Citation Nr: 21066619 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-57 239 DATE: November 1, 2021 ORDER Service connection for hypertension is granted. The assignment of a temporary total rating based on surgical or other treatment necessitating convalescence from April 17, 2015, to June 1, 2015, was proper, and entitlement to an extension of the temporary total rating is denied. REMANDED Entitlement to service connection for insomnia, to include as due to service-connected knee disabilities, is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected right knee degenerative joint disease is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected left knee degenerative joint disease is remanded. FINDINGS OF FACT 1. The Veteran's current hypertension disorder was first diagnosed during service. 2. The Veteran's symptoms following surgery for his service-connected left knee degenerative joint disease did not necessitate convalescence as contemplated by VA regulations beyond May 31, 2015. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1112, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for an extension of a temporary total rating based on surgical or other treatment necessitating convalescence for service-connected left knee disability beyond May 31, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 2008 to April 2013. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in February 2014 and October 2015 by Department of Veterans Affairs (VA) Regional Offices in Salt Lake City, Utah and Roanoke, Virginia, respectively. In June 2021, the Veteran testified at a hearing before the undersigned. A transcript of that hearing has been associated with the record. Service Connection - Hypertension Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. A veteran is presumed in sound condition except for defects noted when examined and accepted for service. 38 U.S.C. § 1132. VA may rebut this presumption of soundness if there is clear and unmistakable evidence that the disease or injury at issue existed prior to service and was not aggravated by service. 38 C.F.R. § 3.304 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The Veteran's May 2008 pre-enlistment examination does not note hypertension, and the Veteran denied having a diagnosis of the condition on a simultaneous Report of Medical History. The condition was diagnosed just over a year later, in August 2009, and the Veteran was prescribed antihypertensive medication for its treatment. There are multiple notations throughout the service treatment records showing treatment for hypertension. At the time of his separation examination in February 2013, a multi-year history of hypertension, erroneously noted as being first diagnosed in 2010, was noted. The record includes a February 2014 VA opinion concluding that the Veteran's hypertension clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by service. In support of this conclusion, however, the examiner merely referred to the Veteran's service treatment records and indicated that they "noted" a history of hypertension prior to enlistment. She then concluded that there was no evidence in the records to show that the Veteran's hypertension was "impacted (per se) by his military service." The Board finds this VA opinion to be inadequate. To rebut the presumption of soundness, there must be clear and unmistakable evidence both that a disability preexisted service and was not aggravated by service. The term "clear and unmistakable" is an onerous standard and must lead to a conclusion that is undebatable. Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). Here, the VA examiner did not explain how she came to her conclusion, nor did she find that it was clear and unmistakable that the Veteran's hypertension was not aggravated by service. Thus, the Board can afford no probative weight to this opinion, and the presumption of soundness is not rebutted. Rather, the evidence establishes that hypertension was not present at service entrance and the Veteran was presumed sound. However, the condition was subsequently diagnosed for the first time while the Veteran was in service, and a multi-year history of the disease was noted at separation. The Veteran continues to have diagnosed hypertension. In light of these findings, when resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for hypertension is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. The claim is granted. Temporary Total Extension The Veteran is seeking an extension of a temporary total rating based on surgical or other treatment necessitating convalescence following surgery for his service-connected left knee disability beyond May 31, 2015. He has generally asserted, without further detail, that an extension is warranted. In the case of a disability which is temporary in nature, such as a period of convalescence following surgery, governing regulations provide for temporary total disability ratings during convalescence. 38 C.F.R. § 4.30. Temporary total ratings will be assigned from the date of hospital admission and continue for one, two, or three months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) Surgery (including outpatient surgery after March 1, 1989) necessitating at least one month of convalescence; (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) Immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (a). Temporary total disability ratings are to commence on the day of hospital admission and continue for a period of one to three months from the first day of the month following hospital discharge or outpatient release. See 38 C.F.R. § 4.30. Extensions of one to three months, beyond the initial three months, may be made under 38 C.F.R. § 4.30 (a)(1), (2), or (3). Extensions of one or more months up to six months beyond the initial six months period may be made only under 38 C.F.R. § 4.30 (a)(2) or (3) upon the approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30 (b). The term "convalescence" does not necessarily entail in-home recovery. Felden v. West, 11 Vet. App. 427, 430 (1998). Rather, convalescence is defined as "the stage of recovery following an attack of disease, a surgical operation, or an injury." Id. The recovery has been defined as "the act of regaining or returning toward a normal or healthy state." Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.R.F. § 3.102; see also Gilbert, supra. In an October 2015 rating decision, the Regional Office awarded a temporary total rating for the Veteran's service-connected left knee disability, effective April 17, 2015, and a 10 percent rating as of June 1, 2015. The Veteran seeks an extension beyond May 31, 2015, for a total convalescent rating under the provisions of 38 C.F.R. § 4.30. However, VA regulations are very specific with respect to the circumstances in which an extension of a temporary total rating may be granted. Here, the evidence does not reflect severe postoperative residuals such as incompletely healed surgical wounds, as a VA examination conducted in July 2015 noted scars that were not painful or unstable. In addition, the Veteran's knee surgery did not involve an amputation. The medical evidence also does not reflect the therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement. With respect to the need for continued use of a wheelchair or crutches, i.e., regular weight bearing was prohibited, the evidence, to include the Veteran's own reports, indicates that he was capable of walking and, consequently, weight bearing, within 2 weeks of his surgery. The July 2015 examination showed that the Veteran was not using a wheelchair or crutches in any capacity by that time. At his June 2021 hearing, the Veteran testified that he was prohibited from walking for 2 weeks and was prescribed crutches and icing. Clearly, while weight bearing was prohibited for a fraction of the period of the temporary total rating, by June 1, 2015 there was no longer any such restriction. Consequently, even in contemplation of the Veteran's subjective complaints and their resulting functional impairment, the Board finds his symptoms following surgery for his service-connected left knee disability did not necessitate convalescence as contemplated by VA regulations beyond May 31, 2015. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim and, thus, that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. The claim is denied. REASONS FOR REMAND Insomnia The Veteran asserts that he experiences a disability manifested as insomnia, which had an in-service onset and for which service connection is warranted. The Board notes that, in December 2013, he underwent a VA examination in relation to his claim. At that time, a possible diagnosis of circadian rhythm sleep disorder was made. However, the examining psychiatrist at the time explained that he was not a sleep specialist and was unable to determine if the criteria for such a disorder had been met. Rather, the Veteran lacked a sleep disorder caused by mental health conditions because there were no current mental health symptoms present. In August 2016, in relation to a claim for service connection for obstructive sleep apnea, the Veteran underwent a VA examination. It was noted that he experienced insomnia with frequent awakenings, and only slept for 3 to 5 hours per night. He experienced symptoms such as daytime sleepiness. At the June 2021 hearing, the Veteran testified that he first noticed in service that he became very tired during the day, but had difficulty falling asleep at night. He also testified that the pain of his service-connected left knee condition was keeping him awake. He was subsequently assigned to night shifts, which aggravated the problem. The Veteran also testified as to a possible connection between his service-connected knee disabilities, explaining that as his knee problems worsened, his insomnia worsened. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § § § 3.310(a). To date, the Veteran has not been provided with an adequate examination to address all aspects of his claim of entitlement to service connection for insomnia. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Therefore, the Board finds that a remand is warranted in order to fulfill VA's duty to assist. Bilateral Knee Disabilities As for the remaining claims of entitlement to disability ratings in excess of 10 percent for each of the Veteran's service-connected knees, the Board finds that a remand is required to obtain an updated VA examination. The last time the Veteran underwent a VA examination for these disabilities was August 2017. Generally, the mere passage of time is not a sufficient basis for a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007) (holding that the mere passage of time, without evidence of worsening, does not require a new examination). However, in this case, not only has it been over 4 years since the Veteran's last VA examination, but the record clearly shows that the condition has worsened since that examination. At the August 2017 examination, the Veteran reported swelling and pain which was treated with over-the-counter pain medication. Joint stability testing showed there was no history of recurrent subluxation, lateral instability or recurrent effusion. He used knee braces regularly. However, an August 2020 treatment note shows the Veteran was experiencing patellofemoral subluxation of the bilateral knees. In addition, the Veteran testified at his June 2021 hearing before the Board that he was experiencing instability. He now treated his knees with compression sleeves in addition to the braces. Therefore, after considering the extended period of time since the previous examination and the general negative progression of the Veteran's disability, the Board finds that a new examination is warranted to fully and fairly evaluate his claim. See 38 C.F.R. §§ 3.326, 3.327; Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); see also Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Provide the Veteran with a VA examination to address the nature and etiology of any current sleep disability, manifested as insomnia. Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is asked to determine whether the Veteran has a diagnosis of a sleep disorder, manifested by insomnia, that is separate and distinct from his service-connected obstructed sleep apnea. If so, the examiner is asked to opine as to the following: a) whether it is at least as likely as not (i.e. a 50 percent probability or greater) that any such disorder, found to be separate and distinct from sleep apnea, had its clinical onset during military service, or is otherwise related to the Veteran's active duty service? b) whether it is at least as likely as not (i.e. a 50 percent probability or greater) that any such disorder was either (i) caused by or (ii) aggravated by the Veteran's service-connected right and left knee degenerative joint disease. Both causation and aggravation must be addressed. If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that which existed prior to the aggravation. A detailed rationale for any opinion offered must be provided. 2. Provide the Veteran with an appropriate VA examination to determine the current nature and severity of his right and left knee degenerative joint disease. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.