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of extension of the leg to 45 degrees warrants a 50 percent rating; limitation to 30 degrees warrants a 40 percent rating; limitation to 20 degrees warrants a 30 percent rating; limitation to 15 degrees warrants a 20 percent rating; limitation to 10 degrees warrants a 10 percent rating; and limitation to 5 degrees warrants a noncompensable rating. 38 C.F.R. § 4.71a. Normal range of motion for the knee is 0 degrees in extension and 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5003 establishes, essentially, three methods of evaluating degenerative arthritis that is established by X-rays: (1) when there is a compensable degree of limitation of motion, (2) when there is a noncompensable degree of limitation of motion, and (3) when there is no limitation of motion. Generally, when documented by X-rays, arthritis is rated on the basis of limitation of motion under the appropriate DC for the joint involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasms, or satisfactory evidence of painful motion. Read together, DC 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, that is established by x-ray, is deemed to be limitation of motion and warrants the minimum compensable rating for the joint, even if there is no actual limitation of motion. Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991). The Burton Court further held that the provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). At the Veteran's October 2011 VA examination, the Veteran reported right knee symptoms of pain, locking, giving way, stiffness, lack of endurance, and weakness, worse during flare-ups, in which he is unable to stand for short durations or walk without pain or the use of crutches. X-ray findings showed mild DJD in the right knee. The Veteran had full range of motion, including after three repetitions, and his motion was not limited by pain. The examiner found no evidence of subluxation or instability. Private treatment records from May 2014, September 2014, June 2015, and July 2015 note flexion to 110, 100, 115, and 110 degrees respectively, with extension to 5 degrees in May 2014 and July 2015, and to 0 degrees in September 2014 and June 2015. The clinicians noted the Veteran's reports of knee pain, including his May 2014 report of constant sharp popping pain. The limitations of flexion noted are not compensable under either Diagnostic Code 5260, which requires that flexion be limited to 45 degrees, or Diagnostic Code 5261, which requires that extension be limited to 10 degrees. However, in light of the Veteran's documented pain and functional impairment, as well as the mandate of 38 C.F.R. § 4.59 and the Court's decision in Lichtenfels, the criteria for a 10 percent rating for limitation of motion in the right knee has been met effective October 14, 2011. The Board has considered whether a higher or separate rating is warranted under Diagnostic Code 5257. Although the Veteran stated during the October 2011 VA Examination that his knee gives way, the medical evidence of record does not document objective instability or subluxation. The Board finds the objective test results from multiple examinations regarding instability to be more probative than the Veteran's subjective complaints. Therefore, a higher or separate rating under DC 5257 is not warranted. The Board has also considered whether a higher or separate rating is warranted under Diagnositic Codes 5258 or 5259. The record contains a report from a May 2014 magnetic resonance imaging (MRI) scan showing a meniscal tear with a small joint effusion. Effusions of +1, -2, and +1 were reported during private treatment sessions in May 2014, September 2014, and June 2015, respectively, and the Veteran's right knee meniscus was removed in August 2014. However, there is no evidence that the Veteran has suffered a dislocation of the meniscus, nor has the Veteran's representative contended as such. Moreover, although the Veteran underwent surgical removal of the meniscus of his right knee, to provide him with an additional 10 percent rating under DC 5259 for the residuals of that surgery would constitute pyramiding (impermissibly compensating the Veteran twice for the same symptoms). The Veteran's right knee symptoms consist of pain, popping, locking and weakness. He is compensated for these symptoms under the 10 percent rating assigned in this decision under Diagnostic Code 5003-5260. As such, the Board finds that the Veteran is not entitled to an additional or separate rating for the right knee under DC 5258 or DC 5259. Additionally, the record also does not show that the Veteran has ankylosis, nonunion or malunion of the tibia or fibula. Accordingly, Diagnostic Codes 5256 and 5262 are not for application. The Board has considered the Veteran's statements regarding the difficulty he experiences walking and standing, as well as his subjective symptoms, including weakness, stiffness, giving way, lack of endurance, locking, popping, and pain. However, the Board concludes that the medical findings of record are of greater probative value than the lay allegations regarding the severity of the Veteran's right knee disability. Accordingly, the Board finds that a rating of 10 percent, but no higher, is warranted for the Veteran's right knee disability. III. Extraschedular Consideration The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board acknowledges the Veteran's statement during the October 2011 VA examination that his right knee disability affects his ability to perform work which utilizes his special forces experience, including troop training or other hands-on field or combat positions. However, application of the three-part test established by the Court to determine the appropriateness of referral for consideration of an extraschedular rating does not indicate that such referral is warranted here. The Veteran's right knee symptoms have included pain, locking, popping, weakness, stiffness, and lack of endurance, and have impaired his ability to stand for short durations, and to walk without pain or the use of crutches. Such manifestations are contemplated in the applicable rating criteria. Further, the functional effects of painful motion are contemplated in his assigned evaluation under Diagnostic Code 5003-5260, and by DeLuca. In short, the Board finds that the Veteran's description of the severity of his knee disability and its symptomatology is consistent with the degree of disability addressed by the evaluation assigned in this decision. Therefore, the Veteran does not present an exceptional or unusual disability picture such that referral for consideration of an extraschedular rating is warranted. The Board additionally acknowledges that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, there are no additional symptoms that have not been attributed to his service-connected right knee disability. Further, the Veteran's representative has not asserted, nor is there any evidence that suggests, that the Veteran's other service-connected disabilities have symptomology that is not contemplated by the relevant rating criteria. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Finally, the Veteran has not asserted that his right knee disability has rendered him unable to obtain and maintain substantially gainful employment, nor does the evidence indicate such. As the Veteran does not contend and the evidence does not indicate that he is unable to obtain and maintain substantially gainful employment because of his service-connected knee disability, action pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) is not warranted. ORDER Effective October 14, 2011, a disability rating of 10 percent for right knee degenerative joint disease and meniscus injury is granted, subject to the rules and regulations governing the payment of monetary benefits. REMAND In conjunction with the August 2013 VA sleep apnea examination, the examiner opined that the Veteran's obstructive sleep apnea (OSA), diagnosed by a March 2010 sleep study, was not related to service. The examiner's rationale was that OSA was not caused by a specific event during service, and was likely due to obesity. However, the examiner did not compare the significance of the Veteran's weight during service (noted as 230 lbs. at a September 2007 medical examination), to the Veteran's current weight. The examiner also did not address the October 2011 statement from J.B., asserting that he provided medical advice to the Veteran during service regarding his periodic waking and gasping for air, or the September 2012 letter from a private pulmonologist, Dr. C, opining that the Veteran has had a longstanding sleep disturbance consistent with OSA since service. Additionally, the examiner did not address the Veteran's report on his June 2007 report of medical history that he had trouble breathing through his nose in connection with sinusitis, and his February 2010 report during a neurological examination that he has had trouble sleeping for the past four years. Because Dr. C's opinion does not provide a sufficient rationale for its conclusion and because it does not account for potentially positive evidence of record, the Board finds that a new VA examination is warranted. Also on remand the Veteran should be provided an opportunity to submit any outstanding, relevant medical records and/or medical opinions, as well as any additional lay evidence addressing any symptoms he may have experienced in service or since service. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all private medical care providers who have treated him for sleep apnea since August 2015. After securing any necessary releases, the AOJ should request any relevant records identified that are not duplicates of those already contained in the claims file. If any requested records cannot be obtained, the Veteran and his representative should be notified of such. 2. After obtaining any additional records, schedule the Veteran for a sleep apnea examination. The claims file must be reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. All appropriate diagnostic testing should be conducted. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea had its onset in service or is otherwise related to service. In forming this opinion, the examiner must specifically acknowledge and comment on the following: * The June 2007 report of medical history in which the Veteran denied frequent trouble sleeping and endorsed sinusitis, explained as difficulty breathing through the nose, and his September 2007 report of medical history at separation in which he again denied frequent trouble sleeping and his weight was reported as 230 lbs. * The Veteran's February 2010 report that he has had trouble sleeping for the past four years. * The October 2011 statement from J.B. that he provided medical advice during service to the Veteran regarding his periodic waking and gasping for air. * The September 2012 medical opinion from Dr. C. The examiner should also make specific findings as to the following: (a) Is it at least as likely as not that the current sleep apnea, first diagnosed in 2010, represents the progression of the Veteran's in-service symptoms, as reported by the Veteran, his wife, and J. B.? (b) What is the significance, if any, of the Veteran's current obesity as a risk factor for the development of sleep apnea? The examiner should specifically compare and discuss the Veteran's weight in service with his current weight. An explanation must be provided to support all opinions expressed. 3. Then, re-adjudicate the claim. If the benefit sought is not granted, issue a supplemental statement of the case (SSOC) and return the case to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs