Citation Nr: 20047501 Decision Date: 07/15/20 Archive Date: 07/15/20 DOCKET NO. 18-34 351 DATE: July 15, 2020 ORDER A rating in excess of 10 percent for left knee osteoarthritis is denied. A rating in excess of 10 percent for right knee osteoarthritis is denied. An effective date earlier than February 23, 2017, for the grant of service connection for left knee osteoarthritis is denied. An effective date earlier than February 23, 2017, for the grant of service connection for right knee osteoarthritis is denied. New and material evidence not having been received, the application to reopen a claim of service connection for a right eye disorder is denied. New and material evidence not having been received, the application to reopen a claim of service connection for diabetes mellitus (DM) is denied. New and material evidence not having been received, the application to reopen a claim of service connection for erectile dysfunction (ED) is denied. Service connection for obstructive sleep apnea (OSA) is granted. Service connection for tension headaches is granted. Service connection for a back disorder is denied. Service connection for a left eye disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. The Veteran had active service from July 1974 to July 1998. 2. A left knee disability has been manifested by subjective complaints of pain and difficulty walking, bending, standing, and climbing; objective findings include flexion and extension to 60 degrees and no evidence of ankylosis. 3. A right knee disability has been manifested by subjective complaints of pain and difficulty walking, bending, standing, and climbing; objective findings include flexion and extension to 70 degrees and no evidence of ankylosis. 4. The Veteran filed an initial claim for symptoms of a left knee disorder in April 2014 but did not timely appeal the September 2014 rating decision which denied the claim. He submitted a claim to reopen service connection for the left knee on February 23, 2017, which was ultimately granted and the forms the basis of the current effective date. 5. There is no correspondence that could be construed as a claim for service connection for a right knee disorder prior to February 23, 2017. 6. In an unappealed September 2014 rating decision, the Regional Office (RO) denied service connection for a right eye disorder, DM, and ED. The evidence submitted since the September 2014 decision, to the extent that it is new, is not material with regard to the application to reopen the claims. 7. OSA was not shown in service; OSA has been found to be worsened in severity by medication taken for a service-connected disability. 8. Tension headaches were not shown in service; tension headaches were caused by or permanently worsened in severity by a service-connected disability. 9. The Veteran complained of back pain during service; symptoms were not shown to be chronic. A current back disorder, diagnosed as degenerative arthritis of the spine and lumbosacral strain, was not shown to a compensable degree within one year of service, symptoms not continuous since service; a current back disorder is not causally or etiologically related to service. 10. A left eye disorder, diagnosed as primary open angle glaucoma and cataracts, was not shown in service and is not causally or etiologically related to service. 11. The Veteran’s service-connected disabilities include posttraumatic stress disorder (PTSD) at 70 percent, tinnitus at 10 percent, left knee and right knee arthritis at 10 percent each, and hearing loss and hypertension at 0 percent each. The combined rating is 80 percent and he is unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee osteoarthritis have not been met. 38 U.S.C. §§ 1117, 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1, 4.3, 4.31, 4.59, 4.7, 4.71a, Diagnostic Code (DC) 5260 (2019). 2. The criteria for a rating in excess of 10 percent for right knee osteoarthritis have not been met. 38 U.S.C. §§ 1117, 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1, 4.3, 4.31, 4.59, 4.7, 4.71a, DC 5260 (2019). 3. The criteria for an effective date earlier than February 23, 2017, for the grant of service connection for a left knee osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.157, 3.400 (2019). 4. The criteria for an effective date earlier than February 23, 2017, for the grant of service connection for right knee osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.157, 3.400 (2019). 5. The September 2014 rating decision, which denied service connection for a right eye disorder, DM, and ED, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2019). 6. The evidence received since the September 2014 rating decision is not new and material with respect to the claim of entitlement to service connection for a right eye disorder and the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 7. The evidence received since the September 2014 rating decision is not new and material with respect to the claim of entitlement to service connection for DM and the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 8. The evidence received since the September 2014 rating decision is not new and material with respect to the claim of entitlement to service connection for ED and the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2019). 9. OSA is proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2019). 10. Tension headaches are proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2019). 11. A back disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2019). 12. A left eye disorder was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2019). 13. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.15, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings for Left and Right Knee 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. The Veteran is rated under DC 5260 for limitation of extension of the knee and 38 C.F.R. § 4.59 regarding painful motion. As both knees are rated under the same diagnostic code, they will be considered together. The Board will also consider all potentially relevant diagnostic codes. In order to warrant a higher rating, the evidence must show: • ankylosis of the knee with a favorable angle in full extension or in slight flexion between 0 and 10 degrees (30% under DC 5256); • moderate recurrent subluxation or lateral instability (20% under DC 5257); • dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint (20% under DC 5258); • flexion of the knee limited to 30 degrees (20% under DC 5260); • extension of the knee limited to 15 degrees (20% under DC 5261); or • impairment of the tibia or fibula with a moderate knee disability (20% under DC 5262). During a May 2017 VA examination, the Veteran reported daily pain in both knees, with the left being worse than the right. He complained of swelling in both knees during long walks and treated his pain through medication and physical therapy. Further, he noted difficulty with standing, walking, climbing, and bending. Turning to the medical evidence, the May 2017 examiner found no evidence of ankylosis, recurrent subluxation, lateral instability, dislocated semilunar cartilage, or impairment of the tibia or fibula. As such, the medical evidence does not support a rating in excess of 10 percent based on these criteria. Next, the May 2017 examiner noted flexion from 0 to 70 degrees and extension from 70 to 0 degrees in the right knee. In the left knee, flexion was measured from 0 to 60 degrees and extension from 60 to 0 degrees. A normal range of motion ranges from 0 to 140 degrees. As such, the medical evidence does not support a rating in excess of 10 percent based on limited range of motion. Further, the clinical treatment records were reviewed, but the evidence does not show criteria consistent with a higher rating. As such, the medical evidence does not support a rating in excess of 10 percent for a left or right knee disability. The Board has also considered the Veteran’s lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s left and right knee osteoarthritis 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 examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiner has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeals are denied. Earlier Effective Dates for Left and Right Knee Turning to the relevant laws and regulations, unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). In May 2017, the RO assigned a rating of 10 percent for left knee osteoarthritis and 10 percent for right knee osteoarthritis, effective February 23, 2017. The effective date of February 23, 2017, corresponds to the date when the Veteran filed a request to reopen his previously denied claim for service connection for a left knee disorder and to open a new claim for service connection for a right knee disorder. While the Veteran had previously filed a claim for service connection for a left knee disorder, the RO denied the claim in a September 2014 final decision because there was no evidence of a medical nexus. He did not appeal this decision. The effect of this finality is to preclude an award of an earlier effective date for service connection based on that decision without a showing of clear and unmistakable error, which has not been asserted. Prior to February 23, 2017, the Veteran had not filed a claim for service connection for a right knee disorder. Further, entitlement to service connection did not arise until the May 2017 VA examination where a medical professional established a nexus between service and a left and right knee disorder. As such, an effective date earlier than February 23, 2017, is not warranted for a left or right knee disability. New and Material Evidence to Reopen Claims Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). The RO denied service connection for a right eye disorder, DM, and ED in September 2014. While the RO found record of treatment for right eye trauma during service, no permanent residual or chronic disability was found following service. Further, there was no evidence of a link between a current right eye disorder and service. As to ED and DM, the evidence failed to show that they were incurred in service. The Veteran did not appeal this decision and it became final. The evidence received since the September 2014 rating decision includes additional VA and private medical treatment records. However, these additional records are not material as they provide no new evidence as to a nexus between a right eye disorder, DM, and ED and service. Therefore, the evidence, while new, fails to raise a reasonable possibility of substantiating the claim. Based on the above, the medical and lay evidence does not support the request to reopen the claims of service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Service Connection Claims 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). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Sleep Apnea Medical treatment records show that the Veteran has been diagnosed with OSA and has been prescribed a CPAP machine since February 2015. As such, a current disorder has been shown and the first element of service connection is met. As to in-service incurrence, the service treatment records (STRs) do not reflect complaints of or treatment for OSA during service. A July 1998 separation examination did not indicate any diagnosis of OSA. As such, the medical evidence does not support the in-service incurrence of OSA. Rather, the Veteran contends that OSA is secondary to service-connected disabilities, including a bilateral knee disability, psychiatric disability, and hypertension (HTN). As he has a diagnosis of OSA and is already service connected for these disabilities, the first two elements of secondary service connection are met. As to a medical link, a December 2018 private physician stated that the pain medication used to treat the Veteran’s bilateral knee osteoarthritis and depressive disorder aided in the development of and permanently aggravated OSA. The physician cited to medical literature which detailed the side effects of the Veteran’s medication and also pointed to research which showed that psychiatric disorders were commonly associated with OSA. There are no contradictory medical opinions of record. As such, the medical evidence supports the grant of service connection for OSA on a secondary basis and the appeal is granted. Tension Headaches Turning to the medical evidence, the Veteran reported prostrating attacks of headache pain during a December 2018 examination. The examiner noted a diagnosis of tension headaches. As such, the first element of service connection is met. Next, the STRs do not reflect the occurrence of headaches during service. The July 1998 separation examination was silent for chronic headaches. As such, the medical evidence does not support service connection on a direct basis. As to secondary service connection, the Veteran contends that tension headaches are due to bilateral knee osteoarthritis and depressive disorder. As he has a diagnosis of tension headaches and is already service-connected for knee osteoarthritis and a psychiatric disability, the first two elements of secondary service connection are met. Turning to nexus, a December 2018 private clinician opined that it was as likely as not that the pain from bilateral knee osteoarthritis as well as depressive order aided in the development of and permanently aggravated tension headaches. The physician cited to studies which showed a relationship between psychological stress and headaches. Further, the clinician noted that stress caused by the bilateral knee disability and the associated pain could lead to headaches. There are no contradictory medical opinions of record. As such, the medical evidence supports service connection on a secondary basis and the appeal is granted. Back Disorder Turning to the medical evidence, a VA examiner noted that the Veteran has been diagnosed with degenerative arthritis of the spine since September 2018 and a lumbosacral strain since February 2019. As such, the first element of service connection is met. As to in-service incurrence, the STRs are silent for complaints of or treatment for a chronic back disorder. While he did seek treatment for back pain in 1975, the complaints only lasted for three days and there was no follow up treatment. Periodic examinations throughout service did not reflect recurrent back pain and the July 1998 separation examination indicated a normal clinical evaluation of the spine. Nonetheless, for purposes of this decision, an in-service incurrence has been met. As to medical nexus, the February 2019 VA examiner opined that it was less likely than not that a back disorder was incurred in or caused by service because there was no evidence of a chronic back disorder during service or for many years after service. This evidence weighs against the claim and there is no contradictory medical opinion of record. As such, the medical evidence does not support service connection on a direct basis. Next, arthritis is considered a chronic disease under 38 C.F.R. § 3.309(a) and presumptive service connection will be considered. While degenerative changes of the spine have been shown, they did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology has not been established.   As noted, the STRs did not show evidence of a chronic spinal disorder during service. The July 1998 separation examination showed a normal clinical evaluation of the spine. Further, degenerative arthritis was not shown by X-ray records until 2017. As such, degenerative arthritis did not manifest to a compensable degree in service or within the one-year presumptive period.   Additionally, continuity of symptomatology has not been established. The medical evidence shows that the Veteran did not complain of back pain until 2017, approximately 20 years after separation from service. The absence of complaints relating to back pain for many years following service weighs against continuity of symptomatology. As such, the medical evidence does not support service connection on a presumptive basis.  Left Eye Disorder In a February 2019 VA examination, the physician noted a diagnosis of primary open-angle glaucoma (POAG) and age-related cortical cataract of the left eye. As such, the first element of service connection is met. As to in-service incurrence, the STRs do not reflect complaints of or treatment for a left eye disorder during service. Specifically, the July 1998 separation examination reflected a normal clinical evaluation of the eyes and a normal ophthalmoscopic evaluation. Therefore, the second element of direct service connection has not been met. To the extent that the Veteran asserts a medical nexus between service and his eye disorders, the February 2019 examined opined that a left eye disorder was less likely than not incurred in or due to service. He noted that POAG was an inherited condition due to genetics and therefore was not due to service. Further, the examiner explained that cataracts were age-related and that no visual field loss was present. As such, the medical evidence does not support service connection for a left eye disorder. The Board has considered the Veteran’s lay statements that his disorders were caused by service. 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 offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Entitlement to TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is currently service connected for PTSD with depressive disorder at 70 percent, tinnitus at 10 percent, left knee osteoarthritis at 10 percent, right knee osteoarthritis at 10 percent, and hearing loss and hypertension at non-compensable ratings. The combined rating is 80 percent. Further, he has been granted service connection for OSA and tension headaches in this decision. As such, he meets the criteria for a TDIU on a schedular basis under 38 C.F.R. § 4.16. In February 2020, the Veteran responded to a request for employment information and stated that he most recently worked as a logistics analysist in November 2009. Social security records indicate that he was determined to be disabled in December 2013 due to knee and anxiety disorders. He is service-connected for both of these. Turning to the medical evidence, an October 2018 psychologist noted occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms of persistent depressive disorder. Further, the examiner reflected that the side effects of the Veteran’s psychiatric and pain medication led to chronic sedation which impaired motivation and mood and left him with no life passion or engagement with others. A June 2019 psychologist concluded that the Veteran was more likely than not unable to sustain gainful employment due to symptoms of depression. She noted that poor sleep would cause excessive absences and impact ability to stay focused in the workplace. Further, social isolation would make it difficult to get along with co-workers and supervisors. The examiner also reflected that poor memory and concentration would interfere with the ability to learn and complete tasks and high levels of irritability would lead to conflict. Next, an October 2019 VA examiner reflected that PTSD and depressive disorder caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. When discussing symptoms of PTSD, the examiner also noted the Veteran would have difficulty in adapting to stressful circumstances in a work or work-like setting. Further, during the examination, his wife completed a disability assessment questionnaire and noted severe difficulty in understanding and communication, getting around, self-care, getting along with people, life activities, participation in society, and competence in handling finances. Based on the above, the medical evidence supports a finding that the Veteran’s service-connected disabilities preclude him from substantial and gainful employment. PTSD with persistent depressive disorder and bilateral knee osteoarthritis, along with the associated pain medications, are productive of significant depression, anxiety, memory loss, sleep impairment, disturbance of motivation in mood, and difficulty in adapting to stressful circumstances at work. Multiple psychologists have reflected that psychiatric symptoms would severely affect the Veteran’s ability to secure and maintain substantially gainful employment. These reports were highly probative and based on interviews of the Veteran and thorough reviews of the record. The Board has also considered the Veteran’s lay statements regarding his PTSD and the limitations that render him unemployable. He is competent to report symptoms and observations because this requires only personal knowledge as it comes to him through his senses. These lay statements along with the medical evidence were considered in making the decision above. As such, the entitlement to a TDIU is warranted and the appeal is granted. 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, 369-370 (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). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kokolas, 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.