Citation Nr: 1615880	
Decision Date: 04/20/16    Archive Date: 04/26/16

DOCKET NO.  09-33 957	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for a left knee disability.

2.  Entitlement to service connection for a sleep disorder, to include as secondary to service-connected degenerative arthritis of the cervical spine.

3.  Entitlement to an initial rating greater than 10 percent prior to May 14, 2008 and a staged initial rating greater than 20 percent on and after April 15, 2010, for degenerative arthritis of the cervical spine.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Katz, Counsel


INTRODUCTION

The Veteran served on active duty from May 1986 to June 2001, from July 2001 to February 2008, and from February 2008 to May 2008. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2008 and April 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO).  The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2016.  A transcript of that hearing is associated with the claims file.

The issues of entitlement to an increased rating for degenerative arthritis of the cervical spine and entitlement to service connection for a left knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The probative evidence of record shows that the Veteran's disorder of initiating and maintaining sleep (DIMS) is related to his service-connected degenerative arthritis of the cervical spine.

2.  The Veteran's degenerative arthritis of the left knee had its onset in service.



CONCLUSIONS OF LAW

1.  The criteria for service connection for a sleep disorder, diagnosed as DIMS, have been met.  38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015).

2.  Degenerative arthritis of the left knee was incurred in service.  38 U.S.C.A. 1110, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issues of entitlement to service connection for a sleep disorder and entitlement to service connection for degenerative arthritis of the left knee.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014).  This is so because the Board is taking action favorable to the Veteran by granting service connection for a sleep disorder and left knee arthritis.  As such, this decision on those matters poses no risk of prejudice to the Veteran.  See Bernard v Brown, 4 Vet. App. 384 (1993).

Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  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.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Service connection may be established on a secondary basis for a disability which is shown to be proximately due to, the result of, or chronically aggravated by, a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition (e.g., arthritis) is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Certain chronic diseases (e.g., arthritis) may also be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service.  38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2015).

I.  Sleep Disorder

The Veteran has advanced two theories of entitlement with regard to his claim of entitlement to service connection for a sleep disorder.  First, the Veteran alleges that his current sleep disorder first manifested during military service, and therefore is directly related to military service.  He also alleges that, because his service-connected neck disability caused him to experience pain during sleep, that his current sleep disorder is etiologically related to his service-connected cervical spine disorder.

The Veteran's service treatment records reflect that he began experiencing disordered sleep during military service.  In October 2007, the Veteran complained that his neck pain was causing an inability to sleep.  In February 2008, the Veteran reported that he was feeling tired.  The Veteran's wife reported that the Veteran was experiencing periods of apnea and that he awoke and changed position.  The diagnosis was primary snoring with daytime sleepiness and apneic spells.  The Veteran was referred to the sleep disorders clinic for a sleep study.  In March 2008, the Veteran underwent a sleep study.  He complained of snoring, apneic spells, and difficulty finding a comfortable sleeping position.  He noted that he could not sleep on his back due to neck problems.  The sleep study revealed occasional arousals during sleep with changes in respiration.  The Veteran exhibited three apneas, which were obstructive, and one hypopnea.  He did not exhibit enough respiratory events to qualify for a split-night CPAP titration trial.  The physician noted that the Veteran's history was "good for obstructive sleep apnea."  He exhibited more problems in the supine position, but he did not demonstrate significant sleep related breathing disorder during the test.  The physician recommended treatment for underlying depression, a prescription for Provigil in the morning to combat hypersomnolence, and a regular exercise program.  An April 2008 record reveals that the Veteran was prescribed Zolpidem Tartrate for sleep.  Another April 2008 record reflects a diagnosis of primary snoring.  The physician noted that the March 2008 sleep study did not show any sign of sleep apnea, and that the sleep physician recommended Provigil in the morning.

In a statement received in September 2009, the Veteran's wife reported that she was married to the Veteran for more than 17 years, and that he tosses and turns throughout the night and has difficulty getting comfortable due to neck pain.  She reported that the Veteran was tired and lost his temper quickly, and that his sleep deficit caused a personality change.

In January 2011, the Veteran underwent another sleep study.  The Veteran reported that he did not sleep well, noting that the pain from his neck and his arms wakes him up every two to three hours.  The sleep study revealed mild to moderate snoring, sleep efficiency of 81.3%, one obstructive apnea, and four hypopneas.  The physician diagnosed periodic limb movement disorder and persistent DIMS.  There was no evidence for significant sleep apnea.

In an October 2013 letter, D.B., M.D. opined that, "[b]ased on reasonable medical probability it is as likely as not that his insomnia is a complication of his painful arthritic condition affecting his neck."  Dr. D.B. is the Veteran's treating physician, and the private treatment records show that he is familiar with the Veteran's medical history, including his complaints of insomnia and his cervical spine disability.  Dr. D.B. explained that the Veteran sustained a cervical spine disability during service, and that he experiences constant pain which waxes and wanes.  He noted that the Veteran has undergone sleep studies which show frequent wakenings after sleep onset and the clinical report suggested that he wakes up due to neck pain while he is sleeping.  This produces insomnia, which leads to excessive daytime somnolence and impaired daytime functioning.

During his February 2016 hearing before the Board, the Veteran testified that he experiences daytime drowsiness and trouble sleeping due to his neck problems and other disabilities.  He noted that he cannot sleep on his back due to apneic episodes, and that he has difficulty sleeping on his side due to neck pain.

After review of the record, the Board concludes that service connection for a sleep disorder diagnosed as DIMS is warranted in this case.  The evidence shows a diagnosis of DIMS in a January 2011 sleep study report.  Moreover, in October 2013, Dr. D.B. opined that the Veteran's insomnia and sleep symptoms were "as likely as not" related to his service-connected cervical spine disorder.  Dr. D.B. provided supporting rationale for the opinion stated, and was familiar with the factual basis for the Veteran's claim.  This opinion, coupled with the Veteran's statements and testimony stating that his neck pain interferes with his sleep and causes him to awaken during the night, as well as the lay statement provided by the Veteran's wife, weighs in favor of an award of service connection on a secondary basis.  There is no other medical evidence of record addressing the etiology of the Veteran's DIMS.  As the only probative evidence of record relates the Veteran's DIMS to his service-connected degenerative arthritis of the cervical spine, service connection for DIMS is warranted.

II.  Left Knee Disability

The Veteran contends that service connection is warranted for his left knee arthritis.  During a February 2016 hearing, the Veteran reported that his duties caused constant wear and tear of his knees, and that he experienced left knee symptoms during service.

The Veteran's service treatment records show that, in March 1991, the Veteran presented for a cut on his left knee.  The laceration was sutured.  The diagnosis was traumatic laceration of the left knee, healing.  Several days later, the sutures were removed.  The wound was noted to be healing well.  A May 2008 X-ray of the Veteran's knees revealed minimal bilateral tricompartmental osteoarthritis.

In February 2013, the Veteran underwent a VA examination.  The Veteran reported knee pain on active duty, and indicated that X-rays were conducted which revealed arthritis.  He was treated with anti-inflammatory medications.  He stated that, since his military discharge, he continued to experience bilateral knee pain.  He described his pain as a dull pain that became sharp with prolonged walking.  After performing a physical examination, the VA examiner diagnosed degenerative arthritis of the right knee and degenerative arthritis of the left knee.  Based upon the fact that osteoarthritis of the right knee was diagnosed during service, the examiner opined that it was at least as likely as not that the Veteran's right knee arthritis was caused by or incurred during service.  The examiner noted that "osteoarthritis once diagnosed would not resolve and in fact most likely further degenerate."  However, the VA examiner only provided an etiological opinion for the right knee arthritis, and did not address the etiology of the left knee arthritis.  

After thorough consideration of the evidence of record, the Board concludes that service connection is warranted for the Veteran's left knee arthritis, as arthritis is a chronic disease subject to presumptive service connection under 38 C.F.R. § 3.309(a) based upon a showing of continuity of symptomatology.  38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1331. 

In this case, the Veteran's service treatment records document a finding of osteoarthritis of the bilateral knees in May 2008, just prior to his discharge from service.  In October 2008, several months later, the Veteran filed a claim seeking service connection for his left knee disability.  Later, in February 2013, a VA examiner examined the Veteran's knees, and diagnosed degenerative arthritis of the left knee.  Additionally, the Veteran has provided competent statements attesting to his continuous symptoms since service discharge.  See Layno v. Brown, 6 Vet. App. 465 (1994).  

In determining whether service connection is warranted for disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In this case, considering the evidence of record, and affording the Veteran the benefit of the doubt, the Board finds the Veteran's statements concerning the onset of his knee symptoms during service, which are corroborated by X-ray evidence in the service treatment records, and his reports of continuous symptoms since service, which are supported by the fact that he filed a claim for service connection within one year of service discharge and the subsequent medical evidence confirming degenerative arthritis of the left knee, the Board concludes that it is at least as likely as not that the Veteran's left knee degenerative arthritis began in service and has continued to the present.  See Walker, 708 F.3d at 1331.  Resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for degenerative arthritis of the left knee is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b) (2015).


ORDER

Entitlement to service connection for DIMS is granted.

Entitlement to service connection for degenerative arthritis of the left knee is granted.


REMAND

Service connection for a cervical spine disability was granted in September 2008, and a 10 percent disability rating was assigned, effective May 14, 2008.  The Veteran appealed the initial rating assigned.  In a November 2010 rating decision, the RO assigned a 20 percent disability rating, effective April 15, 2010.  

Initially, the Board observes that the Veteran has submitted additional evidence pertinent to the evaluation of his cervical spine disability without a waiver of RO review.  Accordingly, the Board must return the case to the RO for consideration of the additional evidence received and for the issuance of a supplemental statement of the case.  See 38 C.F.R. § 19.31 (2015).

Additionally, review of the record reflects that the Veteran last underwent a VA examination to assess the severity of his cervical spine disability in February 2013.  However, during his February 2016 hearing before the Board, the Veteran testified that his cervical spine disability had worsened in severity since his last VA examination.  Additionally, the record reflects that the Veteran underwent a C6-C7 anterior cervical discectomy, osteophytectomy, and fusion in October 2015, suggesting a worsening of his cervical spine disability since February 2013.  

Because the February 2013 VA examination is over three years old and may not reflect the current severity of the Veteran's service-connected cervical spine disability, a new VA examination is warranted.  Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); see also 38 C.F.R. § 3.326(a) (2015).

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran with a new VA examination to determine the current severity of his service-connected cervical spine disability.  The Veteran's claims file and a copy of this Remand must be reviewed by the examiner.  All pertinent symptomatology and findings must be reported in detail.  Any diagnostic tests deemed necessary for an accurate assessment must be conducted.  The examiner must record all pertinent medical complaints, symptoms, and clinical findings, in detail. 

The examiner must determine the range of motion of the Veteran's cervical spine, in degrees, noting by comparison the normal range of motion of the cervical spine.  The VA examiner must specifically state whether there is any favorable or unfavorable ankylosis in the cervical spine.  The examiner must also state whether there is weakened movement, excess fatigability, incoordination, or other functional impairment attributable to the service-connected cervical spine disorder, expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any such findings.  Finally, an opinion must be stated as to whether any pain found in the cervical spine could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. 

The examiner must also report any associated neurological complaints or findings attributable to the Veteran's service-connected cervical spine disorder.  If necessary to evaluate the complaints, nerve conduction studies and/or electromyography studies must be conducted.  The specific nerve(s) involved must be identified.  If incomplete paralysis is found, the examiner must state whether the incomplete paralysis is best characterized as mild, moderate, or severe; with the provision that wholly sensory involvement should be characterized as mild, or at most, moderate.  Any neurologic abnormalities associated with the Veteran's cervical spine disorder must be reported.  The examiner must also state whether the Veteran has intervertebral disc syndrome; if so, the examiner must state whether the Veteran experiences incapacitating episodes requiring bedrest prescribed by a physician and treatment by a physician, and note the frequency and total duration of such episodes over the course of the past 12 months.

Finally, the examiner must describe functional limitations resulting from the Veteran's cervical spine disability.

2.  Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2015).

3.  When the above development has been completed, readjudicate the issue on appeal with consideration of all evidence in the claims file, including the evidence received since the September 2013 supplemental statement of the case.  If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and afford the Veteran an adequate opportunity to respond, prior to returning the issue to the Board for appellate review.

The appellant 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).



______________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs