Citation Nr: 1644278 Decision Date: 11/22/16 Archive Date: 12/01/16 DOCKET NO. 08-25 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a total disability rating based upon individual unemployability (TDIU). 2. Entitlement to a rating in excess of 40 percent for degenerative disc disease (DDD) of the lumbosacral spine. 3. Entitlement to service connection for a sinus disorder. 4. Entitlement to service connection for a sleep disorder. 5. Entitlement to service connection for a bilateral knee disorder, to include as secondary to a non-service connected right ankle sprain, and/or the service-connected DDD of the lumbosacral spine. 6. Entitlement to service connection for a duodenal ulcer, to include as secondary to medications used to treat the service-connected DDD of the lumbosacral spine and non-service connected bilateral knee disorder. REPRESENTATION Appellant represented by: Lewey K. Lee, Attorney at Law ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1968 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 and August 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Since the issuance of the April 2015supplemental statement of the case (SSOC), additional evidence has been associated with the record. However, in March 2012 the Veteran waived his right to have such evidence reviewed in the first instance by the RO. In August 2012, the Board adjudicated a number of claims, and remanded the above-captioned issues for further development. In January 2016, the Board remanded the appeal for further development. The issues of entitlement to service connection for a duodenal ulcer and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to September 16, 2014, the lumbar spine disability was not manifested by unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of at least 6 weeks duration due to intervertebral disc syndrome (IVDS). 2. Since September 16, 2014, the lumbar spine disability has been manifested by IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 3. The Veteran's sinus disorder is not attributable to service. 4. The Veteran's sleep disorder is not attributable to service. 5. The Veteran's bilateral knee disorder is not attributable to service, was not caused or aggravated by his lumbar spine disability, and arthritis of the knees was not manifest within one year of separation from service. CONCLUSIONS OF LAW 1. Prior to September 16, 2014, the criteria for a rating in excess of 40 percent for the lumbar spine disability were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.27, 4.71a, Diagnostic Code (DC) 5242 (2015). 2. Since September 16, 2014, the criteria for a disability rating of 60 percent for the lumbar spine disability, but no higher, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.27, 4.71a, DC 5243 (2015). 3. The criteria for entitlement to service connection for a sinus disorder have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). 4. The criteria for entitlement to service connection for a sleep disorder have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). 5. The criteria for entitlement to service connection for a bilateral knee disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Higher Rating for Lumbar Spine Disability Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where, as here, entitlement to service connection has already been established and an increase in the disability ratings is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2014). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). VA is responsible for determining 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. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In an unappealed May 1974 rating decision, the Veteran was awarded service connection for his lumbar spine disability and assigned a noncompensable rating, effective May 17, 1974. In an April 1998 rating decision, the noncompensable rating was continued. In the December 2007 rating decision on appeal, the RO awarded a rating of 40 percent for the lumbar spine disability, effective from the Veteran's October 30, 2006 date of claim. The RO also awarded separate ratings for bilateral radiculopathy associated with the lumbar spine disability. A 10 percent rating was assigned for radiculopathy of the right leg, effective October 30, 2006, and a 10 percent rating was assigned for radiculopathy of the left leg, effective October 30, 2006. However, as the Veteran did not disagree with the ratings or effective dates assigned for radiculopathy, those matters are not currently before the Board and will not be addressed. In August 2012, the Board remanded the claim for further development. In an April 2015 rating decision, the RO awarded service connection for a scar associated with the lumbar spine disability. A noncompensable rating was assigned, effective September 16, 2014. As the Veteran did not disagree with this rating decision, the matters of a higher rating or earlier effective date for the scar are not currently before the Board. In January 2016, the Board remanded the claim for further development. Under the General Rating Formula for Diseases and Injuries of the Spine, the next higher rating of 50 percent rating is assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned with evidence of unfavorable ankylosis of the entire spine. Additionally, under the Formula for intervertebral disc syndrome (IVDS) based on Incapacitating Episodes, ratings are assigned based on the quantity and duration of incapacitating episodes over a prior 12-month period. For purposes of evaluation under this formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. Under this Formula, the next higher rating of 60 percent is assigned with evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. These rating criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Ankylosis is the complete immobility and consolidation of a joint due to disease, injury or surgical procedure. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988). Note (5) in DCs 5235-5242 further explains that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are separately rated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code, 5242, 5243, at Note (1) (2015). On VA examination in November 2007, the Veteran reported increased back pain, fatigue, decreased motion, stiffness, weakness, and spasms. He reported flare-ups occurring 2-3 times per day and lasting for several hours. He reported he could not walk more than a few yards and required a wheelchair. On examination, the examiner found there was no ankylosis of either the cervical spine or the thoracolumbar spine. Active flexion was to 35 degrees. Pain began at 15 degrees and ended at 0 degrees. Passive flexion was to 40 degrees. Pain began at 15 degrees and ended at 0 degrees. There was pain after repetitive use. The loss of motion on repetition was 0 to 30 degrees. Active and passive extension was 0 to 5 degrees, with pain beginning at 5 degrees and ending at 0 degrees. Active and passive right lateral flexion was 0 to 10 degrees, with pain beginning at 5 degrees and ending at 0 degrees. Active and passive left lateral flexion was 0 to 5 degrees, with pain beginning at 5 degrees and ending at 0 degrees. He could not perform repetitive testing in extension or bilateral lateral flexion. Active and passive bilateral lateral rotation was 0 to 10 degrees, with pain beginning at 5 degrees and ending at 0 degrees. There was no additional loss of motion on repetition on the right; on the left the Veteran stopped after two repetitions due to pain. The examiner stated the examination was not for IVDS. He was found to have bilateral radiculopathy. No other neurological abnormality associated with the lumbar spine disability was identified. On VA examination in April 2010, the Veteran reported fatigue, decreased motion, stiffness, weakness, spasms, and pain. He reported daily flare-ups lasting for 2-3 hours. On examination, the examiner found there was no cervical spine ankylosis, and no thoracolumbar spine ankylosis. Flexion was to 20 degrees, extension was to 20 degrees, left lateral flexion and left lateral rotation were to 10 degrees, right lateral flexion was to 12 degrees, and right lateral rotation was to 10 degrees. There was pain following repetitive motion, but no additional loss of motion on repetition. The Veteran reported urinary frequency, nocturia, numbness, paresthesias, leg or foot weakness, falls, and unsteadiness. The examiner found the frequency and nocturia were possibly related to diabetes. He was also noted to have diabetic neuropathy, but the examiner could not determine, without resort to speculation, if the neurological findings in the feet were due to diabetes or the back condition. The examiner found the Veteran did not have IVDS. No other neurological abnormalities associated with the lumbar spine disability were identified. On VA examination in September 2014, the Veteran reported pain at a level of 8-10/10 that was aching, throbbing, burning, dull, grinding, sharp, and sore. The pain was continuous. He reported having to change positions every 5-10 minutes. He avoided reaching and was unable to work overhead. He avoided standing longer than 1-2 minutes or walking greater than 1-2 feet. He was unable to squat, kneel, or repetitively bend. He reported he could not carry heavier than 1 pound, and could not push/pull, move up or down stairs, climb a ladder, operate foot controls, operate hand controls, or climb. He reported daily flare-ups. On examination, the examiner found there was no ankylosis of the spine. Flexion was to 20 degrees with pain at 20 degrees. Extension was to 5 degrees with pain at 5 degrees. Bilateral lateral flexion was to 10 degrees with pain at 10 degrees. Right lateral rotation was to 15 degrees with pain at 15 degrees. Left lateral rotation was to 5 degrees; pain was not specified. He could perform repetitive-use testing with 3 repetitions. There was no additional loss of motion on repetition. He had functional loss on repetitive use, including less movement than normal, weakened movement, excess fatigability, incoordination, pain, swelling, instability of station, disturbance of locomotion, interference with sitting, standing, or weight-bearing, and a lack of endurance. He was found to have bilateral radiculopathy. The examiner stated there were no other neurological abnormalities related to the lumbar spine disability. The examiner found IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The examiner opined that the IVDS was a part of the service-connected back injury. Since the September 16, 2014 VA examination, the Board finds that a 60 percent rating is warranted for the Veteran's lumbar spine disability due to the examiner's finding of IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The preponderance of the evidence is against the assignment of any higher rating for this time period, however. There is no higher rating available based on IVDS. As for the General Rating Formula, the September 2014 VA examiner specifically found there was no ankylosis of the spine. The preponderance of the evidence is also against the assignment of a rating in excess of 40 percent for the Veteran's lumbar spine disability prior to September 16, 2014. There is no evidence establishing unfavorable ankylosis of the entire thoracolumbar spine. The November 2007 and April 2010 VA examiners specifically found to the contrary. As for incapacitating episodes, given the findings of the November 2007 and April 2010 VA examiners, and as there is no record of bed rest prescribed by a physician due to the service-connected lumbar spine disability, the criteria for a higher evaluation under Diagnostic Code 5243 have also not been met prior to September 16, 2014. In reaching these determinations, the Board considered the application of 38 C.F.R §§ 4.40 and 4.45 in light of the Court's ruling in DeLuca, supra. The record consistently demonstrates that the Veteran reported severe lumbar pain, and the Board recognizes that VA examiners acknowledged and confirmed that he experienced such symptomology. However, any additional functional impairment due to pain, including on use, is already contemplated in the evaluations assigned and that there was no demonstration, by lay or medical evidence, of additional functional impairment comparable to the next higher evaluation due to the service-connected lumbar spine disability. The Board finds that no higher evaluation can be assigned pursuant to any other Diagnostic Code for either time period. Because there are specific Diagnostic Codes to evaluate the spine, consideration of other codes for evaluating the disability is not appropriate. As for neurological manifestations of the disability, as discussed, separate ratings for bilateral radiculopathy have been assigned from October 30, 2006 onward but these disabilities are not on appeal. No other neurological abnormalities have been found as associated with the lumbar spine disability. The VA examination reports of November 2007, April 2010, and September 2014 are adequate for adjudication. The examiners examined the Veteran, considered the Veteran's history, and set forth objective findings necessary for adjudication. The Board has considered the admissible and believable assertions of the Veteran, his family, and friends. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the criteria needed to support higher ratings for the disability requires medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). The lay statements are not considered more persuasive than the objective medical findings which, as indicated above, do not support higher ratings than those already assigned. The Board has considered Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016) which holds that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. However, given that the Veteran is receiving the maximum rating based on limitation of motion of the spine and a higher rating requires ankylosis, or, alternatively, IVDS with incapacitating episodes for the period prior to September 16, 2014, there is no prejudice in any VA examination not having conformed to 38 C.F.R. § 4.59 as interpreted in Correia. The Board has also considered whether referral for consideration of an "extraschedular evaluation" is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The lay and medical evidence of record fails to show unique or unusual symptomatology regarding the Veteran's service-connected lumbar spine disability that would render the schedular criteria inadequate. As discussed above, symptoms (pain, limited motion, functional loss) are contemplated in the assigned schedular rating. Thus, the application of the Rating Schedule is not rendered impractical. Moreover, the Veteran has not argued that his symptoms are not contemplated by the rating criteria; rather, he has merely disagreed with the assigned disability ratings for his level of impairment. In other words, he does not have any symptoms from his service-connected lumbar spine disability that are unusual or different from those contemplated by the schedular criteria. Finally, he has not alleged or indicated 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. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Accordingly, referral for consideration of an extraschedular evaluation is not warranted. For all the foregoing reasons, the Board finds that a 60 percent rating is warranted for the Veteran's lumbar spine disability since September 16, 2014. The preponderance of the evidence is against a rating in excess of 40 percent prior to that date. The Board considered the doctrine of reasonable doubt, however, to the extent the preponderance of the evidence is against ratings higher than those already assigned, the doctrine is not for application. Should the Veteran's service-connected lumbar spine disability worsen in the future, he is free to file a new claim for an increased rating. However, for the Board to award additional compensation based on the mere potential for such worsening would be premature at this time. Service Connection Claims Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In reaching the decisions below, the Board has considered the lay evidence, and finds that the Veteran's lay assertions, and those of his family and friends, are admissible and believable. However, as described below, the November 2007, April 2010, September 2014, October 2014, and April 2015 VA examiners were medical professionals who reviewed the claims file and considered the reported history including the Veteran's own lay assertions. The examiners, in providing the requested medical opinions, used their expertise in reviewing the facts of this case and determined that the current symptoms were not related to service. As the examiners explained the reasons for their conclusion based on an accurate characterization of the evidence, the opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In weighing the VA examiner's opinions against those of the Veteran, his family, and friends, the Board finds that the credibility and probative value of the specific and reasoned statement of the trained medical professionals outweighs that of the general lay assertions. Sinus Disorder The Veteran has current chronic sinusitis, documented on VA examination in October 2014. He contends his condition is related to an in-service tooth extraction. On the Report of Medical History on entry into service in July 1965, the examiner documented a history of sinusitis relieved by aspirin. On the accompanying clinical examination, however, the Veteran's nose and sinuses were normal and the examiner did not note any abnormality pertaining to the sinuses. The record does not contain any other indication of a preexisting sinus condition. A history of the preservice existence of conditions recorded at the time of examination does not constitute a notation of such condition, but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). Given all of this, the Board thus finds there is no clear and unmistakable evidence that a sinus disorder existed prior to the Veteran's active duty beginning in 1966. As such, he is presumed to have been sound on entry into service. Legal analysis of the claims as preexisting conditions is not applicable, and the Board will turn to a discussion of direct service connection. The service treatment records (STRs) show that in September 1967, the Veteran had tooth #14 extracted which resulted in exposure of his sinuses. While respiratory symptoms and colds were documented in June 1967 and August 1967, the STRs lack any documentation pertaining to sinusitis. On separation examination in June 1968, the Veteran's nose and sinuses were normal, and he reported no related complaints on the accompanying Report of Medical History. On VA examination in October 2014, the examiner noted the tooth extraction with sinus exposure in 1967. However, there was no documentation of sinus infection or any problem following the tooth extraction. The upper respiratory infections were noted, but the examiner noted there were no STRs indicating sinus problems. The examiner opined that it was less likely than not that the current sinusitis was related to service given the lack documentation pertaining to sinusitis in the STRs, and the onset of sinusitis after discharge. The VA examination report is adequate for the purposes of adjudication. The examiner addressed the contentions of service connection, but opined that the Veteran's sinusitis was not related to service. The examiner based his conclusions on an examination of the claims file and the Veteran's diagnostic reports. He reviewed and accepted the Veteran's reported history and symptoms regarding sinusitis in rendering the opinion. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The Board has considered the applicability of the benefit of the doubt doctrine, but as the preponderance of the evidence is against the Veteran's claim for sinusitis, that doctrine is not applicable to the claim. Sleep Disorder The Veteran has current sleep apnea, documented on VA examination in April 2015. Initially, the Veteran reports that his sleep apnea is related to exposure to herbicides in service. However, as determined by the Board in August 2012, while the Veteran is competent to report the circumstances of his service, his testimony regarding in-service herbicide exposure is not credible. Further, the Board found that reports from the Joint Services records Research Center (JSRRC) and the Department of Defense constituted probative evidence that the Veteran was not exposed to Agent Orange during his active duty service. As the record since the Board's August 2012 decision does not contain any information to alter these findings, the preponderance of the evidence remains against a finding of direct service connection based on herbicide exposure. On entry into service in July 1965, no abnormalities pertaining to a sleep disorder were noted. On the accompanying Report of Medical History, the Veteran denied a history of frequent trouble sleeping or frequent or terrifying nightmares. The STRs lack documentation of any diagnosis, complaints, or treatment pertaining to a sleep disorder. On separation examination in June 1968, no abnormalities pertaining to a sleep disorder were noted, and the Veteran denied pertinent complaints on the accompanying Report of Medical History. On VA psychiatric examination in September 2014, the Veteran reported sleep problems in childhood. The examiner opined that the Veteran's sleep issues, excluding sleep apnea (a medical disorder), were less likely than not related to or caused by military service, and were more likely than not the result of a long pattern of metal health issues. While the examiner provided additional discussion concerning a possibly preexisting sleep disorder based on the Veteran's report, a legal analysis pertaining to preexisting disorders is not warranted. A sleep disorder was not noted on entry into service, and the record does not otherwise contain clear and unmistakable evidence of a preexisting sleep disorder. On VA examination in April 2015, the examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by service. Sleep apnea is a condition with established diagnostic criteria and is not diagnosed by the simple complaint of fatigue, tiredness, sleepiness or other nonspecific complaints. Snoring is not sleep apnea. Sleep apnea is caused by the blockage of the upper airway by the tongue and soft palate by relaxation of muscles of those structures. Risk factors include genetic predisposition, obesity, short/large diameter of the neck, smoking, alcohol consumption, and the use of certain medication and drugs. The examiner found that as the STRs were silent for reference to any condition, event, symptom, treatment, or other issue that had any indication of sleep apnea, the condition was less likely than not incurred in or related to service. In addition to the VA examination reports, VA treatment records contain numerous diagnoses of "alcohol-induced sleep disorder." See, e.g., January 2011 & July 2011 VA treatment records. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The VA examination reports are adequate for the purposes of adjudication. The examiners addressed the contentions of service connection, but opined that the Veteran's sleep disorder was not related to service. The examiners based their conclusions on an examination of the claims file and the Veteran's diagnostic reports. They reviewed and accepted the Veteran's reported history and symptoms regarding his sleep disorder in rendering the opinion. The Board has considered the applicability of the benefit of the doubt doctrine, but as the preponderance of the evidence is against the Veteran's claim for a sleep disorder, that doctrine is not applicable to the claim. Bilateral Knee Disorder The Veteran has current bilateral chronic patellar sleeve tendinopathy, documented on VA examination in September 2014. He contends his bilateral knee disorder is directly related to service, and/or to his non-service connected right ankle sprain or service-connected DDD of the lumbosacral spine. In addition to direct service connection, service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). While secondary service connection based on the right ankle sprain is not possible as the Veteran is not service-connected for a right ankle disorder, secondary service connection based on the lumbar spine disability will be discussed below. On entry into service in July 1965, no abnormalities pertaining to the lower extremities or knees were noted. On the accompanying Report of Medical History, the Veteran denied a history of swollen or painful joints, or trick or locked knee. The STRs lack documentation of any diagnosis, complaints, or treatment pertaining to a knee disorder. On separation examination in June 1968, no abnormalities pertaining to the knees were found, and the Veteran denied related complaints on the accompanying Report of Medical History. On VA examination in September 2014, the examiner opined that the bilateral knee disability was not caused by an incident of active military service and did not have an onset during service based on the lack of pertinent documentation in the STRs. The examiner further opined that the bilateral knee disorder was not caused or aggravated by the service-connected lumbar spine disability, based on a review of medical literature. The examiner stated that he reached his conclusions based on the Veteran's history and physical examination, imaging studies, his expertise as an orthopedic surgeon, and scientific research. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The VA examination report is adequate for the purposes of adjudication. The examiner addressed the contentions of service connection, but opined that the Veteran's bilateral knee disorder was not related to service or caused or aggravated by service-connected lumbar spine disability. The examiner based his conclusions on an examination of the claims file, the Veteran's diagnostic reports, and medical literature. He reviewed and accepted the Veteran's reported history and symptoms regarding his knees in rendering the opinions. Presumptive service connection for the bilateral knee disorder as a "chronic disease" is also not warranted as there is no documentation of arthritis of the knees from within one year of the Veteran's 1968 discharge. As for a continuity of symptomatology between the disorder and service, knee arthritis was not noted during service, and characteristic manifestations of the disease processes were not identified. Accordingly, § 3.303(b) is not applicable. See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board has considered the applicability of the benefit of the doubt doctrine, but as the preponderance of the evidence is against the Veteran's claim for a bilateral knee disorder, that doctrine is not applicable to the claim. Notice and Assistance VA has satisfied its duties under The Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. VA's duty to notify was satisfied by October 2007, January 2009, and August 2012 letters. The VCAA letters are deficient to the extent they did not provide the criteria necessary to establish service connection for the bilateral knee disorder on a secondary basis. However, the Board finds that the Veteran has not been prejudiced by this because the record evidence reflects that he had actual notice of the required criteria. As reflected by the record, (1) the Veteran and his representative have asserted that service connection should be granted because the Veteran's bilateral knee disorder was caused or aggravated his service-connected lumbar spine disability, and (2) the Veteran requested that he be provided a VA examination and opinion to address the secondary basis of the claim. Moreover, secondary service connection was addressed by the RO in the March 2010 statement of the case, October 2011 SSOC, February 2012 SSOC, April 2015 SSOC, and May 2016 SSOC. Thus, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate in the processing of his claim, which was demonstrated by way of his actual knowledge as well as a reasonable understanding of what was necessary to substantiate his claim on a secondary basis. Accordingly, the Board finds the notice error non-prejudicial. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F. 2d 333 (3d Cir. 1974) (holding that no error can be predicated on insufficiency of notice since its purpose had been served). VA's duty to assist under the VCAA includes helping claimants to obtain STRs and other pertinent records, including private medical records (PMRs). The claims file contains the Veteran's STRs, VA medical records (VAMRs), and PMRs. The duty to obtain relevant records is therefore satisfied. VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. Appropriate VA medical inquiries have been accomplished and are factually informed, medically competent and responsive to the issues under consideration. The Board is further satisfied that the RO has substantially complied with its January 2016 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, the AOJ obtained records from the Social Security Administration. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim, and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. ORDER A rating of 60 percent, but no higher, for DDD of the lumbosacral spine is granted since September 16, 2014; a rating in excess of 40 percent prior to that date is denied. Service connection for a sinus disorder is denied. Service connection for a sleep disorder is denied. Service connection for a bilateral knee disorder is denied. REMAND Recently, in May 2016 correspondence, the Veteran's attorney asserted that the Veteran's duodenal ulcer is related to the anti-inflammatory medications used to treat his service-connected lumbar spine disorder. A VA examination was conducted in September 2014, but an opinion on the matter of secondary service connection was not requested or provided. While on remand, the examiner should additionally address the March 1967 service treatment record documenting acute gastroenteritis in rendering an opinion on direct service connection, and provide a rationale for the conclusions reached. The Veteran should also be provided with VCAA notice pertaining to secondary service connection. The claim for a TDIU is intertwined with the service connection claim being remanded. A potential grant of service connection for the claim, and any statement made by the examiner on the impact of the disorder on employability, would affect adjudication of the TDIU issue. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice explaining what information or evidence is needed to substantiate a claim on a secondary basis. See 38 U.S.C.A. § 5103 (2014); 38 C.F.R. §§ 3.159(b), 3.310 (2015). 2. Afford the Veteran a VA examination to obtain an opinion as to the etiology of his duodenal ulcer. The claims folder/e-folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place must be included in the report of the examiner. Rationales for all opinions expressed should be provided. After an interview of the Veteran, a physical examination, and all tests and studies required, the VA examiner must offer the following opinions: The examiner must provide an opinion as to (i.) whether the disorder began during active service or is related to any incident of service, and (ii.) whether the disorder was (a) caused or (b) aggravated (chronically worsened) by anti-inflammatory or other medications used to treat the service-connected lumbar spine disability. In rendering the opinions, the examiner must address the service treatment records documenting acute gastroenteritis in March 1967. 3. Thereafter, readjudicate the claims, considering all evidence. If the benefits sought remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for a response. 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). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs