Citation Nr: 1805233 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 11-23 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to an increased initial rating for the right knee (initially evaluated as status post ALC repair), evaluated as noncompensable prior to September 7, 2016, as 10 percent disabling from September 7, 2016 to October 15, 2017, and as 100 percent disabling from October 16, 2017 to November 30, 2018, and as 30 percent disabling from December 1, 2018. 3. Entitlement to an initial rating for the left knee (initially evaluated as degenerative joint disease, status post ACL reconstruction), evaluated as 10 percent disabling prior to June 1, 2015, as 100 percent disabling from June 1, 2015 to July 31, 2016, and as 30 percent disabling thereafter. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability(ies). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from January to April 1988 and from January 2005 to February 2009, and periods of National Guard service. These matters come before the Board of Veterans' Appeals (Board) from a September 2009 rating decision (knees), a November 2009 rating decision (sleep apnea), and a February 2014 rating decision (TDIU) of the Department of Veterans Affairs (VA), Regional Office (RO) in Montgomery, Alabama. In May 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The record was held open for thirty days for the Veteran to submit additional evidence, if any. The issues of initial increased ratings for right and left knee disabilities, 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 The Veteran had complaints of sleep disturbances and a clinical finding of probable sleep apnea while in service, and a diagnosis of sleep apnea approximately five months after separation from service; resolving doubt in favor of the Veteran, the Board finds that he had sleep apnea in service. CONCLUSION OF LAW The criteria for obstructive sleep apnea have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, and summarizes the relevant evidence where appropriate. The Board's analysis below focuses specifically on what the evidence shows, or fails to show, as to the claim. The Veteran has a post-service diagnosis of sleep apnea; he contends that it began in service. The Veteran's STRs refect that he complained of chronic insomnia and sleep disturbances. A November 2007 sleep study reflects that the Veteran did not have sleep apnea. Likewise, a December 2007 sleep study (Enterprise Sleep and Diagnostics) indicates that the Veteran did not have sleep apnea. On a February 2008 Report of Medical History, the Veteran stated that he has trouble falling asleep, staying asleep, and that he wakes up holding his breath and snoring. Mental health records by Dr. C. Hicks in September 2008, December 2008, and January 2009 reflect that the Veteran has "probable sleep apnea" but that he would need an evaluation to confirm this. The Veteran separated from service in February 2009. A private July 2009 Flowers Hospital Sleep-Wake Disorders Center record reflects that the Veteran has "severe obstructive sleep apnea." The Board notes that the July 2009 diagnosis of sleep apnea was approximately five months after separation from service; however, the clinician's in-service finding of "probable sleep apnea", the acknowledgement that the Veteran should have an evaluation for such, and the Veteran's in-service complaints after the 2007 findings, all suggest that while in service sometime between December 2007 and February 2009, he had sleep apnea which he continued to have during the pendency of his claim. In giving the benefit of the doubt to the Veteran, the Board finds that service connection for obstructive sleep apnea is warranted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for obstructive sleep apnea is granted. REMAND Right and Left Knees Prior to a total right knee replacement in 2017, the Veteran had a right knee acute meniscus tear and was status post ACL repair in 2006. With regard to the left knee, prior to a total knee replacement in 2015, records reflect that in August 2007, he was noted to have advanced arthritis of the left knee, an ACL deficiency, and that he underwent a left knee ACL reconstruction with hamstring autograft, medial opening wedge high tibial osteotomy, and medial partial meniscectomy. The Veteran separated from service in February 2009. On his February 2009 Report of Medical History, he complained of bilateral knees locking, giving out, and pain. Subsequent records reflect continued complaints of the knees, to include an October 2009 VA record which reflects that the Veteran had chronic knee pain with crepitus on movement; the Veteran reported that he "cannot perform work without increased pain and safety issues climbing electric poles. He cannot lock his left knee when climbing." A December 2009 VA record reflects that the Veteran walked with a cane, avoids standing for long periods of time, has complaints of knee stiffness, that his right knee will give out on him occasionally, and that his right knee has caused him to fall occasionally; he had been employed up until recent to the December 2009 appointment. VA records also reflect chronic bilateral knee pain but that the Veteran was trying to hold off on having knee surgery (e.g. October 2009, April 2010, October 2010, January 2011, February 2012, December 2012, July 2012, October 2012, November 2013). The Veteran has also been noted to have swelling consistent with osteoarthritis (e.g. June 2013), has been prescribed injections (e.g. June 2013), and used ice and pain medication (e.g. February 2012). A July 2013 record reflects he had mild atrophy of the lower left extremity in comparison to the right, he did not use an assistive device, but his gait was with apparent genu varus and slight list to the right (although he was noted to have genu varus as a toddler and worse braces as a toddler). An April 2014 VA examination report reflects that the Veteran had bilateral instability. He also had 80 degrees of right knee flexion with objective evidence of pain beginning at 60 degrees. He had right knee extension to 10 degrees with painful motion beginning at 15 degrees. He had left knee flexion to 70 degrees with objective evidence of painful motion at 50 degrees. He had left knee extension to 20 degrees with painful motion beginning at 25 degrees. The examiner found that the Veteran could not perform repetitive use testing due to severe pain with motion. With regard to flare-ups, the Veteran reported that they cause increased pain and swelling. The examiner stated that this would be anticipated to cause an additional loss of 5-10 degrees of flexion and 5 degrees extension of both knees, beyond repetitive motion testing. However, as noted above repetitive motion testing was not performed. A September 2016 VA examination report reflects that the Veteran continued to report pain of the knee (he had undergone a total left knee replacement in June 2015) and that he could not walk more than 250 feet without stopping for rest. Upon examination in 2016, he had range of motion of the right knee from 0 to 90 degrees, and range of motion of the left knee from 10 to 80 degrees. The examiner found that the Veteran could not perform repetitive use testing due to severe pain with motion. He has right knee lateral instability, but did not have left knee lateral instability. The Veteran did not have flare-ups. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court of Appeals for Veterans Claims held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence of § 4.59 provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. A review of the examination reports noted above reveals that the clinicians did not discuss whether the Veteran's range of motion was different depending on active, passive, weightbearing, or nonweightbearing. In addition, as noted by the Court in Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017), the critical question in assessing the adequacy of an examination not conducted during a flare up is whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares. In the present case, the 2014 examination report reflects that the Veteran reported flare-ups with increased pain and swelling, and phrased the loss in terms of additional loss after repetitive motion testing, which was not performed. Based on the Court's holdings in Correia and Sharp, the Board finds that a retrospective clinical opinion is warranted. TDIU The issue of entitlement to a TDIU is inextricably intertwined with the issues of increased rating(s) for the knee. Thus, it must also be remanded. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file all outstanding VA and non-VA clinical records for the Veteran's left and right knees. 2. Forward the Veteran's claims file to an appropriate VA examiner to provide a retrospective opinion regarding the extent of the Veteran's right and left knee disabilities. Specifically, the VA examiner should attempt to provide opinions on the following matters: a) With specific attention to the 2014 and 2016 VA examination reports documenting clinical testing results, please opine (to the extent possible) as to -- (i) the degree of range of motion lost after repetitive use testing if it were to have been done. (ii) the degree of range of motion lost during active range of motion testing, passive range of motion testing, with weight-bearing, and without weight-bearing, if it was done, or if it were to have been done (i.e. is it likely that the range of motion would have been different than that noted in the reports.) b.) if it is not possible to provide such an opinion without resorting to mere speculation, please so state and provide an explanation as to why an opinion cannot be given. 3. Following completion of the above, readjudicate the issues on appeal. If a benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs