Citation Nr: 21013284 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-61 417 DATE: March 9, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to February 25, 2020, exclusive of the time period where a temporary total rating has been assigned, for right knee chondromalacia status post arthroscopy with synovectomy, chondroplasty, partial medial meniscectomy, plica excision with osteochondral defect, and calcified tendonitis of suprapatellar tendon and degenerative arthritis is remanded. Entitlement to a rating in excess of 20 percent for lumbosacral strain with degenerative changes is remanded. Entitlement to service connection for sleep apnea, to include as secondary to a service connected disability including due to obesity as an intermediary disability secondary to service connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1972 to October 1992 in the United States Air Force. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated August 2016 and July 2017 issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board, in relevant part, denied a rating in excess of 10 percent for the Veteran’s right knee disability, denied a rating in excess of 20 percent for his back disability, and denied service connection for sleep apnea. See BVA Decision (February 2019). Thereafter, the Veteran appealed such aspects of the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), which vacated the Board’s decision as to such claims and remanded the case for further consideration. See CAVC Decision (December 2019). In June 2020, the Board remanded these claims for action consistent with the JMPR, further detailed below. See (June 2020) As noted in the June 2020 Board Remand, during the pendency of the appeal, an April 2020 rating decision recharacterized the Veteran’s right knee disability right knee arthroplasty and assigned a 100 percent rating, effective February 25, 2020, and a 30 percent rating, effective April 1, 2021. In November 2020, the Board noted that the Veteran’s service-connected right knee disability is currently evaluated as totally disabling (at a100 percent schedular evaluation), and will remain so until a specified date in the future (April 1, 2021). See BVA Decision (November 2020). The Board recategorized the issue of increased rating for right knee to entitlement to a rating in excess of 10 percent prior to February 25, 2020, exclusive of the time period where a temporary total rating has been assigned, for right knee chondromalacia status post arthroscopy with synovectomy, chondroplasty, partial medial meniscectomy, plica excision with osteochondral defect, and calcified tendonitis of suprapatellar tendon and degenerative arthritis. The Board remanded the issues on appeal for additional development to include addendum opinions regarding the etiology of sleep apnea and to determine the nature and severity of the Veteran’s thoracolumbar spine and right knee disabilities. Unfortunately, remand is required for additional development as the opinions of record remain inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when the Secretary undertakes to provide a veteran with a VA medical examination or obtain an opinion, he must ensure that the examination or opinion provided is adequate). As such, addendum opinions are required. 1. Entitlement to a rating in excess of 10 percent prior to February 25, 2020, exclusive of the time period where a temporary total rating has been assigned, for right knee chondromalacia status post arthroscopy with synovectomy, chondroplasty, partial medial meniscectomy, plica excision with osteochondral defect, and calcified tendonitis of suprapatellar tendon and degenerative arthritis is remanded. 2. Entitlement to a rating in excess of 20 percent for lumbosacral strain with degenerative changes is remanded. Issues: 1-2 The Veteran’s representative argues that the VA examinations of record, including the June 2020 addendum opinions, are inadequate to assess the nature and severity of the Veteran’s right knee and thoracolumbar spine disability. Specifically, he argues that the examiners did not ascertain relevant information about the quality and nature of the Veteran’s right knee and thoracolumbar spine flare-ups for the period on appeal. See Third Party Correspondence (February 2016). Specifically, he noted that there is no discussion on the severity of the Veteran’s flare-ups or if the additional symptoms cause functional loss. The Board agrees. In November 2020, the Board remanded the issues for addendum opinions and, in pertinent part, ordered the following directives: [t]he examiner is requested to review the July 2016 and June 2020 VA examination reports containing the Veteran’s lay statements (endorsements) of flare-ups and the impact of repeated use over time in regard to his right knee and back disabilities. Thereafter, the examiner is requested to offer an opinion as to the nature of the resulting limitation of function, if any, and, to clarify whether such resulted in additional limitation of motion. If so, such additional limitation of motion should be expressed in degrees. If the examiner is unable to do so, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. A rationale should be provided for any opinion offered. See BVA Decision (November 2020). The Veteran’s knee and back was assessed during a November 2020 VA examination. See C&P Exam (November 2020). Regarding the Veteran’s knee, the examiner noted that the Veteran had his right knee replaced earlier in the year. He concluded that questions about the right knee, range of motion, flares, and functional concerns are best estimates, based on what he could perform today, since he essentially has a “new” knee. The examiner added that there is no manner in which to estimate what he could or could not perform in the right knee prior to his knee replacement as that information is not known. The examiner added that concerning that Veteran’s back and right knee, pain could significantly limit functional ability during flares. The Veteran reported a frequency of daily flares of his back with activities, and a frequency of flares in the right knee as two times per week. The flares were described to cause reduced range of motion, pain, and lack of endurance. The examiner noted the examination was being conducted without the presence of flares in either the right knee or back. The Board finds the examination inadequate for several reasons. First, while the examiner addressed the frequency back and right knee flare-ups, he did not address the duration of the flares or the severity of the flare-ups or adequately describe functional loss of the right knee and back during flare-ups. The examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not attempt to elicit relevant information regarding the severity and duration of the Veteran’s thoracolumnar spine and right knee flare-ups and any additional functional loss experienced during flare-ups. Specifically, the examiner described the Veteran’s functional loss during flare-ups (i.e., reduced ROM, pain, and lack of endurance) and he noted that “pain could significantly limit functional ability during flares.” Second, the remand directives expressly requested the examiner to address “the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran.” As the opinion did not adequately address the remand directives, remand for addendum opinion is required. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions). Third, the Board reiterates that the “period on appeal” includes the time-point from the date of claim (i.e. February 22, 2016) until February 25, 2020, to include one-year prior to date of claim if any factually ascertainable worsening is found in the record, exclusive of the time period where a temporary total rating has been assigned. The examiner stated he is unable to provide the requested information of prior right knee functioning because the Veteran has a “new knee” and estimated of prior functioning is not possible. The Board disagrees. The Board points to language from its November 2020 decision where it responded to examiner’s rationale noting “there was no manner in which to estimate what the Veteran was able to perform in his right knee prior to the knee replacement” by finding the opinion inadequate and finding that “the Veteran is competent to state and reenact what his knee would have been able to perform prior to his knee replacement, as such information would have been obtained by him through his senses.” See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (personal knowledge is that which comes to the witness through the use of his senses – that which is heard, felt, seen, smelled, or tasted). In summary, the VA examinations and opinions of record do not adequately describe the Veteran’s right knee and thoracolumbar disability and functional ability with the requirements found in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, remand is required for a VA examination. The Board finds that an examination is needed as opposed to an opinion at this point given that relevant information that needs to be obtained from the Veteran concerning the history of his right knee impairment prior to surgery and functional limitations during flare-ups. 3. Entitlement to service connection for sleep apnea, to include as secondary to a service connected disability, to include due to obesity as an intermediary disability secondary to service connected disability is remanded. The Veteran’s representative argues that the examination assessing the etiology of the Veteran’s sleep apnea is inadequate. See Third Party Correspondence (February 2021). Specifically, he indicates that the examiner found the Veteran exhibits risk-factors associated with sleep apnea; however, he did not explain what caused the Veteran’s risk-factors or if those risk factors were caused by service-connected disability. He noted that the risk factor of obesity can be an intermediary step between a service connected disability and a current disability to be service connected on a secondary basis. Citing 38 C.F.R. § 3.310(a); Walsh v. Wilkie, 32 Vet. App. 300. The November 2020 examiner opined that it is less likely than not that the Veteran’s sleep apnea is due to/caused by/truly aggravated by his sinuses, as the record review did not support this contention. The examiner noted that “the Veteran has a host of medical comorbidities and risk factors for developing sleep apnea (and these include large neck, hypertension, obesity, and others, per CPRS entries).” Even though his sinuses appeared to have been bothersome over the years, his other medical comorbidities and risk factors would clearly outweigh his sinuses specifically causing his sleep apnea. The Board finds that the opinion is inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examiner noted risk-factors, such as obesity, being potential contributors to the manifestation of sleep apnea; however, he did not address whether any of these risk factors manifested as a result of service-connected disability or whether these risk factors resulted in the development of obesity as an intermediary step in the manifestation of any sleep apnea disability. The Board finds that the opinion lacks clear conclusions with supporting data and a reasoned medical explanation connecting the two and does not provide fully articulated and sound reasoning for his conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); D’Aries v. Peake, 22 Vet. App. 97, 108 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123 (Daves v. Nicholson, 21 Vet. App. 46, 51-52 (2007); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); citing McCray v. Wilkie, No. 17-1875. As such, remand for addendum opinion is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2020 to the present. 2. Schedule the Veteran for an examination by another appropriate clinician, if possible, to determine the severity of his service-connected right knee disability, for the period from February 22, 2015 until February 25, 2020. The examiner must elicit a full description from the Veteran concerning his right knee impairment during flare-ups and repeated use over time for the applicable time period. The Veteran is competent to describe and show his right knee range of motion during this period. The examiner should provide a full description of the disability and report all signs and symptoms necessary during the applicable period for evaluating the Veteran’s disability under the rating criteria. 3. Schedule the Veteran for an examination by another appropriate clinician, if possible, to determine the current severity of his service-connected thoracolumbar spine disability. 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. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. Further, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s sleep apnea. The examiner must address the following: (a.) identify the Veteran’s risk-factors for development of sleep apnea and opine whether any identified risk-factors were proximately due to or aggravated by a service-connected disability; and if so, whether sleep apnea was proximately due to or aggravated by service-connected disability.   (b.) opine whether the Veteran’s service-connected disabilities at least as likely as not caused or aggravated his obesity; and if so, whether his obesity was an ‘intermediary step’ that caused or aggravated his sleep apnea. The examiner must offer a detailed rationale for the opinions. In proffering these opinions, the examiner must determine whether the Veteran’s service connected disabilities cause any incremental increase, even transient, in his sleep apnea regardless of permanence. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. A. Macek, 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.