Citation Nr: 21024990 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 18-20 955 DATE: April 27, 2021 REMANDED Entitlement to a sleep disorder, to include obstructive sleep apnea, is remanded. Entitlement to an initial rating in excess of 10 percent for left knee degenerative arthritis with patellofemoral syndrome under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260 is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from June 1980 to June 1992. 1. Entitlement to a sleep disorder, to include obstructive sleep apnea, is remanded. A June 2018 sleep apnea evaluation from H. Skaggs, M.D., states that the Veteran had been diagnosed with obstructive sleep apnea by an October 2009 sleep study. Dr. Skaggs commented that “it is as likely as not the Veteran’s service connected major depressive disorder aided in the development of and permanently aggravated his severe obstructive sleep apnea.” The report of a September 2019 sleep apnea examination conducted for the Department of Veterans Affairs (VA) states that the Veteran was diagnosed with obstructive sleep apnea. The examiner concluded that “the claimed condition is less likely than not (less than 50 percent probability) proximately due or the result of the Veteran’s service connected condition. The physician commented that, “considering history as related by claimant, current exam, and review of medical records, I opine that the current obstructive sleep apnea is less likely than not related to the Veteran’s service connected depression or other service connected disorders;” “the medical literature does not include depression as a cause of obstructive sleep apnea;” “obstructive sleep apnea is defined in the literature as a common disorder characterized by repetitive episodes of nocturnal breathing cessation due to upper airway collapse;” “depression would not be the cause of the pathophysiologic upper airway collapse, nor would the other service connected conditions (knees, tinnitus or hernia);” and “none of the Veteran’s claimed conditions listed above have probable causation of obstructive sleep apnea related anatomic pathology to aggravate the symptoms/diagnosis of obstructive sleep apnea.” The examiner did not note or otherwise address Dr. Skaggs’ favorable opinion. Therefore, the Board of Veterans' Appeals (Board) finds that the examination report is of limited probative value. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board concludes that further VA sleep apnea evaluation is needed. 2. Entitlement to an initial rating in excess of 10 percent for left knee degenerative arthritis with patellofemoral syndrome under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260 is remanded. The report of a January 2020 knee examination conducted for VA states that the Veteran exhibited a left knee range of motion of 0 to 90 degrees with pain on flexion and extension. The examiner commented that: “pain noted on examination and causes functional loss;” “there is objective evidence of pain on passive range of motion testing of the left knee;” and “there is objective evidence of pain on non weight bearing testing of the left knee.” The physician did not indicate the degree at which the Veteran experienced pain on motion of the left knee. Given that deficiency, the Board finds that the functional loss associated with the service connected left knee disability is unclear and the examination report is of limited probative value. Further VA knee evaluation is needed. The Board observes that the Secretary of VA has recently amended that portion of 38 C.F.R. Part 4 which pertain to musculoskeletal disabilities. On February 7, 2021, the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5003 addressing degenerative were amended. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5003. Clinical documentation dated after February 2020 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 3. Entitlement to a TDIU. The issue of entitlement to a TDIU is inextricably intertwined with the issues being remanded and must also be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who treated him for any sleep disability and service-connected left knee disability. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Associate with the record any VA medical records for treatment provided since February 2020 not already of record. 3. Schedule the Veteran for a VA sleep apnea examination conducted by a medical doctor, who has not previously examined him, to assist in determining the current nature of any identified sleep disability and any relationship to active service or a service-connected disability. The examiner must review the record, including the June 2018 sleep apnea evaluation from H. Skaggs, M.D., and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all sleep disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified sleep disability had its onset during active service or is related to any incident of service. Reconcile the opinion with the other opinions of record, including from Dr. Skaggs. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified sleep disability is due to or caused by depression and the other service-connected disabilities. Reconcile the opinion with the other opinions of record, including from Dr. Skaggs. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified sleep disability has been aggravated (increased in severity beyond the natural progress of the disorder) by depression and the other service connected disabilities. Reconcile the opinion with the other opinions of record, including from Dr. Skaggs. 4. Schedule the Veteran for a VA examination conducted by a medical doctor to assist in determining the current nature and severity of the left knee degenerative arthritis with patellofemoral syndrome. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for weight-bearing and nonweight-bearing and passive and active motion of the left knee. The examiner should specifically indicate the degree at which the Veteran experiences pain on motion of the left knee. (Continued on the next page)   (b) State whether there is any additional loss of function of the left knee due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. (c) Opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service connected left knee disability. If the Veteran is felt capable of work despite the service connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service connected disabilities. J. T. HUTCHESON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.