Citation Nr: 18147945 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-12 706 DATE: November 6, 2018 ORDER A rating in excess of 10 percent for residuals of left knee strain with chronic synovitis is denied. A rating in excess of 10 percent for hemorrhoids is denied. Service connection for an attention disorder with short-term memory loss is denied. Service connection for a cardiovascular disorder is denied. New and material having not been received, the application to reopen the claim of entitlement to service connection for right ear hearing loss is denied. New and material having been received, the application to reopen the claim of entitlement to service connection for left ear hearing loss is granted. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for peripheral neuropathy is denied. REMANDED A rating in excess of 70 percent for PTSD. Service connection for a visual perception disorder, to include as due to exposure to contaminated drinking water at Camp Lejeune. Service connection for left ear hearing loss. Service connection for sleep apnea, claimed as a breathing disorder, to include as secondary to service-connected posttraumatic stress disorder (PTSD). A total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). FINDINGS OF FACT 1. The Veteran had confirmed active duty service from June 1969 to April 1971 and from June 1983 to November 1989, to include service in the Republic of Vietnam. 2. A left knee disability is manifested by subjective complaints of pain, locking, stiffness, weakness, and giving way; objective findings include flexion limited to 110 degrees and full extension but not instability, ankylosis, tibial or fibular impairment, or a semilunar condition with frequent episodes of “locking,” pain and effusion into the joint. 3. Hemorrhoids are manifested by subjective complaints of bleeding, itching, burning and pain; objective findings include persistent bleeding, evidencing frequent recurrences, but not secondary anemia or fissures. 4. Attention difficulties and short-term memory loss are symptoms of service-connected PTSD; a separately-diagnosed attention disorder to include short-term memory loss has not been shown. 5. A cardiovascular disorder has not been shown. 6. Unappealed rating decisions dated in August 2002 and February 2006 denied service connection for bilateral hearing loss. 7. Evidence received since the February 2006 rating decision does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for right ear hearing loss. 8. Evidence received since the February 2006 rating decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for left ear hearing loss. 9. An unappealed September 2006 rating decision denied service connection for peripheral neuropathy. 10. The evidence received since the September 2006 rating does not raise a reasonable possibility of substantiating the claim for service connection for peripheral neuropathy. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of left knee strain with chronic synovitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.45, 4.71a, Diagnostic Code (DC) 5299-5260 (2018). 2. The criteria for a rating in excess of 10 percent for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.114, DC 7336 (2018). 3. Attention disorder with short-term memory loss was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2018). 4. A cardiovascular disorder was not incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2018). 5. The August 2002 and February 2006 rating decisions denying service connection for bilateral hearing loss are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2018). 6. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for right ear hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 7. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for left ear hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 8. The September 2006 rating decision denying service connection for peripheral neuropathy is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2018). 9. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for peripheral neuropathy. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4.   Left Knee The Veteran’s left knee disability is rated as 10 percent disabling pursuant to DC 5299-5260. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The use of the “99” series and a hyphenated diagnostic code reflects that there is no specific diagnostic code applicable to the disability, and it must be rated by analogy. 38 C.F.R. § 4.20. The Veteran is rated under DC 5260 for limitation of extension of the leg and 38 C.F.R. § 4.59 regarding painful motion. The Board will also consider all potentially relevant diagnostic codes. In order to warrant a higher rating, the evidence must show: • ankylosis of the knee with a favorable angle in full extension or in slight flexion between 0 and 10 degrees (30% under DC 5256); • moderate recurrent subluxation or lateral instability (20% under DC 5257); • dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint (20% under DC 5258); • flexion of the knee limited to 30 degrees (20% under DC 5260); • extension of the knee limited to 15 degrees (20% under DC 5261); or • impairment of the tibia or fibula with a moderate knee disability (20% under DC 5262). After a careful review of the evidence of record, a rating in excess of 10 percent is not warranted. As an initial matter, DCs 5256 (ankylosis), 5258 and 5259 (symptomatic dislocation and/or removal of semilunar cartilage), 5262 (impairment of tibia and fibula), and 5263 (genu recurvatum) are not shown on examination and application of these diagnostic codes is not warranted. At an April 2012 VA examination, the Veteran reported intermittent left knee pain and stiffness, described as dull and aching. Pain increased with standing and walking a lot/weightbearing. He reported feeling like the knee was giving way when negotiating stairs and occasional locking. He did not complain of swelling, redness, warmth, recurrent subluxation or dislocation. He used a cane on occasion. He reported flare-ups as noted above with stairs. Physical examination revealed no instability, episodes of dislocation or subluxation, or tenderness or pain to palpation of the joint line/soft tissue. There was no meniscus/semilunar cartilage condition. Range of motion testing revealed flexion from 0 to 125 degrees (with pain beginning at 110 degrees). Left knee extension was normal at 0 degrees. There was no pain on extension. There was no additional limitation after three repetitions of range of motion. There was no ankylosis. It was noted that the Veteran has functional loss of the left knee after repetitive use in terms of pain, instability of station, and excessive fatigability. This additional functional loss was not estimated in terms of degrees of range of motion lost. At a January 2016 VA knee examination, it was noted that the Veteran’s knee disorder had progressed into osteoarthritis. He reported constant medial sharp pain in the left knee. He has some swelling if he overused the knee and avoided stairs. He denied flare-ups. He reported functional limitation in terms of an inability to squat, an inability to play golf because there is too much walking, and instability with stair climbing. Range of motion testing revealed flexion was from 0 to 135 degrees and extension 135 to 0 degrees. Pain was noted on examination (flexion only) and it was noted to contribute to functional loss. There was pain with weight-bearing, but there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or range of motion after three repetitions. Although he was not examined after repeated use over time, the examiner indicated that pain, weakness, and incoordination significantly limited functional ability with repeated use over a period of time. However, the examiner could not quantify the additional loss in terms of range of motion. Instead, the examiner indicated that there would be increased pain with prolonged walking and stair climbing and the Veteran would be limited in squatting. The examiner noted that additional factors contributing to the left knee disability include less movement than normal, weakened movement, and disturbance of locomotion. On examination there was no muscle atrophy, ankylosis, lateral instability, recurrent subluxation, recurrent effusion, or joint instability. There was near full strength (4/5). The examiner noted that the Veteran had a meniscus (semilunar cartilage) condition but there were no associated symptoms. He uses a knee sleeve and a cane. Overall, the evidence does not warrant a rating in excess of 10 percent. The evidence does not show any recurrent subluxation or lateral instability. Further, neither flexion nor extension were limited to meet the criteria of a higher or separate rating under DCs 5260 or 5261 as flexion was not limited to more than 110 degrees (even considering pain) and extension was normal (without pain) at 0 degrees. Finally, while he wears a brace regularly, the use is contemplated under the current rating for pain and as there is no impairment of the tibia and fibula, a separate rating under DC 5262 is not warranted. In making the above findings, the Board has considered functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran has described pain upon movement, and pain was objectively found; however, the fact that a veteran experienced pain, even if experienced throughout the range of motion on examination, does not by itself warrant a higher rating under the diagnostic codes providing ratings for limited motion. Rather, it is the functional limitation, i.e., the additional limitation of motion, caused by pain or the other DeLuca factors that must be considered in determining whether a higher rating is warranted. In this regard, the evidence does not reflect that pain or any of the other DeLuca factors resulted in limitation of motion that more nearly approximated even the noncompensable ratings for flexion or extension pursuant to DCs 5260 and/or 5261. At both examinations, the Veteran demonstrated that he was able to perform repetitive-use testing and showed no additional limitation of motion following such testing. Any additional functional loss due to pain, weakness, instability of station, and fatigability in the knee joint, while significant, would not suffice to reduce extension, which has consistently been full, to 5 degrees or more, or to reduce flexion, which has been no worse than to 110 degrees, to even 60 degrees, particularly when examination consistently revealed that after three repetitions the range of motion of the left knee did not change at all. Based on the above, the medical evidence does not support a higher rating. Hemorrhoids The Veteran’s service-connected hemorrhoids are currently rated as 10 percent disabling pursuant to DC 7336. He claims that a higher rating is warranted. Under DC 7336, a 10 percent rating is warranted when hemorrhoids are large or thrombotic and irreducible, with excessive redundant tissue evidencing frequent recurrences. A 20 percent rating is warranted when there is persistent bleeding and with secondary anemia, or with fissures. After review of the evidence, the Board finds that a rating in excess of 10 percent is not warranted. In this regard, an April 2012 VA examination report reflected flare-ups of hemorrhoids once a month. Acute flare-ups lasted five to seven days. Flare-ups consisted of pain, burning and itching. The Veteran also noted bright red blood with wiping, mild constipation, and painful, hard to pass, stools. He reported thrombosed hemorrhoids about once or twice a year. The examiner noted that there was no history of significant fissures, rectal fistula or rectal stricture. The Veteran endorsed subjective symptoms of mild to moderate and large or thrombotic hemorrhoids, as well as persistent bleeding. It was specifically noted that he did not have fissures or secondary anemia. On examination, objective findings included small or moderate external hemorrhoids, irreducible external hemorrhoids, and internal hemorrhoids. There was not excessive redundant tissue, fistula or fissures. Bleeding was not noted on examination and there were no thrombosed hemorrhoids. A January 2016 VA examination report reflected the Veteran’s complaints of mild to moderate hemorrhoids with rectal pain, itching, burning, and persistent bleeding. On examination, there were no external hemorrhoids, but there was excessive redundant tissue. Anemia and fissures were specifically noted to not be present. Based upon the medical evidence noted above, there is no basis on which to assign a higher rating. Specifically, as there is no evidence of fissures or secondary anemia, a higher, 20 percent rating is not applicable. The VA treatment records and other private medical evidence of record also do not show secondary anemia or fissures. Regarding both increased rating claims, the Board has considered the Veteran’s lay statements that his left knee and hemorrhoids disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of the left knee or hemorrhoids according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s left knee disability and hemorrhoids has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective evidence of complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeals are denied. Service Connection Claims 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). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303. Thus, a necessary element for establishing any claim for entitlement to service connection, whether on a direct or secondary basis, is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that § 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Attention Disorder with Short-Term Memory Loss The Veteran maintains that he has an attention disorder with short-term memory loss that is related to service. He has specifically indicated that this claimed disorder is related to exposure to contaminated drinking water at Camp Lejeune. Initially, the Board notes that apart from the Veteran’s contentions, the evidence does not show the existence of any current attention disorder with short-term memory loss. Notably, the only medical evidence on point weighs against the claim. In this regard, the October 2012 VA examiner specifically indicated that the Veteran’s attention deficits and short-term memory loss were symptoms of PTSD (which is already service connected). The examiner specifically opined that there was no separate diagnosis of any attention disorder with short-term memory. Therefore, the medical evidence does not support the claim. Cardiovascular Disorder The Veteran claims that service connection is warranted for a cardiovascular disorder due to exposure to herbicide agents during service. The record reflects that the Veteran served in country in Vietnam; therefore, herbicide agent exposure is conceded. The record does not reflect a current diagnosis of any cardiovascular disorder, to include ischemic heart disease, coronary artery disease, or any other cardiovascular disorder for which presumptive service connection is warranted on the basis of herbicide agent exposure. Notably, while a private treatment record dated in April 21, 2005 reflects complaints of chest pain and a stress test that suggested mild anterior ischemia, further evaluation (private cardiology record dated in April 2005) conducted as a result of the abnormal stress test indicated that it was a false positive stress test, and after examination and further testing, the cardiovascular system was found to be normal. The VA treatment records and other private treatment records also do not reflect any cardiovascular disorder. Therefore, the medical evidence does not support the claim. With respect to both service connection claims, the Veteran asserts that the disorders are related to service; however, as a lay person, he does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the diagnosis and etiology of the medically complex disorders. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). For these reasons, and based on the record, the competent, credible, and probative evidence weighs against a finding of the existence of the claimed disorders. Therefore, the preponderance of the evidence is against the claims and the appeal are denied. Claims to Reopen Based on New and Material Evidence Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C.§ 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156 (a).   Right and Left Ear Hearing Loss Service connection for bilateral hearing loss was denied in rating decisions dated in August 2002 and February 2006 on the basis that the Veteran did not have right or left ear hearing loss for VA purposes. He did not file a timely appeal with respect to either rating action nor was new and material evidence received within one year of either decision. Therefore, the decisions became final. The evidence received since the February 2006 rating decision includes a March 2012 VA audiology examination which indicated that the Veteran does not have right ear hearing loss for VA purposes, but that he has left ear hearing loss for VA purposes. Additionally, the private and VA medical evidence added to the record also does not reflect any hearing tests which show the presence of right ear hearing loss for VA purposes. As such, the evidence added to the record regarding the claim involving right ear hearing loss is not new and material, as it does not present a reasonable possibility of substantiating the claim of entitlement to service connection for right ear hearing loss. Therefore, the application is not reopened and the appeal is denied. In contrast, the evidence added to the record regarding the claim involving left ear hearing loss is new and material, as it presents a reasonable possibility of substantiating the claim of entitlement to service connection for left ear hearing loss. Therefore, the application is reopened and the appeal is granted to this extent. Peripheral Neuropathy Service connection for peripheral neuropathy was denied in a September 2006 rating decision on the basis that it was first diagnosed in 2005, and as such it did not have its onset within a year of discharge from service. The Veteran did not file a timely appeal nor was new and material evidence received within one year of the decision. As such, the September 2006 rating action is final. The evidence added to the record since September 2006 does not indicate that peripheral neuropathy was manifested within a year of service discharge. Further, nothing in the newly-submitted evidence shows that peripheral neuropathy is etiologically related to any incident of service, or to any service-connected disability. While the Veteran indicated in a September 2005 written statement that he continually needed to be monitored for possible development of diabetes mellitus, nothing in the medical evidence reflects that he has ever actually been diagnosed with diabetes mellitus. As such, the evidence added to the record is not new and material, as it does not present a reasonable possibility of substantiating the claim of entitlement to service connection for peripheral neuropathy. Therefore, the application is not reopened and the appeal is denied. Finally, 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 With respect to all issues, a review of the record reflects that the Veteran reported (at the January 2016 VA hemorrhoids examination) that he served on active duty from 1969 to December 2012, to include service in Vietnam and the Persian Gulf War, as well as in Afghanistan during the Iraq war (for a total of 43 years of active service). The record contains a single DD Form 214, which reflects active service from June 1983 to November 1989 and one year and 10 months of prior active duty service. A 3101 printout indicates that the Veteran had service from June 1969 to April 1971. The record does not contain any documentation confirming any service after November 1989, nor does it contain service treatment records for any such additional service. Therefore, a remand is required to obtain the complete service personnel records and complete service treatment records. With respect to an increased rating for PTSD, the record contains inconsistent findings regarding the severity of the Veteran’s PTSD. He failed to report for a January 2016 examination but in March 2016 requested that the examination be rescheduled. As the most recent examination is six years old and the evidence is inconsistent as to the level of severity, the issues is remanded for an updated examination. Further, as he receives VA treatment and the most recent records are dated in April 2015, up-to-date VA treatment records should be obtained. With respect to sleep apnea, the Veteran claims it as secondary to PTSD or to herbicide exposure. He has been diagnosed with obstructive sleep apnea. A February 2014 private opinion found an association between psychiatric disorders and obstructive sleep apnea and an increased prevalence of co-morbidity between the two. The clinician reflected that PTSD aided in the development of and permanently aggravated obstructive sleep apnea. While indicating a link between the two, he did not offer an opinion as to causation. Therefore, an opinion should be obtained addressing whether PTSD caused or aggravated obstructive sleep apnea. As to TDIU, it has been reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Because the AOJ has not yet considered whether the Veteran is entitled to TDIU, the issue is remanded for initial adjudication. The matters are REMANDED for the following actions: 1. Obtain copies of the Veteran’s complete service personnel records and service treatment records, to specifically include records from the Veteran’s service after November 1989, and associate them with the claims file. 2. Obtain copies of the Veteran’s VA treatment records not already associated with the record and associate them with the file. 3. Send the Veteran a letter satisfying the duty to notify and duty to assist with respect to the claim of TDIU. 4. Send the Veteran a VA Form 21-8940 and request that he complete it and submit it. 5. Schedule the Veteran for an examination in order to determine the severity of PTSD. The claims file should be made available to the examiner in conjunction with the examination. Any testing deemed necessary should be performed. 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 the extent possible, the examiner should identify any symptoms and functional impairments due to PTSD alone and discuss the effect of the Veteran’s PTSD on any occupational functioning and activities of daily living. 6. Schedule the Veteran for an examination in order to determine the etiology of obstructive sleep apnea. The claims file should be made available to the examiner in conjunction with the examination. Any testing deemed necessary should be performed. The examiner is requested to express an opinion as to whether obstructive sleep apnea was at least as likely as not (50 percent probability) caused by or permanently worsened in severity by service-connected PTSD or medication used to treat PTSD. In responding to this question, the examiner is asked to review the February 2014 private medical opinion from Dr. Skaggs and offer a rationale for all opinions expressed. 7. Thereafter, re-adjudicate the issues on appeal. If the benefits sought remain denied, the Veteran and his attorney should be provided with a supplemental statement of the case. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Redman, Counsel