Citation Nr: 21024897 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-25 565 DATE: April 26, 2021 ORDER Service connection for headaches is denied. Service connection for vision loss is denied. A rating in excess of 20 percent for degenerative changes of the medial compartment of the right knee is denied. REMANDED The issue of service connection for a cervical spine disorder is remanded. The issue of service connection for hypertension is remanded. The issue of service connection for a sleep disorder is remanded. The issue of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a headache disability began during active service or is otherwise related to an in-service injury or disease. 2. The Veteran’s refractive error of the eyes, claimed as vision loss, was not subject to a superimposed disease or injury that caused additional disability, either during his ACDUTRA service or after that service secondary to service-connected disability. 3. Since receipt of the claim in February 2011 for an increased rating, the right knee disability has been manifested at worst by flexion limited to 80 degrees with pain on motion, full extension with pain, and arthritis confirmed by x-ray evidence. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 2. The criteria for service connection for vision loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 4.9. 3. The criteria for a rating in excess of 20 percent for degenerative changes of the medial compartment of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had service with the U.S. Navy Reserve, including a period of active duty for training (ACDUTRA) from January 1987 to June 1987. This matter comes before the Board of Veterans’ Appeals (Board) from June 2013 and October 2015 rating decisions. In April 2016, the Veteran was admitted to a VA facility from a private hospital, arriving intubated and on mechanical ventilation for treatment of acute hypoxic respiratory and anoxic brain injury. VA medical records reflect that since his admission, he has remained unresponsive to external stimuli, fully ventilator-dependent, and electroencephalogram (EEG) tests over time demonstrated no improvement from absence of electrical activity consistent with his vegetative state. Accordingly, VA subsequently recognized the Veteran’s father as his fiduciary and the fiduciary-father is the appellant in this case. In May 2019, the Board remanded the issues remaining on appeal to the agency of original jurisdiction (AOJ) for additional development. At that time, the Board added the issue of entitlement to a TDIU to the Veteran’s pending appeal because the claim had been reasonably raised by a March 2018 private psychiatric opinion, which was received on March 5, 2019 while the appeal for a higher rating for his service-connected right knee disability was pending. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (holding that a claim for a TDIU, either expressly raised by the veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for an increased rating). Regarding the issues of service connection for headaches and vision loss, the AOJ issued a statement of the case (SOC) in compliance with the May 2019 Board Remand directive in June 2019 and the Veteran’s attorney timely appealed those issues on his behalf. After the June 2019 SOC was issued and prior to transfer of the records to the Board, the AOJ added additional VA treatment records to the electronic claims file. If the SOC was prepared before the receipt of the additional evidence, a supplemental statement of the case (SSOC) will be furnished to the appellant and his representative unless the additional evidence…is not relevant to the issue, or issues, on appeal. 38 C.F.R. § 19.37(a). In this case, the additional VA treatment records reflect ongoing inpatient evaluation and treatment for anoxic brain injury with severe encephalopathy; persistent vegetative state; and chronic respiratory failure requiring mechanical ventilation. Regarding the Veteran’s eyes, the records document new diagnoses incurred as a direct result of his suicide attempt by hanging. Specifically, an ophthalmologist diagnosed exposure/neurotrophic keratopathy secondary to severe anoxic brain injury; diffuse epithelial defect bilaterally despite lubricating ointment; and moderate chemosis bilaterally dependent on head position. The records do not address the issue of whether the Veteran’s headaches and vision loss began during his ACDUTRA service or are related to disease or injury during that service or whether either claimed disability was secondary to a service-connected disability. Accordingly, the additional evidence is not relevant to the issues of service connection for headaches and vision loss. Therefore, the Board may decide these issues without remanding them to the AOJ for consideration of the additional VA treatment records. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish direct service connection, there must be the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Active military service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred or aggravated in the line of duty, or a period of inactive duty for training (INACDUTRA) during which the veteran was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). In turn, “active duty” includes full-time duty in the Armed Forces, other than active duty for training; and “Armed Forces” means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof. 38 U.S.C. § 101(21)(A), (10), respectively. The “reserve component” includes the Navy Reserve. Id. § 101(27)(B). Only “veterans” are entitled to VA compensation under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303(a). Thus, to establish status as a “veteran” based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). See also Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (the fact that a claimant has established status as a “veteran” for purposes of other periods of service (e.g., the veteran’s period of active duty) does not obviate the need to establish that the claimant is also a “veteran” for purposes of the period of ACDUTRA or INACDUTRA where the claim for benefits is premised on that period of ACDUTRA OR INACDUTRA). In this case, the Veteran previously established his status as a veteran based upon a right knee disability aggravated by his period of ACDUTRA service. 1. Service connection for headaches On June 8, 2015, VA received the Veteran’s claim for service connection for headaches. In June 1987, days before his separation from ACDUTRA service, the Veteran presented to sick call with complaints of vomiting, diarrhea, headache, and muscle aches. Following a physical examination and x-rays of his sinuses, the assessment was probable intestinal viral-related infection. His Navy Reserve service treatment records, including from his period of ACDUTRA service, are otherwise silent for complaints, diagnosis, or treatment for headaches. In Navy Reserve enlistment and annual reports of medical history, dated in August 1986 and November 1987, respectively, he denied currently or ever having frequent or severe headaches or any head injury. In corresponding medical examination reports, his neurologic function and head were reported as normal on clinical evaluation. The medical evidence of record dating after the Veteran’s ACDUTRA service includes private treatment records dating since 1987 and VA treatment records dating since August 2005. In August 2005, the Veteran presented to VA urgent care for a “spell of rapid heartbeat.” He described taking medication for a gum and tooth infection and later developing sudden, fast heartbeat, flushing, and left chest pain. During a review of systems, he endorsed a slight headache with the head-flushing. The assessment was episode of palpitation, rapid heart rate, flushing, and left chest pain of unclear etiology; possible adverse reaction to medication. During an April 2011 VA primary care visit, the Veteran complained of severe headache, body aches, fever, diarrhea, and fatigue for the past two to seven days with constant nausea that increased after meals. He was concerned he had mononucleosis or influenza because his children had recently been diagnosed with both. Mono testing was negative. The assessment was possible systemic infection; he was treated for influenza prophylactically with Tamiflu due to recent confirmation of influenza in a family member. Private and VA treatment records reflect the Veteran’s reports of sustaining multiple head injuries and concussions due to blunt force trauma or physical assaults, particularly during the 1990s. A November 2015 VA traumatic brain injury (TBI) consultation report reflects his account of having been involved in many fights and sustaining head injuries, including an occipital skull fracture, and concussions with loss of consciousness. He stated he was “jumped” four or five times by several people in the 1990s and 2000s. He described experiencing dizziness, feeling “funny,” confusion, and word-finding difficulties, adding that he “last felt normal in the early 1990s.” He reported that he started having headaches “after [he] got beat up in the head” but they generally improved and had been intermittent since that time. However, his headaches worsened after he started detox for alcohol abuse in October 2015. The assessment included history of multiple concussions secondary to assault in the 1990s; mild TBI. The physician recommended the Veteran continue over-the-counter Tylenol for his infrequent headaches. Subsequent treatment records are silent for complaints, diagnosis or treatment for a chronic headache disorder. Having considered the medical and lay evidence of record, service connection for a headache disorder is not warranted. The evidence of record shows that the only documented headache during the Veteran’s period of ACDUTRA service was attributed to a viral infection along with other symptoms consistent with that diagnosis. Post-service medical and lay evidence of record shows that he experienced a couple of headaches in the context of a rapid heartbeat and a possible influenza infection. To the extent he has a chronic headache disability manifested by infrequent, intermittent headaches, the Veteran himself identified the onset of those headaches in the 1990s during the time when he suffered multiple head injuries during physical altercations, and the November 2015 VA physician appeared to attribute the reported headaches to the mild TBI resulting from the prior assaults. In summary, there is no medical or lay evidence of record indicating that a chronic headache disorder began during ACDUTRA service or is otherwise related to disease or injury during that service. VA will provide a medical examination or obtain a medical opinion when the evidence of record contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; establishes that the veteran suffered an event, injury, or disease, in service; and indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability; but the information and evidence of record does not contain sufficient competent medical evidence to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, the evidence of record is sufficient to decide the claim without obtaining a medical opinion because competent lay and medical evidence indicates that the current headache disability is associated with post-service traumatic head injuries. Again, the only documented headache during the Veteran’s ACDUTRA service was attributed to a viral infection and in November 1987 he denied having a history of frequent or severe headaches or any head injury. Prior to his anoxic brain injury in April 2016, he reported having intermittent, infrequent headaches since several assaults in the 1990s, including head trauma that caused a skull fracture. He did not assert that a chronic headache disability began in service or was otherwise related to an injury or disease during ACDUTRA service and he did not assert that a headache disability was secondary to any service-connected disability. As the preponderance of the evidence is against the claim for service connection for headaches, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for vision loss On June 8, 2015, VA received the Veteran’s claim for service connection for bilateral vision loss. Refractive errors of the eyes, including myopia (impaired distant vision), presbyopia (impaired near vision), astigmatism, and hyperopia, are considered congenital defects. Congenital defects and refractive error of the eye are not diseases or injuries within the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. Moreover, VA regulations specifically prohibit service connection for congenital defects, including refractive error of the eye, unless such a defect was subject to a superimposed disease or injury that caused additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg 45711 (July 18, 1990) (service connection may not be granted for defects of congenital, developmental, or familial origin, unless the defect was subject to a superimposed disease or injury). In an August 1986 Navy Reserve enlistment report of medical examination, the Veteran’s distant vision was 20/30 bilaterally, corrected to 20/20 bilaterally; his near vision was 20/20 bilaterally. A January 1987 eye examination report recorded his vision as 20/20 bilaterally. A November 1987 Navy Reserve annual report of medical examination recorded his distant vision as 20/20 bilaterally. In August 1986 and November 1987 reports of medical history, the Veteran denied currently or ever having eye trouble. His Navy Reserve service treatment records, including from his period of ACDUTRA service, are silent for any complaints, diagnosis, or treatment related to eye diseases or injuries. In August 2005, the Veteran presented to VA urgent care with complaints of a red face and chest pain. During a review of systems, he reported his vision was good. A September 2009 medical screening record related to booking in a local jail included screening for eye trouble, eye diseases, eye prosthesis, and corrective lenses. The Veteran indicated he used reading glasses and denied having other eye problems. In May 2012, the Veteran filed an informal claim for service connection for “deterioration of my sight,” asserting that certain pain medications over the years affected his eyesight. On January 31, 2013, he withdrew his claim in writing. In June 2013, the Veteran presented for a VA ophthalmology and optometry consultation. He reported having blurry near and distant vision. He denied using any ocular medications, denied having any past ocular or medical history of pertinence, and denied having diabetes or legal blindness. Following the examination, the impression was refractive error with a prescription for glasses; normal ocular health with a plan to monitor. The remaining private and VA treatment records associated with the claims file reflect the Veteran was not diagnosed with any eye diseases or eye-related injuries until his suicide attempt in April 2016. Although unresponsive and unable to cooperate, examination revealed exposure/neurotrophic keratopathy secondary to severe anoxic brain injury; diffuse epithelial defect bilaterally despite lubricating ointment; and moderate chemosis bilaterally dependent on head position. Service connection for refractive error of the eyes, claimed as vision loss, is not warranted. The claim must be denied because refractive error of the eyes, including myopia and presbyopia, is not a disease or injury for VA disability compensation purposes and competent medical and lay evidence of record indicates the Veteran’s impaired vision was not subject to a superimposed disease or injury that caused additional disability, either during his ACDUTRA service or after that service secondary to service-connected disability. Although the Veteran expressed his belief in May 2012 that his vision loss was due to pain medications used for his service-connected right knee disability, the fact remains that competent, contemporaneous medical evidence reflects that he was not diagnosed with any visual impairment other than refractive error and no injury or disease involving the eyes was shown by medical or lay evidence of record until after his April 2016 suicide attempt. In the absence of evidence showing that the Veteran’s congenital defect (refractive error of the eyes) was subject to a superimposed disease or injury (either during ACDUTRA service or secondary to service-connected disability) that caused additional disability, service connection is not warranted. As the preponderance of the evidence is against the claim for service connection for vision loss, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Generally, when an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also for consideration in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Analysis in this decision has been undertaken with consideration of the possibility that different ratings may be warranted for different time periods as to the pending claim. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 3. A rating in excess of 20 percent for degenerative changes of the medial compartment of the right knee On February 17, 2011, VA received an informal claim from the Veteran seeking an increased rating for his right knee disability, currently rated 20 percent disabling. He described constant aching pain, sometimes being unable to walk, recent partial swelling, and difficulty squatting and lifting heavy things due to pain and instability. He stated that treatment had included pain medications, knee braces, and injections. The Veteran’s right knee disability has been rated 20 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010-5261. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Here, Diagnostic Code 5010 pertains to post-traumatic arthritis, which in turn is rated as degenerative arthritis under Diagnostic Code 5003, and 5261 refers to limitation of extension of the leg. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5261. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, a 10 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Id. The 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Id., Note 1. In addition, the 20 percent and 10 percent ratings based on x-ray findings will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024. Id., Note 2. For VA compensation purposes, normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion. Ratings for limitation of flexion of a knee are assigned as follows: flexion limited to 60 degrees is 0 percent; flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Ratings for limitation of extension of the knee are assigned as follows: extension limited to 5 degrees is 0 percent; extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. Id., Diagnostic Code 5261. VA General Counsel has held that separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261, where a Veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-2004 (Sept. 17, 2004). Because ratings may be separately assigned for limitation of flexion and limitation of extension, the Board will consider both Diagnostic Codes. Diagnostic Code 5257 pertains to other impairment of the knee involving recurrent subluxation or lateral instability and provides a 10 percent rating for slight impairment, a 20 percent rating for moderate impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5257. VA General Counsel has held that separate ratings may be assigned for arthritis and instability under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97 (July 1, 1997). Before turning to the evidence, the Board notes that the May 2019 Board Remand directed the AOJ to arrange for a VA examination to evaluate the current severity of the Veteran’s right knee disability, to include assessing any functional loss during flare-ups and with repeated use over time. Unfortunately, the Veteran has remained unresponsive and fully ventilator-dependent since an April 2016 suicide attempt that resulted in anoxic brain injury with severe encephalopathy. Although the AOJ arranged for an examination as directed, the examination was cancelled because the Veteran is unable to participate in the examination process. Instead, the AOJ obtained and associated ongoing inpatient VA treatment records with the electronic claims file, considered the additional evidence, and readjudicated the issue of an increased rating for the right knee disability in a supplemental statement of the case (SSOC) in August 2020. In correspondence received later in August 2020, the Veteran’s attorney asked VA to “consider medical records to substitute for the remanded examination due to the Veteran’s inability to attend or respond to an examination.” Meanwhile, in August 2019, while the current appeal for a TDIU was pending, the Veteran’s attorney submitted an additional TDIU application completed by the fiduciary-father. The AOJ obtained ongoing inpatient VA treatment records dating to January 2021. In a January 2021 rating decision, the AOJ denied the claim for a TDIU and continued the previously assigned rating for each of the Veteran’s service-connected disabilities, including his right knee. In summary, the Board finds that the AOJ substantially complied with the May 2019 Board directive with respect to attempting to evaluate the current severity of the Veteran’s right knee disability. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence confirms that the Veteran remains unable to participate in an examination and the AOJ reviewed the available medical evidence instead. Finally, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities, including of the knee and leg, under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov.30, 2020). Because the Veteran has been unable to participate in a physical examination since his April 2016 anoxic brain injury, a remand for a new examination is not warranted. Turning to the evidence, during a February 2011 VA primary care visit, the Veteran requested a referral for an orthopedic consultation for right knee pain. On physical examination of his right knee, he had tenderness at the medial patellar region and full range of motion. In March 2011, he presented for a VA orthopedic evaluation. He used a knee sleeve for stability and reported some catching and giveaway. He stated that previous right knee injections had helped for a time. On examination, he ambulated with a normal gait; there was no evidence of right knee varus or valgus deformity, torsion deformity, or knee effusion. There was pain to the medial joint line. He had full right knee flexion to 140 degrees and extension to 0 degrees with normal muscle strength. Stability testing was reported as negative. Right knee x-ray testing revealed minor degenerative change for age with minor peripheral medial compartment narrowing joint space on standing; adequate alignment and range of motion; occasional tiny spur noted. The assessment was right knee osteoarthritis; The Veteran elected to proceed with a right knee corticosteroid injection. In June 2011, the Veteran was afforded a fee-basis examination. He endorsed experiencing right knee weakness, stiffness, swelling, heat, locking, fatigability, pain and tenderness, effusion, dislocation, and difficulty with standing and walking. He denied any redness, deformity, drainage, or subluxation. He reported experiencing flare-ups as often as daily and lasting for 24 hours with an estimated pain level of 8/10 in severity. He described the following functional impairments during flare-ups: walking with a limp; being unable to walk for long periods of time; and limitation of motion of the joint such that he is unable to stand, lift, or squat due to constate aching. He indicated that flare-ups were precipitated by physical activity and alleviated by rest and Indomethacin, Tramadol, Hydrocodone, and Daypro. He stated that in the past year, he experienced an incapacitating episode lasting three to five days and a second period of incapacitation lasting for seven days and that two different physicians prescribed bedrest. He believed he was unable to gain employment due to right knee instability. Examination findings were reported for both knees. Right knee range-of-motion testing revealed flexion to 120 degrees and normal extension to 0 degrees with pain beginning at the end of each plane of motion. Following repetitive-use testing, there was no additional loss of motion or additional functional loss due to any pain, fatigue, weakness, lack of endurance, or incoordination. Other right knee examination findings included the following: abnormal, unsteady gait with a limp due to pain; tenderness; grinding (crepitus); no subluxation, locking pain, genu recurvatum, or crepitus; and medial, lateral, anterior, and posterior ligament stability testing within normal limits. The examining physician remarked that the Veteran’s right knee disability would result in mild to moderate impairment on his occupational and daily activities. During a November 2012 VA primary care visit, examination findings included warmth of both knees; the Veteran was using a knee brace on his left knee. A September 2013 orthopedic follow-up note for left knee pain also reflects the Veteran’s report of right knee pain and request for a corticosteroid injection. Physical examination of both knees revealed no erythema or edema, no tenderness to palpation of the medial-lateral joint lines or anserine bursa, flexion to 120 degrees with full extension to 0 degrees, and negative stability testing. Subsequent treatment records document the Veteran’s history of right knee arthritis but do not include examination findings responsive to applicable criteria for rating disabilities of the knee. In July 2015, the Veteran was afforded a fee-basis examination to evaluate the current severity of his right knee disability. He described severe right knee pain with stiffness and numbness to his foot. He indicated he could not walk without a cane and stated that other functional loss due to his right knee included inability to squat, bend, or lift most of the time; and pain with standing. He reported constant use of a cane due to severe pain and stiffness in his lower extremities. Right knee range-of-motion testing revealed flexion to 80 degrees and full extension to 0 degrees with pain on flexion, extension, and weight-bearing. The examiner indicated the limitation of motion contributed to functional loss, including inability to kneel and impairment bending, lifting, standing, and walking. The Veteran was unable to perform repetitive-use testing and joint stability testing due to severe pain. The examiner indicated that additional factors contributing to the right knee disability included less movement than normal, weakened movement, swelling, disturbance of locomotion, interference with sitting, and interference with standing. In addition, the examiner indicated that pain, fatigue, weakness, lack of endurance, and incoordination would limit right knee functional ability with repeated use over time and with flare-ups but she could not describe the functional loss in terms of range of motion without speculation. Other reported examination findings included objective evidence of crepitus and localized tenderness or pain on palpation of the joint and associated soft tissues; reduced strength manifested by active movement against gravity with no muscle atrophy; no ankylosis; no history of recurrent subluxation or lateral instability; no recurrent patellar dislocation, shin splints, stress fractures, or other tibial and fibular impairment; and history of meniscal tear with frequent episodes of joint locking and pain. Having considered the medical and lay evidence of record, a rating in excess of 20 percent for right knee degenerative changes of the medial compartment is not warranted at any time during the appeal. Since receipt of the February 2011 claim for an increased rating, the Veteran’s right knee disability has been manifested at worst by flexion limited to 80 degrees with pain on motion, normal extension with pain, and arthritis confirmed by x-ray evidence. These findings are consistent with the 20 percent rating previously assigned, but no higher, for right knee degenerative changes of the medial compartment. In a December 2008 rating decision, the AOJ explained that although the Veteran did not meet the requirements for a 20 percent evaluation based on limitation of motion, consideration was given to functional loss to include weakness, fatigability with use, incoordination, and painful motion. The evidence of record shows that the Veteran continues to experience functional loss, including interference with sitting and standing, due to pain, stiffness, weakness, and other factors, but his right knee disability is not shown to have increased in severity as to warrant a higher rating based on the applicable rating criteria. Here, the Veteran’s flexion has been limited at worst to 80 degrees, which does not warrant even a noncompensable, 0 percent rating under Diagnostic Code 5260. Similarly, fee-basis examinations and VA treatment records document full right knee extension throughout the claim. As a result, the criteria for a noncompensable rating based on limitation of extension under Diagnostic Code 5261 are not met. It logically follows that a higher, 30 percent rating is not warranted based on limitation of motion because right knee flexion has not been limited to 15 degrees and extension has not been limited to 20 degrees. With respect to lateral instability, the Board considered the Veteran’s statements describing right knee instability and giving way. When considering whether lay evidence is competent, the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Board finds the Veteran is competent to describe many symptoms of his right knee disability, such as perceived instability and pain. See Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). The Board also finds his statements regarding instability generally credible because he reported using a knee sleeve for stability while seeking treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth to receive proper care). However, to the extent that VA medical personnel and two fee-basis examiners used specific clinical tests to assess the stability of the Veteran’s right knee, the Board finds the objective medical evidence is more probative than the lay evidence on the issue of instability because the clinical assessment of lateral knee instability made by performing particular joint stability tests falls outside the realm of common knowledge of laypersons. Because testing for instability consistently documented normal stability of the right knee ligaments, a separate compensable rating under Diagnostic Code 5257 for instability is not warranted. The Board considered other potentially relevant rating criteria but concludes that a rating in excess of 20 percent for the right knee is not warranted because the right knee has not been manifested by malunion or nonunion of the femur, knee ankylosis, or impairment of the tibia and fibula. 38 C.F.R. § 4.71a, Diagnostic Codes 5255, 5256, 5262. As the preponderance of the evidence is against the claim for a higher rating than that assigned for the right knee disability, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. The issue of service connection for a cervical spine disorder is remanded. In August 2011, VA received the Veteran’s claim for service connection for degenerative disc disease of the cervical spine, claimed as related to his service-connected right knee disability. In May 2013, the AOJ obtained a VA medical opinion based on a review of the claims file addressing whether the Veteran’s cervical spine disability was proximately due to his right knee disability. Unfortunately, the opinion did not address whether the cervical spine disability has been aggravated by the right knee disability. The AOJ should obtain a supplemental medical opinion. To assist the reviewing examiner, a summary of pertinent evidence of record is included herein. The Veteran’s Navy Reserve service treatment records, including from his period of ACDUTRA service, are silent for complaints, diagnosis, or treatment for neck problems. On Navy Reserve enlistment examination in August 1986, the Veteran’s spine and neurologic function were reported as normal on clinical evaluation. In a November 1987 Navy Reserve annual report of medical history, he reported he was in “good health other than deranged knee.” He denied any swollen or painful joints, recurrent back pain, or neuritis. On examination the same day, his spine and neurologic function were reported as normal on clinical evaluation. The medical evidence of record dating after the Veteran’s ACDUTRA service includes private treatment records dating since 1987 and VA treatment records dating since August 2005. In August 2005, he presented to VA urgent care for evaluation of a rapid heartbeat. During a review of systems, he denied any neck pain. During an October 2006 VA orthopedic consultation related to pain, numbness, and tingling in his hands, forearms, and elbows, he stated he had “no complaints of neck pain.” Contemporaneous private treatment records dated from May 2005 to May 2007 reflect the Veteran was receiving pain medications and/or muscle relaxants, including hydrocodone/acetaminophen (Norco, Vicodin), Soma (carisoprodol), Flexeril, and Mobic (meloxicam), prescribed for carpal tunnel syndrome and right knee pain. The records were silent for complaints, diagnosis, or treatment for neck problems. The records also reflect that at least twice, pharmacies contacted the private physician, declining to refill medications, because the Veteran had obtained prescriptions for the same medications from different doctors and filled them at different pharmacies. For example, in May 2007, the Veteran complained of pain in his elbows and shoulders and the physician prescribed Norco. However, the pharmacy notified the physician later that day that the Veteran had just received a refill of Norco six days earlier from a different physician. The physician noted he would no longer prescribe narcotics to the Veteran. The first documented complaint of any neck pain was in August 2008 during an in-patient VA psychiatric admission. The Veteran reported he was doing well and his only complaint was chronic neck and back pain. He stated he did not take any medication at home for pain. During a December 2008 VA primary care visit, the Veteran told the intake nurse that he may have hurt his neck during a trampoline accident; he also disclosed a history of back pain, Crohn’s disease, and knee pain. He told the examining physician that he continued to have diffuse arthralgias, especially in his low back, and that he had a trampoline injury three months earlier and still had neck pain from the accident. An April 2009 follow-up record reflects the Veteran’s report of continued neck (and back) pain since he “fell on his head” around September 2008 while jumping on a trampoline. The impression of a March 2009 cervical spine MRI study was multilevel degenerative changes, most pronounced at C5-C6 with evidence of mild to moderate spinal stenosis and mild to moderate bilateral neural foraminal stenosis. During a June 2009 primary care visit, he reported having moderately severe pain in the back of his neck and shoulders after lifting heavy coolers one week earlier. Findings from a June 2009 x-ray study included mild spurring anteriorly at C5-C6. During a medical screening in September 2009 upon booking at a local jail, the Veteran stated he had bulging discs in his neck at C5 and C6 diagnosed about seven months earlier; he was wearing a neck brace, which he had had for approximately four months. In October 2009, he again disclosed having herniated discs to his neck since landing on his head while doing a back flip on a trampoline. Subsequent VA treatment records and imaging reports documented ongoing evaluation and treatment for cervical spine arthritis with neural foraminal stenosis, also diagnosed as cervical radiculopathy. In correspondence received in May 2011, the Veteran’s friend of 35 years, S.H., related that he experienced “severe pain in his neck due to deterioration of discs.” In a letter received in December 2013, S.H. described herself as the Veteran’s “common law friend” and expressed her belief that his neck problem was due to his service-connected right knee disability. In April 2016, the Veteran attempted suicide by hanging. VA treatment records detail he was initially transported to a private hospital where computed tomographic angiography (CTA) revealed no evidence of fracture to his cervical spine. Because he was transferred to the VA hospital in a cervical collar and had not been evaluated by the private neurosurgery team, and because family members wished to consider tracheostomy and percutaneous endoscopic gastrostomy (trach and peg), VA neurosurgery consultation included additional imaging, which confirmed he did not sustain a cervical spine fracture, and he was cleared for removal of the cervical collar. 2. The issue of service connection for hypertension is remanded. On June 8, 2015, VA received the Veteran’s claim for service connection for hypertension. For VA purposes, hypertension means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. In an August 1986 Navy Reserve enlistment report of medical examination, the Veteran’s blood pressure was recorded as 138/78. In June 1987, he presented to sick call with symptoms attributed to a viral infection. His blood pressure was recorded as 133/83. During a follow-up visit three days later, his blood pressure was recorded as 155/94; a second reading was recorded as 116/64. A November 1987 annual Navy Reserve enlistment report of medical examination recorded his blood pressure as 122/64. Among post-service VA and private treatment records, the Veteran was diagnosed with labile hypertension in May 2006. During visits with a private physician in March 2007, his blood pressure was recorded as 162/98 and as 166/110 two weeks later. During the latter visit, the diagnosis included hypertension. A January 2011 VA primary care record indicates that the Veteran had not been on medication for labile hypertension. He was started on atenolol-chlorthalidone. The May 2019 Board Remand directed the AOJ to schedule the Veteran for a VA examination to determine the etiology of his hypertension. Because the Veteran has been unresponsive to external stimuli and ventilator-dependent since April 2016, he could not participate in a VA examination and the examination was cancelled. The AOJ should obtain a VA medical opinion regarding the etiology of the Veteran’s hypertension to ensure substantial compliance with the prior Remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. The issue of service connection for a sleep disorder is remanded. On June 8, 2015, VA received the Veteran’s claim for service connection for a sleep disorder. The Veteran’s Navy Reserve service treatment records, including from his period of ACDUTRA service, are silent for complaints, findings, or diagnosis related to sleep problems. In reports of medical history dated in August 1986 and November 1987, he denied currently or ever having frequent trouble sleeping. Post-service treatment records reflect the Veteran’s reports of sleep problems in the context of psychiatric impairment. For example, an August 2008 VA discharge summary indicates the Veteran was admitted for depression and suicidal ideation, reporting he experiences insomnia for two to three days at a time until he drinks alcohol or uses a Xanax to get some sleep. The discharge diagnosis was polysubstance dependence; substance-induced mood disorder versus bipolar disorder. During a December 2011 psychiatry visit, he reported that Remeron, which had been prescribed for depression at his previous visit, had “really helped” his mood and he was sleeping well. In comparison, during a May 2012 anesthesiology consultation prior to a shoulder surgery, the Veteran denied snoring or having sleep apnea. In July 2013, he presented for an anesthesiology consultation prior to a right foot surgery and reported that he did snore but denied having sleep apnea. Then, in July 2015, the Veteran attended a VA telehealth sleep consultation and group orientation focusing on sleep-disordered breathing. He completed a fee-basis sleep study in August 2015 and returned to VA in October 2015 to discuss the results. He had admitted to frequent awakenings four to five times per night, loud snoring, witnessed apneas, gasps, choking, dry mouth, irritability upon awakening, and excessive daytime fatigue and sleepiness. He also had a long history of addition with polysubstance use including alcohol, benzodiazepines, and narcotics. He estimated sleeping three to four hours per night without alcohol or clonazepam (Klonopin). The sleep study revealed mild obstructive sleep apnea. However, the physician explained that the sleep study result may not be valid because it may overestimate the severity of sleep apnea due to the veteran using alcohol before the study and abusing alcohol, clonazepam, and Vicodin around the time of the study. Because he was currently in early remission, the physician recommended a repeat sleep study within the next four to six weeks while sober and recovering from the affects of alcohol on sleep architecture. A VA order in late-August 2015 for another sleep medicine consultation indicates that the Veteran had mild obstructive sleep apnea on a recent outside sleep study but severe arousal index. The ordering physician noted the Veteran was a chronic alcohol user and suspected withdrawal on the night of the sleep study. VA medical records document that since the Veteran was admitted in April 2016 following a suicide attempt, he had chronic ventilator dependence; multiple trials of ventilator weaning had failed with recurrent apnea events. In August 2017 correspondence (received in November 2017), the Veteran’s sister described her observations of the Veteran’s mood, behavior, and social interactions before and after his Navy Reserve service. She reported that his “sleeping conditions were awful; he wouldn’t be able to sleep at all one night and then the next day he would sleep all day.” The May 2019 Board decision granted service connection for major depressive disorder with anxiety and a June 2019 rating decision effectuated the Board’s decision. To the extent the Veteran’s sleep impairment has been related to his service-connected major depressive disorder with anxiety, chronic sleep impairment is specifically contemplated by the Schedule of ratings for mental disorders. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. However, to determine whether the mild obstructive sleep apnea diagnosed in August 2015 is related to the Veteran’s ACDUTRA service and to ensure substantial compliance with the prior Remand directive, the AOJ should obtain a medical opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. The issue of a TDIU due to service-connected disabilities is remanded. The issue of entitlement to a TDIU was reasonably raised in a VA Mental Disorders Disability Benefits Questionnaire (DBQ) (VA Form 21-0960P-2) and accompanying narrative report completed by a private psychiatrist in March 2018 and received by VA on March 5, 2019. Because the service connection claims for a cervical spine disability, hypertension, and a sleep disorder are being remanded and may have a bearing on the issue of the veteran’s employability, the TDIU claim is dependent, in part, on the outcome of those claims and, therefore, is inextricably intertwined with those issues. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Provide the Veteran’s electronic claims file, including a complete copy of this Remand, to an appropriate clinician to obtain a supplemental medical opinion regarding the Veteran’s cervical spine arthritis with neural foraminal stenosis, also diagnosed as cervical radiculopathy. (The Veteran has been in a vegetative state and ventilator-dependent since April 2016. Do not schedule an in-person examination). Following a review of the claims file, provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s service-connected right knee disability (degenerative changes of the medical compartment) aggravated his cervical spine arthritis with neural foraminal stenosis, also diagnosed as cervical radiculopathy. A detailed medical rationale must be provided with all opinions expressed. 2. Provide the Veteran’s electronic claims file, including a complete copy of this Remand, to an appropriate clinician to obtain a medical opinion regarding the nature and etiology of the Veteran’s hypertension. (The Veteran has been in a vegetative state and ventilator-dependent since April 2016. Do not schedule an in-person examination). Following a review of the claims file, provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) his labile hypertension, which appears to have been diagnosed by VA providers in May 2006, had its onset during the Veteran’s period of ACDUTRA service (January 1987 to June 1987) or is otherwise etiologically related to that service, including the elevated blood pressure reading of 155/94 in June 1987. A detailed medical rationale must be provided with all opinions expressed. 3. Provide the Veteran’s electronic claims file, including a complete copy of this Remand, to an appropriate clinician to obtain a medical opinion regarding the nature and etiology of the Veteran’s claimed sleep disorder. (The Veteran has been in a vegetative state and ventilator-dependent since April 2016. Do not schedule an in-person examination). The reviewing examiner is advised that the Veteran’s chronic sleep impairment associated with service-connected major depressive disorder is contemplated in the rating criteria for that disability. However, in August 2015, he was diagnosed with mild obstructive sleep apnea after a fee-basis sleep study. See VA Sleep Medicine Consult, Oct. 6, 2015. Following a review of the claims file, provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s obstructive sleep apnea had its onset during his ACDUTRA service (January 1987 to June 1987) or is otherwise etiologically related to that service. A detailed medical rationale must be provided with all opinions expressed. In providing the requested opinion, address the August 2017 statement from the Veteran’s sister (received in November 2017) in which she described her observations of the Veteran’s sleep habits after his Navy Reserve service. 4. After adjudicating the appeal of the claims for service connection for a cervical spine disability, hypertension, and a sleep disorder, readjudicate the claim of entitlement to a TDIU. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Kirscher Strauss 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.