Citation Nr: 1757287 Decision Date: 12/12/17 Archive Date: 12/20/17 DOCKET NO. 14-06 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for obstructive sleep apnea. 2. Entitlement to service connection for obstructive sleep apnea. 3. Entitlement to service connection for chronic fatigue syndrome (CFS). 4. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). 5. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides. 6. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides. 7. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis prior to September 22, 2015. 8. Entitlement to a rating in excess of 30 percent for right total knee replacement from September 22, 2015. 9. Entitlement to a rating in excess of 10 percent for right carpal tunnel syndrome. 10. Entitlement to a rating in excess of 10 percent for left carpal tunnel syndrome. 11. Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Jeany Mark, Attorney ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served in the U.S. Air Force from June 1970 to June 1994. These matters come before the Board of Veterans' Appeals (Board) from an August 2012 (carpal tunnel syndrome) and October 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. On the Veteran's February 2014 substantive appeal for his carpal tunnel syndrome increased ratings claim, he requested a Board videoconference hearing. On his September 2015 substantive appeal for his sleep apnea claim, the Veteran requested a Board hearing in Washington, D.C. On his March 2016 substantive appeal for the remaining issues, the Veteran indicated he did not want a Board hearing. Also in March 2016, the Veteran canceled his requests for a Board hearing, and stated he would not appear for one. The Veteran submitted a notice of disagreement with the January 2016 rating decision which provided an increased 30 percent rating for his right total knee replacement from September 22, 2015. The RO issued a Statement of the Case for this issue in October 2017. The Board notes, however, that the Veteran's claim for an increased rating for his right knee encompasses the staged rating that occurred after he underwent a right total knee replacement. As such, the staged ratings and earlier effective date claim regarding his right total knee replacement are currently on appeal, as integrated into his increased right knee disability claim. The issues of entitlement to service connection for a psychiatric disorder, entitlement to increased ratings for bilateral carpal tunnel syndrome, entitlement to an increased rating for a right total knee replacement from September 11, 2016, and entitlement to 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. The Veteran was initially denied service connection for sleep apnea in a February 2009 rating decision. The claim was denied because the Veteran's service treatment records did not reveal sleep apnea. The Veteran's claim for service connection for sleep apnea was denied again in August 2011. The Veteran failed to provide a timely notice of disagreement with the August 2011 rating decision and it became final. 2. The evidence received since the August 2011 rating decision is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for obstructive sleep apnea. 3. The preponderance of the competent and credible evidence of record supports that the Veteran developed obstructive sleep apnea in service. 4. The evidence of record does not show that the Veteran has been diagnosed with chronic fatigue syndrome. 5. Resolving reasonable doubt in the Veteran's favor, he was exposed to herbicides during his service in Thailand during the Vietnam era, based on facts found. 6. As the Veteran has been found to have been exposed to herbicides in Thailand, his diabetes mellitus is presumed to have been caused by his military service. 7. As the Veteran has been found to have been exposed to herbicides in Thailand, his prostate cancer is presumed to have been caused by his military service. 8. The Veteran underwent a right total knee replacement on September 10, 2015. 9. Prior to September 10, 2015, the Veteran's right knee disability manifested in painful motion, with full extension and flexion with pain beginning at 40 degrees. His right knee was stable upon testing. His right knee linear surgery scar was not unstable or painful. 10. Resolving reasonable doubt in the Veteran's favor, he had an unstable right knee for the period prior to September 10, 2015. CONCLUSIONS OF LAW 1. An August 2011 rating decision by the RO that denied the Veteran's claim to reopen a claim for service connection for sleep apnea is final. 38 U.S.C.§§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.200 (2016). 2. New and material evidence has been received to reopen the claim of service connection for sleep apnea. 38 U.S.C.§ 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.304. 4. The criteria for entitlement to service connection for chronic fatigue syndrome have not been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.304. 5. The criteria for entitlement to service connection for diabetes mellitus have been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309. 6. The criteria for entitlement to service connection for prostate cancer have been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309. 7. Prior to September 10, 2015, the criteria for an evaluation in excess of 10 percent for right knee osteoarthritis have not been met. 38 U.S.C.§ 5107; 38 C.F.R. §§ 3.102 , 3.400, 4.71a, Diagnostic Code 5003, 5260. 8. Prior to September 10, 2015, the criteria for a separate 10 percent rating for right knee lateral instability have been met. 38 U.S.C.§ 5107; 38 C.F.R. §§ 3.102 , 3.400, 4.71a, Diagnostic Code 5257. 9. From September 10, 2015 to September 10, 2016, the criteria for a 100 percent evaluation for total right knee replacement have been met. 38 U.S.C.§ 5107; 38 C.F.R. §§ 3.102 , 3.400, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.§§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letters dated in May 2011, June 2012, and January 2014. See 38 U.S.C.§§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The 2014 VCAA notice included information on the reason the Veteran's sleep apnea claim was denied in 2009. The electronic file contains the Veteran's service treatment records, some service personnel records, VA treatment records, some private treatment records, lay statements submitted by the Veteran, and VA examination reports. Pertinent to this decision, the record contains VA examinations for the Veteran's right knee from July 2011, June 2014, and September 2017. The Board notes that the examination reports of record do not indicate that range of motion testing of the Veteran's service-connected right knee was performed in active motion, passive motion, weight-bearing, and non-weight-bearing in accordance with the recent decision in Correia. See 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). To the extent that the 2017 VA examination did not include Correia testing, the Board is remanding the issue of an increased rating for his right total knee replacement from September 11, 2016 onward. For the period prior to his knee replacement on September 10, 2015, the Board finds that remanding for an examination to correct the 2011 and 2014 examination report errors for not following Correia would be fruitless. The Veteran's right knee is now prosthetic, and an examiner would not be able to determine his right knee range of motion in passive, weightbearing, and non-weightbearing (active was provided) for his knee prior to this replacement or based on a review of the record. As the medical record prior to the Veteran's 2015 knee replacement cannot be improved through remand, the Board will determine his right knee ratings based on the lay and medical evidence currently of record. New and Material Evidence A rating decision becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). VA must review all the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the additional evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. In February 2009, the Veteran's claim of entitlement to service connection for sleep apnea was denied. The Veteran's claim was denied because he was not treated for or diagnosed with sleep apnea in service, and at the time of the February 2009 rating decision, the record did not include a current diagnosis of sleep apnea. The Veteran's claim for service connection for sleep apnea was again denied in August 2011. Although the record showed he had been diagnosed with sleep apnea, there was no link to his military service. The Veteran attempted to file a notice of disagreement with this issue, but it was untimely, and the decision became final. See 38 U.S.C.§ 7105; 38 C.F.R. § 20.1100. Therefore, new and material evidence is needed to reopen the claim. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). Evidence of record at the time of the August 2011 rating decision included service treatment records, VA treatment records showing the possibility of sleep apnea and need for testing in 2002 and subsequent treatment for sleep apnea with a CPAP machine beginning in 2007. The record also contained lay statements from the Veteran's wife, daughters, and a coworker regarding his witnessed snoring and apneas. Evidence that has been added to the claims file since the August 2011 rating decision includes a statement from the Veteran regarding his in-service daytime sleepiness and fatigue, and a positive medical opinion from a private physician linking the Veteran's current sleep apnea to his witnessed snoring and apneas in service. The additional evidence is "new" in that it was not previously before agency decision makers at the time of the August 2011 decision, and is not cumulative or duplicative of evidence previously considered. As the evidence submitted is presumed credible for the purposes of reopening a claim, the diagnosed sleep apnea, the lay statements regarding sleep apnea symptoms beginning in service or shortly after discharge, and the private medical opinion that his in-service symptoms were symptoms of undiagnosed sleep apnea are "material" evidence that the Veteran's sleep apnea began in service. As such, this evidence alone or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claims (diagnoses and a potential nexus to service). Consequently, the new evidence raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for sleep apnea. Under these circumstances, the criteria to reopen the claim of entitlement to service connection for sleep apnea are met. 38 U.S.C.§ 5108; 38 C.F.R. § 3.156. Service Connection 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; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (adding that "[w]hen service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition"). Additionally, service connection may be established by the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Determinations regarding service connection are based on a review of all of the evidence of record, including pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (a); 38 C.F.R. § 3.303 (a). Under certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) ("A veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' to prevail."). Sleep Apnea A VA treatment record from January 2002 noted that the Veteran's wife complained about his snoring at night. "She does not report that he has any apneic spells." The Veteran reported that when he wakes up he does not always feel rested, and he takes naps during the day. It was noted that the Veteran was moving to Kansas, and that once he was settled he needed to be set up for a sleep study to make sure he does not have sleep apnea due to the "symptomatology he is describing." In December 2013, the Veteran provided a statement that he had excessive daytime sleepiness, waking with an unrefreshed feeling, difficulty with memorization and concentration, feeling tired, and trying not to fall asleep in the middle of the day during his period of service from 1970 to 1994. He noted that during the years he attended college courses (1985 to 1992) that he commonly felt extremely tired and would fall asleep in class. He stated that when he was sleeping, he was "constantly being woken up by [his] wife due to episodes of not breathing, loud snoring, and restless tossing and turning." The Veteran stated that in recent years he researched his in-service symptoms and noted that they were likely due to sleep apnea, which he listed as a circadian rhythm disorder. He noted that he served in Korea, Thailand, the Philippines, and had a tour in the United Kingdom, which all resulted in him suffering from jet lag. He also "spent years switching from early shift to late shift work. He also stated that his research showed that untreated sleep apnea could lead to health problems "including high blood pressure, diabetes, and depression." He stated he did not seek treatment in service because he did not know that his symptoms were connected or that his snoring and episodes of not breathing were attributable to sleep apnea. A December 2013 VA record noted that the Veteran was diagnosed with sleep apnea via sleep study performed in November 2006 which showed moderate obstructive sleep apnea. The sleep study is not of record, but its results are referenced in the VA treatment records. A February 2015 record from the Pulmonary and Sleep Consultants of Kansas included the Veteran's report that his sleep apnea was only recently diagnosed but he had a long history of snoring dating back to his early military years. He provided statements from his family which indicated that snoring had been a problems since he was in his early 20s. His snoring was disruptive and caused him to be incredibly fatigued and overly sleepy during the day. He also had "witnessed apneas during this time." He finally underwent testing and was started on CPAP. He stated he felt better after he started CPAP. He felt less sleepy now. In December 2016, private physician A.A. provided a positive medical opinion. She reviewed the Veteran's treatment records and the statements from his family and friend. She noted that it was her medical opinion that it was more likely than not that the Veteran's sleep apnea was present during service and exacerbated by his post-service weight gain from his service-connected degenerative joint disease. She noted that there were multiple statements that noted he snored and there were observed episodes of breathing cessation during sleep and daytime sleepiness. She noted that these symptoms improved with the eventual diagnosis and treatment for sleep apnea. She then stated that the Veteran's post-service weight gain was likely due to his inactivity from his service-connected lower extremity degenerative joint disease. "While the weight is not the sole cause of his sleep apnea as it was present in service, it is a compounding factor." The Board notes that there are several statements in the record from the Veteran's family members and a friend. Briefly summarized, these statements indicate that the Veteran has had difficulty with loud snoring, apneic events, and daytime sleepiness/napping since before his discharge from service. The statements constitute credible supporting evidence that the Veteran's apnea was present during active duty. Given the above evidence, the Board will resolve reasonable doubt in the Veteran's favor and find that his sleep apnea began during service, and service connection for sleep apnea is warranted. Chronic Fatigue Syndrome In December 2013, the Veteran filed a claim for service connection for chronic fatigue syndrome. The form application for service connection did not include any additional information or argument related to this claim. The Board notes that the Veteran reports fatigue and daytime sleepiness that started in service, which the Veteran and a private physician have associated with his diagnosis of sleep apnea. A review of the medical evidence of record does not show that the Veteran has a current diagnosis of chronic fatigue syndrome. Also, the Board did not find any statements from the Veteran or his attorney related to this claim. In January 2017, the Veteran's attorney provided a brief which provided arguments on behalf of the Veteran for all of his claims except his claim for service connection for chronic fatigue syndrome. As the record does not include a current diagnosis of chronic fatigue syndrome, the Veteran and his private physician have related his fatigue and daytime sleepiness to his sleep apnea diagnosis, and the Veteran has not provided any additional insight or argument related to this claim, the Board finds that entitlement to service connection for chronic fatigue syndrome is not warranted. Accordingly, the Board finds that it must deny service connection for chronic fatigue syndrome, as there is no current diagnosis of such in the claims file. See 38 C.F.R. §§ 3.102, 3.303; Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability). Herbicide exposure claims The Veteran asserts that he has diabetes mellitus and prostate cancer as a result of his service at U-Tapao airbase in Thailand during the Vietnam era. He believes that he was exposed to Agent Orange or other herbicides during his period of service there from 1974 to 1975. The law provides a presumption of service connection for certain diseases, including diabetes and prostate cancer, which become manifest after separation from service in veterans who served in the Republic of Vietnam during the period from January 9, 1962, and ending on May 7, 1975. 38 U.S.C.§ 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e), see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service in the Republic of Vietnam for the purpose of the application of the presumption includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii). VA has extend the presumption of exposure to Agent Orange and the presumption of service connection for diabetes and prostate cancer to a Vietnam-era veteran, who served in Thailand at certain designated bases, to include U-Tapao, and whose duties placed him or her on or near the perimeter of the base, where Agent Orange was sprayed. VA Adjudication Procedures Manual, M21-1MR, Part IV, Subpart ii, 2.C.10. q. In November 2015, the guidance for conceding herbicide exposure in Thailand for specific military occupations and the procedures for verifying herbicide exposure in Thailand were updated. See updated M21-1, IV.ii.1.H.5.a. The Veteran's record contains a VA memorandum from October 2014 which noted the Department of Defense had a list of 71 sites where tactical herbicides, such as Agent Orange, were used, tested, or stored. The memorandum noted that the list does not include the names of individuals. It also does not reference any "routine base maintenance activities such as range management, brush clearing, weed killing, etc., because these vegetation control activities were conducted by the Base Civil Engineer and involved the use of commercial herbicides approved by the Armed Forces Pest Control board." Records regarding this procurement and procedures were generally not kept longer than two years. Regarding service in Thailand, the DoD list indicated that there was limited testing of tactical herbicides from April to September 1964 in a location near Pranburi Military Reservation. It was noted that this location was not near any U.S. military installation or Royal Thai Air Force Base. Other than the Pranburi testing, the Department of Air Force had no records of tactical herbicide storage or use in Thailand. "There are records indicating that commercial herbicides were frequently used for vegetation control within the perimeters of air bases during the Vietnam era, but all such use required approval of both the Armed Forces Pest Control Board and the Base Civil Engineer." The memorandum noted that the Base Civil Engineers were not permitted to purchase or apply tactical herbicides. The memorandum notes that the Thailand CHECO Report did not report the use of tactical herbicides on allied bases in Thailand, but it did indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters. "Therefore, if a veteran's MOS or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. Security police units were known to have walked the perimeters, especially dog handlers." The Veteran's MOS from June 1970 to March 1974 and from March 1974 to March 1978 was as an administrative specialist, with a related civilian occupation listing of general clerk. His service records do not indicate any specific duties related to the perimeter of the base in Thailand. In January 2014, the Veteran provided a statement that he served at the U-Tapao Airfield in Thailand from August or September 1974 to August or September 1975. He "lived and worked out in or near the perimeter in the Civil Engineering housing complex built close to the flight line, and it was by the flight line where he performed his physical training." In a December 2016 statement the Veteran again reported that during his service on the Royal Thai Air Force Base U-Tapao he lived secluded from other soldiers close to the flight line of the base. His daily physical training runs, which would last up to 45 minutes would take him "close to the beach and around the perimeter of the base." In January 2017, the Veteran's attorney provided a brief which noted the Veteran served at the Royal Thai Air Force's U-Tapao base from September 1974 to September 1975. The Veteran's attorney argued that it was at least as likely as not that he was exposed to herbicides at this time as his house was near the flight-line of the base and he took daily runs around the base perimeter. The attorney noted that VA acknowledges that Vietnam-era veterans whose duties placed them in proximity to Thai base perimeters, including at U-Tapao, risked exposure to herbicide agents. The attorney cited M21-1, Part IV, Subpart ii, 1.H.5.b. Turning to the revised M21-1, Part IV, Subpart ii, 1.H.5.b. from November 2015, the Board notes that the revision includes the option to find that a Veteran was exposed to herbicides on a "facts found" basis. It indicates that a special consideration of herbicide exposure on a factual basis should be extended to Veteran's whose duties placed them on or near the perimeters of Thailand military bases. This revision removed the language cited by the 2014 memo ("served at the fenced in perimeter of Thailand military bases in specific occupations"). It also removed the language which extended the presumption of herbicide exposure only to Veteran who served in the capacity of a dog handler or security personnel. The steps listed in the revised H.5.b. included determining if he served on a Thai Air Base, and U-Tapao is included in the list. Next, the review should look at his MOS, or whether he was "otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports or other credible evidence." If VA determines that the Veteran served at the U-Tapao base during the applicable period, and there was credible evidence that his service/performance/duties took him near the air base perimeter, then a determination could be made to concede herbicide exposure on a direct/facts-found basis. The Veteran's MOS did not place his duties near the perimeter, and his service personnel records do not specifically list where he performed any additional work duties. However, the Board will resolve reasonable doubt in the Veteran's favor, and finds that his statements regarding his physical training and living situation being near the perimeter of the base to be credible. As such, the Board concedes that the Veteran was exposed to herbicides on a "facts-found" basis. Turning to the medical evidence of record, a December 2014 VA treatment record notes that the Veteran was diagnosed with diabetes mellitus in December 2012. A July 2014 Heartland Pathology record indicated that the Veteran was diagnosed via biopsy with prostate cancer. As noted above, there is a rebuttable presumption that the Veteran's diabetes mellitus and prostate cancer were caused by his exposure to herbicides. See 38 C.F.R. § 3.309. There is no evidence of record which supports a conclusion that the Veteran's diabetes or prostate cancer were not due to service (or, worded another way, there is no medical evidence linking his diabetes or prostate cancer to something other than his service). As there is no affirmative evidence to the contrary, and the Board has conceded that the Veteran was exposed to herbicides in Thailand during the Vietnam era, then entitlement to service connection for diabetes mellitus and prostate cancer are warranted. Right knee In this case, the Veteran is challenging the staged ratings assigned for his right knee disability, and the effective date assigned for the grant of an increased rating for his right knee disability based on a total knee replacement. An October 2014 rating decision continued a 10 percent rating for the Veteran's right knee osteoarthritis under Diagnostic Code 5003. A January 2016 rating decision provided a 30 percent rating for the Veteran's right knee disability, effective September 22, 2015, under Diagnostic Code 5055 for a knee replacement. The Veteran filed his claim for an increased rating for his right knee disability in November 2013. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. See 38 C.F.R. § 4.45. Determination of whether the application of sections 4.40 and 4.45 entitles the Veteran to an increased rating requires factual findings as to the extent to which the Veteran's pain and weakness cause additional disability beyond that reflected in the measured limitation of motion. DeLuca 8 Vet. App. 202. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; see also Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Included within 38 C.F.R. § 4.71a are multiple DCs that evaluate impairment resulting from service-connected knee disorders, including DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). Diagnostic Code 5257 provides that an evaluation of 10 percent is assigned for slight recurrent subluxation or lateral instability. An evaluation of 20 percent is assigned when the impairment is moderate, and an evaluation of 30 percent is assigned when the impairment is severe. Diagnostic Code 5260 pertains to limited flexion of the knee. Flexion limited to 60 degrees is noncompensable. A 10 percent rating applies when flexion is limited to 45 degrees. A 20 percent rating applies when flexion is limited to 30 degrees. A 30 percent rating applies when flexion is limited to 15 degrees. Diagnostic Code 5259 provides a 10 percent rating for symptomatic removal of semilunar cartilage. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. A Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 (which provides for a 10 percent rating for a noncompensable limitation of motion or painful motion of an affected joint) and 5257, provided that a separate rating must be based upon additional disability. Also, separate ratings may be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a Veteran has both a compensable limitation of flexion and a compensable limitation of extension of the same knee, the limitations must be rated separately to adequately compensate for functional loss associated with the disability. As cited in the July 2011 examination, the Veteran was afforded a VA evaluation of his knees in 2003. It was noted that in 2001 an orthopedist performed an MRI of the knee and surgery "in the form of a partial medial and lateral meniscectomy and debridement of the lateral femoral condyle." He was noted to have tenderness and limited range of motion at that time, but without laxity. He reported constant mild (2 out of 10) pain and a feeling of "weakness." He had active flexion from zero to 90 degrees and passive flexion from zero to 125 degrees. It was noted he had pain and lack of endurance with repetitive motion. He had crepitus and he reported swelling behind the knee with increased use. His ligaments were stable, including a negative McMurray's test (for medial and lateral meniscus injuries). He was diagnosed with degenerative joint disease of the right knee. The Veteran was afforded a VA knee examination in July 2011. He was noted to have degenerative joint disease of the right knee. He reported arthroscopic debridement of the right knee in 2001. The examiner noted that a 2003 VA examination listed a partial meniscectomy and debridement of the lateral femoral condyle. The Veteran reported right knee instability, pain, and stiffness. He also reported locking episodes less than once a year and swelling. He reported flare-ups of joint disease every two to three weeks of a moderate severity. The cause of the flare-ups of symptoms was increased activity, and he rated the increased pain as a 6 out of 10. During a flare-up he was still able to do his activities of daily living. He was able to stand for 30 minutes, and walk less than one mile. He occasionally used a knee brace. On physical examination, he had a normal gait, with no evidence of abnormal weight bearing. There was no loss of bone or inflammatory arthritis. He had mild crepitus of the right knee. There was no objective evidence of grinding, instability, or patellar abnormality regarding the right knee. The examiner noted he did not have a meniscus abnormality, abnormal tendons or bursae, or other knee abnormality. His right knee flexion was from zero to 100 degrees. There was objective evidence of pain with active motion. There was no objective evidence of pain following repetitive motion. And there was no additional loss of motion with repetitive motion testing. There was no joint ankylosis. The examiner commented that the Veteran was asked if he could flex his knees further, and the Veteran stated that he could but did not want to due to pain, so he declined further range of motion than 100 degrees. The examiner noted that "true ROM not obtained." The Veteran had a right knee scar due to his arthroscopic surgery, which measured 0.6 x 0.2 cm lateral, 0.7 x 0.2 cm medial upper, and 1.5 x 0.2 medial lower. The scar was linear, without depression, tissue loss, color difference, adherence, tenderness, or skin breakdown. X-rays showed mild osteoarthritis change and an osteocartilaginous body posteriorly near the joint space. The Veteran noted he worked for a post office until 2000. At the time of the examination, the Veteran worked as a minister for a church and for a county jail, since 2001. In October 2011, the Veteran reported to VA physicians that he was "doing great" regarding his knees, and that his "knees ha[ve] been improved by taking diclofenac." In September 2012, the Veteran complained to VA care providers of mild pain in both knees. He noted he was out of his pain medication. On examination he did not have any acute swelling. He had mild tenderness on the medial aspect of both knee joints, without ecchymosis or effusion. A January 2013 VA physical therapy note indicated that the Veteran's active range of motion of his right knee was "improved to 6-95 degrees flexion." In August 2013, the Veteran sought VA treatment for his knees. He used a cane, which he stated was for "stability purposes." He noted that his left knee was bothering him more than his right, and that his left knee felt like it wanted to give out on him. He reported pain, which was worsening, and that the pain was located behind both knees. The pain was constant and dull. He reported occasional catching, locking, popping, and grinding. He reported his right knee had been scoped in the past, which he believed was mainly for debridement of his arthritis. He was using over-the-counter knee braces. His right knee range of motion was from zero to 95 degrees. He had tenderness along his lateral joint-line. He had a positive McMurray's with laterally-based symptoms and minimal effusion in the inferolateral aspect of the right knee when compared to the left knee. At that time he did not have crepitus. His calf was nontender and his sensation was intact. Both knees were stable to varus and valgus stress with negative Lachman's, negative anterior and posterior Drawer's tests. He was injected with Lidocaine and sent for different braces (prescription). A November 2013 VA treatment record noted that the Veteran had injections to his knees three months prior, which helped for a month and a half. "He did very well with those." He had bilateral knee braces to prevent varus and valgus instability with ambulation. He stated that although they helped with his pain, they were bulky and bothersome. On examination, his knees both had 1+ effusion bilaterally. He had no warmth or erythema surrounding the knee joints. He had motion from zero to 95 degrees bilaterally. He had significant joint line tenderness along the medial and lateral joints. "Both knees are stable to varus and valgus stress." Imaging from March 2013 was noted to show tricompartmental disease of the right knee with more significant narrowing of the lateral compartment. His knees were again injected. The Veteran was afforded another VA examination in June 2014. He had osteoarthritis of the right knee and tricompartmental joint disease of the left knee. His osteoarthritis had progressed with decreased range of motion and the Veteran reported wearing bilateral braces and he reported constant pain. He stated his knee would swell on and off. Increased activity resulted in increased pain and swelling. He was noted to be unable to do prolonged standing because his left knee would start to "give way." He was to undergo a left knee replacement in September 2014. The examiner noted the Veteran did not report flare-ups which impacted the function of his knees, likely because the Vetera indicated his pain symptoms were constant. On examination his right knee had flexion to 75 degrees with objective painful motion beginning at 40 degrees. His extension of the right knee was normal and without objective pain. The Veteran was unable to perform repetitive-use testing with three repetitions due to pain and stiffness of the knees with decreased range of motion. The examiner noted "guarding present." The Veteran was noted to have less movement than normal, pain on movement, swelling, deformity, and disturbance of locomotion regarding both knees. He also had tenderness or pain to palpation of the joint line and soft tissues of both knees. His right knee muscle strength was normal. His right knee stability tests (anterior instability, posterior instability, medial-lateral instability, and patellar subluxation/dislocation) were all normal/stable. His left knee stability tests were also normal/stable. The Veteran did not have any meniscal conditions. He had undergone arthroscopy of his right knee in 2009. He had no residual signs/symptoms due to his 2009 arthroscopic surgery. The examiner noted that the Veteran's right knee scars were not painful or unstable, and they scars were not greater than 39 sq. cm. The Veteran reported constant use of braces and a cane due to both of his knee conditions. The examiner noted that the Veteran's knees did not impact his ability to work, but did not elaborate. The examiner remarked that the Veteran had "typical DJD deformity of knees" and that "repeated use would cause additional pain and likely swelling to limit" his range of motion of right flexion to an estimated 45 degrees. The electronic record contains some records from Kansas Surgery and Recovery Center. The records provided by the Veteran do not include the operation report for his total knee replacement. The Veteran had a meeting with a representative from the RO who informed him that a copy of the operation report was required to provide a rating based on total knee replacement. The Veteran stated that he would provide such paperwork and refused to sign a waiver for VA to obtain the medical records. Although the records provided by the Veteran do not include the operation report, they do include a "Surgery Admission Form" from September 10, 2015 which noted the Veteran was being prepared for a right total knee arthroplasty. It also included a physical therapy range of motion chart which noted the Veteran had a right total knee replacement on September 10, 2015. The Veteran was afforded a VA examination in September 2017 which also noted that he had a right total knee replacement on September 10, 2015. Initially, the Board notes that in Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016) CAVC held that to be adequate a VA examination of the joints must, wherever possible, 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. Here, the VA examinations included evaluation of the opposite joint (although it is also a service-connected disability), but did not include evaluation of the joint on passive motion, or on weight-bearing and nonweight-bearing. Although, according to Correia, these examinations are therefore not adequate, it is not possible to provide the Veteran with an updated examination which could provide adequate joint testing that would be applicable to the claim on appeal because the joint was replaced in September 2015. As such, the Board must provide ratings prior to September 10, 2015 based on the available medical and lay evidence of record. For the period prior to September 10, 2015, the Veteran's right knee disability warrants a 10 percent rating for painful motion/limited flexion of the knee, and a separate 10 percent is warranted for instability. The Veteran is currently provided a 10 percent rating under 5003 for arthritis with painful motion, where the limitation of motion does not meet the requirements for a compensable rating. However, the 2014 examination indicated that the Veteran's painful motion was objectively noted at 40 degrees flexion, and the examiner estimated that the Veteran's range of motion would be limited to 45 degrees with repeated use. As such, during the period on appeal the Veteran met the requirement for the 10 percent rating under DC 5260. He did not meet the requirements for a rating in excess of 10 percent based on limitation of flexion, as his flexion was not limited to 30 degrees or less. The indication that painful motion begins at 40 degrees does not warrant the next higher rating, as a limitation to 40 degrees more nearly approximates the 10 percent rating for limitation to 45 degrees than it does the 30 degrees required for the next higher rating. DC 5003 only provides a 10 percent rating for objectively painful motion when the loss of range of motion is not compensable, and cannot be combined with DC 5260. The Board is able to provide a separate 10 percent rating for recurrent lateral instability of the right knee. Although the stability testing during the 2014 examination was negative, the Veteran had demonstrable lateral instability (a positive McMurray sign) during VA treatment in 2013. He also continued to complain of subjective feelings of instability and weakness in his right leg. As such, the Board will resolve reasonable doubt in the Veteran's favor and provide a separate 10 percent rating under DC 5257. The Veteran does not warrant a 20 percent rating, or higher, under DC 5257 for moderate or severe recurrent lateral instability because testing during the VA examination and during a follow-up VA treatment record indicated he had stable ligaments and negative McMurray testing. Although the Veteran used bilateral braces and a cane for "stability," he generally asserted that his left knee was the knee that felt like it would "give way." The Veteran does not warrant any additional separate right knee ratings or an additional increased rating prior to September 10, 2015 under any of the other knee diagnostic codes. He does not have ankylosis of the right knee. He did not have compensable limitation of extension of the right knee, and he did not have tibia or fibula impairment. The Board notes that a January 2013 physical therapy record indicated the Veteran's right knee extension was limited to 6 degrees. DC 5261 for limitation of extension of the knee provides a 10 percent rating for limitation of 10 percent. Limitation to 6 degrees more closely approximates limitation to 5 degrees, which is a noncompensable limitation. In January 2017, the Veteran's attorney argued that he was entitled to a 20 percent rating under DC 5258 for dislocated semilunar cartilage. The medical evidence does not reflect that he has a diagnosis of dislocated semilunar cartilage. It appears he underwent a meniscectomy in 2001, but this is not evidence of dislocated semilunar cartilage. He may have been entitled to a 10 percent rating under 5259 for symptomatic removal of semilunar cartilage, but the symptom of lateral instability based on a positive McMurray test (for meniscal injury) is being used to provide the separate 10 percent rating under DC 5257 for recurrent lateral instability. The Veteran's pain and effusion are associated with his limited range of motion rating. Although the Veteran did not provide the operation report, it is clear from the record that he underwent a right total knee replacement on September 10, 2015. Under DC 5055, for one year following implantation of a prosthetic knee joint, a 100 percent rating is provided. As such, from September 10, 2015 to September 10, 2016, the Veteran's right knee disability, now a total right knee replacement, warrants a 100 percent disability rating. The issue of a rating in excess of 30 percent from September 11, 2016 onward is addressed in the REMAND. Lastly, the Board notes that the Veteran had a right knee scar from either his meniscectomy or his right knee "scope" prior to his total right knee replacement. His representative, on his March 2016 substantive appeal, indicated that the Board should address whether the Veteran warranted a separate rating for his right knee scars. This statement did not include that the Veteran was claiming his right knee scars were painful. VA examinations from 2011 and 2014 did not indicate that the Veteran's right knee surgery scar were tender, painful, or unstable. The Veteran provided statements regarding most of his claims, and he did not provide any lay statements that his right knee scar was painful, tender, or unstable. In sum, the Board finds that the Veteran is entitled to a 10 percent rating for right knee arthritis with painful and limited motion, and an initial separate 10 percent rating for mild instability. He does not warrant a separate grant of service connection for a right knee scar. SMC As the Board is granting a 100 percent rating from September 10, 2015 to September 10, 2016 for a right total knee replacement, the issue of special monthly compensation must be addressed. Along with the 100 percent rating for his right knee, the Veteran has additional service-connected disabilities which have a combine rating of 60 percent or greater. As such, for the period from September 10, 2015 to September 10, 2016, the Veteran is entitled to SMC under 38 U.S.C.§ 1114(s). As the Veteran has additional increased rating and TDIU claims on appeal that are being remanded, his entitlement to greater SMC ratings is possible depending on the outcome of his additional claims. As entitlement to higher SMC would be contemplated with any increase, the Board is not limiting the Veteran by providing the current SMC (s) rating in this decision. ORDER New and material evidence having been received; the claim of entitlement to service connection for sleep apnea is reopened. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for chronic fatigue syndrome is denied. Entitlement to service connection for diabetes mellitus, due to exposure to herbicides, is granted. Entitlement to service connection for prostate cancer, due to exposure to herbicides, is granted. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis prior to September 10, 2015 is denied. Entitlement to a separate 10 percent rating for right knee lateral instability prior to September 10, 2015 is granted. Entitlement to a 100 percent rating for right knee total replacement from September 10, 2015 is granted. Entitlement SMC under 38 U.S.C.§ 1114(s) for the period from September 10, 2015 to September 10, 2016, is granted. REMAND Psychiatric disorder The Veteran has filed a claim for service connection for posttraumatic stress disorder (PTSD). In March 2011, a VA social worker diagnosed the Veteran with mild general anxiety disorder and dysthymia NOS, and found he did not meet the criteria for a diagnosis of PTSD under the DSM-IV. In April 2011, a VA psychiatrist diagnosed anxiety disorder NOS and depressive disorder NOS, both mild in severity. Neither evaluation specifically indicated that these diagnoses were due to the Veteran's service. An April 2014 VA mental health treatment note included that the Veteran continued to "struggle at times with his PTSD symptoms." The Veteran has not been provided a VA psychiatric examination despite having diagnosed psychiatric disorders which he relates to his service in Thailand. On remand, he must be afforded a VA examination. Carpal Tunnel Syndrome The Veteran was last afforded a VA examination related to his bilateral carpal tunnel syndrome in February 2014. During that examination, the examiner found that the Veteran had mild incomplete paralysis of the median nerves bilaterally, and mild incomplete paralysis of the left ulnar nerve. The examiner cited a July 2013 EMG which showed "moderate neuropathy" of the ulnar nerve of the left upper extremity, and "moderate" carpal tunnel syndrome on the right. Additionally, in January 2017 the Veteran's attorney indicated that the Veteran had complained of increased upper extremity symptoms in 2015 and that his last VA examination was more than 3 years old. On remand, the Veteran must be afforded an updated VA carpal tunnel syndrome examination. Right Knee As noted above, the Veteran's most recent September 2017 knee examination did not conform to the test outlined in Correia. On remand, an additional knee examination must be provided. TDIU On the January 2017 brief, the Veteran's attorney argued that he was entitled to TDIU due to the severity of his disabilities. She did not include any information about the Veteran's work history, to include when he stopped working. The Board could not find any statements regarding when the Veteran stopped working in the medical records or statements provided by the Veteran. A 2011 record indicated that the Veteran was working as a minister for the past 10 years, and he stated during mental health treatment that it was difficult to be a minister when he had irritability issues. On remand, the Veteran should be sent a formal TDIU claim form to complete. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran VA Form 21-8940 and request he provide details regarding his employment history and education. An appropriate period of time should be allowed for response. 2. Schedule the Veteran for a VA mental health examination. After a review of the claims file and interview of the Veteran, the examiner should provide the following opinion: For every diagnosed psychiatric disorder, is it at least as likely as not (50/50 probability or greater) that the disorder is due to or a result of the Veteran's military service? The examiner must provide a full explanation for all opinions expressed. 3. Schedule the Veteran for a VA examination to determine the current severity of his bilateral carpal tunnel syndrome. The examiner must provide information on all upper extremity neuropathy findings. The examiner must provide a statement regarding whether the Veteran's service-connected carpal tunnel syndrome includes (or causes) both median and ulnar nerve symptoms in the Veteran's upper extremities. 4. Schedule the Veteran for a VA examination to evaluate the severity of his right knee disability, status post total right knee replacement. To the extent possible, the examiner is also asked to provide the ranges of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the Veteran's left and right knees. If the examiner is unable to so opine, he or she should clearly explain why that is so. 5. After completing the development requested above, readjudicate the Veteran's claims, to include the claim for TDIU and any impact on his SMC rating, if any. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished a SSOC and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. 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). ______________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs