Citation Nr: 21006294 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-18 837A DATE: February 3, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for right knee strain is denied. Entitlement to a disability rating in excess of 10 percent for left knee strain is denied. REMANDED Entitlement to service connection for residuals of prostate cancer is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s right knee strain is manifested by complaints of painful motion with flexion limited to 70 degrees, at worst, during flare-ups, with no limitation of extension and no evidence of instability. 2. The Veteran’s left knee strain is manifested by complaints of painful motion with flexion limited to 50 degrees, at worst, during flare-ups, with no limitation of extension and no evidence of instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee strain are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5260. 2. The criteria for a rating in excess of 10 percent for left knee strain are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to June 1995. The matter of entitlement to a TDIU along with issues related to the effective dates of awards of compensation for lumbar and cervical spine disabilities and costochondritis, as well as a matter relating to the noncompensable rating awarded for costochondritis, were previously denied by the Board in a July 2015 decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). By Court Order dated in June 2017, the matter of entitlement to TDIU was vacated and remanded to the Board. The remaining issues were affirmed by the Court and are no longer before the Board. In November 2017, the Board remanded the matter of entitlement to TDIU for further development. In August 2018, the Board denied the Veteran’s petition to reopen his claims of entitlement to service connection for a left ring or little finger disability and a right wrist disability, also for service connection for obstructive sleep apnea and for higher ratings for his left and right knee strains. The issues of entitlement to service connection for hallux valgus of the right great toe and residuals of prostate cancer were remanded in the August 2018 decision. The Veteran appealed the denials to the Court and in March 2019, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), vacating the Board’s decision denying these claims and remanding them to the Board for further development and re-adjudication. The Court noted that the issues of entitlement to service connection for hallux valgus of the right great toe and residuals of prostate cancer were remanded by the Board in August 2018 and were not before the Court on appeal. In a September 2019 decision, the Board reopened the claims concerning the left ring or little finger disability and right wrist disability, and remanded the claims of entitlement to service connection for a right wrist disability, left ring or little finger disability, obstructive sleep apnea, hallux valgus of the right great toe, residuals of prostate cancer, entitlement to increased ratings for his right and left knee disabilities, and entitlement to a TDIU for further development. Subsequently, in a September 2020 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for hammer toe with hallux valgus of the right great toe, left index finger tenosynovitis, left ring finger tenosynovitis, long finger tenosynovitis of the left hand, left little finger tenosynovitis, and right wrist tendinitis. As this represents a full grant of the benefits sought as to these issues, they are no longer on appeal before the Board. Increased Rating 1. Entitlement to a disability rating in excess of 10 percent for right and left knee strain The Veteran contends that his service-connected right and left knee disabilities are more severe than what is represented by 10 percent ratings. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. 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. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, including the appropriateness of staged ratings whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran’s service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). The Veteran’s right and left knee disabilities are currently rated under Diagnostic Code 5260. 38 C.F.R. § 4.71a, DC 5260. However, both knees have been assigned disability ratings based on painful motion of the knees. Under Diagnostic Code 5257, recurrent subluxation or lateral instability of the knee can be rated as slight (10 percent), moderate (20 percent) or severe (30 percent). See 38 C.F.R. § 4.71a, DC 5257. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under the related Diagnostic Code 5261, limitation of extension of a leg to 5 degrees warrants a noncompensable disability rating. Limitation of extension to 10 degrees warrants a 10 percent disability rating; limitation to 15 degrees warrants a 20 percent disability rating; limitation to 20 degrees warrants a 30 percent disability rating; limitation to 30 degrees warrants a 40 percent disability rating; and limitation to 45 degrees warrants a maximum schedular 50 percent disability rating. 38 C.F.R. § 4.71a, DC 5261. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Although the JMPR concluded the 2016 VA examination was inadequate with respect to assessing potential functional loss during flare-ups as required by Sharp v. Shulkin, 26 Vet. App.26, 35 (2017), and the 2019 Board remand found the 2018 VA examination deficient in the same respect, this does not mean the entire examination reports are inadequate and must be discounted. There is no allegation that the objective findings shown in those reports, such as results of range of motion testing, or muscle strength, or joint stability, were inadequate or inaccurate in some way. Therefore, the Board has relied on those reports as probative evidence, except with respect to the question of functional loss during flare-ups, which was addressed in the 2020 examination. The Veteran was provided with a VA examination in March 2016. At that time, the diagnosis was strain of both knees. The Veteran had a long history of bilateral knee pain with prolonged sitting or walking, especially on long mild uphill grades. He did not report having flare-ups of knee or lower leg pain. Range of motion of each knee was from 0 degrees extension to 130 degrees flexion. There was evidence of pain on weight bearing and objective evidence of localized tenderness or pain on palpation. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing without functional loss or range of motion. Pain, weakness, fatigability or incoordination did not significantly limit function after repeated use or use over a period of time. Muscle strength testing was normal. There was no ankylosis. There was no history of recurrent subluxation or lateral instability and no recurrent effusion. Joint stability testing showed all knee ligaments to be normal. There were no other pertinent physical findings. Imaging studies did not show evidence of degenerative or traumatic arthritis. In the February 2019 JMPR noted above, the parties agreed that the Board should consider whether the March 2016 VA examiner properly addressed flare-ups. Accordingly, the issue was remanded by the Board in September 2019 in order to obtain a VA examination to properly assess any additional potential loss during flare-ups as required by Sharp v. Shulkin, 26 Vet. App. 26, 35 (2017). The Veteran was subsequently provided with a VA examination in August 2018 where he reported that his left knee “is more symptomatic.” The Veteran also reported “stiffness, popping, grinding, occasional swelling.” He stated that he had flare-ups with aggravation and in cold weather. The Veteran also reported functional impairment with kneeling, crawling, and squatting. Range of motion for the right knee was from 0 degrees extension to 100 degrees flexion. Range of motion for the left knee was from 0 degrees extension to 110 degrees flexion. Pain was noted on the exam that did not contribute to functional loss. There was no evidence of pain with weight bearing. The examiner noted moderate lateral and midline tenderness and objective evidence of crepitus. The Veteran was able to perform repetitive use testing with no additional functional loss or range of motion loss. Pain, weakness, fatigability and incoordination did not significantly limit functional ability with flare-ups. Muscle strength testing was normal. The Veteran did not have muscle atrophy or ankylosis. Joint stability testing was normal bilaterally. The Veteran was noted to use a brace occasionally. VA treatment records show that in January 2019, the Veteran requested a knee brace due to his knee buckling. The Veteran was most recently provided with a VA examination in February 2020 where he reported worsening symptoms including pain and swelling of both knees. The Veteran reported flare ups in cold weather and functional loss or impairment resulting in painful walking, driving, standing, and sitting. He stated that he avoids the stairs and cannot kneel or squat. The Veteran added that he avoids heavy lifting and cannot exercise much. Range of motion for the right knee was from 0 degrees extension to 94 degrees flexion. Range of motion for the left knee was from 0 degrees extension to 60 degrees flexion. Pain was noted on the exam that causes functional loss in the form of pain with flexion and extension. The examiner noted moderate localized tenderness or pain on palpation over the medial joint line of the patella. There was evidence of pain with weight bearing and objective evidence of crepitus. The Veteran was able to perform repetitive use testing in his right knee with additional loss of range of motion resulting in 0 degrees extension to 75 degrees flexion. He was not able to perform repetitive use testing with his left knee due to severe pain. The examiner estimated additional loss in range of motion after repeated use over time resulting in 0 degrees extension to 75 flexion in the right knee and 0 degrees extension to 55 degrees flexion in the left knee. The examiner estimated additional loss in range of motion during flare ups resulting in 0 degrees extension to 70 degrees flexion in the right knee and 0 degrees extension to 50 degrees flexion in the left knee. Muscle strength testing showed active movement against some resistance bilaterally. The Veteran did not have muscle atrophy or ankylosis. Joint stability testing was normal bilaterally. The Veteran was noted to use a brace occasionally. Objective evidence of pain was noted with weight-bearing and passive range of motion testing was the same as active range of motion bilaterally. Upon consideration of the evidence, the Board finds that the disability picture for the Veteran’s right and left knee strain does not warrant a disability rating in excess of 10 percent. A review of range of motion testing performed throughout the rating period shows that flexion of the right knee was limited to, at worst, 70 degrees during flare-ups and extension was normal at 0 degrees. The Veteran would not be entitled to a compensable rating under Diagnostic Code 5260 or 5261, so the assigned 10 percent rating is based on limited, painful motion. Range of motion testing for the left knee shows that flexion was limited to, at worst, 50 degrees during flare-ups and extension was normal at 0 degrees. This would warrant a 10 percent rating for limitation of flexion under Diagnostic Code 5260, but no separate rating is warranted under Diagnostic Code 5261. Further, and as noted above, separate ratings may be assigned under Diagnostic Codes 5260 and 5261 for disability of the same joint where there is both compensable limitation of flexion and extension. As the evidence of record does not show that limitation of extension was limited to 5 degrees in either knee, separate ratings for limitation of extension (Diagnostic Code 5261) are not warranted in this case. The Board has also considered whether higher ratings are warranted based on additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, at 204-7. During the VA examinations discussed above, the Veteran’s decreased range of motion in the right and left knee following repetitive use testing did not result in flexion limited to 30 degrees in order to warrant ratings in excess of 10 percent under Diagnostic Code 5260. Moreover, the Board finds that the Veteran’s limitation in flexion, pain, effusion, and locking and associated functional impairment are adequately contemplated by the currently assigned ratings under Diagnostic Code 5260. The Board acknowledges the VA treatment records from January 2019 indicating that the Veteran reported buckling of his knee and he reported occasional use of a brace on the 2020 VA examination. As a result, the Board has considered whether separate ratings are warranted under Diagnostic Code 5257 for recurrent subluxation or lateral instability. The Board notes that the Veteran is competent to report knee symptoms, including instability, as this is within the realm of his personal perception. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018) (suggesting that lay evidence of knee instability is generally competent). Here, the Veteran's statements regarding knee instability are not credible, given the inconsistency with the other evidence in the appellate record. None of the VA examinations conducted between 2016 and 2020 have found instability of either knee. The knee braces were ordered at the Veteran’s request in 2016, but there were no contemporaneous notations in the outpatient records that any medical professional found he had instability or subluxation of either knee. In the appellate brief, the representative argued that the Board should consider whether there is objective evidence of instability, as measured in millimeters, rather than a subjective notation of instability. The VA examinations were conducted using this objective standard. While the 2016 and 2018 examination reports included a section asking the examiner whether any instability or subluxation was slight, moderate, or severe, those examiners expressly marked “none” to these questions and also included the results of specific joint stability testing, measured in millimeters, expressly marking “normal” for each test. The Board is cognizant that objective medical evidence is not categorically more probative than lay evidence when it comes to determining the degree of right knee instability the Veteran has experienced during the appellate period. See English, supra. Yet, in this case, the Veteran's lay statements describing instability are contradicted by the evidence. This is not an instance where the Board is negating the probative value of the Veteran's lay statements simply because they are unaccompanied by supporting contemporaneous medical evidence, which would be in contravention of Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). To the contrary, the medical evidence of record, to include the all examinations in the appellate period, are inconsistent with and contradict the presence of knee instability as presented in his lay statements. See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (finding the Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Accordingly, these statements are afforded little evidentiary weight in this determination. Accordingly, the Board finds that the Veteran is not entitled to separate disability ratings under Diagnostic Code 5257. In considering the applicability of other Diagnostic Codes, the Board finds that Diagnostic Codes 5256 (ankylosis of the knee), 5258 (dislocated semilunar cartilage), 5259 (symptomatic removal of semilunar cartilage), 5262 (tibia and fibula impairment), and 5263 (genu recurvatum) are not applicable in this instance, as the medical evidence does not show that the Veteran has any of those conditions. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, 5263. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claims for ratings in excess of 10 percent for right and left knee strain. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for residuals of prostate cancer The Veteran contends that he suffers from residuals of prostate cancer that first exhibited symptoms in service. His service treatment records show that he complained of dysuria and painful urination for six months in January 1979. The Veteran’s post-service treatment records include private treatment records from January 1997 showing elevated PSA levels of 3.3. The Veteran was diagnosed with prostate cancer in March 2000. The Veteran was provided with a VA examination in March 2019 where he reported the date of onset of symptoms in 2000. The VA examiner opined that the Veteran’s prostate cancer was less likely than not due to his service because his PSA levels tested in January 1997 were normal at 3.3. The PSA levels were slightly elevated in April 2000 and the examiner noted that “the Veteran had no symptoms of prostate cancer or abnormal PSA while in service.” She added that “findings were all after his discharge from service.” The Veteran was provided with another VA examination in February 2020 where he reported developing “nocturia and ED during service.” The VA examiner opined that the Veteran’s prostate cancer was less likely than not due to his service because his “service treatment records are silent for the complaints, diagnosis or treatment of prostate cancer.” Although the examiner noted the Veteran’s “reports that he began experiencing symptoms of erectile dysfunction, groin pain and voiding dysfunction during service,” she noted that “no such diagnoses of such conditions are found in service records.” The examiner added that the Veteran had BPH in April 2000 and “it is more likely that the reported symptoms were related to BPH.” The Board notes that this opinion relied on the lack of complaints or treatment of prostate cancer in service. However, as noted above, the Veteran’s service treatment records show that he complained of dysuria for six months while in service. As such, the Board finds that an addendum medical opinion that addresses the Veteran’s documented complaints while in service is required prior to adjudication of this issue. 2. Entitlement to service connection for obstructive sleep apnea The Veteran contends that he suffers from obstructive sleep apnea that first exhibited symptoms in service. The Veteran claims that an EKG in service showing sinus bradycardia and early repolarization is evidence of early symptoms of sleep apnea. See September 1984 service treatment records. In the February 2019 JMPR noted above, the parties agreed that the Board failed to provide an adequate statement of reasons or bases in the August 2018 denial because it did not discuss whether the duty to assist was satisfied. The parties agreed that the Board should consider whether an examination was warranted to properly address the Veteran’s claim for obstructive sleep apnea. In the August 2018 denial, the Board found that the Veteran’s service treatment records showed no evidence of sleep apnea and found that a nexus was not shown because the Veteran did not report severe snoring in service or immediately after. The parties agreed that the Board’s assertion that snoring would be expected without relying on a supporting independent medical opinion was an impermissible medical opinion that it made on its own. Accordingly, the issue was remanded by the Board in September 2019 in order to obtain a VA examination to determine the nature and etiology of the Veteran’s obstructive sleep apnea. The Veteran was provided with a VA examination in February 2020 where he reported the onset of “symptoms of snoring, waking up often, gasping for air, drowsy during the day, feeling tired,” beginning in 1993. The VA examiner opined that the Veteran’s obstructive sleep apnea was less likely than not due to his service because his “service records are silent for complaints of sleeping difficulties and loud snoring, and/or diagnosis of sleep apnea or other sleep disorders.” The examiner added that “the records do not provide evidence that sleep apnea was present during active duty.” She also noted that “the medical literature does not support a positive causal association between an enlarged heart (hypertrophy of right ventricle) and obstructive sleep apnea.” In November 2020, the Veteran submitted a statement from his spouse stating that they married in December 1983 and “during that time he constantly struggled to catch his breath, snored very loudly, and waking up extremely thirsty.” The Veteran’s spouse added that that were numerous occasions where she thought the Veteran “stopped breathing during his sleep.” She noted that she has witnessed his symptoms to this day and “it has been a major concern for years.” The Board finds that as the February 2020 VA examiner based her negative nexus opinion on the lack of complaints in the Veteran’s service treatment records, an addendum medical opinion that addresses the lay statements of record, including the Veteran’s spouse’s November 2020 statement, is required prior to adjudication of this issue. 3. Entitlement to a TDIU Lastly, any decision with respect to the claims being remanded may affect the Veteran's derivative claim for a TDIU. These claims are "inextricably intertwined" because a hypothetical grant of service connection or additional evidentiary development or grant of additional compensation could significantly change the adjudication of his TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, consideration of his entitlement to a TDIU must be deferred until the intertwined issues are either resolved or re-certified to the Board. Id. Furthermore, it appears additional information is needed from the Veteran as to his earnings. When he submitted his TDIU application in 2017, he indicated he was working at two jobs – with the city council and as a pastor. He also reported he was making approximately $13,000 per year, which was slightly above the poverty threshold for 2017. However, he submitted a statement he was no longer working for the city council as of November 2020. At the time he filed his initial TDIU claim in 2005, he was earning over $30,000, well in excess of the poverty threshold. To fairly consider his claim, including his allegations his income is or should be considered marginal in nature, it is necessary to have accurate information about his earnings. He should submit this information. The matters are REMANDED for the following action: 1. Ask the Veteran to submit an earnings statement from the Social Security Administration reflecting his income for each year from 1995 to 2020. He is advised that this information is crucial to considering his TDIU claim. 2. Obtain an addendum opinion from an appropriate clinician regarding the following: Is it at least as likely as not (a 50 percent chance or greater) that the Veteran’s residuals of prostate cancer began in service or is otherwise related to a disease, event, or injury in service? In so opining, the examiner should consider the Veteran’s service treatment records from January 1979 showing treatment for dysuria and painful urination. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran’s statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Obtain an addendum opinion from an appropriate clinician regarding the following: Is it at least as likely as not (a 50 percent chance or greater) that the Veteran’s obstructive sleep apnea began in service or is otherwise related to a disease, event, or injury in service? In so opining, the examiner should consider the lay statement from the Veteran’s spouse submitted in November 2020 describing symptoms of snoring and stopping breathing beginning in 1983. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran’s statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. MICHELLE KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, 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.