Citation Nr: 20021552 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-03 011A DATE: March 26, 2020 ORDER Entitlement to service connection for asthma is granted. Entitlement to an initial rating in excess of 50 percent for obstructive sleep apnea is denied. Entitlement to an initial 10 percent rating for posttraumatic headaches is granted. Entitlement to a rating in excess of 10 percent for right knee limitation of motion is denied. Entitlement to a rating in excess of 10 percent for left knee limitation of motion is denied. Entitlement to a separate 10 percent rating for right knee instability is granted. Entitlement to a separate 10 percent rating for left knee instability is granted.   FINDINGS OF FACT 1. The Veteran’s asthma had its onset in service. 2. Throughout the appeal period, the Veteran’s obstructive sleep apnea required the use of a breathing assistance device such as a continuous airway pressure (CPAP) machine. 3. Throughout the appeal period, the Veteran’s posttraumatic headaches have approximated migraine headaches with characteristic prostrating attacks averaging one in 2 months over last several months. 4. The Veteran’s right knee disability has been manifested by range of motion from 0 degrees extension to no worse than 125 degrees flexion, with no pain on examination. 5. The Veteran’s left knee disability has been manifested by range of motion from 5 degrees extension to no worse than 125 degrees flexion, with no pain on examination. 6. The Veteran’s right knee disability is manifested by slight instability. 7. The Veteran’s left knee disability is manifested by slight instability.   CONCLUSIONS OF LAW 1. The criteria for service connection for asthma have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an initial rating in excess of 50 percent for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.96, 4.97, Diagnostic Code 6847. 3. Throughout the appeal period, the criteria for an initial 10 percent rating, but no higher, for posttraumatic headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8100. 4. The criteria for a rating in excess of 10 percent for right knee disability based on limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256, 5258, 5259, 5260, 5261, 5262, 5263. 5. The criteria for a rating in excess of 10 percent for left knee disability based on limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256, 5258, 5259, 5260, 5261, 5262, 5263. 6. The criteria for an initial 10 percent rating for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 7. The criteria for an initial 10 percent rating for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1990 to August 1996 and February 2016 to January 2017, including service in the Southwest Asia theater of operations in Qatar and the United Arab Emirates as well as three tours of duty in Afghanistan. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in November 2019 when they were remanded for additional development. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table decision). 1. Entitlement to service connection for asthma. The Veteran is competent to report he experiences dyspnea (i.e., shortness of breath), wheezing on exertion, coughing and chest tightness. Moreover, the post-service evidence of record reflects a diagnosis of asthma. See April 2019 private treatment records; November 2019 VA treatment records. Thus, element one to establish service connection is met. As to element two, in-service incurrence of a disease or injury, the Veteran is a Persian Gulf veteran, and he is presumed to have suffered environmental exposures. He has stated that his symptoms had their onset was in service while stationed in Afghanistan. See July 2018 VA respiratory conditions examination. Given this evidence, element two to establish service connection is met. As to element three, a nexus between the claimed in-service disease or injury and the present disability, the Veteran is competent to report dyspnea, wheezing on exertion, coughing and chest tightness during and since service, and the Board finds his reports to be credible and supported by other evidence of record. See July 2018 VA respiratory conditions examination. Notably, the Veteran is also qualified to relate his symptomatology to his asthma as he is a nurse. See February 2018 VA treatment record. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran has asthma (manifested by dyspnea, wheezing on exertion, coughing and chest tightness) that had its onset during his period of service. Therefore, service connection for asthma is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 2. Entitlement to an initial rating in excess of 50 percent for obstructive sleep apnea. The Veteran’s obstructive sleep apnea has been rated 50 percent disabling under Diagnostic Code 6847, effective since January 30, 2017. Under Diagnostic Code 6847, a 50 percent rating is warranted for sleep apnea syndrome requiring the use of a breathing assistance device such as continuous airway pressure (CPAP) machine. A maximum 100 percent rating is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. No other diagnostic code may be employed to rate this disability. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the Rating Schedule, it may not be rated by analogy). After a review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding the Veteran’s obstructive sleep apnea warrants an initial rating in excess of 50 percent. At no time during the appeal period does the evidence of record show chronic respiratory failure with carbon dioxide retention or cor pulmonale, or that he required tracheostomy, and such is not contended. See, e.g., January 2019 VA treatment record (noting the Veteran uses a CPAP). The evidence consistently shows the Veteran was using a CPAP machine to treat his sleep apnea, consistent with the currently assigned initial 50 percent rating. Hence, an initial rating in excess of 50 percent is not warranted. 3. Entitlement to an initial compensable rating for posttraumatic headaches. The Veteran’s posttraumatic headaches are rated pursuant to 38 C.F.R. § 4.124a. Under Diagnostic Code 8100, a 0 percent disability percent rating is warranted for migraine headaches with less frequent attacks. A 10 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in 2 months over last several months. A 30 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks occurring on average once a month over the last several months. A maximum 50 percent disability rating is warranted for migraine headaches with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define “prostrating,” and neither has the United States Court of Appeals for Veterans Claims (Court). See Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, the Board notes that according to WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), page 1080, “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” Nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). Additionally, the Court has held that “the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.” See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As Diagnostic Code 8100 does not contemplate the effects of medication in alleviating the frequency and duration of the Veteran’s headaches, the Board is precluded from considering the relief afforded by the Veteran’s medication, if any, in evaluating the severity of his disability. Id. In this case, the primary pieces of evidence include the July 2018 VA headaches examination, February 2019 examination, and February 2020 VA headaches examination. The July 2018 examination noted the Veteran’s complaint of headaches 2 to 3 times per month, lasting 2 hours or less, manifested by bilateral temporal area and behind the ears pain, with no characteristic prostrating attacks of migraine headache pain. February 2019 examiner noted the Veteran’s headaches were manifested by pulsating or throbbing head pain, sensitivity to sound, changes in vision, and the head pain lasts 1 to 2 days. It was found the Veteran had characteristic prostrating attacks of headache pain more frequently than once per month. Moreover, it was found the Veteran had very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The February 2020 examination noted the Veteran’s complaint of dull pounding headache, occasional sensitivity to light and sound, and that his head pain typically has a duration of less than 1 day. There were no prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. When the Veteran has a headache, he has to take a break, keep the room dim and the noise low. It was noted the Veteran had missed 0 to 1 week of work time in the last 12 months. Upon consideration of the evidence of record, and without considering the ameliorative effects of any medication, the Board finds that the Veteran’s posttraumatic headaches more nearly approximated the criteria for an initial 10 percent disability rating for the entire appeal period. He has consistently reported experiencing headaches, with sensitivity to light and sound. The evidence also shows the Veteran experiences more than one headache per month. The critical element in this case is whether the headaches are prostrating in nature. Both the July 2018 and February 2020 examiners found the Veteran did not experience characteristic prostrating headaches, and the Board finds these findings to be more probative as the post-service evidence of record reflects no complaints of prostrating and debilitating or severe headaches. Indeed, the post-service evidence of record is largely absent for any complaints of headaches. See December 2019 VA treatment record. Moreover, on February 2020 headaches examination, the Veteran reported he has had 0 to 1 week of work time lost in the last 12 months due to his headaches. To the extent the February 2019 examiner found the Veteran had very frequent prostrating and prolonged attacks of migraine headache pain more frequently than once per month and that such was productive of severe economic inadaptability based on new history, the Board finds the level of severity reported by the February 2019 examiner to be of no substantial value as there are no treatment records to support or substantiate the frequency and severity of headaches as indicated by the February 2019 examiner, and such findings are contrary to the Veteran’s own reports. See, e.g., December 2019 veteran statement (indicating he was working full-time); see also February 2020 headaches examination (reporting 0 to 1 week of work lost in the past 12 months). Based on the evidence of record, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the preponderance of the evidence reflects the Veteran’s posttraumatic headaches are consistent with an increased initial 10 percent disability rating throughout the appeal period, for migraine headaches with characteristic prostrating attacks averaging one in 2 months over last several months. The Board concedes the Veteran may experience prostrating attacks, but the evidence of record does not reflect, is not consistent with, and does not approximate, prostrating attacks occurring on average once a month over the last several months so as to warrant a further initial increased rating of 30 percent. Hence, the Board finds that the Veteran’s posttraumatic headaches warrant an initial increased rating of 10 percent, but no higher, throughout the appeal period. The Board is precluded from considering any other diagnostic codes to evaluate the Veteran’s posttraumatic headaches. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the Rating Schedule, it may not be rated by analogy). 4. Entitlement to a rating in excess of 10 percent for right knee limitation of motion. 5. Entitlement to a rating in excess of 10 percent for left knee limitation of motion. Regarding the claims seeking an initial increased rating for a right and left knee disability, the Veteran’s disabilities are rated 10 percent disabling under Diagnostic Code 5003-5260 (for arthritis and limitation of motion of the right and left knee) throughout the appeal period (i.e., since January 30, 2017). Under Diagnostic Code 5260, flexion limited to 45 degrees is assigned a 10 percent rating, flexion limited to 30 degrees is assigned a 20 percent rating, and flexion limited to 15 degrees is assigned a 30 percent rating. Normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. When extension is limited to 5 degrees, a 0 percent rating is assigned under Diagnostic Code 5261. A 10 percent rating will be assigned for limitation of extension to 10 degrees; a 20 percent rating will be assigned for limitation of extension to 15 degrees; a 30 percent rating will be assigned for limitation of extension to 20 degrees; a 40 percent rating will be assigned for limitation of extension to 30 degrees; and a 50 percent rating will be assigned for limitation of extension to 45 degrees. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding the Veteran’s right and left knee disability warrant an initial rating in excess of 10 percent based on arthritis with limitation of motion. For an increased rating based on limitation of motion, the evidence must minimally establish that the Veteran’s right and left knee disability are manifested by flexion limited to 30 degrees (Diagnostic Code 5260), and/or by extension limited to 15 degrees (Diagnostic Code 5261). At no point during the appeal period has the Veteran’s right and left knee flexion shown to be less than 125 degrees (June 2019 VA treatment record), right knee extension to be other than normal, or left knee extension to be limited to more than 5 degrees (June 2019 VA treatment record), even with consideration of pain on range of motion testing, and after repetitive range of motion testing. Hence, the criteria for an increased rating under either Diagnostic Code 5260 or 5261 are not met. In addition, the Veteran has never demonstrated or been diagnosed with ankylosis of the right or left knee, impairment of the tibia and fibula, genu recurvatum, or shown to have dislocated semilunar cartilage. Therefore, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not applicable. 6. Entitlement to a separate compensable rating for right knee instability. 7. Entitlement to a separate compensable rating for right knee instability. The Board finds that separate initial 10 percent ratings are warranted under Diagnostic Code 5257 because the Veteran exhibits slight instability in his right and left knee. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. The Board observes that the Veteran’s VA examination in July 2018 found no evidence of joint instability and/or subluxation in either his right or left knee. However, the Board notes that the Veteran is competent to report his symptoms in regard to his right and left knee. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); English v. Wilkie, 30 Vet. App. 347 (2018). The Board observes that although the examination report of record does not objectively show right or left knee instability, the Board finds the Veteran’s reports of right and left knee instability and his knees giving out to be credible. Therefore, resolving all reasonable doubt in his favor, the Board finds that the Veteran warrants an initial separate rating of 10 percent, but no higher, for slight instability of the right and left knee. Inasmuch as there is no objective evidence of recurrent subluxation or instability in either the right or left knee, the Board finds that the disability picture is consistent with slight instability, and an initial rating in excess of 10 percent is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Marley, 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.