Citation Nr: 21065516 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-34 513 DATE: October 26, 2021 ORDER Entitlement to an increased disability rating for degenerative joint disease, lumbosacral spine currently evaluated as 10 percent disabling prior to May 5, 2017, and as 40 percent disabling thereafter, is dismissed. Entitlement to a disability rating in excess of 30 percent for asthma is dismissed. Entitlement to service connection for multiple sclerosis is dismissed. Entitlement to service connection for aphthous ulcer is dismissed. Entitlement to service connection for a cervical spine disorder is dismissed. Entitlement to service connection for chronic fatigue syndrome (CFS) is dismissed. Entitlement to service connection for dermatitis is dismissed. Entitlement to service connection for bilateral plantar fasciitis is dismissed. Entitlement to service connection for radiculopathy of the bilateral upper extremities is dismissed. Entitlement to service connection for sinusitis is dismissed. REMANDED Service connection for obstructive sleep apnea is remanded. Service connection for right knee instability is remanded. Service connection for left knee instability is remanded. FINDING OF FACT On April 29, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of this appeal is requested as to the issues of increased disability ratings for degenerative joint disease, lumbosacral spine and asthma, and service connection for multiple sclerosis, aphthous ulcer, cervical spine disorder, CFS, dermatitis, bilateral plantar fasciitis, radiculopathy of the bilateral upper extremities and sinusitis. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the appellant, through his authorized representative, have been met as to the issues of increased disability ratings for degenerative joint disease, lumbosacral spine and asthma, and service connection for multiple sclerosis, aphthous ulcer, cervical spine disorder, CFS, dermatitis, bilateral plantar fasciitis, radiculopathy of the bilateral upper extremities and sinusitis. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2009 to September 2013 to include service in Afghanistan. He appeals multiple rating decisions. Dismissals The appeal as to the issues of increased disability ratings for degenerative joint disease, lumbosacral spine and asthma, and service connection for multiple sclerosis, aphthous ulcer, cervical spine disorder, CFS, dermatitis, bilateral plantar fasciitis, radiculopathy of the bilateral upper extremities and sinusitis is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the appellant, through his authorized representative, has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed as to the issues of increased disability ratings for degenerative joint disease, lumbosacral spine and asthma, and service connection for multiple sclerosis, aphthous ulcer, cervical spine disorder, CFS, dermatitis, bilateral plantar fasciitis, radiculopathy of the bilateral upper extremities and sinusitis. REASONS FOR REMAND Service connection for obstructive sleep apnea (OSA) is remanded. The Veteran believes his OSA, diagnosed by sleep study in August 2014, began in service as manifested by observed snoring and daytime sleepiness. Service treatment records are negative for any evidence of such symptoms, (1) no sleep disturbances are noted in an August 2012 psychological review, (2) he reported he slept fine in August 2010 and (3) in October 2009, it was noted that he was not sleeping upright nor did he have dyspnea. However, he has presented four buddy statements, dated in January and February 2016, showing he snored loudly in service and manifested fatigue during the day. These were from comrades who served with him at various duty stations from 2010 to 2013, to include in Afghanistan. A non-VA examiner, Dr. A., completed disability benefits questionnaires (DBQs) in May 2017 and in September 2014, but these do not contain actual nexus opinions. Dr. A. states in May 2017 "onset & course of OSA occurred in service," and that symptoms to include snoring and fatigue began during service and are symptoms of sleep apnea until the actual date of diagnosis. Then, they conclude that the Veteran's sleep apnea is more likely than not, "incurred in or caused by the Veteran's other medical condition." The Board cannot make a fully-informed decision on the issue because no VA examiner has opined, after a review of all of the pertinent evidence, whether his OSA is as likely as not related to service. Service connection for right knee instability is remanded. Service connection for left knee instability is remanded. The Veteran seeks service connection for bilateral knee instability; asserting instability is an aspect of the service-connected bilateral knee disability. We note that service connection and 10 percent ratings are in effect for each knee, with left lateral collateral strain with patellar chondromalacia patellofemoral syndrome and right knee patellar chondromalacia patellofemoral syndrome, each rated under Diagnostic Code (DC) 6520. We also note that separate ratings are available for Knee, other impairment of, recurrent subluxation and instability, under DC 5257. Also, the schedular criteria for rating knee instability was amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). The amendments apply to claims, such as the Veteran's, that were pending before VA as of that date, with the provision that the more favorable of the old and new criteria are to be applied. If application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C. § 5110 (g). Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation. Prior to February 7, 2021, Diagnostic Code 5257 provided a 10 percent rating for slight recurrent subluxation or lateral instability of the knee, a 20 percent rating for moderate recurrent subluxation or lateral instability of the knee, and a 30 percent rating for severe recurrent subluxation or lateral instability of the knee. The terms slight, 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 of the evidence. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under the amended criteria, Diagnostic Code 5257 provides for recurrent subluxation or instability with a 30 percent rating that is unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation, a 20 percent rating that is (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation (b) an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, and 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. Diagnostic Code 5257 also provide for patellar instability with a 30 percent rating 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, a 20 percent rating 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, and 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. Note (1) of the rating provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon, and Note 2 states that 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). In April 2021 written argument, appellant's attorney representative asserts that although both August 2013 and February 2016 VA knee examinations indicate no instability on testing, separate ratings for instability are still for consideration as the 2016 VA knees examination indicates both knees give out and lead to falls. Also, the 2016 examination reflects he needs constant use of a cane and braces, and occasional use of a walker. It is argued that, although these examinations do not indicate instability in the specific section for instability, the narrative summary and listed symptoms do suggest instability supportive of a separate rating for each knee. Here, we note that the treatment record is replete with reference to the Veteran using a walker and a cane. It is noted in his May 2017 back examination that he uses a walker primarily for knee and (right service-connected) ankle disabilities. We find examination record inadequate with regard to instability. It must be determined whether any of the reported instability is a manifestation of, or otherwise caused or aggravated by, his service-connected bilateral knee disabilities. In English v. Wilkie, the Court found that nothing in 38 C.F.R. § 4.71a DC 5257 "provides that objective medical evidence is required or is to be favored over lay evidence" and that lay evidence is not "categorically less probative than medical evidence" on the question of knee instability. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Under the circumstances, and considering all potentially applicable rating criteria, the Board finds that VA examination with an opinion on this matter is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his OSA. The examiner must opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that OSA is related to service. The examiner should provide a well-supported rationale for any stated opinion; explaining why the Veteran's OSA is or is not related to service. The lay statements should be addressed in this context. 2. Schedule the Veteran for an examination by an appropriate clinician to determine whether there is right or left knee instability. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has other impairment of the knee, to include recurrent subluxation or instability, or patellar instability, that is a manifestation of, or otherwise caused or aggravated by, his service-connected bilateral knee disorders. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability. The VA examiner should indicate whether the Veteran was prescribed or otherwise uses a knee brace or braces or other assistive devices (e.g., cane(s), crutch(es), walker) for treatment of the knee symptomology. The Veteran's assertions as to any instability should be addressed. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.