Citation Nr: 21069402 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-23 438 DATE: November 18, 2021 REMANDED Entitlement to a compensable initial rating for right knee chondromalacia is remanded. Entitlement to a compensable initial rating for psoriasis is remanded. Entitlement to a compensable initial rating for sleep apnea is remanded. Entitlement to initial ratings in excess of 50 percent prior to April 18, 2019, and 100 percent from that date for persistent depressive disorder (dysthymia) with panic attacks is remanded. REASONS FOR REMAND The Veteran had active service from September 2000 to February 2015. 1. Entitlement to a compensable initial rating for right knee chondromalacia is remanded. The Veteran, through his representative, has indicated that his service-connected right knee disability has worsened since he was last examined for the disability by VA in June 2015. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his right knee chondromalacia. 2. Entitlement to a compensable initial rating for psoriasis is remanded. The Veteran, through his representative, has indicated that his service-connected psoriasis has worsened since he was last examined for the disability by VA in September 2016. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his psoriasis. 3. Entitlement to a compensable initial rating for sleep apnea is remanded. In September 2016, a VA examiner noted that the Veteran had a sleep study in May 2013 and a CPAP titration study in July 2013, but stated, "Unable to find note in STR of dispensing of a Cpap machine or the follow-up evaluation by the pulmonary specialist." The record shows that the Veteran had a CPAP followup in August 2013 where he reported difficulty adjusting to use of a CPAP machine. In addition, in January 2015, the Veteran's private physician informed the Veteran that she would be closing her practice and reminded the Veteran to renew his script for CPAP and related supplies. Thus, the record includes evidence of followup for sleep apnea treatment beyond the July 2013 CPAP titration study. In addition, the May 2013 sleep study report shows that the Veteran was diagnosed with mild positional obstructive sleep apnea and was recommended a number of modes of treatment, to include CPAP machine, positional training, and surgery. In his substantive appeal, the Veteran stated that after the sleep study, "The physician made several suggestions including the surgery to remove my adenoids and tonsils, a dental appliance and a CPAP machine. I have opted to use a CPAP machine and require it nightly to obtain regenerative sleep." Thus, the record shows that the Veteran sometimes uses a CPAP; however, it is unclear from the record whether the Veteran requires such use. The Board therefore concludes that the issue must be remanded so that the Veteran may be provided a VA examination to determine the current severity of his sleep apnea and whether the condition required the use of a breathing assistance device such as a CPAP machine during the rating period. 4. Entitlement to higher initial ratings for persistent depressive disorder (dysthymia) with panic attacks is remanded. The Veteran was provided a VA examination as to his service-connected depressive disorder in April 2019 after this case was certified to the Board and the appellate record was transferred to the Board. Such evidence must be referred to the AOJ for initial review unless the appellant or representative waives that procedural right. See 38 C.F.R. § 20.1304(c). The Board sent the Veteran a letter in September 2021 asking him whether he would like to waive the procedural right and informing him that, if no response was received within 45 days from the date of the letter, the Board would assume that he does not wish the Board to decide the appeal at this time and would remand the appeal for initial AOJ review. More than 45 days have elapsed since the date of the September 2021 letter and the Veteran has not responded. Therefore, the Board finds that the issue must be remanded so that the April 2019 VA examination may be reviewed in the first instance by the AOJ in a Supplemental Statement of the Case. The Board notes that the AOJ issued a rating decision in May 2019 that considered the April 2019 VA examination and granted a 100 percent rating for the service-connected depressive disorder from April 18, 2019. A Supplemental Statement of the Case is nevertheless required because the May 2019 rating decision did not discuss the relevant rating period prior to April 18, 2019. See 38 C.F.R. § 19.31. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee chondromalacia. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected psoriasis. The Veteran has indicated that the condition is worse during the winter months. Therefore, to the extent possible, the examination should be scheduled during the winter months. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected sleep apnea. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should also review the record and provide a retrospective opinion as to whether the Veteran's sleep apnea has resulted in persistent daytime hypersomnolence or has required the use of a breathing assistance device such as a CPAP machine since February 2015. The opinion should reflect consideration of the May 2013 sleep study, the July 2013 CPAP titration study, the August 2013 CPAP followup, the January 2015 letter from the Veteran's private physician, and the Veteran's statements, to include his statement on the May 2017 VA Form 9 that, "The physician made several suggestions including the surgery to remove my adenoids and tonsils, a dental appliance and a CPAP machine. I have opted to use a CPAP machine and require it nightly to obtain regenerative sleep." 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the issue of entitlement to an initial rating in excess of 50 percent prior to April 18, 2019, for persistent depressive disorder (dysthymia) with panic attacks. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.