Citation Nr: 20042732 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 12-30 553 DATE: June 24, 2020 ORDER Entitlement to an initial rating higher of 40 percent for narcolepsy is granted. Entitlement to an initial rating higher than 10 percent for carpal tunnel syndrome of the right major upper extremity for the period from February 19, 2010 to November 27, 2016 is denied. Entitlement to an initial rating higher than 30 percent for carpal tunnel syndrome of the right major upper extremity since November 28, 2016 is denied. Entitlement to an initial rating higher than 50 percent for obstructive sleep apnea and asthma is denied. Entitlement to separate disability ratings for obstructive sleep apnea and asthma is denied. REMANDED Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the right knee is remanded. Entitlement to an initial compensable rating for instability of the right knee for the period from February 19, 2010 to November 27, 2016 is remanded. Entitlement to an initial rating higher than 10 percent for instability of the right knee since November 28, 2016 is remanded. Entitlement to total disability based on individual unemployability from February 18, 2010 to November 27, 2016 is remanded. FINDINGS OF FACT 1. The Veteran’s narcolepsy disorder most nearly approximates on average 5 to 8 minor episodes weekly. 2. Between February 19, 2010 to November 27, 2016, the Veteran’s carpal tunnel syndrome of the right major upper extremity were manifested by mild incomplete paralysis. 3. Since November 28, 2016, the Veteran’s carpal tunnel syndrome of the right major upper extremity has been manifested by moderate incomplete paralysis. 4. At the January 2017 hearing before the Board, the Veteran testified that a 30 percent rating for his carpal tunnel syndrome, for the appeal period since November 28, 2016, would satisfy his appeal. 5. Disabilities due to obstructive sleep apnea are rated in accordance with the criteria in 38 C.F.R. § 4.97 under Diagnostic Code 6847 and disabilities due to asthma are rated under Diagnostic Code 6602. 6. The Veteran’s obstructive sleep apnea and asthma are rated under a single 50-percent disability rating that is assigned pursuant to the criteria under DC 6602-6847. 7. The Veteran’s predominant respiratory condition is his obstructive sleep apnea, which has not caused chronic respiratory failure with carbon dioxide retention or cor pulmonale or led to a tracheotomy. 8. For the entire rating period on appeal, the Veteran’s asthma required the use of a breathing device but did not manifest in findings of FEV-1 of 40- to 55-percent predicted, or FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations; or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 40 percent for a seizure disorder with narcolepsy and cataplexy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 8911. 2. The criteria for entitlement to a rating higher than 10 percent for carpal tunnel syndrome of the right major upper extremity for the period from February 19, 2010 to November 27, 2016 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7; 4.124a Diagnostic Code 8515. 3. The criteria for entitlement to a rating higher than 30 percent for carpal tunnel syndrome of the right major upper extremity since November 28, 2016 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7; 4.124a Diagnostic Code 8515. 4. The criteria for entitlement to an initial rating higher than 50 percent for obstructive sleep apnea and asthma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.96, 4.97, Diagnostic Codes 6602-6847. 5. Separate disability ratings for obstructive sleep apnea and asthma are not allowed. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 4.14, 4.96, 4.97, Diagnostic Codes 6602 and 6847. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 2000 to February 2010, including service in Iraq. The Veteran testified at a videoconference hearing before the undersigned VLJ in January 2017. This appeal was remanded by the Board in March 2018. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § § 1155; 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. § §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. 1. Entitlement to an initial rating higher than 20 percent for narcolepsy. The Veteran’s narcolepsy disorder is rated at 20 percent disabling under Diagnostic Code 8108, which instructs that the disability be rated based on the criteria as for epilepsy, petit mal. Pursuant to Diagnostic Code 8911 General Rating Formula for Major and Minor Epileptic Seizures (General Rating Formula), a 20 percent disability rating is warranted at least two minor seizures occurred in the last six months. Where there was an average of at least five to eight minor seizures weekly, a 40 percent disability rating is warranted. A 60 percent disability rating is warranted where there is nine to ten minor seizures occurred per week. An 80 percent disability rating is assigned where there is more than ten minor seizures weekly. Additionally, a major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. 38 C.F.R. § 4.124a, Diagnostic Code 8911, Note (1). A minor seizure consists of brief interruption of consciousness or conscious control associated with staring or rhythmic blinking of the eyes, nodding of the head, sudden jerking movements of the arms, trunk, or head, or sudden loss of postural control. 38 C.F.R. § 4.124a, Diagnostic Code 8911, Note (2). Petit mal epilepsy is rated as minor seizures. Pursuant to the March 2018 Board remand, the Veteran was afforded a VA examination in September 2019. The Veteran reported the following symptoms: excessive daytime sleepiness; sleep attacks, which is characterized by a strong urge to sleep, followed by short nap; and cataplexy, which is characterized by the sudden loss of muscle tone while awake resulting in a brief inability to move. Continuous medication for his narcolepsy disorder was required. The examination report reflects the Veteran experienced 2 or more narcoleptic episodes over the past 6 months, and the average frequency of 0-4 narcoleptic episodes per week. It was reported that he did not experience major seizures characterized by the generalized tonic-clonic convulsion with unconsciousness. The examiner also reported the Veteran did not experience minor seizures. The examiner found the Veteran’s seizure disorder impacted his ability to work in that he should avoid driving or operating heavy equipment, working with hazardous chemicals, driving a commercial vehicle or driving other people. The Veteran was previously afforded a VA examination in November 2016. At that time, the Veteran reported the following symptoms: excessive daytime sleepiness; sleep attacks, which is characterized by a strong urge to sleep, followed by short nap; and cataplexy, which is characterized by the sudden loss of muscle tone while awake resulting in a brief inability to move. Continuous medication for his narcolepsy disorder was required. The examination report reflected that the Veteran experienced 2 or more narcoleptic episodes over the past 6 months, and the average frequency of 0-4 narcoleptic episodes per week. He also had cataplectic episodes of losing muscle tone with laughing, lasting 2-3 minutes before recovering at a frequency of once per month. It was reported that he did not experience major seizures characterized by the generalized tonic-clonic convulsion with unconsciousness. The examiner also reported the Veteran did not experience minor seizures. The examiner found the Veteran’s narcoleptic disorder did impact his ability to work in that he was unable to perform in a position that required him to maintain alertness for the safety of himself or others, such as operating heavy machinery, working with hazardous chemicals, or driving a commercial vehicle. During a March 2014 VA examination the Veteran reported the following symptoms: excessive daytime sleepiness; and sleep attacks, which were characterized by a strong urge to sleep, followed by short nap. Continuous medication for his narcolepsy disorder was not required. The examination report reflected that the Veteran experienced 2 or more narcoleptic episodes over the past 6 months, and the average frequency of 0-4 narcoleptic episodes per week. The examiner found the Veteran’s disorder impacted his ability to work since he needed frequent breaks and 15 to 30-minute naps daily. A July 2010 VA examination of narcolepsy reflected symptoms of lack of stamina, decreased concentration, fatigue that would cause the Veteran to fall asleep mid-day. The Veteran testified in the January 2017 hearing that he has 2-3 episodes of blacking out for two to three seconds anytime he sits down at a computer for longer than 20 to 30 minutes. He also stated that he has deep sleep paralysis at least once to twice a month. After review of the evidence, the Board finds a 40 percent rating is warranted based on the evidence that the narcolepsy is generally manifested by episodes of sleep attacks or cataplexy five to eight times per week. The diagnosis of narcolepsy is verified by a physician, and the Board finds that satisfies the intent of 38 C.F.R. § 4.121. Thus, the Board finds a 40 percent rating, but no higher, is warranted for the Veteran’s narcolepsy disorder. At the January 2017 hearing before the Board, the Veteran indicated that he was seeking a 40 percent rating for his service-connected narcolepsy, and that a 40 percent rating would satisfy his appeal. Because the Veteran has limited his appeal to 40 percent, and since the Board does not find evidence supporting an increase in entitlement higher than 40 percent, there is no need to discuss whether the Veteran’s narcolepsy warrants a rating higher than 40 percent. See AB v. Brown, 6 Vet. App. at 35, 38 (1993). 2. Entitlement to an initial rating higher than 10 percent for carpal tunnel syndrome of the right major upper extremity for the period from February 19, 2010 to November 27, 2016, and entitlement to an initial rating higher than 30 percent for carpal tunnel syndrome of the right major upper extremity since November 28, 2016. At the January 2017 hearing before the Board, the Veteran indicated that he was seeking a 30 percent rating for his service-connected carpal tunnel syndrome of the right major upper extremity for the period from February 19, 2010 to November 27, 2016, and that a 30 percent rating would satisfy his appeal for the entire period on appeal. The Veteran’s right carpal tunnel syndrome is currently rated at 10 percent disabling under Diagnostic Code (DC) 8515 from February 19, 2010 to November 27, 2016, and 30 percent thereafter. DC 8515 provides ratings for both the “minor” and the “major” wrist. In this context “minor” and “major” refer to the dominant or nondominant side. Here, the Veteran’s major hand (dominant) is the right upper extremity, and the minor hand is the left upper extremity. DC 8515 addresses complete and incomplete paralysis of the median nerve. As relevant, under DC 8515, moderate incomplete paralysis warrants a 30 percent rating for the major wrist, and a 20 percent rating for the minor wrist. Severe incomplete paralysis warrants a 50 percent rating for the major wrist, and a 40 percent rating for the minor wrist. Complete paralysis with the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of thenar eminence, the thumb in the plane of the hand; pronation incomplete and effective, absence of flexion of the index finger and feeble flexion of the middle finger, that cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances warrants a 70 percent disability rating for the major wrist and a 60 percent rating for the minor wrist. 38 C.F.R. § 4.124a, DC 8515. The term “incomplete paralysis” used in reference to evaluation of peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. The words “mild,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “moderate” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a rating. 38 C.F.R. §§ 4.2, 4.6. Neurological disorders are ordinarily to be rated in proportion to the impairment of motor, sensory, or mental function. In rating peripheral nerve injuries and their residuals, attention is given to the site and character of the injury, and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Board finds that, based on the evidence of record, a rating of 10 percent rating and no higher is warranted for the Veteran’s right major upper extremity carpal tunnel syndrome from February 19, 2010 to November 27, 2016. The Veteran underwent a VA examination in July 2010. The examination revealed symptoms of symptoms of right hand, middle finger and thumb partial numbness, described as 99 percent better since onset, and requiring the use of a splint for 3 months. The median nerve vibration, pain/pinprick, and position sense were described as normal. There were no dysesthesias. Light touch was decreased. Muscle strength and tone was normal. The right grip was affected. There was no muscle atrophy. Based on the evidence, no more than a rating of 10 percent for right hand carpal tunnel syndrome is warranted from February 19, 2010 to November 27, 2016, as the medical evidence supports a disability picture consistent mild incomplete paralysis. While the VA examiners found decreased grip, strength testing also revealed normal muscle strength. Reflexes were found to be normal. The examination did not reveal evidence of moderate incomplete paralysis of median nerve. There is no competent evidence that shows that the Veteran has experienced symptoms of moderate incomplete paralysis of his carpal tunnel syndrome of the right major upper extremity from February 19, 2010 to November 27, 2016. Additionally, there is no evidence of record that the service connected disability is productive of a hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of thenar eminence, the thumb in the plane of the hand; pronation incomplete and effective, absence of flexion of the index finger and feeble flexion of the middle finger, that cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances. As such, the Veteran’s symptomology is consistent with the criteria contemplated by a 10 percent rating for his carpal tunnel syndrome. The Board has also considered whether the Veteran could receive a higher rating under other applicable diagnostic codes, including under 38 C.F.R. § 4.123 or 4.124, for neuritis or neuralgia, respectively. Nevertheless, the evidence of record does not demonstrate that the Veteran has experienced symptoms of loss of reflexes, muscle atrophy, or sensory disturbances of such severity that his right major upper carpal tunnel syndrome warrants a higher rating under any of these or any other diagnostic codes. In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran is also competent to report symptoms of his right carpal tunnel syndrome. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, he is not competent to identify a specific level of disability according to the applicable DC. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Instead, greater probative value is offered to the medical evidence in assessing the severity of the Veteran’s disability, as the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran's disabilities and had sufficient facts and data on which to base the conclusions. In this respect, the Board finds that the medical evidence supports the determinations as offered above. Accordingly, the Board finds that a rating of 10 percent rating for the right carpal tunnel syndrome is warranted, as the Veteran has exhibited symptoms consistent with mild incomplete paralysis his right upper extremity from February 19, 2010, to November 27, 2016. Regarding the period since November 28, 2016, the Veteran explained during the January 2017 hearing that a 30 percent rating would satisfy his appeal. See Board Transcript, pp 20. Because the Veteran has limited his appeal to a 30 percent rating after November 27, 2016, and since the Board does not find evidence in September 2019 VA examination supporting an increase in entitlement, there is no need to discuss whether the Veteran’s carpal tunnel syndrome of the right major upper extremity warrants a rating higher than 30 percent since November 28, 2016. See AB v. Brown, 6 Vet. App. at 35, 38 (1993). 3. Entitlement to an initial rating higher than 50 percent for obstructive sleep apnea and asthma. The Veteran states that he is entitled to separate evaluations for obstructive sleep apnea and asthma. See April 2018 Statement. Pursuant to 38 C.F.R. § 4.96, Diagnostic Code (DC) 6847 provides ratings for sleep apnea syndromes (obstructive, central, and mixed). Sleep apnea that requires the use of a breathing assistance device such as continuous airway pressure (CPAP) machine is rated 50 percent disabling. Obstructive sleep apnea that manifests in chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy, is rated 100 percent disabling. 38 C.F.R. § 4.97. Under DC 6602, pertaining to asthma, bronchial, a 10-percent rating is assigned for asthma for Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent of predicted value, or the ratio of FEV-1 to Forced Vital Capacity (FVC) (FEV-1/FVC) of 71- to 80 percent, or intermittent inhalational or oral bronchodilator therapy. A 30-percent rating is assigned for FEV-1 of 56- to 70-percent predicted, or FEV-1/FVC of 56 to 70 percent or daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication. A 60-percent rating is assigned for an FEV-1 of 40- to 55-percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least 3 times per year) course of systemic (oral or parenteral) corticosteroids. A maximum 100-percent rating is assigned for bronchial asthma with an FEV-1 of less than 40-percent predicted; or FEV-1/FVC less than 40 percent, or more than 1 attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. When there are two co-existing respiratory conditions (including for DCs 6602 and 6847), a single rating will be assigned under the DC that reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. 38 C.F.R. § 4.96 (a). This has been interpreted to mean that VA will evaluate coexisting service-connected respiratory conditions covered by § 4.96(a) under the criteria enumerated in the predominant disability’s DC. See Urban v. Shulkin, 29 Vet. App. 82, 95 (2017). Rating coexisting respiratory conditions is governed by 38 C.F.R. § 4.96 (a). In this case, the Veteran is assigned a single disability rating for his coexisting respiratory conditions of obstructive sleep apnea and asthma. Section 4.96(a) states that ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 or 6822 through 6847. A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. Separate Ratings The Veteran’s claim that he is entitled to separate evaluations for obstructive sleep apnea and asthma is supported by his assertion that “they were rated separately and are not under the same umbrella.” See January 2017 Board Hearing. The Board construes this to mean that the Veteran is arguing that the assignment of separate ratings under DC 6602 and 6847 would not amount to impermissible pyramiding, as the disabilities present with distinct manifestations (i.e., symptoms). However, as discussed above, these disabilities are overlapping. Notably, the Veteran is focusing on the causes of and treatments for the disorders, rather than the manifestations (i.e., his symptoms) of the disorders. The Board notes that the evidence of record supports a finding that the disabilities at issue in this case present with duplicative and overlapping manifestations, namely difficulty with breathing. Section 4.14 clearly contemplates that several separately diagnosed disorders may have a single manifestation, and it clearly prohibits the VA from rating that manifestation for each disorder. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); 38 C.F.R. § 4.14. Moreover, the Board is bound by 38 C.F.R. § 4.96 (a), which specifically prohibits the assignment of separate evaluations for asthma and obstructive sleep apnea. See 38 C.F.R. § 4.96 (a); Urban, 29 Vet. App. at 97, 106 (declining to consider non-dominant disability and stating “[g]iven that the regulation prescribes that to avoid pyramiding VA must not separately evaluate the listed respiratory conditions and combine them under 38 C.F.R. § 4.25, as would occur in a conventional evaluation, the Secretary’s decision to adhere to the criteria in the predominant DC makes sense.”) Given the binding nature of the applicable statutory and regulatory provisions recited above and the facts of this case, the Board finds that separate evaluations for asthma and obstructive sleep apnea are not permitted. The Board notes that it is without authority to grant the Veteran’s claim on an equitable basis, and instead is constrained to follow the specific provisions of the law. See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As the law is dispositive, the claim must be denied because of the lack of legal entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). Increased Rating At the January 2017 Board hearing, the Veteran indicated that he was seeking a 50 percent rating for his service-connected asthma and OSA, and, that 50 percent evaluation for each disability would satisfy his appeal. In March 2010, the Veteran was diagnosed with obstructive sleep apnea, which required use of a CPAP machine. A 50-percent disability is warranted under DC 6847 for sleep apnea that requires the use of CPAP machine. The Veteran’s current 50-percent rating for sleep apnea contemplates a more severe level of disability than his asthma disability, which is discussed below. Based on the evidence of record, the Board finds that an initial rating in excess of 50-percent for sleep apnea is not warranted. As to the severity of the Veteran’s sleep apnea, the VA examination shows that a CPAP is required for breathing assistance. As noted above, this level of severity is contemplated by the initially assigned 50-percent rating under DC 6847. The Veteran has not been found to have chronic respiratory failure with carbon dioxide retention or cor pulmonale at any time during the appeal, and there is no record of a tracheotomy. Accordingly, the criteria for an initial disability rating higher than 50-percent are not met because the criteria for a 100-percent rating are not more closely approximated. See 38 C.F.R. § 4.7. As the preponderance of the evidence is against the claim, the benefit-of-the doubt doctrine is not applicable, and a higher initial rating is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Turning to the Veteran’s asthma, the C&P examination in December revealed PFTs with spirometry test results showing FEV of 93 percent; FEV1 of 87 percent; and FEV-1/FVC of 93 percent, which warrants a noncompensable disability rating. Moreover, the evidence throughout the appeal period has not shown that the Veteran had FEV-1 of 40- to 55-percent predicted, or FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations; or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. The record contains no such evidence of monthly or intermittent visits to the doctor for exacerbations. Accordingly, the criteria for a disability rating higher than 50 percent for the Veteran’s asthma are not met. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 4. Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the right knee, entitlement to an initial compensable rating for instability of the right knee for the period from February 19, 2010 to November 27, 2016, entitlement to a rating higher than 10 percent for instability of the right knee since November 28, 2016, and entitlement to total disability based on individual unemployability from February 1, 2010 to November 27, 2016, are remanded. There was not substantial compliance with the March 2018 remand. Stegall v. West, 11 Vet. App. 268 (1998). In the March 2018 remand, the Board requested an addendum opinion and asked the examiner to provide full range of motion testing for the Veteran’s right knee. In the October 2019 medical opinion, the examiner documented the Veteran’s range of motion in his right knee as flexion from 0 to 140 degrees and extension from 140 to 0 degrees and noted the range of motion during flare-ups as flexion from 25 to 12 degrees and extension from 12 to 25 degrees. The latter measurement appears to be a typographical error based on other clinical findings of record. Considering the inconsistency between the variances of range of motion, clarification is needed. In VA 8940 dated January 2013, the Veteran raised the issue of entitlement to total disability based on individual unemployability. While the Veteran is in receipt of a combined 100 percent rating since November 28, 2016, once entitlement to individual unemployability benefits is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the AOJ for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Thus, when the AOJ fails to grant unemployability benefits for the entire period on appeal that portion of the claim that remains unresolved is still on appeal. Entitlement to total disability based on individual unemployability for the period from February 18, 2010 to November 27, 2016 is still on appeal. Id. Because a decision on the remanded issue of entitlement to an initial rating higher than 10 percent for degenerative joint disease of the right knee could impact a decision on the issue of a higher rating for right knee instability as well as entitlement to total disability based on individual unemployability from February 1, 2016 to November 27, 2016, they are inextricably intertwined; a remand of the latter claims are therefore required. The matters are REMANDED for the following action: Obtain an addendum opinion from the examiner who conducted the October 2019, if possible, to clarify the Veteran’s right knee range of motion before and during flare-ups. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Booker 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.