Citation Nr: 21010530 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-06 427 DATE: February 25, 2021 ORDER Entitlement to an extension of a temporal total rating due to the June 22, 2016 surgical treatment of the right knee strain requiring convalescence beyond July 31, 2016 is denied. Entitlement to an earlier effective date prior to October 21, 2014 for the grant of a 10 percent rating for left knee osteoarthritis is denied. Entitlement to an effective date earlier than August 6, 2015 for the grant of service connection for a right knee strain is denied. Entitlement to a rating of 30 percent, but no more, for sinusitis is granted. REFERRED The issue of entitlement to a temporary total rating for a period of convalescence under the provisions of 38 C.F.R. § 4.30 for left knee disability was raised during the Veteran’s February 2020 videoconference hearing. This issue is referred to the agency of original jurisdiction (AOJ) for adjudication. REMANDED Entitlement to a rating in excess of 10 percent for a right knee strain is remanded. Entitlement to a compensable rating for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. After July 31, 2016, the Veteran’s right knee strain was not manifested by severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight bearing prohibited) due to right knee post-surgery residuals. 2. The Veteran filed an informal claim for an increased rating for left knee osteoarthritis on October 21, 2014, which is the proper effective date for the 10 percent rating assigned by the RO. 3. The Veteran filed a fully developed claim for service connection for a right knee strain on August 6, 2015, which is the earliest effective date for the grant of service connection. 4. The evidence shows that the Veteran has sinusitis that has resulted in more than six non-incapacitating episodes per year characterized by headaches, pain and purulent discharge or crusting. CONCLUSIONS OF LAW 1. The criteria for entitlement to an extension of a temporal total rating due to the June 22, 2016 surgical treatment of the right knee strain requiring convalescence beyond July 31, 2016 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.30. 2. The criteria for entitlement to an earlier effective date prior to October 21, for the grant of a 10 percent rating for left knee osteoarthritis have not been met. 38 U.S.C. § 5110, 38 C.F.R. § 3.400. 3. The criteria for entitlement to an effective date earlier than August 6, 2015 for entitlement to service connection for a right knee strain have not been met. 38 U.S.C. § 5110, 38 C.F.R. § 3.400. 4. The criteria for entitlement to rating of 10 percent, but no more, for sinusitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Navy from July 1980 to April 1992. This case is before the Board of Veterans’ Appeals (Board) on appeal from February 2016, July 2016, and January 2017 Regional Office (RO) rating decisions. The Veteran testified at a February 2020 videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. Temporary Total Rating A temporary total disability rating may be assigned under either 38 C.F.R. § 4.29 or 38 C.F.R. § 4.30. Under 38 C.F.R. § 4.29, a temporary total disability rating will be assigned when it is established that a service-connected disability has required hospitalization at a VA medical center or other approved hospital for more than 21 days or for hospital observation at VA expense for a service-connected disability for more than 21 days. 38 C.F.R. § 4.29. A temporary total disability rating will be assigned under 38 C.F.R. § 4.30 when it is established by report at hospital discharge or outpatient release that treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence, surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. A temporary total disability rating will be assigned, effective from the date of a hospital admission and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge, if the hospital treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence, (2) surgery with respect to postoperative residuals such as incompletely healed surgical wounds, stumps and recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited), or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). A total rating under section (1), (2) or (3) above may be extended for intervals of 30, 60 or 90 days. 38 C.F.R. § 4.30(b)(1). A total rating under section (2) or (3) above may be extended for up to 6 months beyond the initial 6-month period. 38 C.F.R. § 4.30(b)(2). 1. Entitlement to an extension of a temporal total rating due to the June 22, 2016 surgical treatment of the right knee strain requiring convalescence beyond July 31, 2016 The Veteran asserts entitlement to an extension of the temporary total rating beyond July 31, 2016. Turning to the evidence, VA treatment records reflect that the Veteran was admitted to Orthopedic Associates Ambulatory surgery center on June 22, 2016 for right knee arthroscopy. The Veteran was discharged that day, with instructions to follow up in one week, have sutures removed, and begin therapy if needed at that time. After review of the evidence of record, the Board finds that an extension of the temporary total rating for right knee convalescence beyond July 31, 2016, is not warranted. The evidence does not reflect severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight bearing prohibited) due to right knee post-surgery residuals. In fact, during his right knee recheck on July 27, 2016, the Veteran stated that he was feeling really good and was back to all of his normal activities. The physician noted that the Veteran was 5 weeks out from arthroscope and on physical exam he exhibited full range of motion and his incision has healed nicely. Additionally, the examiner noted that the Veteran’s strength was improving, he is neurovascularly intact distally, and ligamentously stable. Further, the examiner stated that the Veteran looks like he is doing well and is going to continue to exercise on his own. In sum, the evidence of record does not show that convalescence beyond July 31, 2016 was required; therefore, the criteria for an extension of a temporary evaluation under 38 C.F.R. § 4.30 are not met. Accordingly, further extension of the convalescent rating is not warranted. Earlier Effective Dates In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400(b). For effective date purposes, a claim is a formal or informal written communication identifying and requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413, 421 (1999). Effective dates for claims seeking an increased rating for an already service-connected disability that are based on an original claim, or a claim for increase will be the day of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. However, the effective date may also be the earliest date as of which it is “factually ascertainable” that an increase in disability had occurred if the claim is received within one year from the date of the increase, based on a review of the entire evidence of record. 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Swanson v. West, 12 Vet. App. 442 (1999). In determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was “ascertainable.” See Hazan, 10 Vet. App. at 521. 2. Entitlement to an earlier effective date prior to October 21, 2014 for the grant of a 10 percent rating for left knee osteoarthritis The Veteran seeks an effective date prior to October 21, 2014, for a grant of a 10 percent rating for left knee osteoarthritis. The Board finds that an earlier effective date for that increased rating should be denied. The Veteran was initially granted service connection for left knee osteoarthritis in a June 2014 rating decision. That rating decision assigned an effective date of December 30, 2012. A noncompensable rating was assigned for left knee osteoarthritis. The Veteran did not appeal that decision, nor did he provide any new evidence which may be applicable to that decision within the statutory appeal period, and it became final one year after it was issued by the RO. 38 C.F.R. § 20.302 (a). On July 24, 2015, the Veteran submitted a fully developed claim requesting an increased rating for left knee osteoarthritis. Following the July 2015 claim, the Veteran was afforded a VA examination and a 10 percent rating was assigned from October 21, 2014, the date of the informal claim for increase. In light of the above, the Board finds that the claim for an earlier effective date must be denied. The earliest evidence of any claim for an increased rating for left knee osteoarthritis is October 21, 2014. Prior to October 21, 2014, there is no evidence of any claim or intent to file a claim for an increased rating, nor any additional evidence of left knee osteoarthritis. Thus, the Board finds that the claim must be denied. 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. 3. Entitlement to an effective date earlier than August 6, 2015, for the grant of service connection for a right knee strain The Veteran is seeking an earlier effective date for the grant of his 10 percent rating for a right knee strain. In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b). However, Public Law 112-154, Section 506, amended 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date award of disability compensation based on fully developed original claims for compensation that VA received from August 6, 2013, through August 5, 2015. For effective date purposes, a claim is a formal or informal written communication identifying and requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, her or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 ; Norris v. West, 12 Vet. App. 413, 421 (1999). Here, the Veteran filed a request to reopen his service connection claim for a right knee strain on October 15, 2016. The RO granted service connection for a right knee strain in a February 2016 rating decision with an effective date of August 6, 2015, the date of the Veteran’s fully developed original claim. An effective date prior to August 6, 2015 is not warranted, as the evidence does not indicate that the Veteran has filed a claim prior to August 6, 2015 for right knee strain, nor has he asserted that he has submitted such a claim before this date. As such, the Board finds that, for effective date purposes, August 6, 2015 is the date of receipt for the Veteran’s claim for service connection claim for right knee strain. The date of receipt of the claim to reopen having been established, the Board has also reviewed whether there is any evidence of an intent to file a claim for benefits prior to August 6, 2015. In this regard, a review of the record fails to show that the RO received claim or informal written communication indicative of the Veteran’s desire to seek file a claim of service connection for right knee strain. Indeed, with respect to this claim, there are no communications at all prior to this date regarding a right knee strain. Therefore, the Board concludes that the effective date of the Veteran’s service-connected right knee strain is no earlier than August 6, 2015, and an effective date prior to this is not warranted. Increased Rating 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). 4. Entitlement to a compensable rating for sinusitis The Veteran is seeking a compensable rating for his service-connected sinusitis. Specifically, he asserts that the currently assigned rating does not reflect the severity of his disability. In July 2016, VA granted entitlement to service connection for sinusitis and assigned a noncompensable rating effective October 21, 2014. Pursuant to the General Rating Formula for Sinusitis, a noncompensable rating is assigned for sinusitis detected by x-ray only. A 10 percent rating is assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 38 C.F.R. § 4.97, Diagnostic Code 6511. A 30 percent rating is assigned when there are three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Id. A 50 percent rating is warranted following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Id. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Id. at Note. The Veteran underwent a VA examination for his sinus condition in May 2016, the Veteran reported seven episodes consisting of sinus headache, pressure behind eyes, crusting of eyes, and a slimy film that caused blurry vision. On physical examination, the examiner noted symptoms of episodes of sinusitis, headaches, and tenderness of affected sinus. X-rays taken of the sinuses were normal. The examiner did not note any incapacitating or non-incapacitating episodes. However, as discussed above, he did note the Veteran’s complaints of episodes consisting of headaches, pressure, and eye crusting. During his February 2020 Board hearing, the Veteran stated that he had ten episodes with eye crusting, sinus headache, complete nasal blockage in 2019. Further, he testified that he had seven episodes in 2018 and nine episodes in 2017 in which he was treated with Lefloxin. The Veteran is competent to report his sinus symptoms and the duration of the episodes. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds no reason to doubt the credibility of his statements and resolving reasonable doubt in his favor, finds the disability picture more nearly approximates three to six non-incapacitating episodes per year of sinusitis and an initial 30 percent rating is warranted. 38 C.F.R. § 4.3. Objective evidence does not support a rating in excess of 30 percent nor does the Veteran contend as such. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for a right knee strain is remanded. During his February 2020 Board hearing, the Veteran’s representative indicated that the Veteran’s symptoms have worsened since the time of his last VA examination in February 2016. Specifically, he mentions that his knees hurt when they are extended and flexed. Additionally, the Veteran testified that if he sits too long he is unable to straigthen his leg all the way and cannot bend his leg sometimes as it gets stiff and locks up. When a claimant asserts that the severity of a disability has increased since the most recent VA examination, an additional examination may be required. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Here, a remand is warranted to address the Veteran’s worsened symptoms. 2. Entitlement to a compensable rating for obstructive sleep apnea is remanded. The Veteran’s representative contends that the Veteran’s sleep apnea is incorrectly rated as due aggravation of his service connected sinusitis. He instead argues that the Veteran’s sleep apnea should be rated as directly caused by his in-service injury or as secondary to his sinusitis. The representive further argues that an opinion should be provided for secondary service connection due to weight gain from the Veteran’s limited ability to exercise due to his bilateral knee conditions. The Veteran underwent a VA examination for sleep apnea in June 2016. However, the examiner provided an opinion only as to whether the Veteran’s sinusitis can worsen the severity of his sleep apnea. Therefore, the Board cannot make a fully-informed decision on the issue of direct service connection or secondary service connection because no VA examiner has opined whether the Veteran’s sleep apnea is a result of his in-service injury or as secondary to his service connected disabilities. 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 condition. 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. Full range of motion testing must be performed. Both knee joints should also be tested in: active motion; passive motion; weight bearing; and non-weight bearing. In addition, to afford the Veteran an accurate rating, both knees must be tested for ankylosis, recurrent subluxation, lateral instability, and any impairment of the tibia and fibula, to include non-union or malunion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should address in detail the additional functional impairment and range of motion loss in both knees due to factors such as pain, weakened movement, excess fatigability, incoordination, and flare-ups. The examiner must estimate any additional loss of motion to the best of his or her ability. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s obstructive sleep apnea is at least as likely as not related to his in-service facial trauma, proximately due to service-connected disability, or aggravated beyond its natural progression by service-connected disability. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vample, Associate Counsel