Citation Nr: 21067478 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-24 791 DATE: November 4, 2021 REMANDED Entitlement to an initial disability rating greater than 30 percent for chronic sinusitis is remanded. Entitlement to an initial compensable disability rating for chronic rhinitis prior to July 29, 2019 and 10 percent thereafter is remanded. Entitlement to an initial disability rating greater than 50 percent for sleep apnea is remanded. Entitlement to an initial disability rating greater than 40 percent for lumbar strain and discogenic disease is remanded. Entitlement to an initial disability rating greater than 20 percent for left lower extremity radiculopathy is remanded. Entitlement to an initial disability rating greater than 20 percent for right lower extremity radiculopathy is remanded. Entitlement to an initial disability rating greater than 10 percent for left knee meniscectomy residuals with degenerative joint disease (DJD) is remanded. Entitlement to an initial disability rating greater than 10 percent for left knee instability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2004 to July 2008 and July 2008 to June 2011, the later period being discharged under dishonorable conditions for Department of Veterans Affairs (VA) purposes. He appealed, in part, a February 2019 Board of Veterans' Appeals (Board) decision denying entitlement to an initial compensable rating for chronic rhinitis and initial ratings greater than 50 percent for sleep apnea, 30 percent for sinusitis, 40 percent for a lumbar spine condition, 10 percent for each left knee limitation of flexion and instability, and 20 percent for each left and right lower extremity radiculopathy. In a May 2020 Memorandum Decision, the Court of Appeals for Veterans Claims (Court) vacated the Board's decision, in part, and remanded the appeal for action consistent with the Memorandum Decision. The claim is now back before the Board. During the appeal period, the VA Agency of Original Jurisdiction (AOJ) increased the Veteran's rating for chronic rhinitis to 10 percent, effective July 29, 2019. See August 2019 rating decision. Also currently before the Board is entitlement to TDIU, previously remanded in the February 2019 Board decision. As a preliminary matter, the Board notes the May 2020 Memorandum Decision incorrectly stated two issues on appeal included increased initial ratings for right knee flexion and instability, not ratings for the left knee. A footnote of the May 2020 Memorandum Decision notes "at times the [February 2019 Board decision] referred to this matter as a left knee disability, but all agree that Appellant's claim concerns his right knee." This is incorrect. February 2007 service treatment records (STRs) note the Veteran's in-service left knee injury and all evidence of record reflects the Veteran appealed his initial ratings for a left knee disability. See, e.g., July 2011 VA Form 21-526 ("left knee pain osteoarthritis"); June 2013 rating decision; May 2015 notice of disagreement; April 2017 Veteran affidavit; May 2017 VA Form 9 ("left knee surgical arthroscopy..."). Further, the Veteran is not service connected for a right knee condition. Thus, the Board will proceed with the claim as an appeal for increased initial ratings of his left knee disability. The May 2020 Memorandum decision remanded all aforementioned issues for the Board to address the Veteran's contention that his symptoms for each service-connected issue increased in severity during the appeal. In April 2017, the Veteran noted his conditions worsened since his last examinations. The record reflects the Veteran's most recent VA examinations for the knee, lumbar spine, and sleep apnea were conducted in June 2014. An examination was conducted for the Veteran's chronic rhinitis and sinusitis in August 2019. In November 2020, the Veteran's representative submitted arguments that the Veteran's left knee, sleep apnea, sinusitis, and lumbar spine disability with radicular symptoms increased in severity since his last VA examinations and requested the Board remand the issues to obtain adequate VA examinations and assess the current severity of his service-connected disabilities. Thus, new examinations are required. See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997). TDIU The Veteran claims he cannot work due specifically his service-connected acquired psychiatric disorder, lumbar spine condition, and left knee disability, each independently rendering the Veteran unemployable. See September 2021 Representative letter. Since the decision on the remanded increased initial ratings for his lumbar spine and left knee conditions impact a decision on entitlement to TDIU, the issues are inextricably intertwined. Accordingly, the Board will defer decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any relevant updated private and VA treatment records that have not already been obtained and associate the same with the claims file. 2. Thereafter, schedule the Veteran for a VA examination to determine the severity of his service-connected (a.) chronic rhinitis, (b.) chronic sinusitis, and (c.) sleep apnea. The VA examiner must address the relevant symptoms noted in the May 2017 Veteran affidavit and November 2020 Representative correspondence. All pertinent symptomatology and findings necessary to rate the disabilities must be reported in detail. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. 3. After the development of #1 above is complete, schedule the Veteran for a VA examination to determine the severity of his service-connected (a.) lumbar spine condition with bilateral lower extremity radiculopathy, and (b.) left knee condition with limitation of flexion and instability. The VA examiner must address the relevant symptoms noted in the May 2017 Veteran affidavit and November 2020 Representative correspondence. To the extent possible, the examiner should identify any symptoms and functional impairments due solely to each condition and discuss the effect of each on any occupational functioning. The examiner must test the Veteran's pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, precipitating and alleviating factors, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repetitive use over time. If it is not possible to provide a specific measurement or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should consider the Veteran competent to report his symptoms and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. (Continued on the next page) 4. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with an SSOC and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.