Citation Nr: 21069885
Decision Date: 11/22/21	Archive Date: 11/22/21

DOCKET NO. 17-06 427
DATE: November 22, 2021

ORDER

Entitlement to a compensable rating for obstructive sleep apnea is denied.

Entitlement to a rating in excess of 10 percent for a right knee strain is denied.

FINDINGS OF FACT

1. Service connection for sleep apnea was established on the basis that it was aggravated by his service-connected sinusitis; the preexisting disability level was previously determined to be 50 percent.

2. During the appeal period, the Veteran's sleep apnea is shown to require the use of a breathing assistive device such as continuous airway pressure (CPAP) machine, but did not manifest as chronic respiratory failure with carbon dioxide retention or cor pulmonale, or require a tracheostomy.

3. The Veteran's right knee strain has resulted in painful movement with limitation of flexion to no less than 120 degrees, and complete extension; he has not shown any ankylosis, lateral instability, recurrent subluxation or locking of the right knee.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a compensable rating for obstructive sleep apnea have not been met.  38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.159, 3.322, 4.1, 4.2, 4.3, 4.7, 4.10, 4.97, Diagnostic Code (DC) 6847.

2. The criteria for entitlement to a rating in excess of 10 percent for a right knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the Navy from July 1988 to April 1992. 

This case is before the Board of Veterans' Appeals (Board) on appeal from February 2016 and July 2016 Regional Office (RO) rating decisions.

This matter was previously remanded by the Board in February 2021 for additional development, including a VA examination and addendum opinion. As there has been substantial compliance with prior remand directives, this matter is properly before the Board for adjudication.

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994).

When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  38 C.F.R. § 4.7.  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).

3. Entitlement to a compensable rating for obstructive sleep apnea

The Veteran asserts that he is entitled to a compensable rating for his service-connected sleep apnea. Specifically, he contends that his sleep apnea should be rated as directly caused by his service or secondary to a service-connected disability. 

The Veterans sleep apnea is rated as noncompensable under diagnostic code 6847 for sleep apnea syndrome. It calls for the assignment of a noncompensable rating when sleep apnea is asymptomatic but there is documented sleep disorder. A 30 percent rating requires persistent day-time hypersomnolence. When use of a breathing assistance device such as a CPAP machine is required, a 50 percent rating is warranted. The maximum rating of 100 percent finally is reserved for when sleep apnea causes chronic respiratory failure with carbon dioxide retention or cor pulmonale or when a tracheostomy is required. 38 C.F.R. § 4.97.

In this case, RO granted service connection for sleep apnea in a July 2016 rating decision. The RO determined that service connection was warranted for Veteran's sleep apnea as it was aggravated (permanently worsened) as a result of the Veteran's service-connected sinusitis. The RO noted that prior to aggravation by a service-connected disability, the Veteran's sleep apnea was considered 50 percent disabling, based on evidence that showed use of a continuous positive airway pressure (CPAP) machine. Following aggravation, the total disability for sleep apnea is 50 percent disabling because the Veteran is still using a CPAP machine. The RO explained that the pre-aggravation percentage is always deducted before assigning any service-connected rating. See 38 C.F.R. § 3.322. Therefore, the Veteran was assigned a noncompensable rating for his sleep apnea.

In April 2021, an addendum opinion was provided by the VA examiner to address the Veterans contention that his sleep apnea was secondary to his service-connected conditions. The examiner opined that the Veterans sleep apnea was less likely than not proximately due to or the result of a service-connected condition. In support of this opinion, the examiner cited to the Veterans March 1992 separation examination that revealed no evidence of obstructive sleep apnea (OSA) while in service. In particular, the examiner stated that the report of medical history is specifically negative for frequent trouble sleeping as well as any upper airway, facial or head and neck conditions. In regard to the injury sustained by the Veteran in December 1990 involving his right orbit and eye, the examiner stated that it did not involve the airway and would not impact the future development of OSA as it is an unrelated condition. 

In regard to the Veterans sinusitis, the examiner stated that sinusitis does not cause OSA, as properly opined previously and there is no evidence of aggravation of the veteran's OSA beyond its natural course due to any cause, which includes sinusitis and all other service-connected conditions. Further, the examiner noted that orthopedic conditions, tinnitus and hearing loss, PTSD and related psychological comorbidities do not cause or aggravate OSA as there is no physiologic or anatomic mechanism by which they can do so.  

Based on the evidence of record, the Board finds that a compensable rating for sleep apnea is not warranted. As noted, the Veteran's baseline, pre-aggravation level of severity of his service-connected sleep apnea has been determined to be 50 percent. Thus, as this baseline 50 percent rating must be deducted from any rating assigned, in order to receive a compensable rating for sleep apnea, the criteria for a 100 percent rating for sleep apnea must be met. In this case, the Veteran continues to use a CPAP for his sleep apnea, but his sleep apnea has not manifested in chronic respiratory failure with carbon dioxide retention or cor pulmonale and does not require a tracheostomy. Further, the April 2021 VA examiner opined that the Veterans sleep apnea was less likely than not proximately due to or the result of his service-connected conditions. Therefore, such findings do not warrant a compensable rating for the Veterans sleep apnea.

The Board has also considered whether any other diagnostic code provides a basis for a higher rating for the Veteran's service-connected sleep apnea, but has found none.

Accordingly, the Board finds that the preponderance of the evidence is against a finding that a compensable rating is warranted for the Veteran's sleep apnea. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b).

4. Entitlement to a rating in excess of 10 percent for a right knee strain

The Veteran's right knee strain is currently rated as 10 percent disabling under diagnostic code 5260, which compensates for a knee disability manifested by limitation of flexion of the knee. Under the applicable rating criteria, a noncompensable rating is assigned for a flexion limited to 60 degrees or greater, and a 10 percent rating is assigned for flexion limited to 45 degrees or greater. For a rating in excess of 10 percent based on limitation of flexion, flexion must be limited to 30 degrees or less. 38 C.F.R. § 4.71a , DC 5260.

A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40 ); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995).

When rating based on limitation of motion, a separate rating may be assigned for knee disabilities based on limitation of flexion as well as limitation of extension of the knee if both pathologies exist. Likewise, separate ratings may be assigned based on limitation of motion, as well as instability or subluxation, if found. See VAOPGCPREC 23-97 (Multiple Ratings for Knee Disability). An additional rating based on episodes of locking is also potentially applicable. 

The Veteran underwent VA examinations for his right knee in May 2014, September 2015, and February 2016.  During his May 2014 examination, the Veteran exhibited normal flexion and extension in his right knee. No additional limitation of motion was noted.  The Veteran exhibited normal muscle strength and normal joint stability. In September 2015, the Veteran reported that his condition had worsened and exhibited flexion to 100 degrees and extension to 100 degrees. The examiner noted pain on flexion and tenderness. However, the Veteran was able to perform repetitive testing and exhibited normal muscle strength, no atrophy, no ankylosis, and normal joint stability. The February 2016 VA examination revealed complaints of right knee flare ups, described as "more pain when the left knee started to flare up." The Veteran reported functional loss as his right knee slows him down due to the pain. On examination, he exhibited 110 degrees of flexion and extension. The examiner noted pain on flexion and extension with localized tenderness or pain on frontal aspect of the right knee. No evidence of ankylosis, subluxation, or joint instability was noted. 

The Veteran underwent a new VA examination in March 2021 to address the worsening of his right knee strain. The Veteran reported chronic pain in his knees, which he described his pain as usually a 3/10. He stated that he has frequent throbbing of his knees and reports during flares he has decreased range of motion. However, the Veteran denied taking medication or therapies currently for his knees. In regard to flare ups, the Veteran reported that sometimes his left knee causes his right knee to flare up which makes it hard for him to walk and go downstairs. He described the pain as sharp and throbbing which lasts from 1-2 days with moderate severity. On examination, the Veteran exhibited flexion to120 degrees with normal extension.  The examiner noted no recurrent subluxation/effusion, no evidence of pain, no crepitus, localized tenderness, or pain. Additionally, the examiner noted no muscle atrophy, no ankylosis, and no instability. While the examiner stated that the Veteran may not be able to do repetitive knee bending or standing for long periods with breaks due to right knee strain, he noted that the Veteran works out multiple times a week.

In light of the above evidence, the Board does not find that a rating in excess of 10 percent for his right knee strain is warranted. In this regard, the Board does recognize limitation of flexion in his right knee, which is compensated with a minimum 10 percent rating for painful motion. However, that limitation of flexion does not go so far as to meet the compensable level of functional loss under the diagnostic criteria, and certainly not 30 degrees or less which is required to warrant a 20 percent rating. 

The Board has considered whether other possible ratings are also warranted but finds this is not the case. There is no evidence of any meniscal conditions resulting in locking of the joint.  Further, there is no evidence of lateral instability and subluxation.  Indeed, the Veteran has consistently shown normal stability testing on multiple examinations, and most recently reported that he works out multiple times a week.  In fact, such symptoms are not expected, given the nature of his disability.  Therefore, the Board finds that a rating based on lateral instability or subluxations is also not supported.

The Board is certainly not unsympathetic to the Veteran's claim and acknowledges that he experiences pain in his right knee. However, that pain has not resulted in limitation of function such that a rating in excess of 10 percent is warranted under the diagnostic criteria. As such, the Board finds that the claim must be denied at this time. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply.  See 38 U.S.C. § 5107 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 

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.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Vample, Erica