Citation Nr: 18148202 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 12-02 835 DATE: November 8, 2018 ORDER Entitlement to an increased rating not in excess of 20 percent for the Veteran's service connected left mandible fracture is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for a left knee condition is granted. Entitlement to service connection for a left ankle condition is granted. FINDINGS OF FACT 1. The Veteran’s malunion of the mandible presents an inter-incisal range of 21 to 30 mm. 2. Resolving reasonable doubt in the Veteran’s favor, his sleep apnea is at least as likely as not related to service. 3. Resolving reasonable doubt in the Veteran’s favor, his left knee condition is at least as likely as not related to a meniscus tear during a period of INACDUTRA. 4. Resolving reasonable doubt in the Veteran’s favor, his left ankle condition is at least as likely as not related to falling from a truck during a period of INACDUTRA. CONCLUSIONS OF LAW 1. The criteria for a non-initial increased rating not in excess of 20 percent for the Veteran's service connected left mandible fracture have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.150, Diagnostic Code 9905. 2. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for a left knee condition are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for a left ankle condition have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to September 1971. The Veteran also served in the Army Reserves in 1975 to 1988, and the Georgia National Guard 2004 to 2008 which included periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). The Veteran appeals an April 2009 rating decision from the Department of Veteran Affairs (VA) Regional Office (RO) in Decatur, Georgia. This case arises from an August 2016 Board remand order. The August 2016 remand order requested the RO obtain the Veteran’s complete service personnel and treatment records during his time with the Army Reserves, and Georgia National Guard. Further, the RO was to schedule the new VA examinations for the Veteran’s left mandible fracture, left knee and ankle conditions, and sleep apnea. The Veteran underwent these VA examinations in February 2018. Increased Rating The Veteran asserts that he is entitled to a compensable rating for the Veteran’s left mandible fracture. Disability evaluations are determined by comparing the Veteran’s present symptomatology with the criteria set forth in the VA’s Schedule for Ratings Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Board does not find staged ratings necessary. The Veteran's service-connected left mandible fracture is evaluated under Diagnostic Code (DC) 9905, which provides that limited motion of temporomandibular articulation is rated as follows: a 10 percent disability rating applies where the Veteran's range of lateral excursion is 0 to 4 mm, or where his inter-incisal range of motion is 31 to 40 mm; ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. A 20 percent disability rating applies where the Veteran's inter-incisal range of motion is 21 to 30 mm. A 30 percent disability rating applies where the Veteran's inter-incisal range of motion is 11 to 20 mm. A 40 percent disability rating applies where the Veteran's inter-incisal range of motion is 0 to 10 mm. 38 C.F.R. § 4.150. A private physician, in a February 2009 medical note, reported the Veteran for the last five years has had jaw pain and popping in the jaw joints when eating meat or doing a lot of chewing. The Veteran reported to his private physician that he had a deeper overbite then he used to have. The private physician opined that there were no joint sounds evident. The Veteran had an inter-incisal range of 25 mm, and left lateral excursion of 7 mm. VA medical records from October 2013 to May 2015 reflect complaints about jaw pain when eating and yawning. The Veteran was afforded a VA examination in February 2018. During the exam, the Veteran reported that he could not open his mouth to eat without pain. The VA examiner opined that the Veteran’s flare ups of the left temporomandibular joint can be described as pain with jaw movements or eating. As such, the VA examiner noted that the Veteran’s inability to open his mouth wide without pain presented a functional loss. The VA examiner reported an inter-incisal range of 21-29 mm, a right lateral excursion of 0-4 mm, and left lateral excursion greater than 4 mm. After repetitive motion testing, the Veteran’s inter-incisal range remained 21-29 mm, and both right and left lateral excursion greater than 4 mm. Based on the above, the Board finds that a compensable rating not in excess of 20 percent is warranted. The February 2009 private physician reported that the Veteran’s presented an inter-incisal range of 25 mm. Similarly, the February 2018 VA exam reported that the Veteran had an inter-incisal range was 21 to 29 mm. As a result, the Veteran is entitled to compensable rating of 20 percent under DC 9905 for an inter-incisal range of 21 to 30 mm of the temporomandibular joint. A compensable rating greater than 20 percent is not warranted. A 30 percent rating for a limited motion of the temporomandibular joint requires an inter-incisal range of 11 to 20 mm. As mentioned above, the Veteran’s inter-incisal range of 21 to 29 mm. Additionally, the evidence of record is silent as to loss of bone, or non-union of the maxilla and mandible. Next, there was no loss of bone of the hard palate. Third, there was no evidence of osteoradionecrosis or osteomyelitis. Finally, there was no tooth loss due to the loss of substance of body of maxilla or mandible. Thus, a rating in excess of 20 percent is not warranted elsewhere under the rating schedule for dental and oral conditions. See 38 C.F.R. § 4.150. It is important for the Veteran to understand that a 20 percent disability for a left mandible fracture will cause the Veteran many problems. The only question is to the problem based on the criteria above. Consequently, a rating in excess of 20 percent for the Veteran’s mandibular residuals is not warranted. Finally, neither the Veteran nor his representative has raised any other issues. Likewise, no other issues been reasonably raised by the record with regards to these claims. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming the Board is not required to address issues not raised by the claimant or reasonably by the evidence of record). Service Connection The Veteran asserts that his sleep apnea is related to his time in service while on active duty from September 1969 to September 1971. Further, the Veteran assets that his left knee and left ankle conditions are related to periods of ACDUTRA or INACDUTRA. Service connection is warranted where the evidence of record establishes that a particular injury or disease results in a present disability that incurred in the line of duty during active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). As a threshold matter, veteran status must be established as a condition of eligibility for service connection benefits. See Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013). A veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d). The term “active military, naval, or air service” includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); 38 C.F.R. §§ 3.6(a)-(d). The fact that a claimant has established veteran status for other periods of service does not obviate the need to establish veteran status for the period of ACDUTRA or INACDUTRA on which the claim is based. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). The advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to veteran's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (1999), vacated on other grounds sub nom; McManaway v. Principi, 14 Vet. App. 275 (2001) (citing Paulson, 7 Vet. App. at 469-70, for the proposition that if a claim “relates to period of [ACDUTRA], disability must have manifested itself during that period; otherwise, period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim.” (emphasis added in McManaway)); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991) (Steinberg, J., concurring). Thus, the evidentiary burden is on the claimant to show that he or she became disabled from an injury or disease incurred in line of duty during ACDUTRA or from an injury incurred in line of duty during INACDUTRA. 1. Sleep Apnea The Veteran’s service treatment record for September 1969 indicate that the Veteran has trouble sleeping. Beyond September 1969, the Veteran’s service treatment records do not show a diagnosis of sleep apnea, nor other complaints of trouble sleeping. The Veteran was diagnosed with sleep apnea in September 2008. VA treatment records indicate that the Veteran treated his sleep apnea with a CPAP machine. The Veteran was afforded a VA examination in February 2018. The VA examiner reported that the Veteran has persistent daytime hypersomnolence, and feeling light headed, and passing out. This resulted in the Veteran’s inability to focus and stay awake during the daytime. The VA examiner reported that the Veteran had trouble sleeping in September 1969, that his active problem list had revealed sleep apnea since July 2008, and the Veteran was diagnosed with sleep apnea in 2003 and was on a CPAP machine with nasal prone mask. As such, the VA examiner opined that the Veteran’s sleep apnea was at least as likely as not incurred in or caused by his service because, “because the Veteran was d[iagnosed] with Obstructive Sleep Apnea while in the military and this condition has become chronic and has persisted overtime.” We find the evidence to be in equipoise. The Board notes that when the evidence is in relative equipoise, by law; the Board must resolve all reasonable doubt in favor of the claimant. See U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). Therefore, the Board finds that service connection for sleep apnea is warranted. 2. Left Knee Condition A February 2018 DBQ diagnosed the Veteran’s left knee with degenerative arthritis and a left knee meniscal repair. The Veteran stated that his left knee condition stems from an injury during a period of INACDUTRA. In July 2007, the Veteran asserts that during physical training, he was running around the track and began having a sharp pain from his left knee down to the bottom of his foot. The Veteran stated that he was then diagnosed with a meniscal tear. See February 2014 VA exam. According to the Veteran’s military personnel record, the Veteran had monthly periods of INACDUTRA. The evidence of record is silent on whether the Veteran was absent from a training period. The Veteran received a training certificate for completing the Operation and Operator Maintenance Training Course in late July 2007. An August 2007 private physician’s medical record reported that the Veteran came in complaining of left knee pain and swelling for around a month. During the visit, the Veteran stated that the pain came on after running for his National Guard duty. An October 2007 Certificate of Work Status found that the Veteran could not participate in any running, squatting, or strenuous exercises during military drill during that weekend, nor could he conduct push/pull action with his left leg. A November 2007 private physician medical note found degenerative medial meniscal tear, with degenerative changes in the remainder of the knee. A July 2008 service treatment record reported chronic knee and foot pain. A month later, an August 2008 VA medical treatment note opined that the Veteran’s knee pain was likely to be from arthritis. In a June 2011 VA medical note, the VA physician opined that, “the [Veteran’s left] knee injury first reported in 2007[,] later determined to be a meniscal tear and the post-traumatic arthropathy which progressed thereafter more likely than not, are causally related to military service.” The Veteran was afforded a VA exam in February 2018. The VA examiner opined that the Veteran’s left knee was injured during military service, and that the condition (Veteran’s left knee meniscal repair) persisted overtime due to incomplete healing and chronic inflammation leading to degeneration (i.e. the Veteran’s degenerative arthritis). As a result, the Veteran’s left ankle condition was connected to service. We find the evidence to be in equipoise. The Board notes that when the evidence is in relative equipoise, by law; the Board must resolve all reasonable doubt in favor of the claimant. See U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). Therefore, the Board finds that service connection for a left knee condition is warranted. 3. Left Ankle Condition A February 2018 DBQ diagnosed the Veteran’s left ankle with degenerative arthritis. The Veteran stated, in an October 2005 sworn statement, that he twisted his left ankle while getting off the UH-1 he was riding at Camp Shelby, Mississippi. According to the Veteran’s military personnel record, the Veteran had monthly periods of INACDUTRA. The evidence of record is silent on whether the Veteran was absent from a training period. The Veteran had a period INADUTRA for October 2004 and 2006. See Military Personnel Record. As such, the Board infers that he had a INADUTRA in October 2005. In an August 2006 service treatment record entry found that the Veteran complained of heel pain. A July 2008 service treatment record reported the Veteran had chronic foot pain, mostly stemming from the heel. Additionally, a July 2008 Line of Duty report found that the Veteran had chronic back pain, leg pain, and arthritis. The Line of Duty report opined that the Veteran’s injuries were not incurred in the line of duty. However, the Line of Duty report did not provide a basis for its opinion. In the Veteran’s December 2008 Application for Compensation, the Veteran asserted that he stepped on a rock and sprained his left ankle. In a June 2011 VA medical note, the VA physician opined that the Veteran’s October 2005 left ankle sprain did not require medical follow up. As such, the Veteran’s complaints of left ankle pain are not likely related to military service. In June 2013, an x-ray of the Veteran’s left ankle found no fractures or dislocations. Rather, the x-ray found very mild degenerative joint disease of the bilateral first metatarsophalangeal joints noting subtle narrowing. In February 2018, the Veteran was afforded a VA examination. The VA examiner opined that the Veteran injured his left ankle while in the military, and that his plantar fasciitis can alter the mechanics of the foot and cause a decrease in the support that the ankle normally receives from the foot leading to more pressure on the already weakened ankle leading to strain and degeneration of the ankle. As a result, the Veteran’s left ankle condition was connected to service. We find the evidence to be in equipoise. The Board notes that when the evidence is in relative equipoise, by law; the Board must resolve all reasonable doubt in favor of the claimant. See U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). Therefore, the Board finds that service connection for a left ankle condition is warranted. John Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Timothy A. Campbell, Associate Counsel