Citation Nr: 1637260 Decision Date: 09/22/16 Archive Date: 09/30/16 DOCKET NO. 06-11 235A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to a rating in excess of 10 percent for a right knee chondromalacia. 3. Entitlement to a rating in excess of 10 percent for a left knee chondromalacia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision issued by the RO. The Board remanded these issues in November 2010 for additional development. The development has been completed and the case has been returned to the Board for appellate consideration. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. FINDINGS OF FACT 1. The obstructive sleep apnea had onset during the Veteran's period of service. 2. There is painful range of motion in the right knee with full extension and flexion at most limited to 70 degrees. 3. There is painful range of motion in the left knee with full extension and flexion at most limited to 70 degrees. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C.A. §§ 1110, 1131, 1154 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. The criteria for a rating in excess of 10 percent for right knee chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (2015). 3. The criteria for a rating in excess of 10 percent for left knee chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). VCAA applies to the instant claims. VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The duty to notify in this case was satisfied by letters sent to the Veteran in April 2004, September 2007, January 2008 and December 2012. The claims were last adjudicated in October 2014. The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claims. The Veteran has not identified any other outstanding records that are pertinent to the issue currently on appeal. In addition, the Veteran was afforded multiple VA examinations in connection with his claims for increased rating and service connection. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained are adequate with regard to the increased rating claims on appeal because the examinations were performed by medical professionals who conducted thorough examinations, and reported findings pertinent to the rating criteria. With regard to the service connection claims, the examinations and the medical opinions obtained are adequate to evaluate the claims for service connection for obstructive sleep apnea as the opinions were predicated on a full reading of the service treatment records as well as the private and VA medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, including the contentions and statements of the Veteran and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). See Monzingo v Shinseki, 26 Vet. App. 97 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion" ). The appeal was remanded to the RO in November 2010. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). The remand directed that the AOJ schedule the Veteran for new examinations to determine the etiology of the obstructive sleep apnea. The remand also directed the AOJ to schedule the Veteran for new examination to evaluate the severity of his right and left knee disabilities. The Veteran received examinations in February 2012 and June 2014. Accordingly, the Board finds that there has been substantial compliance with the remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In summary, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for VA examinations. Service Connection - Obstructive Sleep Apnea Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). A March 1984 service treatment record documents the Veteran's complaint of feeling weak, sluggish and having insomnia. He complained that he had experienced insomnia for approximately one week. He reported that it took him a few hours to fall asleep and that he awoke periodically through the night. Service treatment records also document the Veteran's struggle with weight gain and the counseling he received for weight reduction (see August 1978, January 1990, March 1990 and October 1991 service treatment records). The May 1992 Report of Medical History associated with his retirement examination documents the Veteran's complaint of frequent trouble sleeping. An April 1997 sleep study reflects a diagnosis of obstructive sleep apnea. The January 2006 Report of VA examination documents diagnoses of sleep apnea and mild restrictive ventilatory defect consistent with obesity and sleep apnea. The examiner opined that the Veteran's sleep apnea and respiratory problems were "less likely as not a result of his bronchitis from May 31, 1978." In a June 2007 statement, the Veteran's treating physician noted review of the Veteran's service treatment records documenting complaints of poor sleep quality and daytime sleepiness and opined that it was possible that the Veteran was developing sleep apnea during his time in the military. The August 2008 Report of VA examination confirms the diagnosis of obstructive sleep apnea. The physician explained that the etiology of the Veteran's fatigue and insomnia was myriad. They physician also noted that the Veteran's body habitus, especially his neck size, correlated highly with the presence of obstructive sleep apnea. The physician concluded that it was impossible to say with any high degree of certainty whether the Veteran's report of fatigue and sleep disturbance during his period of service was related to his recent diagnosis of obstructive sleep apnea. A February 2012 report of examination documents the physician's comment that the symptoms of the Veteran's sleep apnea developed during his period of service. However, the physician noted that military service itself was not the direct cause of obstructive sleep apnea. The July 2012 Report of VA examination notes the Veteran's report that he was diagnosed with sleep apnea in 1994. The examiner observed there was no documentation of a diagnosis of sleep apnea in 1994. The examiner also noted that the Veteran self-reported that after his military service discharge he experienced a weight gain of approximately 20 pounds and throughout the subsequent years gained significantly more weight. The examiner opined, based on the only sleep study available from 1997 (5 years after discharge) and the well-known medical fact that weight gain was an extremely important predisposing factor for the development of sleep apnea, that it was less likely than not that while the Veteran was on active duty that he had sleep apnea. The examiner explained that in other words, it was more likely than not that after the Veteran separated, with the weight gain that occurred, the Veteran subsequently developed sleep apnea. The Board has considered the July 2012 VA opinion in which the examiner opined, based on the only sleep study available from 1997 (5 years after discharge) and the well-known medical fact that weight gain was an extremely important predisposing factor for the development of sleep apnea, that it was less likely than not that while the Veteran was on active duty that he had sleep apnea. However, the service treatment records clearly documents the Veteran's struggle with weight gain and he has consistently stated that his symptoms onset in service. Further, in a June 2007 statement, the Veteran's treating physician opined that it was possible that the Veteran was developing sleep apnea during his time in the military. Although the "treating physician" rule which accords dispositive probative value to such an opinion is not applicable in VA law, it nonetheless requires that VA consider the physician's opinion. The treating physician's opinion is informed and responsive to this inquiry. Accordingly, the Board finds the evidence to be in relative equipoise in showing that the Veteran has current obstructive sleep apnea that had its clinical onset during his period of service. In such cases, reasonable doubt is resolved in the Veteran's favor and service connection for obstructive sleep apnea is warranted. The Board expresses no opinion regarding the severity of the disorder. The RO will assign an appropriate disability rating on receipt of this decision. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). Increased ratings- Knees Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12Vet. App 119 (1999). Here the right knee and left knee disabilities have not significantly changed and uniform evaluations are warranted. 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. See 38 C.F.R. § 4.7. The Veteran alleges that his right and left knee disabilities meet the criteria for a higher rating. The Board has examined the record, however, and finds that the preponderance of the evidence is against the granting of an increased benefit and the appeals will be denied. The ratings for the Veteran's left and right knee disabilities have been assigned pursuant to diagnostic code (DC) 5010-5257. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen; unlisted disabilities requiring rating by analogy will be coded first the numbers of the most closely related body part and "99". Under DC 5010, arthritis due to trauma is rated as degenerative arthritis. Degenerative arthritis is rated on the basis of limitation of motion under the appropriate code for the specific joint or joints involved. When limitation of motion of the specific joint or joints is noncompensable, a 10 percent rating is assigned for each major joint or group of minor joints affected by the limitation of motion. 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, a 10 percent rating is assigned for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is assigned for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. Under DC 5257, a 10 percent rating is assigned for slight recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability. As noted, evaluations may also be assigned for limitation of motion. (See 38 C.F.R. § 4.71a, DC 6260, 5261). Under DC 5260, a 10 percent rating is assigned for limitation of flexion to 45 degrees. A 20 percent contemplates limitation of flexion to 30 degrees. A rating of 30 percent requires limitation of flexion to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, DC 52601 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Under DC 5261, a rating of 10 percent requires limitation of extension to 10 degrees. A rating of 20 percent requires limitation of extension to 15 degrees. A rating of 30 percent requires limitation of extension to 20 degrees. A rating of 40 percent requires limitation of extension to 30 degrees, and a rating of 50 percent requires limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. The August 2004 report of VA examination reflects the Veteran's complaint of bilateral knee pain anteriorly with stiffness and recurrent effusions, especially with activity. He denied having any heat, redness or instability. He did have catching and popping of the knees but no true locking. He had increasing pain with repetitive use and flare-ups associated with excessive walking. Objectively, he had full extension and flexion to 130 degrees, bilaterally. He exhibited tenderness to palpation directly over his patellar tendon (more on the left than right) and some mild medial joint line tenderness. He had a bony prominence on both tibial tubercles suggestive of an old Osgood-Schlatter Disease. His knees were stable to anterior, posterior, varus and valgus stresses. There was no effusion. McMurray's examination on both sides was negative. He had full strength of quadriceps and hamstring function. The February 2012 report of examination reflects the Veteran's complaint of bilateral knee pain. He reported that flare-ups of knee pain made prolonged standing and walking difficult. He had full extension of the knee and flexion of the knee to 70 degrees (with objective evidence of painful motion beginning at 80 degrees), bilaterally. Though the examiner indicated there was additional limitation of motion on repetitive use, objectively, there was no additional limitation of motion on repetitive use and, in fact, the Veteran had full extension of the right knee and flexion to 90 degrees and full extension of the left knee and flexion to 80 degrees. It was indicated that he did have functional loss and/or functional impairment of the knees after repetitive use with contributing factors of the disability being less movement than normal; weakened movement; excess fatigability; incoordination; pain on movement; instability of station; and, interference with sitting, standing and weight-bearing. He had tenderness or pain to palpation for joint line or soft tissues of the knees. Muscle strength testing and joint stability tests were normal. There was no evidence of recurrent patellar subluxation/dislocation. The Veteran's right and left knee disabilities impacted his ability to work in that it was difficult for him to stand for long periods of time or walk for long periods of time. The June 2014 report of VA examination reflects the Veteran's complaint of intermittent, bilateral knee pain (2-5/10 intensity). He reported that he had sustained falls inside and outside the home because of knee pain. He experienced flare-ups of pain with walking more than half a mile. Objectively, he had full extension (with objective evidence of painful motion beginning at 45 degrees or greater) and flexion to 110 degrees, bilaterally. However, there was no additional limitation of motion on repetitive testing. Contributing factors of the Veteran's functional loss and/or functional impairment of the knees after repetitive use included less movement than normal; weakened movement; excess fatigability; incoordination; pain on movement; instability of station; and, disturbance of locomotion. Muscle strength testing and joint stability tests were normal. There was no evidence of recurrent patellar subluxation/dislocation. The examiner indicated that the Veteran's right and left knee disabilities impacted his ability to work. The criteria have not been met for ratings in excess of 10 percent for the right and left knee disabilities, respectively. The evidence does not reflect that the Veteran's right and left knee disabilities resulted in limitation of flexion to 30 degrees or limitation of extension to 15 degrees. Rather, the evidence at most shows that the Veteran's flexion of the knees was limited to 70 degrees (February 2012 examination). As the Veteran had full extension at all times, a separate rating for limitation of extension is not warranted. Although the Veteran reported having experienced falls, instability of knee joint or recurrent patellar subluxation/dislocation has not been demonstrated. The joint stability testing during the June 2014 examination indicated that the Veteran's bilateral anterior instability (Lachman's test), posterior instability and medial lateral instability testing were all normal and there was no evidence of patellar subluxation or dislocation. Higher (or separate) ratings under Diagnostic Code 5257 are not warranted. Ankylosis or impairment of the tibia and fibula are not demonstrated; thus, ratings in excess of 10 percent under Diagnostic Codes 5256, and 5262 are not warranted. For these reasons, the Board finds that the 10 percent ratings adequately contemplate the manifestations of the Veteran's right and left knee disabilities. The Board has also considered the Veteran's assertions as to the severity of his symptoms; however, the Board finds the objective medical evidence to be more probative than his lay assertions in determining that his right and left knee disabilities do not meet the criteria for ratings in excess of 10 percent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran is competent to report that he has pain on use and limited motion. However, the examinations disclosing that he did not have limitation of motion warranting a higher rating or joint instability, prepared by skilled professionals, are more probative than his assertions in support of a claim for benefits. The Veteran has not provided evidence suggestive of disability of a greater severity to warrant higher ratings. Though the Veteran reported functional loss and/or functional impairment of the knees after repetitive use manifested by less movement than normal; weakened movement; excess fatigability; incoordination; pain on movement; instability of station; and, disturbance of locomotion, in the June 2014 Report of VA examination, the examiner found there were no objective evidence of these limitations in the records and progressive limitations were not demonstrated with repeated range of motion testing during examination. There were no findings of additional functional loss on repetitive use testing. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The preponderance of the evidence is against the claims, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the law, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The symptomatology and impairment caused by the Veteran's right and left knee disabilities is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The Veteran's right and left knee disabilities are manifested by painful range of motion. The degrees of impairment and symptoms are included in the criteria found in the rating schedule for the knee disabilities. Because the schedular rating criteria are adequate to rate the knee disabilities, the other two steps in the analysis of extra-schedular ratings need not be reached. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, a comparison of the Veteran's symptoms and functional impairments resulting from his disability with the pertinent schedular criteria does not show that his service-connected right and left knee disabilities at issue present "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). The limitation of motion of the Veteran's right and left knee disabilities is specifically contemplated by the criteria discussed above, including the effect of the Veteran's right and left knee disabilities on his occupation and daily life. In the absence of exceptional factors associated with the right and left knee disabilities, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. The Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. Further, the issue of a TDIU is not reasonably raised by the record. Therefore, it is not part of the rating appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Service connection for obstructive sleep apnea is granted. A rating in excess of 10 percent for a right knee chondromalacia is denied. A rating in excess of 10 percent for a left knee chondromalacia is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs