Citation Nr: 20037515 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 16-61 417 DATE: June 2, 2020 REMANDED Entitlement to a rating in excess of 10 percent prior to February 25, 2020, for right knee chondromalacia status post with synovectomy, chondroplasty, partial medial meniscectomy, and plica excision with osteochondral defect, exclusive of the time period where a temporary total rating has been assigned, and in excess of 30 percent as of April 1, 2021, for right knee arthroplasty, is remanded. Entitlement to a rating in excess of 20 percent for lumbosacral strain with degenerative changes is remanded. Entitlement to service connection for sleep apnea as secondary to service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1972 to October 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in August 2016 and July 2017 issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board, as relevant, denied a rating in excess of 10 percent for the Veteran’s right knee disability, denied a rating in excess of 20 percent for his back disability, and denied service connection for sleep apnea. Thereafter, the Veteran appealed such aspects of the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), which vacated the Board’s decision as to such claims and remanded the case for further consideration. During the pendency of the appeal, an April 2020 rating decision recharacterized the Veteran’s right knee disability in light of his total knee replacement and assigned a 100 percent, effective February 25, 2020, and a 30 percent rating, effective April 1, 2021. As the Veteran is presumed to be seeking the maximum benefit for a disability, such claim for a higher rating remains in appellate status. A.B. v. Brown, 6 Vet. App. 35, 38 (1993). Furthermore, the Veteran’s claim for a higher rating for his right knee disability has been characterized to reflect that staged ratings are in effect. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board observes that, subsequent to the issuance of the October 2017 statement of the case, additional evidence was associated with the record. While the Veteran has not waived Agency of Original Jurisdiction (AOJ) consideration of such evidence, his claims are being remanded such that no prejudice results to him in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. 1. Entitlement to a rating in excess of 10 percent prior to February 25, 2020, for right knee chondromalacia status post with synovectomy, chondroplasty, partial medial meniscectomy, and plica excision with osteochondral defect, exclusive of the time period where a temporary total rating has been assigned, and in excess of 30 percent as of April 1, 2021, for right knee arthroplasty. 2. Entitlement to a rating in excess of 20 percent for lumbosacral strain with degenerative changes. As noted above, in December 2019, the Court granted a JMPR that vacated the Board’s February 2019 denial of the Veteran’s claims for increased ratings for right knee and back disabilities. The parties to the JMPR noted that, in reaching such determinations, the Board relied, in part, on inadequate July 2016 VA examinations. In this regard, the parties observed that such examiner stated he could not provide an opinion regarding functional ability of the Veteran’s right knee and back disabilities during a flare-up or following repeated use over a period of time without resorting to speculation as he was not experiencing a flare-up or seen following repeated use over time. Here, the parties noted that, in both instances, the examiner did not elicit enough information to make an estimate regarding the Veteran’s functional loss or indicate that such was not possible by anyone within the medical community at large. Consequently, a remand is necessary in order to obtain a retrospective VA medical opinion that addresses the aforementioned findings from the July 2016 VA examination in light of the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). 3. Entitlement to service connection for sleep apnea as secondary to service-connected disability. As noted above, in December 2019, the Court granted a JMPR that vacated the Board’s February 2019 denial of the Veteran’s claim for service connection for sleep apnea. The parties to the JMPR noted that, in reaching such determination, the Board relied, in part, on an inadequate October 2017 VA medical opinion. In this regard, the parties observed that the Veteran had a history of sinus issues, and was currently service-connected for sinusitis. Here, the parties noted that, in February 2003, the Veteran asserted his belief that his migraines may have been related to his sinus issues. The parties further observed that the October 2017 VA examiner addressed theories of secondary service connection with respect to the Veteran’s service-connected migraine headaches, back disorder, bilateral pes planus, right knee disorder, and left knee disorder; however, he did not address whether the Veteran’s sleep apnea is caused or aggravated by his service-connected sinusitis. Consequently, a remand is necessary in order to obtain an addendum VA medical opinion addressing such matter. The matters are REMANDED for the following action: 1. Return the record to the VA examiner who conducted the July 2016 VA examinations of the Veteran’s right knee and back disabilities. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. If the July 2016 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner is requested to review the July 2016 VA examination reports containing the Veteran’s endorsements of flare-ups and the impact of repeated use over time in regard to his right knee and back disabilities. Thereafter, the examiner is requested to offer an opinion as to the nature of the resulting limitation of function, if any, and, to clarify whether such resulted in additional limitation of motion. If so, such additional limitation of motion should be expressed in degrees. If the examiner is unable to do so, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. A rationale should be provided for any opinion offered. 2. Return the record to the VA examiner who conducted the October 2017 VA examination for the Veteran’s sleep apnea. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. If the October 2017 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should offer an opinion as to whether the Veteran’s sleep apnea is caused or aggravated by his service-connected sinusitis. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale should be provided for any opinion offered. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, 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.