Citation Nr: 20007010 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 09-16 869 DATE: January 28, 2020 ORDER New and material evidence has not been received that is sufficient to reopen the claim for service connection for sleep apnea. A rating in excess of 10 percent for service-connected right knee traumatic arthritis with limitation of flexion, status post arthroscopic resection of fibrotic medial plica and lateral release, is denied. FINDINGS OF FACT 1. In an unappealed and final decision, dated in July 2013, the Regional Office (RO) denied a claim for service connection for sleep apnea. 2. The evidence received since the RO’s July 2013 decision, which denied a claim for service connection for sleep apnea, which was not previously of record, and which is not cumulative of other evidence of record, does not raise a reasonable possibility of substantiating the claim. 3. The Veteran’s connected right knee traumatic arthritis with limitation of flexion, status post arthroscopic resection of fibrotic medial plica and lateral release, is shown to have been manifested by symptoms that include pain and limitation of motion, but not flexion functionally limited to 30 degrees, or extension functionally limited to 10 degrees; ankylosis, or malunion of the tibia and fibula. CONCLUSIONS OF LAW 1. New and material evidence has not been received since the RO’s July 2013 decision which denied service connection for sleep apnea; the claim for service connection for sleep apnea is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for a rating in excess of 10 percent for service-connected right knee traumatic arthritis with limitation of flexion, status post arthroscopic resection of fibrotic medial plica and lateral release, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from August 1992 to November 1997. In July 2015, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C. § 7102(b). 1. New and Material. The Veteran asserts that new and material evidence has been submitted to reopen claim for service connection for sleep apnea. In his appeal (VA Form 9), he indicated that he believes that he had sleep apnea during service. He further asserted that he has “conditions that will determine the presence of sleep apnea,” which he identified as: cardiovascular disease, constant allergies, multiple episodes of upper respiratory infection, and asthma-like symptoms. See Veteran’s appeal (VA Form 9), received in August 2018. The RO previously denied a claim for service connection for sleep apnea in an unappealed and final decision, dated in July 2013, characterized as a claim for sleep apnea secondary to asthma and bronchitis (service connection was not, and is not, in effect for either asthma or bronchitis). The Veteran did not appeal the November 2012 rating, nor did he submit new and material evidence within the one-year appeal period, and the RO’s decision became final. See 38 U.S.C. § 7105 (c). In his claim, received in March 2016, the Veteran specifically requested service connection for sleep apnea. See Veteran’s VA Form 21-526EZ. Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c). When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new” and “material.” Smith v. West, 12 Vet. App. 312 (1999). If VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a veteran’s claim in light of all the evidence, both new and old. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines “new” as not previously submitted and “material” as related to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Specifically, in Shade, the United States Court of Appeals for Veterans Claims stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The April 2016 RO decision shows that the RO determined that new and material evidence had not been submitted. The Statement of the Case, dated in February 2018, indicates that the RO denied the claim on the merits. Regardless of the RO’s actions, the Board must still determine whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Service connection is currently in effect for: headaches, cervical strain with spondylosis, left upper extremity radiculopathy, bilateral knee disabilities, hypertension, tinnitus, a back disability, and retinal detachment, left eye. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. See 38 C.F.R. § 3.303 (d). In such instances, a grant of service connection is warranted only when, “all of the evidence, including that pertinent to service, establishes that the disease was incurred during service.” Id. At the time of the RO’s July 2013 decision, the evidence included the Veteran’s service treatment records did not contain any complaints, findings, or diagnoses shown to be relevant. In August 1995, the Veteran indicated that he did not have a history of frequent trouble sleeping. As for the post-service medical evidence, the Veteran was first shown to have sleep apnea in 2003, approximately six years after service. See e.g., April 2003 VA sleep study. The most recent and final denial of the claim for sleep apnea was in July 2013. Therefore, the Board must determine if new and material evidence has been received since that time. See 38 U.S.C. § 5108. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The submitted evidence includes VA and non-VA treatment records. VA progress notes show that the Veteran reported having sleep symptoms, and they include notations of a history of hypersomnia with sleep apnea, and obstructive sleep apnea of adult. In 2015, the Veteran was found to have severe OSA without oxygen desaturation, and was noted to be using a CPAP (continuous positive airway pressure) machine. This evidence, which was not of record at the time of the RO’s July 2013 decision, which is not cumulative, is “new” within the meaning of 38 C.F.R. § 3.156. However, the Board finds that this evidence is not material. At the time of the RO’s July 2013 decision, there was no competent evidence of record indicating that the Veteran had sleep apnea due to his service, or that was caused or aggravated by a service-connected disability, although the evidence did show the presence of sleep apnea. The submitted evidence does show treatment for sleep apnea during service, nor does it contain competent evidence to show or even suggest that the Veteran’s sleep apnea is due to his service or that it has been caused or aggravated by a service-connected disability. 38 C.F.R. §§ 3.303, 3.310. Shade. In summary, the new evidence is not material, and does not create a reasonable possibility of substantiating the claim. Accordingly, the claim for sleep apnea is not reopened. 2. Increased rating, right knee. The Veteran asserts that he is entitled to an increased rating for his service-connected right knee traumatic arthritis, status post arthroscopic resection of fibrotic medial plica and lateral release (hereinafter, “right knee disability” unless otherwise specified). During his hearing, held in July 2015, the Veteran testified that he has continuous right knee giving out as he walks, swelling of the knee either on the knee itself, in his knee cap area, and swelling in the lower calf. With regard to the medical and administrative history of this claim, the Veteran’s service treatment records show that he was found to have right knee plica syndrome, and that he underwent arthroscopic resection of fibrotic medial plica and lateral release in November 1995. Thereafter, he received treatment for right knee symptoms, with findings that included bursitis, overuse syndrome, a patellofemoral pain syndrome. Following separation from service, an August 1998 VA examination noted that x-rays of the right knee were normal. The diagnosis was injury to the right knee with normal radiographic studies and range of motion. In December 1998, the RO granted service connection for a right knee condition, status post-surgery, evaluated as noncompensable. There was no appeal, and the RO’s decision became final. See 38 U.S.C. § 7105 (c). On November 17, 2006, the Veteran filed a claim for a compensable rating. In August 2007, the RO denied the claim. The Veteran appealed. In March 2009, the RO granted the claim, to the extent that it assigned a 10 percent rating, with an effective date of November 17, 2006. Since this increase did not constitute a full grant of the benefit sought, the higher evaluation issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). In June 2017, the Board denied the claim. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In December 2017, while his case was pending at the Court, the VA’s Office of General Counsel and the Veteran’s representative filed a Joint Motion requesting that the Court vacate the Board’s June 2017 decision. That same month, the Court issued an Order vacating the June 2017 Board decision and remanding the case for compliance with a Joint Motion for Remand (JMR). In April 2018, the Board remanded the claim for additional development. In May 2019, the Appeals Management Center granted the claim, to the extent that it granted service connection for right knee traumatic arthritis, limitation of extension, status post right knee traumatic arthritis with limitation of extension, status post arthroscopic resection of fibrotic medial plica and lateral release, evaluated as noncompensable, with an effective date of October 26, 2018. The Board notes that service connection is currently in effect for disabilities that include right knee lateral release with instability, evaluated under Diagnostic Code 5757. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997). This rating is not currently on appeal, as it was specifically adjudicated by the Board in 2017, and the Joint Motion indicated that this portion of the Board decision was not being challenged. Service connection is also in effect for a left knee disability. The RO has evaluated the Veteran’s right knee disability under 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5010-5260, with a noncompensable rating assigned. See 38 C.F.R. § 4.27. Under 38 C.F.R. § 4.71a, DC 5003, degenerative arthritis is rated on the basis of limitation of motion for the specific joint involved. Under 38 C.F.R. § 4.71a, DC 5010, traumatic arthritis is rated as for degenerative arthritis under DC 5003. Under 38 C.F.R. § 4.71a, DC 5258, [d]islocated semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint, is rated as 20 percent disabling; the 20 percent evaluation is the maximum evaluation provide for under this diagnostic code. Under 38 C.F.R. § 4.71a, DC 5259, a 10 percent disability rating is warranted for symptomatic removal of the semilunar cartilage. Under 38 C.F.R. § 4.71a, DC 5260, a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees. Under 38 C.F.R. § 4.71a, DC 5261, a 10 percent rating is assigned when extension of the leg is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5262, a malunion of the tibia and fibula of either lower extremity warrants a 20 percent evaluation if there is a marked knee or ankle disability. In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the U.S. Court of Appeals for Veterans Claims held that under 38 C.F.R. § 4.71, a separate evaluation may be assigned for meniscal problems under DCs 5258 or 5259, even when ratings are in effect under DCs 5257 and 5261. The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71. Normal extension and flexion of the knee is from 0 to 140 degrees. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. The Court specifically discounted the notion that the highest disability ratings are warranted under DCs 5261 and 5261 where pain is merely evident as it would lead to potentially “absurd results.” Id. at 10 -11 (limiting the scope and application of its prior holding in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991)). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The Board must determine whether a higher evaluation is warranted under any applicable diagnostic code. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Turning first to range of motion, the Board finds that neither a rating in excess of 10 percent under DC 5260 nor a compensable rating under DC 5261 is warranted for the right knee. The recorded ranges of motion for the right knee do not show that the Veteran has ever been found to have flexion limited to 30 degrees or extension limited to 10 degrees. In this regard, the recorded ranges of motion are as follows: the Veteran’s right knee had extension to 0 degrees, and flexion to 120 degrees (April 2006 VA progress note); extension to 0 degrees, and flexion to 140 degrees, with pain at 130 degrees (February 2009 VA examination report); extension to 0 degrees, and flexion to 140 degrees (April 2015 VA disability benefits questionnaire (DBQ)); extension to 0 degrees, and flexion to 105 degrees (February 2016 VA DBQ); extension to -2 degrees, and flexion to 135 degrees (October 2018 VA DBQ). Accordingly, a rating in excess of 10 percent under DC 5260 or a compensable rating under DC 5261 is not warranted. There is no evidence to show that the Veteran’s right knee is productive of a dislocated semilunar cartilage, or a malunion of the tibia and fibula, or that there has been there has been a removal of the semilunar cartilage. Accordingly, additional compensation is not warranted under DCs 5258, 5269, or 5262. With respect to possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40 and 4.45, the Board has also considered whether an increased rating could be assigned on the basis of functional loss due to the Veteran’s subjective complaints of pain. See DeLuca v. Brown, 8 Vet. App. 202, 204-205 (1995); VAOPGCPREC 36-97, 63 Fed. Reg. 31,262 (1998). A private treatment report, dated in January 2013, notes that the right knee had a normal range of motion. VA progress notes show multiple complaints of right knee pain, swelling, and/or spasm. A February 2014 X-ray was noted to have been normal. Reports, dated between 2017 and 2018, note that the right knee had 5/5 strength on extension, with 2+ reflexes in the right patella. His gait was primarily noted to be normal, within normal limits, or steady, with only one finding of a slightly antalgic gait. There was also a finding of a full range of motion. Sensory examination was intact to light touch in the bilateral lower extremities. The Veteran received a cortisone injection, and a Gel One injection. In 2018, a magnetic resonance imaging (MRI) study of the right knee showed degenerative joint disease and effusion and small ruptured baker’s cyst. The February 2009 VA examination report notes complaints of knee pain and swelling, aggravated by weather changes and physical activity. He also complained of stiffness and occasional locking, as well as fatigability and lack of endurance. He said that physical therapy had not improved his symptoms. He reported taking Advil for his symptoms, and Lortab once or twice a month. He denied flare-ups or a history of post-service right knee surgery. He said he has used a knee brace since 1995, as needed. He reported that he was currently working and that his knee symptoms did not impact his work because he had a desk job. He complained of difficulty with prolonged walking, standing, bending, and climbing. On examination, gait and posture were normal. No assistive devices were used. There was no change in the range of motion after repetitive motion. Strength was 5/5. Right knee reflexes were 1+. An X-ray was noted to show degenerative disease of the right knee. The April 2015 VA DBQ notes that there was pain that caused functional loss on flexion, but not extension. There was also pain on weight bearing. There was no additional loss of function or loss of range of motion after three repetitions. With repeated use over time, and flare-ups, there was significantly limited functional ability due to pain and fatigue, however this could not be described in terms of loss of range of motion. Strength of right knee flexion and extension was 5/5. There was no muscle atrophy. The examiner indicated that arthritis was not documented. There was no impact on the Veteran’s ability to perform occupational tasks. The February 2016 DBQ shows that the Veteran reported flare-ups with swelling, tightness, spasms, locking, and popping noise. He said that he could not do prolonged standing, or running, due to swelling. There was functional loss due to pain, fatigue, and weakness. There was pain that caused functional loss on flexion, but not extension. There was also pain on weight bearing. Following repetitive motion, there was pain, fatigue, and weakness, resulting in an additional loss of motion to 100 degrees flexion. With repeated use over time, and flare-ups, there was significantly limited functional ability due to pain, fatigue, and weakness, however this could not be described in terms of loss of range of motion. The examiner explained that such an estimate would depend on the type of activity performed and the severity of pain experienced. The Veteran was noted to have less movement than normal, weakened movement, and disturbance of locomotion. Strength of right knee flexion and extension was 5/5. There was no muscle atrophy or ankylosis. There was no history of a lateral release in 1996. The Veteran occasionally use a brace. The impact on the Veteran’s ability to perform occupational tasks was noted as limited bending, no heavy lifting, and no prolonged standing and sitting. The diagnosis was right knee lateral release. The November 2018 VA DBQ shows that the Veteran complained of knee arthralgia, flare-ups with increased pain, swelling and redness with prolonged walking, driving, and climbing of stairs and ladders. He reported that he avoided sports and activities that involved rotational motions of his knees or frequent squatting. On examination, there was pain on flexion and extension that did not result in, or cause, functional loss, and pain on weight bearing. There was no additional functional loss or loss of range of motion found on repetitive use testing. The examiner concluded that it could not be estimated if there was significant limitation of functional ability with repeated use over time, or during flare-ups, due to pain, weakness, fatigability, or incoordination. The examiner explained that such loss was not observed. Strength of right knee flexion and extension was 5/5. There was no muscle atrophy or ankylosis. The Veteran was noted to have a history of arthroscopic lateral release and plica excision in 1995. The Veteran was noted to regularly use a brace. Arthritis was noted to have been documented with imaging studies. The relevant diagnosis was traumatic arthritis. In an addendum, dated in September 2019, the November 2018 VA examiner indicated that she was not able to estimate the Veteran’s loss of range of motion during flare-ups or with repeated use over time because these conditions were not observed on examination, and that although she had reviewed the medical evidence, the required facts were not in evidence, do not exist, or were not available. Therefore, such a conclusion would require a resort to speculation that could be considered a breach of her fiduciary responsibility and a disservice to the Veteran. Therefore, accurate, valid, and evidence-based data was not available upon which to provide the requested conclusion. Given the foregoing, the Board finds that the November 2018 VA examiner has indicated that she has considered all procurable and assembled data before stating that an opinion cannot be reached, and that she has adequately explained the basis for her conclusion that a non-speculative opinion cannot be offered. See Sharp v. Shinseki, 23 Vet. App. 267, 272 (2009). This opinion addresses the directives of the JMR and is therefore adequate for adjudication purposes. Of note, current caselaw does not require the examiner to provide an actual numerical assessment of range of motion during flare-ups, rather, if it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). This was done in this case. While the Veteran contends that he experiences additional limitation during flare-ups, he has not provided sufficient evidence or description of the limitations such that the Board could assign a higher rating based on loss of motion. In summary, while there is some evidence of pain, and limitation of motion, the evidence does not otherwise show functional loss due to pain to warrant a rating in excess of 10 percent. Pain alone does not constitute a functional loss under VA regulations. Mitchell. Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see also 38 C.F.R. § 4.40. Here, even considering the Veteran’s pain, he is shown to have had at least 100 degrees of flexion (following repetitive motion in February 2016). The Veteran’s strength of right knee flexion and extension has repeatedly been shown to be 5/5, with no evidence of muscle atrophy. There are findings of functional loss with repeated use over time, and during flare-ups, that cannot be estimated in loss of range of motion. Despite his complaints, when the range of motion findings, and the evidence showing functional loss are considered, to include the findings (or lack thereof) pertaining to neurologic deficits, muscle strength, and muscle atrophy, the Board finds that there is insufficient evidence of objective pain on motion, or any other functional loss, to warrant a rating in excess of 10 percent. Of note, the 10 percent rating is assigned in specific recognition of the Veteran’s right knee pain. The Board therefore finds that the criteria for a rating in excess of 10 percent are not shown to have been met, and the claim is denied. The Board has considered the Veteran’s statements that he should be entitled to an increased rating. A lay person is competent to testify only as to observable symptoms. Falzone v. Brown, 8 Vet. App. 398, 403 (1995). However, a layperson is not competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability, unless such a relationship is one to which a lay person’s observation is competent. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The Board also acknowledges the Veteran’s belief that his symptoms are of such severity as to warrant an increased rating. However, disability ratings are assigned by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disabilities in issue are evaluated, are more probative than the Veteran’s assessment of the severity of his disability. The VA examinations also took into account the Veteran’s competent (subjective) statements with regard to the severity of his disability. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.