Citation Nr: 18161015 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-30 664 DATE: December 28, 2018 ORDER Service connection for a respiratory disorder, to include asbestosis is denied. Entitlement to an initial compensable rating for an inguinal hernia is denied. REMANDED Service connection for sleep apnea is remanded. Service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD) is remanded. Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral pain syndrome is remanded. Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral pain syndrome is remanded. FINDINGS OF FACT 1. The Veteran has not during the claims period had any respiratory disorder or symptoms other than those which are already service-connected. 2. Other than a tender, painful scar, the Veteran’s hernia has not been symptomatic during the rating period. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disorder, to include asbestosis, have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an initial compensable rating for an inguinal hernia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.4.114, Diagnostic Code (DC) 7338. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2000 to April 2005, to include service in Afghanistan. Initially, the regional office (RO) denied service connection for left and right knee disorder and a hernia in a July 2012 rating decision. However, service connection for left and right knee patellofemoral pain syndrome, hernia, and a scar associated with the hernia was granted in an October 2015 rating decision. Therein, a 10 percent rating for the scar and noncompensable ratings for left knee, right knee and hernia disabilities were assigned. The Veteran noted disagreement with the right and left knee and hernia ratings in October 2016, but not the scar. Thus, the Veteran’s rating for his knees and hernia are before the Board, but not rating for the scar. In a March 2017 rating decision, the RO increased the Veteran’s rating for each knee to 10 percent, effective March 11, 2017. The Veteran disagreed with the ratings and effective dates for the 10 percent rating. In a May 2018 rating decision, the RO granted an earlier effective date of August 28, 2011, for the 10 percent ratings. August 28, 2011, is the date of claim for the Veteran’s service connection claims for his knee disabilities, which is the earliest date on which the 10 percent ratings can be assigned. See 38 C.F.R. § 3.400. Thus, with respect to the effective dates for the 10 percent rating, this is a full grant of the benefit sought, and the effective date claims are not now before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The claim for service connection for sleep apnea is before the Board on appeal from a January 2015 rating decision. The claim for service connection for a respiratory disorder was denied in a December 2015 rating decision. Therein, the RO also denied service connection for asthma and allergies was denied. However, in March 2017, the RO granted service connection for a chronic cough (claimed as asthma) and allergic rhinitis (claimed as allergies). This is a full grant of the benefit sought, and these claims are not now before the Board. Id. Additional evidence was received after the statement of the case (SOC) adjudicating the Veteran’s claim for service connection for a respiratory condition in March 2017 and supplementary SOC adjudicating his claim for a higher hernia rating in March 2018. As the evidence is not pertinent to the claims decided herein, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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 or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Service connection for a respiratory disorder, to include asbestosis The Veteran is claiming service connection for a respiratory disorder, and specifically asbestosis. He reports symptoms of coughing, sinus congestion, shortness of breath and allergy symptoms. He is already service connected for a chronic cough and allergic rhinitis. These are the only two respiratory diagnoses that were revealed during a March 2017 VA examination. Medical records do not show additional diagnoses or respiratory symptoms. Therefore, there are no additional current respiratory diagnoses for which service connection may be established. The Veteran’s reported symptoms are contemplated by his other service-connected disabilities. See March 201 Rating Decision. Therefore, the Board finds that there is no current disability that is not already service-connected, and the claim for service connection for an additional disability is denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. Entitlement to an initial compensable rating for an inguinal hernia The Veteran claims that his current noncompensable rating for his hernia does not reflect the severity of his current symptoms. The Veteran’s hernia is rated under 38 C.F.R. § 4.114, DC 7338 which provides for a 60 percent rating for a hernia, inguinal, large, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable; a 30 percent rating for a hernia small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible; a 10 percent rating for a hernia postoperative recurrent, readily reducible and well supported by truss or belt; and a noncompensable for a hernia not operated but remediable or small reducible or without true hernia protrusion. The Veteran was first afforded a VA examination of his hernia in July 2015. A diagnosis of inguinal hernia dated 2001 was noted. The inguinal hernia was repaired surgically during service. Since surgery, there has been tenderness at the site. This was said to be a 5-centimeter linear scar tissue, which caused pain. At the time of the examination, no new hernia was detected, the Veteran did not wear a supporting belt. No additional symptoms were noted. A second VA examination was conducted in March 2017, at which time the Veteran reported pain that is worse with lifting or strenuous activity. No symptoms or functional limitations beyond those reflected in the July 2015 examination reported were noted. It was reported that the Veteran had no hernia detected. A compensable rating is not warranted for the Veteran’s hernia, as it is not recurrent and symptoms related to the hernia itself are not currently present. The Veteran does have a painful linear scar tissue as a result of the successful in-service hernia surgery for which he is in receipt of a separate 10 percent rating under 38 C.F.R. § 4.118, DC 7804. He asserts that he should receive a separate rating for “nerve entrapment” due to the hernia repair; however, the symptom relating to this “nerve entrapment” (i.e., pain), is contemplated by the 10 percent rating assigned for the Veteran’s painful scar. See July 2015 VA Scar Examination. The July 2015 VA examiner noted the Veteran’s possible nerve entrapment in discussing the Veteran’s reports of tenderness and pain in the area of the scar, and found no other pertinent physical findings, complications, conditions, signs and/or symptoms, including muscle or nerve damage. See id. As the ratings assigned fully contemplate the Veteran’s symptoms during the claims period, additional compensable ratings for the hernia, including under DC 7338, are denied. REASONS FOR REMAND 1. Service connection for sleep apnea is remanded. In March 2017, a medical opinion was obtained in which the Veteran’s diagnosis of sleep apnea was noted. However, the examiner opined that sleep apnea was not related to environmental exposure in Afghanistan. Rather, sleep apnea is secondary to trauma to the central nervous system or to anatomical defects of the “HEENT” system such as obesity or hypertrophy of the tonsils or adenoids. While a medical opinion was obtained, no medical examination was conducted because a sleep study was already of record. The Board finds an examination is still necessary, as the sleep study is only an objective tool for diagnosis and does not provide information regarding the onset of the disorder. An examination is one forum in which the Veteran can provide critical information that could lead to the grant of benefits. Therefore, because the Veteran has sleep apnea that he claims is related to environmental exposure while service in Afghanistan, an examination is necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Service connection for hypertension, to include as secondary to PTSD is remanded. The Veteran was afforded a VA examination regarding his hypertension in March 2017. The examination revealed that the Veteran had intermittent elevated blood pressure in 2006. The examiner stated that hypertension was less likely than not related to service because there was no diagnosis of hypertension at his last primary care physician appointment. However, this opinion does not address that the Veteran has been prescribed blood pressure medication or his discussion in his December 2016 notice of disagreement of a VA study showing that many of those who served in Afghanistan have experienced high blood pressure. Further, in his May 2017 appeal to the Board, the Veteran stated that his high blood pressure was caused or aggravated by his service-connected PTSD. Thus, an addendum medical opinion is needed to address these claims. 3. Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral pain syndrome is remanded 4. Entitlement to an initial rating excess of 10 percent for right knee patellofemoral pain syndrome is remanded A remand of the Veteran’s knee rating claims is necessary. At the March 2017 VA examination, the Veteran noted flare-ups of dully ache with sharp pain in his knees. The examiner stated that he was unable to determine the functional effects during a flare-up because there was insufficient evidence or objective examination findings that would provide a reliable prediction of decreased functional ability. The United States Court of Appeals for Veterans Claims rejected a similar rationale where an examiner stated that an opinion could not be provided without resort to mere speculation in Sharp v. Shinseki, 23 Vet. App. 267, 276 (2009). On remand, the examiner should look to lay statements to attempt to describe the additional functional limitation, to include on range of motion, during flare-ups. Further, a new examination is needed as the March 2017 VA examination did not include testing for pain on nonweight-bearing or for passive range of motion, as required by Correia v. McDonald, 28 Vet. App. 158 (2016). Finally, a new examination is necessary as, in a March 2018 statement, the Veteran noted that his knee condition has worsened over time. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Specifically, he noted more pain this year than last. He also indicated that his knees have given out on occasion and that, if he does something that does not agree with his knees, he is sometimes out for days at a time. His spouse also submitted a statement to similar effect. The matters are REMANDED for the following action: 1. Afford the Veteran an examination to address the etiology of his sleep apnea. The examiner should opine as to whether: It is at least as likely as not that the Veteran’s sleep apnea had its onset in service or is related to service. A complete rationale should be provided for any opinion rendered. 2. Afford the Veteran a new VA examination of his knee disabilities. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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 that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up or after repeated use over time. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. A rationale should be provided. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Please also address the Veteran’s and his spouse’s reports of his knees giving out, worsening pain, and other indications of symptoms in their March 2018 statements. 3. Obtain an addendum medical opinion regarding the etiology of the Veteran’s hypertension. Specifically, the examiner should opine as to whether: (A) It is at least as likely as not that the Veteran’s hypertension had its onset in service or is related to service, including the Veteran’s exposure to environmental toxins and burn pits in Afghanistan. (B) It is at least as likely as not that the Veteran’s hypertension was caused or aggravated by his PTSD. (Continued on the next page)   A complete rationale should be provided for any opinion rendered. Please note that the Veteran has been prescribed propranolol. Also, address the discussion in his December 2016 notice of disagreement regarding a VA study showing many servicemembers who served near burn pits experienced high blood pressure. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George