Citation Nr: 20023946 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 13-25 354A DATE: April 7, 2020 ORDER An initial rating in excess of 10 percent for iliotibial band syndrome (ITBS) of the left knee is denied. An initial rating in excess of 10 percent for right knee ITBS is denied. An initial rating in excess of 20 percent for a mechanical back strain is denied. Service connection for a sleep disorder, to include obstructive sleep apnea (OSA), is denied. FINDINGS OF FACT 1. The Veteran had active service from November 1976 to November 1996. 2. For the entire period on appeal, the Veteran’s ITBS of his left and right knees have been characterized by subjective complaints of weakness, limited motion, and constant knee pain impairing his ability to walk long distances, climb stairs, bend, lift heavy amounts of weight, and stand for prolonged periods of time; objective findings include flexion at worst to 60 degrees bilaterally, extension at worst to 0 degrees bilaterally; there was no joint instability, ankylosis, recurrent effusion, meniscal conditions, chronic recurrent subluxation or instability, impairment of the tibia or fibula, or genu recurvatum. 3. For the entire period on appeal, the Veteran’s back strain has been characterized by subjective complaints of muscle spasms and constant back pain limiting his ability to stand, walk, bend, lift, climb stairs, and perform personal hygiene tasks; objective findings include forward flexion to 45 degrees at worst and intervertebral disc syndrome (IVDS) with no incapacitating episodes. 4. The Veteran’s sleep disorder is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left knee ITBS have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.56, 4.59, 4.71a, Diagnostic Code 5260 (2019). 2. The criteria for an initial rating in excess of 10 percent for right knee ITBS have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.56, 4.59, 4.71a, Diagnostic Code 5260 (2019). 3. The criteria for an initial rating in excess of 20 percent for a mechanical back strain have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, DCs 5237, 5243 (2019). 4. The Veteran’s sleep disorder, to include OSA, was not incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, the case was previous before the Board in August 2017, at which time the claims currently on appeal were remanded for further development. The case has now been returned for additional appellate action. Additionally, entitlement to a total disability rating due to individual unemployability (TDIU) was granted in a July 2014 rating decision, effective October 11, 2014. The medical evidence reflects that the Veteran’s service-connected ITBS and back disabilities affect his ability to work. However, a TDIU was granted effective immediately after the Veteran eased full-time employment. Therefore, consideration of a TDIU prior to October 11, 2014, as part and parcel of the increased rating claims on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. ITBS of the left and right knees The Veteran filed his claim in March 2010. The February 2011 rating decision that granted service connection rated the right and left ITBS disabilities pursuant to 38 C.F.R. § 4.73, DCs 5399-5314 for Muscle Group XIV injuries that affect extension of the knee or simultaneous flexion of the hip and knee. The provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and “99.” Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. During the appeal, a July 2014 rating decision changed the diagnostic code under which the disability was rated to 38 C.F.R. § 4.71a, DC 5260 for limitation of flexion of the knee. A 10 percent rating was assigned throughout. The decision to change the diagnostic code in July 2014 is not explained. The initial rating for muscle injury was based on a finding of iliotibial band pain with clinical findings of tenderness without swelling or inflammation at an October 2010 VA spine examination. Nevertheless, the first complete examination of the bilateral knees was performed November 2011, and as discussed in detail below noted findings of functional loss of movement of the knees. Consequently, the Board determines that the Veteran’s right and left ITBS disabilities are most appropriately rated under the rating codes for knees, including DC 5260, for the entire appeal period. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Service-connected knee disabilities are rated under DCs 5256 to 5263. Under the relevant regulations, a higher rating will be warranted when the objective medical evidence shows the following: • slight recurrent subluxation or lateral instability (10 percent under DC 5257) • extension of the knee limited to 10 degrees (10 percent under DC 5261) • moderate recurrent subluxation or lateral instability (20 percent under DC 5257) • flexion of the knee limited to 30 degrees (20 percent under DC 5260) • extension of the knee limited to 15 degrees (20 percent under DC 5261) • flexion of the knee limited to 15 degrees (30 percent under DC 5260) • extension of the knee limited to 20 degrees (30 percent under DC 5261) • severe recurrent subluxation and instability (30 percent under DC 5257) VA’s General Counsel has held that separate ratings may be assigned for both limitation of flexion and limitation of extension and for subluxation or instability. As will be evident from the evidence below, neither knee manifests in ankylosis, removal of semilunar cartridge, dislocated semilunar cartridge, impairment of the tibia and fibula, or genu recurvatum. Thus, consideration of DCs 5256, 5258, 5259, 5262, and 5263 is not necessary. As reflected above, even though service connection for ITBS of the bilateral knees was adjudicated in a February 2011 rating decision, a complete VA examination of the knees was not completed prior to that decision. The knee findings prior to February 2011 were limited to the reports of pain and tenderness at the October 2010 spine examination. At a November 2011 VA examination, the Veteran reported constant bilateral knee pain near his iliotibial bands that worsened with bending and lifting. While the Veteran did not report flare-ups for either nee, he said that his left knee locked up at least once a day and that his right knee seemingly hyperextended when he walked. He noted occasional redness and warmth and said that there was no swelling or recent trauma to either knee. Upon examination, range of motion was measured, at worst, as follows: left knee flexion to 130 degrees, right knee flexion to 125 degrees, and extension bilaterally at 0. The examiner found that the Veteran demonstrated functional loss that manifested through less movement than normal, weakened movement, and pain on movement of the left knee and pain on movement of the right knee. The examiner found no evidence or history of recurrent patellar subluxation or dislocation, and no meniscal conditions, tibial or fibular impairments, or joint instability. In a May 2014 VA examination, the Veteran said that his bilateral knee pain had worsened and reported flare-ups that impacted the function of his legs. Upon examination, the range of motion was measured as follows: flexion to 65 degrees bilaterally, and extension of both knees at 0 degrees. The examiner found that the Veteran had functional loss or impairment of the left and right knees characterized bilaterally by less movement than normal, weakened movement, and pain on movement. The examiner observed that pain, weakness, fatigability or incoordination significantly limited range of motion during repetitive use testing or flare-ups, characterized by a 20-degree loss of flexion (to 45 degrees) in both knees and noted tenderness to the front of the knees with palpation. The examiner identified slight recurrent patellar subluxation of the left knee but found no evidence or history of recurrent patellar subluxation or dislocation of the right knee. The examiner further found bilateral shin splints, reporting that the Veteran said he had pain over the tibial plateaus of both knees “all the time.” However, there was normal joint stability bilaterally and no meniscal conditions, to include locking, pain, and effusion, in either knee. In a subsequent March 2015 VA examination, the Veteran recounted that his knee pain began his retirement and that he had a history of military vehicle accidents. He reported that he had constant pain, weakness, and limited motion. He said he was unable to bend his knees without pain and that his pain was aggravated by weightbearing. Upon examination, the Veteran’s range of motion was measured as follows: flexion of the left knee to 110 degrees and flexion of the right knee to 100 degrees, with normal extension of both knees. Severe pain was observed bilaterally of the patella and lateral knee joint related to his ITBS, and he had evidence of pain with weight bearing. The examiner found no ankylosis, joint instability, meniscal conditions, or shin splints, and diagnosed ITBS on abduction and adduction of the knees. Most recently, in a September 2019 VA examination, the Veteran described sharp throbbing pain in his knees. He recalled that his pain was the result of physical training, running multiple miles on high impact terrain, and engaging in daily exercises. He stated that the condition had worsened over time and made it difficult for him to walk distances, climb stairs, or do any type of bending during flare-ups. He said that he experienced severe flare-ups during any activity other than sitting that lasted 30 to 40 minutes and were precipitated by walking or standing. He noted that he had functional loss manifested bilaterally through stiffness, limited range of motion, and difficulty with heavy lifting, prolonged standing, walking, jogging, and climbing stairs. Upon examination, the examiner reported additional limitations on range of motion after repetitive use testing and limited functional ability with repeated use and flare-ups that could both be measured in terms of range of motion. The examiner found the Veteran’s range of motion to be, at worst, measured as follows: flexion to 60 degrees bilaterally and extension of both knees to 0 degrees. The examiner noted pain on extension and flexion bilaterally, as well as pain in both knees with weight bearing, non-weightbearing, and on passive range of motion. The examiner found no evidence of muscle instability, ankylosis, recurrent subluxation, lateral instability, recurrent effusion, shin splints, or meniscal conditions in either knee. The examiner ultimately diagnosed ITBS. Based on the above, ratings in excess of 10 percent for the Veteran’s ITBS of the bilateral knees are not warranted. In this regard, the Veteran demonstrated range of motion of both knees, measured at worst as follows: bilateral flexion to 60 degrees and bilateral extension to 0 degrees, with flexion to 45 degrees with flare-ups. These measurements warrant no more than a 10 percent rating for limitation of flexion as already assigned. Additionally, while the May 2014 VA examination found slight recurrent patellar subluxation of the left knee and bilateral shin splints, subsequent VA examinations found no subluxation of either knee or no shin splints. Thus, the subluxation and shin splints were not demonstrated to be a chronic manifestation of the left knee disability to warrant a separate rating. Accordingly, the Veteran’s chronic manifestations of his bilateral ITBS are contemplated by the 10 percent rating assigned for limitation of flexions. A higher rating for loss of flexion and/or separate ratings for limitation of extension, instability, or subluxation are not supported by the evidence. The appeals are denied. Mechanical Back Strain The Veteran’s back strain is rated asa 20 percent disabling under DC 5237 for lumbosacral or cervical strains. The Board will consider all relevant diagnostic codes. Under the relevant regulations, a higher rating will be warranted when the objective medical evidence shows the following: • Forward flexion of the thoracolumbar spine to 30 degrees or less (40 percent under DC 5237); • Favorable ankylosis of the entire thoracolumbar spine (40 percent under DC 5237); or • IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the 12 months prior to assessment (40 percent under DC 5243). At an October 2010 VA examination, the Veteran reported chronic, constant pain in the back. Upon examination, the range of motion of the lumbar spine was measured as follows: forward flexion to 60 degrees, extension to 25 degrees, left and right lateral flexion each to 25 degrees, and left and right lateral rotation each to 25 degrees. The examiner found that the Veteran had neither ankylosis nor IVDS. The diagnosis was mechanical back strain. At a November 2011 VA examination, the Veteran described worsening chronic back pain. He reported experiencing frequent episodes of muscle spasms in his lower back daily and said that he was unable to stand or walk for extended periods of time, bend, lift, or climb stairs. He further stated that he had flare-ups that manifested through his muscle spasms. Upon examination, the range of motion was measured as follows: forward flexion to 75 degrees, extension to 15 degrees, right and left lateral flexion each to 10 degrees, and right and left lateral rotation each to 30 degrees. The Veteran did not have IVDS and was again diagnosed with a mechanical back strain. The Veteran subsequently reported in a March 2014 VA examination that he had daily back pain, and had issues bending, standing, and walking. While he previously could stand and walk without problems, he said that he had to sit in the shower in order to effectively bathe. Upon examination, the Veteran’s flexion was not measured as he did not perform the applicable test due to pain. The examiner found that the Veteran had IVDS but did not have any incapacitating episodes over the 12 months prior to examination. The examiner ultimately diagnosed IVDS and a mechanical back strain. In a January 2015 VA examination, the Veteran reported constant back pain with flare-ups. He said that as a result of his flare-ups, he could only lay on his back and could barely move. He said that as a result of his back pain, he was unable to bathe, get in and out of the bathtub without assistance, stand for more than 5 to 6 minutes, lift more than 10 pounds, or walk more than 20 feet. Upon examination, the Veteran’s range of motion was measured as follows: forward flexion to 50 degrees, extension to 30 degrees, left and right lateral flexion each to 20 degrees, and left and right lateral rotation each to 20 degrees. Pain was noted throughout the range of motion, as well as with weightbearing. The examiner found that the Veteran had no ankylosis or IVDS and diagnosed a lumbar strain and mild degenerative joint disease (DJD) of the lumbar spine. Most recently at a September 2019 VA examination, the Veteran reported that his symptoms had worsened and impacted his daily activities. He reported severe flare-ups of the back that were precipitated by bending, or prolonged walking or standing, and that lasted several hours. Upon examination, the Veteran’s range of motion was initially measured as follows: forward flexion to 60 degrees, extension to 20 degrees, left and right lateral flexion each to 20 degrees, and left and right lateral rotation each to 20 degrees. The examiner found additional loss of range of motion after repetitive use testing that was measured as follows: forward flexion to 55 degrees, extension to 15 degrees, left and right lateral flexion each to 15 degrees, and left and right lateral rotation each to 15 degrees. Pain and lack of endurance were found to significantly limit the Veteran’s functional ability with repeated use over time and with flare-ups. The examiner indicated that the limitations with repeated use and flare-ups could both be described in terms of range of motion and measured them as follows: forward flexion at worst at 45 degrees, extension at worst at 10 degrees, left and right lateral flexion at worst each at 10 degrees, and left and right lateral rotation at worst each at 10 degrees. The examiner noted that the Veteran had pain throughout his range of motion, with weightbearing, on passive range of motion, and on non-weight bearing. The examiner found no ankylosis or IVDS and diagnosed lumbar strain and mild lumbar DJD. Based on the above, an initial rating in excess of 20 percent for the Veteran’s back strain is not warranted. In this regard, the examinations measured the Veteran’s forward flexion at worst to 45 degrees, even with consideration of flare-ups and repetition of use. While the March 2014 examination found IVDS, no evidence of incapacitating episodes characterized by acute signs or symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician over the 12 months prior to examination was documented. Furthermore, the examination revealed that no ankylosis of the lumbar spine. Accordingly, the medical evidence does not support an initial rating in excess of 40 percent for mechanical back strain. The Board has considered multiple statements offered by the Veteran regarding the current severity of the disabilities discussed above. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to identify a specific level of disability of any current disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the disabilities the bilateral knees and back has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the VA examination and medical treatment notes) directly address the criteria under which his disabilities are evaluated. Moreover, as the clinicians have the requisite medical expertise to render medical opinions regarding the degrees of impairment caused by the disability and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the subjective evidence of complaints of increased symptomatology provided by the Veteran, and the appeals are denied. Consideration has also been given to assigning staged ratings with respect to the disabilities discussed above. However, at no time during the period in question have the disabilities warranted higher schedular ratings than those assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Service Connection Claim Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). As an initial matter, OSA is not a chronic disorder under 38 C.F.R. § 3.309(a); as such, presumptive service connection based on continuity of symptomatology is not for application. Additionally, the Veteran has not argued that his sleep disorder was caused or aggravated by a service-connected disability; accordingly, secondary service connection will not be considered. However, direct service connection will be assessed. Turning to the evidence, the Veteran has a current diagnosis of a sleep disorder. Specifically, a December 2019 VA examination diagnosed OSA. Accordingly, a current disorder has been shown and the first element of service connection has been met. A review of the service treatment records (STRs) reveals that in multiple Reports of Medical Examination, to include a May 1996 retirement examination, the Veteran was found to be neurologically and psychiatrically normal. He further reported in multiple associated Reports of Medical History that he did not have or had not had frequent trouble sleeping. The STRs are otherwise silent for complaints, diagnoses, or treatment for obstructive sleep apnea. However, in a July 2019 statement, the Veteran reported starting to have sleep problems when he left Germany in the 1980s. He recalled in a December 2019 VA examination that he had had sleep difficulties since 1996. The Veteran is competent to report symptoms and describe his observations as this requires only personal knowledge as it comes to him through his senses. Accordingly, resolving reasonable doubt in his favor, his statements establish an in-service incurrence of a sleep disorder. As such, the second element of service connection has been met. Turning to nexus, at the December 2019 VA examination, the examiner diagnosed obstructive sleep apnea and opined that it was less likely than not incurred in or caused by an in-service incident, to include in-service sleep difficulties. The examiner documented the Veteran’s reports of sleep difficulties since 1996 but noted that the STRs were silent for evidence of sleep problems and explained that there was no evidence that the symptoms persisted in the period between his separation from service and a 2010 diagnosis of OSA. Furthermore, while the medical treatment notes diagnose OSA, they do not establish a relationship between his sleep disorder and his active service. Considering the above, the medical evidence does not support service connection for a sleep disorder, to include OSA. The Board has considered the Veteran’s lay statements and testimony regarding the etiology and current severity of his sleep disorder. He is competent to report symptoms and describe his observations because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer opinions as to the etiology of any current disorder due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who have examined the Veteran during his current appeal and who have rendered pertinent medical opinions in conjunction with the evaluations. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements and testimony that have been submitted. Moreover, while the Veteran described symptoms of sleep apnea as beginning in 1996 and continuing since, the medical evidence does not support that assertion. No complaint, treatment, or diagnosis of a sleep disorder were reported at the May 1996 retirement physical. Moreover, private treatment records dated in 2005 noted complaints of waking frequently during the night but a diagnosis of insomnia was assigned. There were no other concerns suggestive of sleep apnea, such as daytime somnolence or snoring, discussed at that time, and sleep apnea was not considered as a possible explanation for the Veteran’s trouble sleeping. Thus, the clinical evidence belies the Veteran’s report of the onset of his sleep apnea disorder. Accordingly, the preponderance of the competent and probative evidence is against the claim for service connection for sleep apnea. Therefore, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). K. M. SCHAEFER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Spigelman, Associate 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.