Citation Nr: 21076801 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 14-10 933 DATE: December 27, 2021 ORDER Entitlement to a rating higher than 10 percent for service-connected left knee strain and patellofemoral arthritis is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected musculoskeletal disabilities is remanded. FINDING OF FACT Throughout the rating period on appeal, the Veteran's left knee disability has manifested, at worst, flexion limited to 110 degrees. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for service-connected left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.40, 4.45, 4.49, 4.71a, Diagnostic Code (DC) 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran service on active duty in the Navy from September 1991 to September 2011. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In January 2018 and July 2021, the Board remanded the Veteran's claims for additional development. Regrettably, the Board finds that another remand is necessary prior to readjudication of the claim for entitlement to service connection for obstructive sleep apnea. Increased Rating Disability ratings are determined by applying the criteria set forth in the schedule of ratings. The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran's disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as "pyramiding," is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where the Veteran challenges the initial rating of a disability for which he has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See generally Fenderson v. West, 12 Vet. App. 119 (1999). However, whether the issue is an initial increase or not, consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. Accordingly, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. When evaluating musculoskeletal disabilities based on limitation of motion, the Veteran is entitled to at least the minimum compensable evaluation if motion is accompanied by painful motion with joints. The joints involved should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Additionally, pain is also relevant to assignment of a rating in excess of the minimum compensable rating, but only if that pain results in demonstrated functional impairment. Mitchell, 25 Vet. App. at 3738; see 38 C.F.R. §§ 4.40, 4.45. Functional impairment as contemplated by 38 C.F.R. §§ 4.40 and 4.45 includes less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Joint pain alone, without evidence of decreased functional ability, does not warrant a higher rating. See generally Mitchell, 25 Vet. App. 32 Moreover, the Board must consider functional loss caused by pain or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 that could occur during flare-ups or after repeated use and, therefore, may not be reflected on range-of-motion testing. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, despite the relevance of the background factors delineated in § 4.40 or 4.45 when evaluating a disability, the rating to be assigned is based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); therefore, a separate or higher rating predicated solely on §§ 4.40 or 4.45 is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or § 4.73] criteria."). 1. Entitlement to a rating higher than 10 percent for service-connected left knee strain and patellofemoral arthritis. The Veteran contends that his left knee disability warrants an increased evaluation, as his symptoms worsened. The Veteran's left knee disability was given a 10 percent disability rating based on painful motion of the knee pursuant to the provisions of 38 C.F.R. § 4.59. It is currently evaluated under the appropriate DC 5260, which evaluates limitation of flexion. Under DC 5260, a 10 percent rating is given when flexion is limited to 45 degrees; a 20 percent rating when flexion is limited to 30 degrees; and the highest rating of 30 percent when flexion is limited to 15 degrees. See 38 C.F.R. § 4.71a. For VA purposes, normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71a, Plate II. As an initial matter, the Board notes that, during the rating period on appeal, the Veteran was afforded VA knee examinations in May 2011, December 2014, November 2016, March 2017, October 2018, and August 2021 to assess the current severity of his left knee disability. Although these examinations fail to comply with the requirements for evaluation of disabilities of the musculoskeletal system as expressed in Correia v. Mcdonald, 28 Vet. App. 158 (2016) and/or Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), the medical findings, to include range of motion testing and instability testing are relevant and valid for rating purposes. In a December 2014 VA knee examination, the Veteran's range of motion testing resulted in left knee flexion of 140 degrees or greater and normal extension (0 degrees), with no objective evidence of painful motion. There was no additional functional loss with repetitive-use testing, and no pain on palpation. Muscle strength testing revealed normal strength, with no instability or subluxation/dislocation shown. In a November 2016 VA knee examination, the examiner noted the Veteran's reports of experiencing flare-ups and functional loss/impairment, as described as chronic left knee pain with limitation with standing, ambulating, sitting, climbing stairs, squatting/kneeling, and running. Upon examination, the Veteran's range of motion testing resulted in normal left knee flexion and extension, with pain noted on exam but does not result in/cause functional loss. There was objective evidence of localized tenderness and evidence of pain with weight-bearing, but no objective evidence of crepitus. After repetitive-use testing there was no additional loss of function or range of motion, and there was no limit in functional ability due to pain, weakness, fatigability or incoordination. Additional factors that contributed to the disability were disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength testing revealed normal strength, with no muscle atrophy, ankylosis, instability or subluxation/dislocation shown. The examination was not conducted during a flare-up, but pain significantly limited functional ability. In a March 2017 VA knee examination, the Veteran's range of motion testing resulted in left knee flexion of 120 degrees and normal extension. There was no pain noted on exam, evidence of pain with weightbearing, objective evidence of localized tenderness or objective evidence of crepitus shown. After repetitive-use testing, there was no additional functional loss, and there was no limit in functional ability due to pain, weakness, fatigability or incoordination. Muscle strength testing revealed normal strength, with no muscle atrophy, ankylosis, instability or subluxation/dislocation shown. In a January 2021 physical therapy medical note, the Veteran's left knee flexion was 110 degrees, with normal extension. In an October 2018 VA knee examination, the examiner noted the Veteran had intermittent pain, with reports of experiencing flare-ups and functional loss/impairment, as described as swelling and the inability to stand/walk for prolonged periods, bend, kneel, squat, or drive more than 3 hours. Upon examination, the Veteran's range of motion testing resulted in a normal left knee flexion and extension, with pain noted on exam but does not result in/cause functional loss. There was no objective evidence of localized tenderness, evidence of pain with weight-bearing, or objective evidence of crepitus. After repetitive-use testing there was no additional loss of function or range of motion, but pain significantly limited functional ability, as described as loss of range of motion being variable depending how strenuously the joint was used. The examination was not conducted during a flare-up, but pain significantly limited functional ability, as described as intermittent left pain causing difficulty to ambulate. Muscle strength testing revealed normal strength, with no muscle atrophy, ankylosis, instability or subluxation/dislocation shown. Additionally, the examiner specifically addressed the Correia criteria (see Correia v. McDonald, 28 Vet. App. 158 (2016)), noting that there was no objective evidence of pain with non-weight-bearing, and passive range of motion was the same active. In an August 2021 VA knee examination, the examiner noted the Veteran had swelling, weakness, and pain, with no reports of experiencing flare-ups and/or functional loss/impairment. Upon examination, the Veteran's range of motion testing resulted in left knee flexion of 120 degrees and normal extension, with no evidence of pain or objective evidence of localized tenderness. After repetitive-use testing there was no additional loss of function or range of motion, and there was no limit in functional ability due to pain, weakness, fatigability or incoordination. The examination was not conducted during a flare-up, and there was no limit in functional ability due to pain, weakness, fatigability or incoordination. No muscle atrophy, ankylosis, instability or subluxation/dislocation was shown. Passive range of motion was same as active. Considering the foregoing, to include consideration of the provisions of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, the Board finds that an increased rating exceeding 10 percent for the Veteran's left knee disability is not warranted during any period on appeal. The weight of the evidence is not sufficient to meet the criteria for a higher 20 percent rating under DC 5260, as the severity of the Veteran's left knee disability has not shown to have increased beyond pain, with range of motion, at worst, being documented by flexion limited to 110 degrees or higher, which is commensurate of a noncompensable evaluation under DC 5260. The Board notes that the relevant medical evidence of record, to include VA treatment records and VA examination reports, shows that the Veteran's left knee disability, during the relevant period on appeal was not limited to 30 degrees, as required for the next higher rating of 20 percent. Despite his symptomatology, the Veteran has already been appropriately assigned a 10 percent evaluation based on painful motion of the left knee pursuant to 38 C.F.R. § 4.59. Therefore, the Board finds that the preponderance of the evidence does not support the assignment of a rating higher than the currently assigned 10 percent rating in this case. The Board has considered other applicable DCs of the left knee that would possibly warrant an increased and/or separate rating; however, the current evidence of record does not reveal or otherwise suggest that, from the date of service connection, the Veteran's left knee disability has related ankylosis, recurrent subluxation or lateral instability, limitation of extension to a compensable degree, or tibia and fibula impairment as to warrant consideration of ratings under Codes 5256, 5257, 5261 and 5262. Notably, as of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. However, as noted above, as the Veteran does not experience instability in the left knee, the new regulations are also not applicable. The Board has also considered a separate rating under DC 5258 and/or DC 5259, which address dislocated semilunar cartilage and symptomatic removal of semilunar cartilage, respectively. In particular, DC 5258 notes symptoms of "locking," pain and effusion into the joint. The record shows that the May 2011 VA examiner noted the Veteran had an MRI in 2005 that revealed a left knee meniscus tear that resulted in surgery in 2006. However, a review of the 2005 MRI displays a "suspect meniscal or MCL damage" with subsequent MRIs specifically to assess for a meniscus tear finding a normal left meniscus with no evidence of a tear. A December 2014 VA examination noted the Veteran had a left knee meniscal tear and meniscectomy, however, subsequent VA examinations in November 2016 and March 2017 found no evidence of a meniscus condition but noted a left knee meniscectomy in 2005. VA examinations dated October 2018 and August 2021 found no evidence of a meniscus condition or a meniscectomy. While the evidence suggests the possible presence of a meniscus condition, it does not show that such a condition has manifested to a compensable degree during the appeal period with symptoms of locking, effusion and/or pain separate from the pain already contemplated by the current rating. Therefore, a separate rating under DC 5258 or 5259 is not warranted. The Board notes that the lay assertions of the Veteran have been considered. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that the Veteran has argued that higher ratings for his left knee disability is warranted, these assertions are outweighed by more probative evidence provided by the examination of a qualified medical professional. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, his lay statements do not provide any basis upon which to assign any higher ratings. Therefore, the Board concludes, based on consideration of the medical and lay evidence, an increased rating in excess of 10 percent during any period on appeal for the Veteran's left knee disability is not warranted; and the claim is denied. In reaching this determination, the Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its applications. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected musculoskeletal disabilities is remanded. The Veteran contends that his current OSA is directly related to his active duty service or is otherwise proximately caused or aggravated by his service-connected musculoskeletal disabilities. As noted above, in July 2021, the Board remanded the Veteran's claim due to the inadequacy of the October 2018 VA medical opinion that "relied solely on a lack of in-service treatment for OSA," and requested that an addendum VA medical opinion be provided. See BVA Decision, July 2021. In September 2021, an addendum VA medical opinion was provided in response to the Board's July 2021 remand, however, upon review, the examiner provided an unfavorable opinion as to the Veteran's OSA being etiologically related to his active duty service. Nevertheless, the Board finds this opinion to be inadequate, as this examiner also improperly relied on the lack of medical evidence in-service corroborating complaints, treatment, or a diagnosis of OSA. Additionally, in December 2021, the Veteran's representative raised the contention that the Veteran's service-connected musculoskeletal disabilities, to include pain experienced, has a causal relationship with sleeping problems, citing a medical literature article for support. However, to date, no VA examiner has addressed this newly raised secondary contention. Therefore, the Board finds that addendum VA medical opinions must be provided that adequately addresses the Veteran's claim on a direct and secondary basis, prior to readjudication of the claim. Accordingly, a remand is necessary to address these matters. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his OSA, and obtain any outstanding records and associate them with the Veteran's claims file. 2. After associating all newly acquired records with the claims file, send the claims file back to the September 2021 VA examiner, to provide addendum VA medical opinions to determine the nature and etiology of the Veteran's OSA. If the September 2021 VA examiner is not available, please forward the claims file to another appropriate clinician. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. If the examiner finds that a new VA examination for the Veteran's OSA must be scheduled prior to providing the opinion, schedule such an examination. Following complete review of the record, the examiner must address the following: (a) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's OSA had its onset during any period of active duty or is otherwise etiologically related to his active duty service. Please note: in the requested opinion, the examiner must not rely on the lack of in-service treatment, complaints, or diagnosis of OSA. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's OSA was caused or aggravated by his service-connected musculoskeletal disabilities, to include any pain experienced. Please note: the examiner must address both causation and aggravation in the requested opinions. (c) Any opinion should include a detailed rationale. The examiner should consider the entire claims file, and discuss the Veteran's lay statements regarding the nature, onset, and chronicity of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that his reports must be considered in formulating the requested opinion. (d) If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rational for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Shamil Patel Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.