Citation Nr: 18147084 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-33 144 DATE: November 2, 2018 ORDER Service connection for a left thigh disability is denied. Service connection for a left leg disability is denied. Service connection for sleep apnea is denied. Service connection for a left knee disability is denied. Service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for depressive and mood disorders is denied. A compensable initial rating for scar, status post lumbar surgery, is denied. An initial rating greater than 10 percent for lumbar spondylosis is denied. An initial rating greater than 10 percent for osteoarthritis of the right knee with medial compartment syndrome and small effusion with instability is denied. From June 4, 2018, to June 26, 2018, a rating of 30 percent, but no higher, for residuals, right total knee arthroplasty, previously rated as osteoarthritis of the right knee with medial compartment syndrome and small effusion with limitation of motion, is granted, subject to the regulations governing the award of monetary benefits. REMANDED A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Army from September 1973 to September 1976. 2. The Veteran was not diagnosed with left thigh or leg disabilities during the pendency of this appeal, nor has his complained of pain productive of functional impairment. 3. Sleep apnea was not incurred in, or is otherwise etiologically related to, service. 4. A left knee disability was not incurred in, or is otherwise etiologically related to, service, including in-service physical training or a motor vehicle accident; this disability did not arise within one year of separation. 5. The Veteran has not been diagnosed with PTSD in accordance with VA regulations. 6. Depressive and mood disorders were not incurred in, or are otherwise etiologically related to, service. 7. A lumbar scar is not disfiguring, deep, nonlinear, unstable, or painful. 8. A back disability has been manifested by subjective complaints of pain and intermittent spasming; objective findings did not demonstrate forward flexion between 30 and 60 degrees, combined range of motion not greater than 120 degrees, or muscle spasm or guarding productive of an abnormal gait. 9. A right knee disability manifested by slight recurrent lateral instability. 10. From June 4, 2018, to June 26, 2018, a right knee disability manifested by limitation of extension to 20 degrees. CONCLUSIONS OF LAW 1. The criteria for service connection for a left thigh disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for a left leg disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 3. Sleep apnea was not incurred in service. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. A left knee disorder was not incurred in service. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303, 3.304. 6. Depressive and mood disorders were not incurred in service. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 7. The criteria for a compensable initial rating for scar, status post lumbar surgery, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, DC 7805. 8. The criteria for an initial rating greater than 10 percent for lumbar spondylosis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, DC 5010-5242. 9. The criteria for an initial rating greater than 10 percent for osteoarthritis of the right knee with medial compartment syndrome and small effusion with instability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5010-5257. 10. From June 4, 2018, to June 26, 2018, the criteria for a 30 percent rating, but no higher, for residuals, right total knee arthroplasty, previously rated as osteoarthritis of the right knee with medial compartment syndrome and small effusion with limitation of motion have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5010-5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These appeals were previously remanded by the Board in March 2018 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition to the perfected appeals addressed herein, the Veteran has other claims at various points in development, including claims for which rating decisions have not been issued, claims at the notice of disagreement stage, and one issue for which the Veteran has filed a substantive appeal but has not yet been certified to the Board. Each of these claims has been acknowledged by the Regional Office (RO), and development appears to be proceeding with all of them. Quite simply, any action by the Board in this decision with regard to those claims would only serve to further complicate the procedural posture of each of those claims. The Board therefore declines jurisdiction over them at this time. Service Connection First, the Veteran is seeking service connection for multiple disorders on a direct basis. As such, the Board will limit its analyses to this theory of entitlement. In this respect, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Left Thigh and Left Leg As to these appeals, the evidence does not demonstrate that the Veteran was diagnosed with left thigh or leg disorders at any time. Instead, extensive VA and private treatment records are silent for left thigh or leg diagnoses or the treatment thereof. In those limited circumstances when the Veteran was examined, normal results were typically documented. In the absence of a current disability, further inquiry into the in-service event or nexus elements is rendered moot and the appeals must be denied. In offering this conclusion, the Board has considered the Veteran’s contention that he has left thigh and leg disabilities. However, he lacks the requisite training and expertise to offer competent medical diagnoses. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, greater probative value is afforded to the medical evidence of record, which does not establish the existence of the claimed disorders. Further, the Board has considered the Veteran’s complaints of chronic left thigh and leg pain. Although he has reported certain functional limitations, he attributes this to conditions unrelated to his thigh and leg pain, including chronic knee disorders. Accordingly, the record does not establish such a pattern of pain productive of functional impairment as to warrant an award of service connection at this time. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). Sleep Apnea Here, VA treatment records establish an ongoing diagnosis of sleep apnea as treated with a C-PAP machine, such that the first element of service connection—a current disorder—has been met. However, the Veteran neither contends, nor do his service records suggest, that this condition onset during active duty. Instead, service treatment records (STRs) are silent for complaints of this condition or the treatment thereof and a September 1976 exit examination notes normal clinical evaluations. As the second element (in-service incurrence) is not demonstrated, there is no basis to grant the claim and further inquiry into the nexus requirement is not required. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (VA may use silence in the service treatment records as evidence contradictory to a veteran’s assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). Accordingly, this appeal is denied. Left Knee Next, the Veteran was diagnosed with left knee osteoarthritis during June 2018 VA examination. This diagnosis is supported by VA and private treatment records, which note a history of knee osteoarthritis throughout. As such, the first element of service connection has been met. Turning to the second element, the Veteran has testified as to two in-service events: (1) An injury incurred due to in-service physical training; and (2) an in-service motorcycle accident. As to the first event, the evidence does not support the finding of an in-service injury due to physical training. The Veteran’s STRs are entirely silent for reports of a left knee injury or related treatment, and a normal clinical evaluation was noted upon his exit from service. Further, the Veteran did not report an in-service left knee injury on any of his in-service medical narratives. As such, the Board concludes that the Veteran did not incur a left knee injury during service due to physical training. Similarly, the evidence does not support the finding of an in-service motorcycle accident. Here, the Veteran reported a pre-service car wreck on his September 1973 medical history. Service records spanning his entire period of service are silent for reports of a subsequent in-service accident. Instead, evidence including an August 2011 letter from the Veteran establishes that he was involved in a motorcycle accident approximately 10 years after separation. Thus, although the evidence establishes that the Veteran has been involved in multiple motor vehicle accidents during his lifetime, none occurred during his period of active duty. Further, the Veteran’s service treatment records have been obtained, they appear complete, and they reflect treatment for a litany of issues in service. Quite simply, if the Veteran were to have been involved in a motorcycle accident resulting in the type of trauma he contends occurred, records of that incident would be expected to be found in his records. In the absence of an in-service incurrence, the appeal is thus denied. Id. Briefly, the Board has also considered whether the Veteran’s osteoarthritis diagnosis triggers the application of presumptive service connection to this appeal. 38 C.F.R. §§ 3.307, 3.309(a). However, the evidence does not establish that the Veteran’s left knee disorder arose within one year of his service discharge. Instead, this diagnosis was offered in 2018, more than 40 years following his exit. Accordingly, presumptive service connection is not applicable to this appeal. PTSD and Depressive/Mood Disorders As to the psychiatric appeals, service connection for PTSD is predicated upon a diagnosis offered in accordance with VA regulations. 38 C.F.R. § 3.304(f). Although the Veteran’s treatment records record a history of PTSD, it is unclear whether this diagnosis is offered per The Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria as required, including a May 2015 record which reports the Veteran’s qualifications under an incomplete set of diagnostic criteria. As such, a diagnosis of PTSD offered in accordance with VA regulations has not been found in this case, such that this appeal is denied and the regulations pertaining to a PTSD claim are no longer for consideration. Nonetheless, the Veteran’s VA treatment records also indicate a significant diagnostic history of depressive and mood disorders, such that the first element of service connection has been found in this respect. Regarding an in-service event, the Veteran has testified as to experiencing significant racial discrimination during active duty. Generally, a veteran is competent to report that which he perceives through his senses, including events capable of observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran’s testimony is consistent and well-documented throughout the record, and there is no evidence which tends to refute his recollections. Thus, in affording him the benefit of the doubt and in the absence of evidence to the contrary, the second element of service connection has been met. To the extent that the Veteran asserts a medical nexus between his psychiatric disorder and service, no medical provider has ever established such a connection. Thus, the only evidence offered in support of the appeal is the Veteran’s own lay testimony alleging a nexus in this case. However, he lacks the training and expertise to offer a competent opinion regarding the etiology of his psychiatric disorder due to the medical complexity of the matter involved. Jandreau, 492 F.3d at 1372; Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Thus, in the total absence of competent medical evidence indicating a nexus in this case, the preponderance of the evidence is against the claim such that the benefit-of-the-doubt rule is not applicable. The appeal is hereby denied. Briefly, the Board acknowledges that the Veteran has not undergone VA examination in connection with this appeal. As the record contains no evidence indicative of a nexus in this case, an examination is not warranted at this time. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Initial Ratings The Veteran is additionally seeking increased initial ratings for several service-connected disabilities. Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Lumbar Scar The Veteran is currently in receipt of a noncompensable initial rating for his lumbar scar per DC 7805, which applies to limitation of function of the affected part and provides: “Evaluate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code.” See 38 C.F.R. § 4.118. Scars are rated under DCs 7800 through 7805. Here, the Veteran does not contend, nor does the medical evidence show, that DCs 7800 (disfigurement of the head, face, or neck), 7801 (scars that are deep and nonlinear), 7802 (scars that are superficial and nonlinear), or 7804 (scars that are unstable or painful) are applicable in this case. Instead, an April 2011 VA examiner indicated that the Veteran had one scar on the posterior side of his trunk in the lower lumbar region. The scar was linear, superficial, and not painful upon examination. It measured 13.9 centimeters by 0.5 centimeters, and was unaccompanied by skin breakdown, underlying tissue damage, inflammation, edema, or keloid formation. It was not disfiguring and did not cause limitation of motion or function. In instances where the schedule does not provide a zero percent evaluation for a diagnostic code—as with DC 7805—a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. As set forth above, the Veteran does not meet the criteria for a compensable evaluation per DCs 7800 through 7804. Accordingly, he has properly been assigned a noncompensable initial rating in this case, such that the appeal is denied. Lumbar Spondylosis Next, the Veteran is in receipt of a 10 percent initial rating for lumbar spondylosis per DC 5010-5242. Generally, hyphenated DCs are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. The second DC provides further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Id.; see Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006). Accordingly, the code following the hyphen is the DC by which the disability is evaluated by analogy. Thus per the applicable criteria, a rating of 20 percent is warranted upon evidence of the following: • forward flexion of the thoracolumbar spine between 30 and 60 degrees; or • combined range of motion of the thoracolumbar spine not greater than 120 degrees; or • muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. As the record does not contain evidence that the Veteran has intervertebral disc syndrome (IVDS) of the thoracolumbar spine, the Formula for Rating IVDS Based on Incapacitating Episodes does not provide an avenue upon which an increased rating may be awarded at this time. Upon review of the record, an initial rating greater than 10 percent is not warranted for the Veteran’s back disability. During April 2011 and June 2018 VA examinations, flexion was noted to 90 and 70 degrees, and a combined range of motion (referencing the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation) to 240 degrees and 170 degrees, respectively. Although spasms were reported during the April 2011 examination, this symptom was not productive of an abnormal gait or spinal contour and appears to be properly managed with the use of medication. Further, spasming and guarding was explicitly denied during the June 2018 examination. As such, the Veteran reported only minimal functional impairment as due to his disability, to include difficulty performing household chores, yardwork, heavy lifting, and with prolonged walking. This understanding of the Veteran’s disability picture is further supported by extensive treatment records, which denote his history of ongoing back pain and intermittent spasming. However, these symptoms do not appear to cause significant functional impairment, as he remains largely capable of performing the activities of daily living despite his disability. Reports of additional symptoms, including weakness, fatigability, or incoordination, are absent from the record. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although the Veteran reported the regular use of a cane to assist with ambulation, this need was not due solely to his back disability and was instead merited by additional knee disorders. Accordingly, the Veteran’s back disability does not meet the criteria for a higher rating, and the appeal is denied. Right Knee Disabilities Finally, the Veteran is in receipt of two distinct awards pertaining to his right knee. As to the first award, he has been assigned a 10 percent initial rating for right knee instability per DC 5010-5257. For a 20 percent rating to be assigned, there must be evidence of moderate recurrent subluxation or lateral instability. In this respect, the evidence does not support a rating greater than 10 percent. Instead, a history of subluxation was denied by November 2011, January 2013, and June 2018 VA examiners and is not otherwise reported throughout VA and private treatment records. Instability was also explicitly denied during November 2011 and June 2018 VA examinations. Nonetheless, the Veteran reported a history of instability during January 2013 examination. Review of the record indicates that said instability is slight in nature, as the Veteran did not report a history of falls or any notable limitation of function as a result thereof. Although the Veteran ambulates with the use of a cane, the November 2011 examiner noted that this was simply a precautionary measure “in case he might fall.” Thus, the Veteran does not demonstrate such significant interference with his capacity to ambulate as to warrant an increased rating at this time. Instead, his disability picture is best embodied in the criteria for a 10 percent rating as currently assigned, and the appeal is denied to this extent. As to the second award, the Veteran has been assigned a 10 percent rating from October 29, 2010; a 100 percent rating from June 27, 2018; and a 30 percent rating from August 1, 2019, for right total knee replacement per DC 5055. Of note, the Veteran has not expressed dissatisfaction with the 100 percent rating as assigned, and the Board does not have jurisdiction over prospective ratings following the expiration of a temporary total rating. Thus, the Board’s analysis below is limited to the period prior to June 27, 2018. During this time, the Veteran’s disability was rated in accordance with DC 5010-5261 due to limitation of extension. Accordingly, an increased rating may be warranted upon evidence of the following: • limitation of extension to 15 degrees (20 percent), or • limitation of extension to 20 degrees (30 percent). Here, November 2011 and January 2013 VA examiners denied any limitation of extension upon examination. However, a VA examination conducted on June 4, 2018, reported extension limited to 20 degrees. Such limitation warrants a 30 percent rating per DC 5261, and the appeal is thus granted to this limited extent from the date of the VA corresponding examination. Finally, the Board has considered whether separate evaluations are warranted under the remaining DCs for knee disabilities, including DC 5256 (ankylosis), DC 5258 (dislocation of the semilunar cartilage), DC 5259 (removal of the semilunar cartilage), DC 5262 (impairment of tibia and fibula), and DC 5263 (genu recurvatum). However, the corresponding disorders are not shown in the record for the period on appeal such that application of these diagnostic codes is not warranted. Further, a compensable rating is awarded per DC 5260 only upon evidence of flexion limited to 45 degrees. However, during November 2011, January 2013, and June 2018 VA examinations, flexion was noted to 90, 70, and 70 degrees, respectively. As such, the Board declines to assign a separate evaluation due to limitation of flexion at this time. With respect to the above initial rating denials, the Board has considered the Veteran’s testimony regarding the severity of his symptoms. While he is competent to report symptoms capable of lay observation, he is not competent to identify a specific level of disability according to the applicable DCs. Instead, greater probative value is offered to the medical evidence in assessing the severity of the Veteran’s disabilities, as the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran’s disabilities and had sufficient facts and data on which to base the conclusions. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND The Veteran’s disability evaluations do not satisfy the minimum schedular criteria for a TDIU. However, the record contains evidence that the impact of his disabilities may preclude his gainful employment. As such, a remand is warranted such that the matter can be referred to VA’s Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: Refer the TDIU claim to VA’s Director of Compensation Service for consideration of whether a TDIU on an extraschedular basis is warranted. Include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel