Citation Nr: 18148152 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 15-30 936 DATE: November 6, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depressive disorder, is granted. Entitlement to an initial disability rating in excess of 50 percent for obstructive sleep apnea is denied. Entitlement to an initial disability rating in excess of 10 percent for ischemic heart disease is denied. Entitlement to an initial disability of 60 percent prior to April 18, 2014 for ulcerative colitis is granted. Entitlement to an initial compensable disability rating for residuals of bilateral inguinal hernias is denied. Entitlement to an effective date prior to April 18, 2014, for an award of special monthly compensation (SMC) by reason of being housebound is denied. REMANDED Entitlement to an initial compensable disability rating for chronic lateral epicondylitis of the right elbow is remanded. Entitlement to an initial disability rating in excess of 10 percent for thoracolumbar spine degenerative disc disease and degenerative joint disease is remanded. Entitlement to an initial disability rating in excess of 10 percent for patellofemoral degenerative joint disease of the left knee is remanded. Entitlement to an initial disability rating in excess of 10 percent for patellofemoral degenerative joint disease of the right knee is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the probative evidence of record demonstrates the Veteran’s acquired psychiatric disorder, diagnosed as depression, was aggravated by his service-connected disabilities, to include obstructive sleep apnea, ulcerative colitis, thoracolumbar disability, left and right knee disabilities and ischemic heart disease. 2. The probative evidence of record demonstrates obstructive sleep apnea requires the use of a breathing assistance device such as a continuous airway pressure (CPAP) machine. At no time during the appeal did the Veteran's obstructive sleep apnea cause chronic respiratory failure with carbon dioxide retention or cor pulmonale and did not require a tracheostomy. 3. The probative evidence of record demonstrates that the Veteran’s ischemic heart disease has been productive of a workload of ranging from 9.7 to 13.4 METs resulting in dyspnea and fatigue, the requirement of continuous medication, left ventricle ejection fraction ranging from 61 to 65 percent, and no evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. 4. For the period prior to April 18, 2014, the probative evidence of record demonstrates that the Veteran’s ulcerative colitis was, at worst, productive of severe symptoms and characterized by numerous attacks a year with frequent bloody stool and some weight loss. 5. The probative evidence of record demonstrates that the Veteran’s residuals of bilateral inguinal hernias have been productive of no hernia detected. 6. Prior to April 18, 2014, the probative evidence preponderated against finding that the Veteran either: had a single service-connected disability rated as 100 percent and additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or that he was substantially confined to his home or immediate premises by reason of his service-connected disabilities that were reasonably certain to remain throughout his lifetime. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, diagnosed as depressive disorder, are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a). 2. The criteria for an initial disability rating in excess of 50 percent for obstructive sleep apnea are not met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.96, 4.97, Diagnostic Code (DC) 6847. 3. The criteria for an initial disability rating in excess of 10 percent for ischemic heart disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.104, DC 7005. 4. For the period prior to April 18, 2014, the criteria for an initial disability rating of 60 percent for ulcerative colitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.114, DC 7323. 5. The criteria for an initial compensable disability rating for residuals of bilateral inguinal hernias are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, DC 7338. 6. The criteria for SMC by reason of being housebound prior to August 31, 2009 have not been met. 38 U.S.C. §§ 1114, 5103, 5110; 38 C.F.R. §§ 3.350, 3.400, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310(a)-(b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Although the April 2014 VA examiner found that the Veteran did not meet the criteria for a psychiatric diagnosis, in an April 2015 disability benefits questionnaire (DBQ) and accompanying opinion, a private psychologist diagnosed the Veteran with depressive disorder. In the attached April 2015 opinion, the psychologist reviewed the Veteran’s claims file, to include VA and private medical records, and concluded that his obstructive sleep apnea, ulcerative colitis, thoracolumbar disability, left and right knee disabilities, and ischemic heart disease aggravated his currently diagnosed depressive disorder. In support of his conclusion the psychologist cited to medical literature as well as documents in the claims file, including Social Security Administration (SSA) records and the April 2014 VA examination. Accordingly, the probative medical records referenced above, taken together, at the very least place the evidence in a state of relative equipoise as to whether the Veteran’s diagnosed depressive disorder was aggravated by his service-connected disabilities, including obstructive sleep apnea, ulcerative colitis, thoracolumbar disability, left and right knee disabilities, and ischemic heart disease. On this point, therefore, the Board must resolve doubt in the Veteran’s favor and grant the claim for service connection for an acquired psychiatric disorder, diagnosed as depressive disorder. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different “staged” ratings may be warranted for different time periods. Where the question for consideration is the propriety of the initial evaluation assigned after the granting of service connection, separate ratings may also be assigned for separate periods of time based on facts found, i.e. “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 2. Entitlement to an initial disability rating in excess of 50 percent for obstructive sleep apnea The Board finds that the Veteran is not entitled to an initial disability rating greater than 50 percent for his service-connected obstructive sleep apnea. Currently, the Veteran's obstructive sleep apnea is rated as 50 percent disabling pursuant to 38 C.F.R. § 4.97, DC 6847. Under DC 6847, a 50 percent rating is assigned for obstructive sleep apnea requiring the use of a breathing assistance device such as a CPAP machine. A 100 percent rating is assigned for obstructive sleep apnea which causes chronic respiratory failure with carbon dioxide retention or cor pulmonale, or if the obstructive sleep apnea requires a claimant to undergo a tracheostomy. In this case, the medical evidence of record, including the private and VA treatment records as well as the August 2012 and July 2015 VA examinations, the Veteran's obstructive sleep apnea requires the use of a CPAP machine, however, the record is devoid of evidence that his obstructive sleep apnea caused chronic respiratory failure with carbon dioxide retention or cor pulmonale. Additionally, the medical evidence of record does not demonstrate that the Veteran's obstructive sleep apnea required him to undergo a tracheostomy. Therefore, a higher disability rating of 100 percent under Diagnostic Code 6847 is not warranted. Accordingly, the Board concludes that the Veteran’s obstructive sleep apnea does not warrant an initial disability rating in excess of 50 percent at any time throughout the duration of the appeal. 38 C.F.R. §§ 3.102, 4.3. See also 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 3. Entitlement to an initial disability rating in excess of 10 percent for ischemic heart disease The Board finds that the Veteran is not entitled to an initial disability rating greater than 10 percent for his service-connected ischemic heart disease. His ischemic heart disease has been assigned a 10 percent evaluation under 38 C.F.R. § 4.104, DC 7005 for arteriosclerotic heart disease (coronary artery disease). For rating diseases of the heart, one MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for rating, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shovelling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note 2. Diagnostic Code 7005 provides ratings for arteriosclerotic heart disease (coronary artery disease), and requires documented coronary artery disease. Arteriosclerotic heart disease (coronary artery disease) resulting in workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required, is rated 10 percent disabling. Arteriosclerotic heart disease resulting in workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, is rated 30 percent disabling. Arteriosclerotic heart disease resulting in more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent, is rated 60 percent disabling. Arteriosclerotic heart disease resulting in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent, is rated 100 percent disabling. 38 C.F.R. § 4.104. A Note to Diagnostic Code 7005 provides that, if nonservice-connected arteriosclerotic heart disease is superimposed on service-connected valvular or other non-arteriosclerotic heart disease, the adjudicator is to request a medical opinion as to which condition is causing the current signs and symptoms. 38 C.F.R. § 4.104. The probative medical evidence of record, including the private and VA treatment records as well as the August 2012 and July 2015 VA examinations, the Veteran's ischemic heart disease was productive of a workload of ranging from 9.7 to 13.4 METs resulting in dyspnea and fatigue, the requirement of continuous medication, left ventricle ejection fraction ranging from 61 to 65 percent, and no evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. Therefore, a higher disability rating under DC 7005 is not warranted. Accordingly, the Board concludes that the Veteran’s ischemic heart disease does not warrant an initial disability rating in excess of 10 percent at any time throughout the duration of the appeal. 38 C.F.R. §§ 3.102, 4.3. See also 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 4. Entitlement to an initial disability rating in excess of 30 percent prior to April 18, 2014 for ulcerative colitis The Veteran is entitled to an initial disability rating of 60 percent for his service-connected ulcerative colitis. Initially, the Board observes that the Veteran has a 100 percent disability rating from April 18, 2014 and therefore the Veteran has met the schedular maximum rating for this disability and the issue of entitlement to a higher disability rating for ulcerative colitis from April 18, 2014 need not be discussed further. Entitlement to SMC by reason of being housebound was awarded based on the award of 100 percent for ulcerative colitis, and, as the Veteran perfected an appeal with respect to the effective date assigned for this disability, it is discussed below. Entitlement to extraschedular criteria is also discussed below. The Veteran’s ulcerative colitis has been rated under 38 C.F.R. § 4.114, DC 7323, which provides the criteria for evaluating ulcerative colitis. Under DC 7323, a 100 percent rating is warranted for pronounced ulcerative colitis resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess; a 60 percent rating is warranted for severe ulcerative colitis with numerous attacks a year and malnutrition, and health that is only fair during remissions; a 30 percent rating is warranted for moderately severe ulcerative colitis with frequent exacerbations; and a 10 percent rating is warranted for moderate ulcerative colitis with infrequent exacerbations. For the period prior to April 18, 2014, the probative medical evidence of record, including the private and VA treatment records as well as the August 2012 VA examination, the Veteran's ulcerative colitis was productive of severe symptoms and characterized by numerous attacks a year with frequent bloody stool and some weight loss. In an August 2011 private treatment report, the Veteran was treated for anemia and diarrhea and it was noted to rule out inflammatory bowel disease, ulcerative colitis. A November 2012 private treatment report reflects that the Veteran was treated for increased blood in stools and a weight loss of 13 pounds in the last six months and colitis was characterized as moderate. A December 2012 private treatment report reflects colonoscopy findings of severe active colitis with spontaneous bleeding and ulceration. In a December 2012 disability benefits questionnaire (DBQ) completed by a private physician, the Veteran’s ulcerative colitis was found to have frequent episodes of bowel disturbance with abdominal distress manifested by bloody diarrhea and abdominal pain. An April 2013 private medical records demonstrates that ulcerative colitis was characterized as severe. Private treatment reports from May 2013 revealed findings of lower gastrointestinal bleed and ulcerative colitis flare up despite being on systemic steroids/immunosuppression. Finally, in a subsequent May 2013 private treatment record, ulcerative colitis was characterized as moderately severe to severe. Thus, resolving all doubt in favor of the Veteran, for the period prior to April 18, 2014, the Veteran’s ulcerative colitis more nearly approximated a 60 percent evaluation under DC 7323. See 38 C.F.R. § 4.114, DC 7323. At no point during the period prior to April 18, 2014 has the Veteran’s ulcerative colitis been productive of marked malnutrition, anemia, and general debility, or with serious complication as liver abscess, so as to warrant a higher 100 percent disability rating under DC 7323. Accordingly, for the period prior to April 18, 2014, the Veteran’s ulcerative colitis warrants a 60 percent disability rating, though no higher, under DC 7323. 38 C.F.R. §§ 4.3, 4.7, 4.114; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 5. Entitlement to an initial compensable disability rating for residuals of bilateral inguinal hernias The Veteran is not entitled to an initial compensable disability rating for his service-connected residuals of bilateral inguinal hernias. His residuals of bilateral hernias were rated under 38 C.F.R. § 4.114, DC 7338. Under this DC, a small inguinal hernia, reducible, or without true hernia protrusion, is rated as 0 percent disabling. A 0 percent rating also is assigned if it is not operated, but remediable. Postoperative recurrent inguinal hernia, readily reducible and well supported by a truss or belt, is rated as 10-percent disabling. Small inguinal hernia, postoperative recurrent, or unoperated irremediable, not well supported by a truss, or not readily reducible, is rated as 30-percent disabling. Whereas a large inguinal hernia, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable, is rated as 60-percent disabling. A Note to this DC provides that 10 percent is to be added for bilateral involvement, provided the second hernia is compensable. This means that the more severely disabling hernia is to be rated, and 10 percent, only, added for the second hernia, if the second hernia is of compensable degree. The probative medical evidence of record, including the private and VA treatment records as well as the August 2012 and July 2015 VA examinations, the Veteran's residuals of bilateral hernias were productive of no hernia detected. The August 2012 and July 2015 VA examinations reflect a history of surgical herniorrhaphy of the right and left hernia in 2009 and current physical examinations revealed no current hernia on the left or right and no indication for a supporting belt. While residuals also include a surgical scar, the Veteran was awarded service connection and rated separately for this disability in the October 2012 rating and did not appeal this issue. Therefore, a higher disability rating under DC 7338 is not warranted. Accordingly, the Board concludes that the Veteran’s residuals of bilateral hernias does not warrant an initial compensable disability rating at any time throughout the duration of the appeal. 38 C.F.R. §§ 3.102, 4.3. See also 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Lay Statements The Board has considered the lay statements of record regarding the severity of his sleep apnea, ischemic heart disease, ulcerative colitis and residuals of hernias and has relied on these reports in determining appropriate disability rating under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. The Veteran is competent to report on factual matters of which he has firsthand knowledge and his statements regarding his symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). Where the Veteran has not discussed findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). REASONS FOR REMAND 1. Entitlement to increased initial disability ratings for chronic lateral epicondylitis of the right elbow, thoracolumbar spine degenerative disc disease and degenerative joint disease, and patellofemoral degenerative joint disease of the left knee and right knee are remanded. The past VA examinations of the elbow, spine and knees do not contain findings of both active and passive range of motion measurements or pain on weight-bearing and non weight bearing testing. The Court has held 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 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 states 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." Id.; See also Sharp v. Shulkin, 29 Vet. App. 26, 22 (2017), providing that the examiner should "estimate the functional loss that would occur during flares." Accordingly, the Veteran should be afforded new VA examinations that are in compliance with recent precedent of the Court. As the record reflects the Veteran has received continuing treatment at VA, any outstanding and current ongoing medical records should also be obtained. 38 U.S.C. § 5103A(c). 2. Entitlement to an effective date prior to April 18, 2014 for the award of SMC by reason of being housebound This issue is inextricably intertwined with the issues being remanded and the grant of service connection for an acquired psychiatric disability. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Upon receipt of all additional records, schedule the Veteran for a VA examination of the thoracolumbar spine. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The evaluation of the thoracolumbar spine should consist of all necessary testing including range of motion testing for the lumbar spine based on (1) active motion; (2) passive motion; (3) weight-bearing; and (4) non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. The examiner is asked to comment on the following: (a). The degree of severity and the functional effects of the thoracolumbar spine disability on activities of daily living and capacity for work. (b). The extent of any weakened movement, excess fatigability and incoordination. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. (c). Whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the examination is not conducted during a flare-up, the functional impact of a flare-up should be estimated to include as based on the Veteran’s reports. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 3. Upon receipt of all additional records, schedule the Veteran for VA examinations of the left and right knees and right elbow. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The evaluations of the left and right knees and right elbow should consist of all necessary testing including range of motion testing for BOTH KNEES and BOTH ELBOWS based on (1) active motion; (2) passive motion; (3) weight-bearing; and (4) non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. The examiner is asked to comment on the following: (a). The degree of severity and the functional effects of this disability on her activities of daily living and capacity for work. (b). The extent of any weakened movement, excess fatigability and incoordination. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. (c). Whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the examination is not conducted during a flare-up, the functional impact of a flare-up should be estimated based on the Veteran’s reports. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 4. After the above is completed and the grant of service-connection for an acquired psychiatric disability has been effectuated, readjudicate the issues remaining in appellate status to include the issue of an effective date prior to April 18, 2014 for the award of SMC by reason of being housebound. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saira Spicknall, Counsel