Citation Nr: 21009591 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 09-36 239 DATE: February 22, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right knee strain with degenerative arthritis, and in excess of 50 percent from May 18, 2017 is denied. Entitlement to an initial rating in excess of 10 percent for left knee strain with degenerative arthritis, and in excess of 50 percent from May 18, 2017 is denied. REMANDED Entitlement to service connection for obstructive sleep apnea, including as secondary to service-connected lumbar strain or posttraumatic stress disorder (PTSD), or as a medically unexplained chronic multisymptom illness is remanded. FINDINGS OF FACT 1. Prior to May 18, 2017, the Veteran’s right knee disability does not cause flexion limited to 30 degrees or extension limited to 15 degrees. 2. From May 18, 2017, the Veteran is in receipt of the maximum schedular rating for limited extension of the right knee. 3. Prior to May 18, 2017, the Veteran’s left knee disability does not cause flexion limited to 30 degrees or extension limited to 15 degrees 4. From May 18, 2017, the Veteran is in receipt of the maximum schedular rating for limited extension of the left knee. CONCLUSIONS OF LAW 1. Prior to May 18, 2017, the criteria for an initial rating in excess of 10 percent for right knee strain with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5261, 5262. 2. From May 18, 2017, the criteria for an initial rating in excess of 50 percent for right knee strain with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, DC 5261, 5262. 3. Prior to May 18, 2017, the criteria for an initial rating in excess of 10 percent for left knee strain with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, DC 5261, 5262. 4. From May 18, 2017, the criteria for an initial rating in excess of 50 percent for left knee strain with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, DC 5261, 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 2003 to March 2005, to include service in Southwest Asia. This matter comes to the Board from rating decisions of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) dated in July 2017 and October 2017. Specifically, the July 2017 rating decision denied service connection for OSA, and the October 2017 rating decision granted service connection for right knee strain and left knee strain, and assigned an initial 10 percent evaluation for each, and a 50 percent rating for each from May 18, 2017. The United States Court of Appeals for Veterans Claims (Court) vacated an April 2019 Board decision in May 2020. The Board remanded these issues to the AOJ for additional development most recently in November 2020. With respect to the increased rating claims, the Board finds that the AOJ substantially complied with remand directives, and the issues are ready for adjudication. Stegall v. West, 11 Vet. App. (1998). However, another remand is required for the service connection claim, as explained below. Increased Rating 1. Entitlement to an initial rating in excess of 10 percent for right knee strain with degenerative arthritis, and in excess of 50 percent from May 18, 2017 2. Entitlement to an initial rating in excess of 10 percent for left knee strain with degenerative arthritis, and in excess of 50 percent from May 18, 2017 Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, is to be avoided. 38 C.F.R. § 4.14. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Thus, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart, 21 Vet. App. 505. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent to this case, in rating 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). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant 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. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997); see also Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board finds that the December 2020 VA examination is adequate for rating. In this case, the examiner in December 2020 documented active ranges of motion for both knees, and the Veteran reported pain with weight-bearing. The Veteran reported functional limitations caused by both knees. In addition, the examiner documented that there was difficulty evaluating the end range of motion for passive ranges, indicating that passive testing was done. Although passive ranges of motion were not specifically documented in degrees, it is reasonable to assume that assisted motion would be less limiting than active motion, and therefore, the failure to report passive motion is harmless error. Further, at the December 2020 VA examination, the Veteran reported no flare-ups, so the examiner was not expected to estimate loss of range of motion during flares. Prior to May 18, 2017, the Veteran’s right knee disability and left knee disability is each assigned a 10 percent rating under DC 5261, which applies to limited extension. However, if there is painful motion of the knee with or without arthritis, and a compensable rating is not warranted based on limitation of motion, a 10 percent evaluation shall be assigned. See DC 5003, 5010; VAOPGCPREC 9-98; Mitchell, Burton, supra; 38 C.F.R. § 4.59. Effective May 18, 2017, each knee is assigned a 50 percent rating under DC 5261. The normal range of motion of the knee is to 0 degrees (full extension) to 140 degrees (full flexion). 38 C.F.R. § 4.71a, Plate II. When flexion of the knee is limited to 45 degrees, a 10 percent rating may be assigned. When flexion is limited to 30 degrees, a 20 percent evaluation may be assigned. A maximum 30 percent rating may be assigned when flexion of the leg is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. When extension of the knee is limited to 10 degrees, a 10 percent evaluation may be assigned. When extension is limited to 15 degrees, a 20 percent evaluation may be assigned. When limited to 20 degrees, a 30 percent rating may be assigned. When extension is limited to 30 degrees, a 40 percent evaluation is assignable. A 50 percent evaluation may be assigned when extension of the leg is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. The criteria for musculoskeletal disabilities in 38 C.F.R. § 4.71a were amended, effective February 7, 2021, and the “new” schedular criteria are applicable as of that date. 85 Fed. Reg. 76453 (Nov. 30, 2020). However, the Board notes that DCs 5260 and 5261 for limited motion of the knee were not amended. DC 5257, regarding knee subluxation or instability, or patellar instability, and DC 5262, regarding impairment of the tibia and fibula, including shin splints, were amended, but are not applicable to the Veteran’s case. Having reviewed the applicable diagnostic codes for limited movement, the questions before the Board are: 1) whether the Veteran’s knee disabilities warrant a rating in excess of 10 percent for limitation of motion, which would require flexion limited to 30 degrees or extension limited to 15 degrees prior to May 18, 2017; and 2) whether the Veteran’s right knee disability warrants a separate rating or a rating in excess of 10 percent under a different diagnostic code prior to May 18, 2017, or in excess of 50 percent from May 18, 2017 under a different DC. The Board finds that at no point during the appellate period does the Veteran’s right knee have limitation of motion to a degree that would warrant a higher rating, and from May 18, 2017, the Veteran is in receipt of the maximum schedular rating for limited extension of each knee, and no other diagnostic code is applicable. Turning to the evidence, the Veteran was afforded a VA examination in March 2009. The Veteran reported pain of the bilateral knees, which felt like squeezing, aching, sticking, and cramping. The pain was elicited by physical activity, stress, and weather changes, and was relieved by rest. The Veteran also reported weakness, stiffness, lack of endurance, and fatigability. There was no swelling, heat, redness, giving way, locking, or dislocation. The Veteran had not had surgery and was not receiving treatment for his knees. He required no assistive device for ambulation. Bilaterally, there was tenderness, but no edema, effusion, weakness, redness, subluxation, crepitus, or guarding. Range of motion testing was performed, and bilaterally, flexion was to 140 degrees and extension was to 0 degrees. The examiner opined that neither knee was additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Ligament and stability testing were within normal limits. X-rays were unremarkable, and the Veteran was diagnosed with bilateral knee strain. The Veteran underwent another VA examination of his knees in May 2017. He was diagnosed with arthritis. The Veteran reported limitations with prolonged sitting and standing, and pain, which was described as squeezing, aching, stinging, cramping, and swelling of both knees after walking three-fourths of a mile. The Veteran reported flare-ups of pain and swelling approximately daily to several times weekly, depending on the activity. Active range of motion of the right knee was, at worst, flexion to 90 degrees and extension to 50 degrees after repetitive use testing. Flexion of the left knee was, at worst, to 90 degrees and extension was, at worst, to 50 degrees after repetitive use testing. Muscle strength was decreased bilaterally, and there was no ankylosis. There was no evidence of knee instability on joint stability testing, and no history of subluxation or instability, or recurrent effusion. The Veteran did not have a tibia or fibula impairment or a meniscal condition. The examiner concluded that the Veteran’s bilateral knee disability limited his ability to drive long distances. The Veteran had a VA examination in December 2020. The Veteran reported knee discomfort most of the time, which worsened with activity, such as walking, weight bearing, and standing. He had difficulty going from sitting to standing, and had stiffness upon waking each morning. The Veteran reported no flare-ups of his knees. Active range of motion of the right knee was flexion to 120 degrees and extension to 0 degrees. Flexion of the left knee was to 100 degrees and extension was to 0 degrees. Muscle strength was normal bilaterally, and there was no ankylosis. There was no evidence of knee instability on joint stability testing, and no history of subluxation or instability, or recurrent effusion. The Veteran did not have a tibia or fibula impairment or a meniscal condition. The examiner indicated that the Veteran’s limiting factor was pain with weight-bearing, but not restriction of range of motion, loss of strength, or incoordination. The Veteran’s pain subsided with rest, so his knee limitation was minimal, and his condition was made more tolerable by limiting time on his feet. The examiner also explained that, early in the physical examination, the Veteran appeared to have fixed flexion, but the limitation of range of motion had disappeared by the end, and the Veteran was able to straighten his legs (full extension) and walk without any mechanical difficulty, limp, or abnormality. Based on a review of the evidence outlined above, the Board finds that with respect to an initial rating in excess of 10 percent for limited range of motion of the right or left knee, given that the VA examinations do not reflect limited range of motion sufficient for a 20 percent rating of either knee prior to May 18, 2017, there is no credible evidence to support a finding of additional functional loss for a higher rating of either knee. As mentioned above, under DC 5260, flexion of the knee must be limited to 30 degrees for a 20 percent rating. Considering functional loss from pain and other factors, the March 2009 VA examination reflected flexion of both knees greater than 30 degrees. Under DC 5261, extension of the knee must be limited to 15 degrees to warrant a 20 percent rating. The March 2009 VA examination of record reflected extension of both knees greater than 15 degrees, even considering additional functional loss caused by pain. Thus, the Veteran is not entitled to an initial rating in excess of 10 percent for limited range of motion of either knee. While the March 2009 VA examination did not fully comply with Sharp or Correia, the Board notes that the examination is still relevant and did provide sufficient detail to estimate whether the Veteran’s left or right knee disability more nearly approximated a higher disability rating prior to May 18, 2017. See 38 C.F.R. § 4.1 (ratings are based on the average impairment of earning capacity) (emphasis added); and 38 C.F.R. § 4.3, 4.7 (an evaluation is assigned if the disability more closely approximates the criteria required for that rating). In this regard, the Veteran reported symptoms such as pain, weakness, stiffness, lack of endurance, and fatigability, but the examiner opined that these factors did not additionally limit the Veteran’s range of motion beyond what was measured and documented. Moreover, the Veteran’s range of motion did not meet the criteria for a 10 percent rating based on limited flexion or extension, and his rating was assigned based on painful motion and functional loss without meeting the criteria for a minimal compensable rating. See DC 5003, 5010; VAOPGCPREC 9-98; Mitchell, Burton, supra; 38 C.F.R. § 4.59. Thus, the Veteran’s documented subjective reports of symptoms and limitations in walking, have been considered and can be interpreted such that the limitations do not more nearly approximate flexion limited to 30 degrees or extension limited to 15 degrees in either knee. Moreover, the Veteran has never reported that there was any circumstance or condition that would limit his range of motion beyond what was documented prior to May 18, 2017. Therefore, the Board finds that there is not sufficient evidence to warrant a higher rating. Prior to May 18, 2017, the Board also finds that a higher rating is not available under a separate diagnostic code. There is no evidence of meniscal removal or dislocation during the appellate period such that a separate rating would be in order under either the provisions of DCs 5258 or 5259. Likewise, an evaluation for symptomatic removal of the semilunar cartilage of the knee is contemplated by DC 5259. 38 C.F.R. § 4.71a. Additionally, while the Veteran reported that his knees “gave out” in the December 2020 VA examination, the Board notes that instability testing was performed after his knee was reported to have given out, and no instability was noted. While the objective evidence as to this symptomatology is not necessarily dispositive on this point, the Board finds that the objective findings in this case should be given greater probative weight when the evidence overall with the absence of notations of instability is considered. See English v. Wilkie, 30 Vet. App. 347 (2018). Therefore, a separate rating for instability is also not warranted based on the competent evidence of record. Regarding the claim for a rating in excess of 50 for the right knee disability and left knee disability from May 18, 2017, the Board notes that a 50 percent rating is the maximum rating available under DC 5261. A rating in excess of 50 percent is available under DC 5256, but ankylosis must be shown. No VA examination shows ankylosis of either knee, and the Veteran was able to complete range of motion testing. Therefore, the Board concludes that a higher rating is not warranted under any other diagnostic code, as no other diagnostic codes are applicable to the knees. In conclusion, the Veteran’s claim for an initial rating in excess of 10 percent for limitation of movement associated with his right knee disability is denied. An initial rating in excess of 10 percent for limitation of movement associated with the left knee disability is also denied. Finally, a rating in excess of 50 percent for the left knee and the right knee from May 18, 2017 is also denied. The Board finds that the preponderance of the evidence is against the claim, and the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. The Board is obligated to ensure AOJ compliance with remand directives. Stegall v. West, 11 Vet. App. (1998). The November 2020 remand required the AOJ to obtain a medical opinion addressing certain evidence in the claims file, and included specific evidence for the examiner to address and specific questions for the examiner to answer. The December 2020 opinion did not answer all questions posed by the Board in the prior remand, nor did it directly address the evidence as directed. Therefore, another remand is required for an adequate opinion. Additionally, the December 2020 examiner indicated that a mental health examination would be needed in order to determine the impact of the Veteran’s PTSD on his eating and obesity. Therefore, on remand, a mental health practitioner should provide such an opinion. The matters are REMANDED for the following action: 1. Obtain a supplemental opinion from an appropriate VA examiner, including a mental health practitioner, to determine the etiology of the Veteran’s obstructive sleep apnea. Following review of the record, to include the Veteran’s outpatient records; VA examinations for PTSD, bilateral knee disabilities, and spine disabilities; the May 2020 Court remand and November 2020 Board remand, the examiner should respond to the inquiry below. The examiner should acknowledge having reviewed all documentation identified above. If the examiner determines that he or she cannot respond to the Board’s inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an in-person examination, or by other means if an in-person examination is not feasible. If an examination is conducted, any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner should address the following: (a.) The examiner must review and address the following evidence: a December 2008 outpatient mental health note reflecting “a strange appetite;” a February 2009 VA examination documenting no physical activity when low back pain is at its worst; a March 2009 VA examination documenting bilateral knee injury due to marching, physical activity and heavy lifting, and inability to stand for extended periods of time and reduction in physical activity by 75 percent; an April 2011 VA examination documenting that the Veteran reported being unable to exercise or run because of low back pain; an October 2013 mental health note documenting an increase in appetite; a May 2017 VA examination indicating that the Veteran was unable to ride a bicycle, do aerobics, lift weights, or run due to knee pain; a May 2017 VA examination wherein the Veteran reported it was “hard to do anything” because of low back pain; a June 2017 VA treatment record indicating that the Veteran would benefit from a weight management program and exercise, and risks of being overweight or obese included sleep apnea; an October 2017 recreational therapy note clearing the Veteran for exercise and fitness; and an October 2017 treatment note indicating that the Veteran gained weight related to poor diet choices. (b.) The examiner must address the articles submitted in support of the Veteran’s claim in August 2017, including: “Post-Traumatic Stress Disorder Predicts Future Weight Change in the Millennium Cohort Study;” and “Academy of Sleep Science: Prevalence of diagnosed sleep disorders has risen among U.S. veterans.” (c.) The examiner must directly address the Veteran’s contentions that he gained weight because of his back, knees, and PTSD, and the Court’s inquiry regarding whether the Veteran’s poor diet and lack of exercise are due to his service-connected disabilities (PTSD, back, and/or knees). (d.) The examiner must opine as to whether it is at least as likely as not (50 percent likelihood or greater) that the Veteran’s obstructive sleep apnea is proximately due to, the result of, or aggravated beyond its natural progress by the Veteran’s service-connected lumbar strain, bilateral knee arthritis, or PTSD. (e.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that: 1) the Veteran’s service-connected lumbar strain, bilateral knee disabilities, and/or PTSD caused the Veteran’s obesity; 2) the Veteran’s obesity is a substantial factor in his developing obstructive sleep apnea; and 3) the Veteran’s obstructive sleep apnea would not have occurred but for his obesity. A complete rationale must be provided for all expressed opinions. A complete explanation for all opinions expressed must be provided. A clearly stated rationale must not be based solely on lack of documentation or records. The reasons for any opinion must include a discussion of the relevant evidence. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, 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.