Citation Nr: 18140585 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 14-37 805 DATE: October 3, 2018 ORDER Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease, left knee, is denied. Entitlement to an initial compensable disability rating for seasonal allergic rhinitis is denied. Entitlement to an initial disability rating in excess of 30 percent prior to May 11, 2010 and in excess of 50 percent thereafter for asthma with obstructive sleep apnea is denied. Entitlement to an initial disability rating in excess of 10 percent for migraine headaches is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent prior to May 9, 2017 and in excess of 20 percent thereafter for lumbosacral osteoarthritis is remanded. Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an initial disability rating in excess of 10 percent for hypertension is remanded. Entitlement to an initial disability rating in excess of 10 percent for pseudofolliculitis barbae is remanded. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. The Veteran’s left knee disorder was productive of painful motion, but was not productive of actual or functional flexion limited to 30 degrees or extension to 10 degrees; recurrent subluxation or lateral instability; dislocated semilunar cartilage; removal of semilunar cartilage; ankylosis; impairment of the tibia and fibula; or genu recurvatum. 2. The Veteran’s allergic rhinitis was not productive of polyps, nor of greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. 3. Prior to May 11, 2010, the Veteran’s service-connected sleep apnea was manifested by the persistent daytime hypersomnolence without the use of a continuous positive airway pressure (CPAP) breathing assistance device. 4. From May 11, 2010, the Veteran’s service-connected sleep apnea is manifested by the use of a continuous positive airway pressure (CPAP) breathing assistance device; the condition is not productive of chronic respiratory failure with carbon dioxide retention, cor pulmonale, or a tracheostomy. 5. Throughout the appeals period, the Veteran’s asthma has not been manifested by FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, has not resulted in at least monthly visits to a physician for required care of exacerbations, and does not require intermittent courses of systemic (oral or parenteral) corticosteroids. 6. Throughout the period of appeal, the Veteran has suffered from headaches, but those headaches have not resulted in characteristic prostrating attacks occurring on an average of once a month over the last several months. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the left knee disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes (DCs) 5010-5260. 2. The criteria for an initial compensable rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.21, 4.31, 4.97, Diagnostic Code (DC) 6522. 3. Prior to May 11, 2010, the criteria for a disability rating in excess of 30 percent for sleep apnea with asthma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code (DC) 6847. 4. Starting May 11, 2010, the criteria for a disability rating in excess of 50 percent for sleep apnea with asthma have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code (DC) 6847. 5. The criteria for a disability rating in excess of 10 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating 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. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 1. Left Knee The Veteran’s left knee degenerative joint disease is rated pursuant to DC 5010-5260, for limitation of flexion. Pursuant to DC 5260, limitation of flexion of the knee warrants a noncompensable rating if flexion is limited to 60 degrees; a 10 percent rating if flexion is limited to 45 degrees; a 20 percent rating if flexion is limited to 30 degrees; and a 30 percent rating if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, limitation of extension of the knee warrants a noncompensable rating if extension is limited to 5 degrees; a 10 percent rating if extension is limited to 10 degrees; a 20 percent rating if extension is limited to 15 degrees; a 30 percent rating if extension is limited to 20 degrees; a 40 percent rating if extension is limited to 30 degrees; and a 50 percent rating if extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. The regulations provide that the normal range of motion of the knee is zero degrees on extension to 140 degrees on flexion. 38 C.F.R. § 4.71, Plate II. The VA General Counsel also has held that separate ratings under 38 C.F.R. § 4.71a, DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOGCPREC 9-2004 (September 17, 2004). Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight; a 20 percent evaluation if it is moderate; or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, DC 5257. The words slight, mild, moderate, and severe as used in the various diagnostic codes are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, DC 5258. Following a review of the evidence of record, including the VA examination reports, VA treatment records, and the Veteran’s lay statements, the Board finds that a rating in excess of 10 percent is not warranted for his service-connected left knee disability. A review of the medical evidence does not reveal that the Veteran is entitled to a higher rating for limitation of flexion or limitation of extension under Diagnostic Codes 5260 and 5261. In this regard, the Veteran’s left knee was at worst limited to 110 degrees, as noted on the May 2017 VA examination report. The February 2010, July 2011, and May 2017 VA examination reports noted extension to zero degrees throughout the period on appeal, with pain exhibited on flexion and extension. There is no evidence that the Veteran displayed flexion to 30 degrees or extension to 10 degrees at any point during the appeal period. Accordingly, the Veteran is not entitled to an increased rating under Diagnostic Code 5260 or a separate rating under Diagnostic Code 5261. The Board has also considered whether the Veteran’s left knee disability warrants higher or separate ratings under any other provision of the rating schedule during any period on appeal. A separate rating under DC 5257 for recurrent subluxation and instability is not warranted as none of the medical evidence of record has suggested the presence of subluxation or instability. The Board recognizes the Veteran complained of giving way during the February 2010 VA examination, instability in the July 2011 VA examination, giving way in an April 2015 VA progress note, and loss of balance in the June 2017 examination. However, review of the July 2011 and May 2017 VA examination reports showed that instability testing for anterior instability, posterior instability, medial instability, and lateral instability, were all normal. Therefore, the evidence does not show objective evidence of instability of the left knee. Further, the objective evidence does not support a finding of dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint so as to warrant a higher rating under DC 5258. The Board notes that semilunar cartilage is the meniscus lateralis articulationis genus (lateral meniscus) and the meniscus medialis articulationis genus (medial meniscus). See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 273, 1013 (28th ed. 1994). In a July 2011 VA examination and a May 2015 VA progress note, the Veteran complained of locking. However, the February 2010 and May 2017 VA examiners found that the Veteran did not have any meniscal conditions. Therefore, the evidence does not show dislocated semilunar cartilage of the left knee. Additionally, the medical evidence has not demonstrated ankylosis (Diagnostic Code 5256), impairment of the tibia and fibula (Diagnostic Code 5262), genu recurvatum (Diagnostic Code 5263), or symptomatic removal of semilunar cartilage (Diagnostic Code 5259). In addition, the Board notes that the Veteran is currently assigned a 10 percent rating for the left knee under Diagnostic Code 5260, which contemplates painful motion. There is no x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Thus, an increased evaluation is not warranted under Diagnostic Code 5010. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran’s left knee disability is not warranted on the basis of functional loss due in this case, as the Veteran’s symptoms are supported by pathology consistent with the assigned evaluations, and no higher. In this regard, the Board observes that the Veteran complained of pain throughout the appeal period. However, the effect of the pain in the Veteran’s left knee is already contemplated in the assigned rating. The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation beyond those already assigned. In fact, the February 2010, July 2011, and May 2017 VA examiners indicated that the Veteran’s left knee did not have any additional loss of function or range of motion with repetitive testing. Accordingly, the Board concludes that an increased or separate evaluation is not warranted for the Veteran’s service-connected left knee disorder under DeLuca. The currently assigned rating contemplates the functional loss due to the disability, to include when considering any flare-ups. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran’s left knee symptoms have not more nearly approximated a disability rating in excess of 10 percent. The benefit-of-the-doubt doctrine is therefore not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Seasonal allergic rhinitis The Veteran contends that a compensable rating is warranted from his allergic rhinitis. The Veteran’s allergic rhinitis is rated noncompensable under DC 6522. A compensable rating of 10 percent is warranted for allergic rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both side or complete obstruction on one side. A 30 percent rating is warranted for allergic rhinitis with polyps. This rating code does not contain provisions for a zero percent evaluation. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Based on the evidence of record, the Board finds that the Veteran is not entitled to a compensable rating for seasonal allergic rhinitis. The evidence of record including a June 2010 VA examination, a July 2011 VA examination, and a May 2017 rhinitis disability benefits questionnaire are silent for any indication that the Veteran suffered from allergic rhinitis with polyps, and he did not show greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side, symptoms indicative of a compensable rating. The Board recognizes an October 2010 VA progress note reported the Veteran had nose blocked with mucus; however, the diagnosis at that time was acute sinusitis and there are no other findings of obstruction of nasal passage on both sides or complete obstruction on one side. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran’s allergic rhinitis symptoms have not more nearly approximated a compensable rating. The benefit-of-the-doubt doctrine is therefore not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 3. Asthma with sleep apnea The Veteran is asserting higher disability ratings for his service-connected sleep apnea with asthma, currently rated as 30 percent prior to May 11, 2010, and 50 percent disabling thereafter under DC 6847. Ratings for sleep apnea and asthma will not be separately provided. See 38 C.F.R. § 4.97. DC 6847 dictates that sleep apnea warrants a 30 percent disability rating with persistent day-time hypersomnolence. A 50 percent disability rating warrants requires use of a breathing assistance device such as a continuous airway pressure (CPAP) machine. A 100 percent disability rating is warranted for sleep apnea which results in chronic respiratory failure with carbon dioxide retention or cor pulmonale; or, requires tracheostomy. See 38 C.F.R. § 4.97, DC 6847. Bronchial asthma is rated under DC 6602. Under DC 6602, a 10-percent rating is assigned for asthma for Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent of predicted value, or the ratio of FEV-1 to Forced Vital Capacity (FVC) (FEV-1/FVC) of 71- to 80 percent, or intermittent inhalational or oral bronchodilator therapy. A 30-percent rating is assigned for FEV-1 of 56- to 70-percent predicted, or FEV-1/FVC of 56 to 70 percent or daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication. A 60-percent rating is assigned for an FEV-1 of 40- to 55-percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least 3 times per year) course of systemic (oral or parenteral) corticosteroids. A maximum 100-percent rating is assigned for bronchial asthma with an FEV-1 of less than 40-percent predicted; or FEV-1/FVC less than 40 percent, or more than 1 attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. Governing regulations require that post-bronchodilator test results are to be used for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post- bronchodilator studies should not be done and states why, or unless the post-bronchodilator results were poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96. The Board will determine the severity of both the Veteran’s sleep apnea and asthma to determine which disability should be considered the predominant disability. During a February 2010 VA examination, the Veteran reported he was diagnosed with asthma in service. He reported a history of shortness of breath and wheezing aggravated by allergens or cold weather. He symptoms are relieved by albuterol. Episodes occur once every four months requiring nebulizer treatment because the Veteran does not keep the albuterol with him at all times. Upon pulmonary function test (PFT), spirometry was within normal limits and there was no evidence of either an obstructive or restrictive pulmonary defect. PFT testing showed forced expiratory volume in one second (FEV-1) at 113 percent and a ratio of FEV-1 to forced vital capacity (FEV1/FVC) at 79 percent post-bronchodilator. Additionally, the Veteran reported having an onset of sleep apnea while in-service. He complained of problems both falling asleep and maintaining sleep. At a sleep study dated in March 2010, the Veteran reported that he is not sleepy in the day and he denied taking naps. The VA examiner diagnosed severe insomnia, severe periodic leg movements and moderate obstructive sleep apnea. In a May 2010 VA progress note, the Veteran was given a prosthetics consultation for an AutoPAP. During an August 2011 VA PFT, post-bronchodilator testing showed forced expiratory volume in one second (FEV-1) at 96 percent and a ratio of FEV-1 to forced vital capacity (FEV1/FVC) at 77 percent post-bronchodilator. A May 2013 VA sleep study showed a diagnosis of mild obstructive sleep apnea with associated hypoxia that is worse in the left-sided positional and treated adequately with CPAP. During a May 2017 sleep apnea examination, the Veteran stated his symptoms are better with a CPAP. The examiner stated medication was not needed to control the Veteran’s sleep disorder; however, the Veteran does use a CPAP. During a May 2017 respiratory examination, the Veteran reported his condition has stayed the same. The examiner noted the Veteran uses an inhalational bronchodilator and inhalational anti-inflammatory medication intermittently. The Veteran has had no asthma attacks with episodes of respiratory failure nor physician visits. PFT testing showed forced expiratory volume in one second (FEV-1) at 85.5 percent and a ratio of FEV-1 to forced vital capacity (FEV1/FVC) at 86 percent predicted pre-bronchodilator. Throughout the claims period, the Board finds that the Veteran’s asthma symptoms do not warrant a disability rating in excess of 30 percent under DC 6602. The medical evidence of record has not shown that his asthma has ever manifested by FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, resulted in at least monthly visits to a physician for required care of exacerbations, or required intermittent courses of systemic (oral or parenteral) corticosteroids. At worst, the Veteran’s asthma has been manifested by FEV-1 of 85 percent predicted, FEV-1/FVC of 86 percent as indicated in the May 2017 examination report. The Board notes that the findings of the May 2017 examination are pre-bronchodilator; however, post-bronchodilator results were poorer than the pre-bronchodilator results during this examination. See 38 C.F.R. § 4.96. Prior to May 2010, the Veteran’s sleep apnea was manifested by difficulty falling and maintaining sleep. During this time, the Veteran did not require the use of a CPAP. As such, a disability rating in excess of 30 percent under DC 6847 is not warranted. As of May 11, 2010, the Board finds that the currently assigned 50 percent disability rating for the Veteran’s sleep apnea with asthma is warranted. As of that date, the Veteran’s sleep apnea has necessitated the use of a CPAP. However, a maximum rating under DC 6847 is not warranted as there is no evidence (and the Veteran does not assert) of chronic respiratory failure with carbon dioxide retention or cor pulmonale, or a requirement of a tracheostomy. Considering the findings above, the Board finds the Veteran’s sleep apnea is his predominant disability. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran’s sleep apnea with asthma symptoms have not more nearly approximated a disability rating in excess of 30 percent prior to May 11, 2010 nor in excess of 50 percent disabling thereafter. The benefit-of-the-doubt doctrine is therefore not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.   4. Migraine headaches The Veteran contends that his service-connected migraines warrant a higher disability rating. Under DC 8100, a compensable evaluation of 10 percent is warranted for headaches with characteristic prostrating attacks averaging one in two months over the last several months, and 30 percent is warranted for headaches with characteristic prostrating attacks averaging once a month over the last several months. See 38 C.F.R. § 4.124a, DC 8100 (2017). The Board observes that the rating criteria do not define prostrating. By way of reference, prostration is defined as extreme exhaustion or powerlessness. See Dorland’s Illustrated Medical Dictionary, 1531 (32nd ed. 2012). During a February 2010 VA examination, the Veteran reported his headaches could occur anytime and have progressively worsened. He denied morning headaches that could be associated with poor night time sleep or due to hypertension or PTSD. He stated when he has a bad headache he has to put a warm towel over his face and be quiet or sleep. He described his headaches as weekly, but not treated with medication. Less than half of the attacks are prostrating, and a headache could last hours. He stated his headaches have caused decreased concentration and pain. During a July 2011 VA general medical examination, the Veteran reported he does not take many medications for his tension headaches. He reported he gets these about 2 times per week. He endorsed photophobia and indicated they were nonprostrating. There is no effect on his activities of daily living. The examiner indicated these appear minimal. VA treatment records also show complaints of headaches. In a May 2012 VA progress note, the Veteran reported he had a mild headache which is similar to previous headaches. In an April 2013 VA progress note, the Veteran stated he has been waking up with headaches daily for the last month. He described nausea and photophobia with headaches. He stated they are helped by a quiet room. In a November 2015 note, the Veteran reported his migraines have been responding to the sumatriptan and are less frequent than with the amitriptyline. In a November 2016 note, the Veteran reported his headaches are getting worse. The Veteran was treated for migraines in December 2014, August 2015, and March 2016. In a May 2017 migraine disability benefits questionnaire, the Veteran complained of worsening of his migraine headaches. He described a pulsating or throbbing head pain with sensitivity to light and sound and changes in vision with a duration of less than one day. The examiner noted the Veteran has had prostrating attacks of migraine pain once every two months. There was no evidence of very prostrating and prolonged attacks of migraines pain productive of severe economic inadaptability. Based on the foregoing evidence of record, the Board finds that the Veteran’s current 10 percent rating is appropriate for his migraines. Although the February 2010 VA examiner reported the Veteran had headaches monthly, with half being prostrating, this on itself does not evidence the level of monthly prostrating attacks indicative of a 30 percent disability rating. The subsequent July 2011 VA examination report showed only complaints of nonprostrating tension headaches, and the May 2017 examiner specifically indicated the Veteran’s prostrating attacks only occur once every two months. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran’s migraine symptoms have not more nearly approximated a disability rating in excess of 10 percent disabling. The benefit-of-the-doubt doctrine is therefore not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND Evidence indicates that there may be outstanding relevant VA treatment records related to the Veteran’s hypertension, PTSD, and lumbosacral spine claims. In March and April 2018 VAMC Reports of Hospitalization, it appears the Veteran has continued to receive VA treatment for the disabilities on appeal. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. During a June 2017 examination, the Veteran reported he had surgery at a private facility in May 2016 for his service-connected back disability. However, those records are in the claims file. A remand is required to allow VA to obtain authorization and request these records. The Board finds the Veteran’s claim for an initial rating in excess of 10 percent for right lower extremity radiculitis is on appeal as part of the Veteran’s increased rating claim for his back disability. The Veteran underwent a VA examination in June 2017, and, as the claim for an increased rating for the right lower extremity has not been readjudicated since that time, a remand is necessary. The Veteran asserts a higher disability rating is warranted for his pseudofolliculitis barbae. As there is no DC specific to pseudofolliculitis barbae, the disability is rated by analogy to dermatophytosis. Under DC 7813 for dermatophytosis, the disability is rated as either disfigurement of the head/neck, scars, or dermatitis. DC 7806 for dermatitis rates the disability according to the percentage of exposed body and total body affected, as well as the use of corticosteroids. The Veteran underwent an examination in May 2017; however, the examiner failed to report the percentage of the entire body and exposed areas affected by the Veteran’s service connected skin disability. As such, another examination is necessary. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from June 2017 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for any private facility which treated his service-connected back disability. Make two requests for the authorized records from any identified provider, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected skin disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria to include body area exposed and whether there is any scarring and/or disfigurement. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.   If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Diane M. Donahue Boushehri, Counsel