Citation Nr: 21062223 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 18-43 220 DATE: October 6, 2021 ORDER Service connection for obstructive sleep apnea (OSA) as secondary to the service-connected posttraumatic stress disorder (PTSD) disability is granted. Service connection for residuals of a right ankle sprain is granted. A rating in excess of 10 percent for residual painful limitation of motion of a right knee patella fracture (right knee disability) is denied. A separate 10 percent rating, but no higher, for right knee instability is granted. REMANDED Entitlement to service connection for a thoracolumbar spine disorder is remanded. FINDINGS OF FACT 1. The Veteran's currently diagnosed OSA is aggravated by symptoms associated with his service-connected psychiatric disability. 2. The evidence is in equipoise as to whether the Veteran's currently diagnosed right ankle disability first manifested in service and was incurred in service. 3. The Veteran's right knee disability has been manifested by, at worse extension limited to 5 degrees, with flexion, at worst, limited to 80 degrees, without recurrent subluxations, or any meniscal conditions, but with slight instability. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for OSA as secondary to the service-connected psychiatric disability are met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria to establish entitlement to service connection for residuals of a right ankle sprain are met. 38 U.S.C. §§ 1110, 1151, 5107; 38 C.F.R. §§ 3.102, 3.303(d). 3. The criteria for entitlement to a disability rating in excess of 10 percent for residual painful limitation of motion of a right knee patella fracture are not met. 38 U.S.C. §§ 1155 ; 38 C.F.R. §§ 4.1, 4.7, 4.71a (2013), 4.71a, Diagnostic Codes (DC) 5003, 5010, 5260. 4. The criteria for a separate 10 percent rating, but no higher, for right knee instability are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1992 to February 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in March 2020 before the undersigned Veterans Law Judge; a transcript of the hearing is of record. In April 2020, the Board remanded the issues on appeal. Additionally, the Board had remanded the claim for entitlement to service connection for left knee arthritis. Thereafter, the RO granted the claim for left knee arthritis in a January 2021 rating decision; accordingly, that issue is no longer before the Board for consideration. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2020) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. OSA Initially, the Board finds that the Veteran has been diagnosed with OSA. See August 2020 VA sleep apnea disability benefits questionnaire. Next, the Veteran has been awarded service connection for PTSD, currently rated as 50 percent disabling. Symptoms have been noted to include interrupted sleep, nightmares, sleep disturbance, and chronic sleep impairment. See e. g., May 2018 VA psychiatric examination report. The evidence also includes an OSA opinion obtained in August 2020. At that time, the examiner opined that the Veteran's OSA was "aggravated beyond its natural progression by the service-connected PTSD." The examiner stated that according to medical literature, increased severity of PTSD symptoms increased the probability of having a high risk of obstructive sleep apnea. The Board finds that this opinion weighs in favor of the Veteran's claim. The Board has reviewed the remaining evidence of record and finds that there are no other medical opinions that are contradictory to the VA examiner's findings. Accordingly, service connection for OSA as secondary to the service-connected psychiatric disability is warranted. Right Ankle The Veteran in this case maintains that his right ankle disability first manifested in service and were incurred in service. Service treatment records show that the Veteran sustained a right ankle sprain in December 1994. At that time, the Veteran was treated with ice, elevation of the joint, posterior splint, and crutches. In December 1994 follow-up note, the Veteran reported having a little pain with motion. Post service VA treatment records include an August 2014 primary care note where the Veteran reported having right ankle pain "for a long time." In an October 2014 VA treatment note, the Veteran reported injuring his right ankle in service in 1994 and again in 1996 (although no service records confirm the 1996 injury). He also indicated that he had right ankle pain with running with tightness and some swelling. VA examination reports conducted in 2013 and 2020 show that the Veteran has consistently reported the onset of his ankle symptoms as occurring following the 1994 in-service ankle injury. The Veteran also reported having recurrent incidents of ankle sprains and twisting due to weakness following the initial event in service. The August 2020 VA examiner diagnosed the Veteran with right ankle lateral collateral ligament sprain. It was then opined that the Veteran's right ankle disability was not related to service as the in-service injury was acute. The examiner also noted that post-service treatment records first showed complaints of right ankle pain in 2014, 12 years after service separation. The Board finds the 2020 VA medical opinion to be of reduced probative value. In this regard, although the Veteran appears to have first have sought treatment for the right ankle in 2014, he specifically indicated (in 2014) that his right ankle pain had been present for "a long time." During the April 2020 Board hearing, the Veteran again indicated that he first sprained his ankle in service and had experienced "recurrent pain" since that time. See id. at pg. 13. Upon review of the record, the Board finds that the evidence is in equipoise as to whether the Veteran's right ankle disability first manifested in service and was incurred in service. Service records confirm, what appears to be, a relatively serious right ankle injury requiring a brace and crutches. The Veteran has consistently reported that his right ankle pain, stiffness, and swelling has reoccurred since that time. The Veteran is competent to provide lay evidence of her observable ankle symptoms, such as pain, stiffness, and swelling. See Layno v. Brown, 6 Vet. App. 465, 470 (1994)(non-expert witnesses are competent to report that which they have observed with their own senses). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's right ankle disability first manifested in service, and was therefore incurred in service. Accordingly, service connection is warranted. Right Knee Disability RatingLaws and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). The relevant rating criteria include Diagnostic Code 5010, which instructs the rater to rate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. For purpose of rating disability from arthritis, the elbow is considered a major joint. 38 C.F.R. § 4.45 (f). The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 (limitation of flexion) and 5261 (limitation of extension). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). As it pertains to recurrent subluxation or instability of the knee, the Board observes that the schedular criteria for evaluating disabilities of the knee have undergone revision during the pendency of this appeal. Specifically, an amendment to Diagnostic Code 5257 was made effective February 7, 2021. See 85 Fed. Reg. 76457 (Feb 7, 2021). Because these changes took effect during the pendency of the Veteran's appeal, both the former and revised criteria will be considered in evaluating the Veteran's service-connected right knee disability. However, application of the new criteria prior to the effective date of the amended regulation is not allowed. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C. § 5110 (g). Prior to February 7, 2021, instability of the knee was rated under Diagnostic Code 5257, which provided ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Effective February 7, 2021, Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. As it pertains to recurrent subluxation or instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. As it pertains to patellar instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). See DC 5257 (Effective February 7, 2021). Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis can also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). VA's General Counsel has subsequently held that separate ratings can also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). The Veteran has been awarded a 10 percent rating for his right knee disability based on painful motion of the knee joint. The evidence includes December 2013, June 2018, October 2020, and January 2021 VA knee examination reports. These evaluations indicate that, at worst, the Veteran's right knee was limited to 80 degrees in flexion and 5 degrees in extension, to include with repeated use over time. The Veteran also denied having flare-ups during some of these evaluations. See e. g., November 2020 VA examination. Because the Veteran's right knee, to include during repetitive-use testing, has been no worse than 80 degrees in flexion and 5 degrees in extension, a rating higher than 10 percent is not warranted for either knee under DC 5260 or 5261. The Board recognizes the Veteran's reports of continued right knee pain as explained in the VA examination reports noted above. The Board considered this knee pain, as well as any additional limitations of motion due to pain (including increased pain with climbing stairs, prolonged walking, standing, or sitting). However, even considering additional limitation of motion or function of the knee due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence still does not show that the right knee disability more nearly approximates the criteria for a higher rating. As such, even considering the Veteran's complaints of pain, to include with repetitive use, the Board finds that the severity of the Veteran's right knee disability does not more nearly approximate a higher rating. For these reasons, a rating in excess of 10 percent for the right knee under Diagnostic Code 5260 and 5261 is not warranted. The Board further finds that, based on review of the evidence, the Veteran's right knee disability warrants a separate 10 percent rating for instability of the knee joint throughout the period on appeal. During the December 2013 VA knee examination, the Veteran indicated that he used a knee brace for support. An October 2014 VA orthopedic record noted that the Veteran's right knee "feels like it will give out after about 2 flights of stairs." In the October 2020 VA examination, the Veteran reported that his knee "gives out," leading to falls. During the March 2020 Board hearing, the Veteran testified that he had instability in the knee. See id at pg. 26. The Board notes that Diagnostic Code 5257 does not require objective medical evidence of instability for a rating to be assigned. See English v. Wilkie, 30 Vet. App. 347 (2018). Because the Veteran has competently and credibly reported right knee instability, the Board finds that a separate 10 percent rating is warranted for slight lateral instability for the rating period on appeal. Next, the Board finds that the Veteran's knee instability is not more accurately described as moderate under the earlier diagnostic code effective prior to February 7, 2021. The medical records do not specifically describe instability of the knee joints and the VA examination reports during the current appeal period found that the right knee joint was normal on all stability tests. The Board finds that knee instability that causes functional impairment but is undetectable on all forms of examination is best characterized as slight in nature. As it pertains to the rating period effective February 7, 2021, the Board has considered the rating criteria under the current diagnostic code. Effective February 7, 2021, Diagnostic Code 527 provides for a 20 percent rating for a knee sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 20 percent rating may also be assigned for patellar instability when there is a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. In this case, the Board finds that a rating in excess of 10 percent for instability of the right knee is not warranted under the amended rating criteria effective February 7, 2021. In this regard, the Veteran has not been shown to have "persistent instability" as contemplated under the 20 percent rating criteria. As noted by the Veteran, he has described that his knees give way only occasionally (i. e., while climbing more than 2 flights of stairs). The Board further finds that there is no evidence of any knee ankylosis, dislocated semilunar cartilage, or malunion of the tibia and fibula to support higher or separate ratings under DCs 5256, 5258, or 5262. REASONS FOR REMAND Thoracolumbar Spine Pursuant to the Board's April 2020 remand directive, the Veteran was to be afforded a VA spine examination. Specifically, the examiner was asked to opine as to whether any diagnosed spine disorder was related to service. Moreover, the examiner was specifically asked to "obtain a history from the Veteran regarding the 2006 motor vehicle accident, to include injuries and symptoms resulting therefrom." The Veteran was afforded a VA spine examination in August 2020; however, the examiner did not elicit any information from the Veteran regarding the 2006, post-service, motor vehicle accident. Moreover, in the corresponding medical opinion, the examiner provided a negative nexus opinion and indicated that "available medical records on day of exam are silent for details of reported 2006 motorcycle accident on day of exam." However, a review of the Veteran's electronic claims file includes treatment records from the 2006 motor vehicle accident. See 6/27/2011 Medical Treatment Record-Government Facility. A remand is required in order to obtain a new examination and medical opinion that properly addresses the Board's directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding claimants are entitled to compliance with Board remand instructions). The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA thoracolumbar spine compensation examination. All necessary tests and studies (to include range of motion testing and joint stability testing) should be accomplished, and all clinical findings should be reported in detail. (a.) For each diagnosis rendered, the examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that any current lumbar spine disorder was either incurred in service or is otherwise related to service. (b.) A complete rationale should be provided for any opinions offered. The examiner is asked to review and address the following evidence: **October 1993 service treatment records showing complaints of low back pain for 3 days. **November 2000 service treatment record where Veteran was seen for knee pain, but also reported low back pain. **Obtain a history from the Veteran regarding the 2006 motor vehicle accident, to include injuries and symptoms resulting therefrom. See treatment records in electronic claims file (6/27/2011 Medical Treatment Record-Government Facility). **August 2014 VA primary care note where the Veteran reported having low back pain "for a long time." 2. Then, readjudicate the claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.