Citation Nr: 21014461 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-11 373 DATE: March 12, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from March 22, 2020 is granted. REMANDED Entitlement to service connection for gout is remanded. Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for a left wrist disability is remanded. Entitlement to a compensable rating prior to August 12, 2019 and in excess of 20 percent thereafter for hypertension is remanded. Entitlement to an increased rating in excess of 10 percent for right knee degenerative changes and chondromalacia of the patella (right knee disability) is remanded. Entitlement to an increased rating in excess of 10 percent for left knee degenerative changes and chondromalacia of the patella with meniscal tear (left knee disability) is remanded. Entitlement to TDIU prior to March 22, 2020 is remanded. FINDINGS OF FACT 1. The Veteran’s obstructive sleep apnea is due to his obesity, which is related, at least in part, to his service-connected depressive disorder. 2. The Veteran stopped working on March 22, 2020. 3. From March 22, 2020, the Veteran’s service-connected disabilities have prevented him from securing and maintaining substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 2. The criteria for entitlement to TDIU from March 22, 2020 have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1980 to June 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and July 2014 rating decisions by the Department of Veterans Affairs (VA). This case was remanded in August 2018 for further development; it has since been re-assigned to the undersigned. The record reflects that the Veteran’s service-connected disabilities may have prevented him from working during the appeal period. See September 2020 private opinion. Because a TDIU rating is inherent in any claim for an increased rating, see Rice v. Shinseki, 22 Vet. App. 447 (2009), it has been added as an issue. Since the last Board remand, the Agency of Original Jurisdiction (AOJ) granted an increased rating of 20 percent for hypertension, effective August 12, 2019. See September 2019 rating decision. The issue has been recharacterized accordingly. Since the last Board remand, the issues of service connection for headaches, a back disorder, and an acquired psychiatric disorder, were granted. See September 2019 rating decision. Because that decision represents a full grant of the benefits sought, those issues are no longer on appeal. The Board notes that an August 2019 VA foot examiner opined that the Veteran’s bilateral pes planus and metatarsalgia were at least as likely as not related to service. The examination was completed due to the ongoing appeal of service connection for gout. The Veteran did not submit a claim for a foot disability, rather he submitted a claim for gout. See May 2013 VA Report of General Information. Additionally, he has gout in multiple areas of his body, to include his feet, ankles, and wrists. See August 2019 VA examinations. While the Board must interpret claims broadly, it should construe a claim based on the reasonable expectations of the veteran. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Board finds that, in light of gout being diagnosed in multiple areas of his body, the Veteran was not intending to limit his claim to be for a bilateral foot disability. Thus, at this time, the Board is not expanding the issue of service connection for gout to be one for a bilateral foot disability. However, the Veteran is welcome to file a claim of service connection for such a disability with the AOJ. 1. Entitlement to service connection for obstructive sleep apnea. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran is service-connected for depressive disorder. He is diagnosed with obstructive sleep apnea pursuant to an August 2019 sleep study, but the examiner noted 2000 as the date of diagnosis. See August 2019 VA examination. The August 2019 VA examiner opined it was less likely than not that the Veteran’s obstructive sleep apnea is related to his depressive disorder because obstructive sleep apnea is a functional issue associated with the airway, obesity, and structural issues with the airway and sinuses and psychiatric disorders are not structural disorders. This opinion is considered inadequate because it does not discuss the specifics of the Veteran’s case. As a result, it is given no probative weight. In September 2020, a private physician noted that the Veteran is obese, and obesity is a leading factor in the development of obstructive sleep apnea. The Veteran reported that his depressive disorder, along with pain from several other service-connected disabilities, caused a lack of motivation, sleepiness, and drowsiness and he did not want to exercise or perform any physical activity. The physician opined that the Veteran’s depressive disorder not only contributed to his obesity but prevented him from being able to increase his activity in order to manage or maintain a healthy weight. As a result, the physician opined it is more likely than not that his depressive disorder contributed to the Veteran’s obesity, and his obesity resulted in the development of his obstructive sleep apnea. See September 2020 medical opinion. The Board finds the September 2020 private medical opinion to be adequate for appellate review. The physician relied on an interview with the Veteran and a review of the file, and he provided a full and detailed rationale that included discussion of the Veteran’s disability. As a result, the Board assigns the opinion significant probative weight. Because the probative evidence reflects that the Veteran’s obstructive sleep apnea is due to his depressive disorder, at least in part, service connection is warranted, and the matter is granted. 2. Entitlement to TDIU from March 22, 2020. TDIU may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement, the veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). From March 22, 2020, the Veteran meets the schedular criteria for entitlement to TDIU. Specifically, he is service-connected for depressive disorder, hypertension, migraine headaches, lumbosacral strain, and bilateral knee disabilities during that time. The record reflects that the Veteran stopped working part-time at a golf shop on March 22, 2020 and has not worked since that date. He was temporarily laid off due to the COVID-19 pandemic. See September 2020 private opinion. In September 2020, a private physician opined that the Veteran is unable to work above marginal employment due to the combined effects of his service-connected depressive disorder, migraine headaches, lumbosacral strain, hypertension, and left knee disability. The physician noted that if the Veteran were to try to work full-time, he would miss three days or more per month or would need to leave early three days or more per month due to his service-connected disabilities. The combined effects impacted his ability to stay focused and complete a single repetitive type task seven out of eight hours of the workday and the pain medications for his service-connected disabilities affected his ability to concentrate. He also noted the Veteran would require frequent breaks to relieve pain from sitting or standing for long periods due to his back and knees. Id. The Board finds the September 2020 private opinion to be adequate for appellate review for the period from March 22, 2020. The examiner relied on an interview with the Veteran and a review of the file, and he provided a full and detailed rationale that included discussion of the Veteran’s service-connected disabilities and lay statements of reported work history. Thus, the Board assigns the opinion significant probative weight for the period from March 22, 2020. The opinion by the September 2020 private physician is uncontradicted by the record, as applicable to the period from March 22, 2020. Thus, the probative evidence of record reflects that the Veteran was unable to secure and maintain substantially gainful occupation from March 22, 2020, and TDIU is warranted. REASONS FOR REMAND 1. Entitlement to service connection for gout. The Veteran is diagnosed with gout in many different areas of the body, to include his feet, wrists, and ankles. See August 2019 VA examinations. Service treatment records (STRs) reflect that gout was suspected in the Veteran’s left great toe, see February 1992 STRs, but was eventually diagnosed as tendinitis. See April 1992 STRs. Private treatment records reflect that the Veteran reported gout attacks starting in approximately 2008, initially occurring in the feet and ankles, but then in the wrists and perhaps in the shoulder. See June 2013 private treatment records. During August 2019 VA examinations, the examiner diagnosed gout. During the VA foot examination, the Veteran reported multiple gout attacks during service and after service, with a date of onset in 1992. During the VA non-degenerative arthritis examination, the examiner noted a date of diagnosis of 1989. However, the examiner opined it was less likely than not that the Veteran’s gout was related to service because there was no evidence in STRs to support that it was incurred in service. See August 2019 VA medical opinion. This opinion is inadequate because it did not discuss why the Veteran’s reports of foot pain in 1992 and STRs reflecting possible gout were not sufficient evidence of incurrence. It is also unclear whether the examiner intended to opine that the Veteran’s gout began in 1992, or whether the examiner was merely transcribing the Veteran’s report. As a result, remand for a new opinion is necessary. The August 2019 VA examiner opined that the Veteran’s wrist gout was at least as likely as not due to the Veteran’s other gout. The examiner noted a review of a September 2015 report by Dr. H. Skaggs and noted gout is known to affect many joints at different times. Upon review of the record, the Board is unable to locate an opinion by Dr. Skaggs that discusses the Veteran’s gout, rather than obstructive sleep apnea and headaches. Thus, remand is required to request the Veteran to resubmit such evidence or otherwise seek private treatment records. 2. Entitlement to service connection for a right and left wrist disability. It appears that the only diagnosis of record for the Veteran’s wrists is gout. See, e.g., August 2019 VA wrist examination. As a result, this issue is inextricably intertwined with the issue of entitlement to service connection for gout. 3. Entitlement to a compensable rating prior to August 12, 2019 and in excess of 20 percent thereafter for hypertension. The record reflects that the Veteran may have received VA treatment after VA treatment records were last received. See September 2020 sleep apnea medical opinion (referencing treatment records dated December 2019). Because such records are in VA’s constructive possession, remand is necessary to obtain such records. 4. Entitlement to increased ratings in excess of 10 percent for a right knee disability and left knee disability. The Veteran underwent a VA knee examination in August 2019. Even though the examination discusses range of motion measurement results on active and passive motion, it does not provide such measurement results in weight-bearing and non-weight-bearing circumstances. See Correia v. McDonald, 28 Vet. App. 158, 165-170 (2016). Accordingly, remand is necessary for a new VA examination to obtain such information. 5. Entitlement to TDIU prior to March 22, 2020. The matter of entitlement to TDIU is inextricably intertwined with the other remanded increased rating issues; accordingly, it must be remanded as well. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from October 2019 to the present. 2. The AOJ should obtain, if possible, records of relevant private evaluations and treatment the Veteran has received, to include a September 2015 report by Dr. H. Skaggs that discusses gout. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. 3. After the development in the first two directives is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of his gout, to include gout in the feet, ankles, and wrists. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: Is it at least as likely as not (50% or greater probability) that the Veteran’s gout was either incurred in or otherwise related to his military service? Please explain why. The examiner must discuss STRs reflecting possible gout in the left foot as well as the reports in August 2019 VA examinations that indicate gout was incurred in 1989 or 1992. 4. After the development in the first two directives is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected bilateral knee disabilities. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 5. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.