Citation Nr: 21028269 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 13-08 337 DATE: May 10, 2021 ORDER Entitlement to a rating of 30 percent for traumatic arthritis under DC 5261 (reassigned from DC 5260), right knee with meniscus derangement with resolving bursitis anterior knee is granted. Entitlement to a separate rating of 10 percent under DC 5259 for traumatic arthritis, right knee with meniscus derangement with resolving bursitis anterior knee is granted. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for chronic cough is denied. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran's traumatic arthritis, right knee with meniscus derangement with resolving bursitis anterior knee has manifested as causing painful motion and extension limited to 20 degrees. 2. The Veteran underwent a partial right meniscectomy due to his service-connected right knee condition on June 25, 2010, which has resulted in continued swelling and pain. 3. The preponderance of the evidence is against finding that the Veteran's sleep apnea began during active service or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that the Veteran's chronic cough began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent for traumatic arthritis under DC 5261 (reassigned from DC 5260), right knee with meniscus derangement with resolving bursitis anterior knee have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71(a), DC 5261 (2019). 2. The criteria for a separate rating of 10 percent under DC 5259 for traumatic arthritis, right knee with meniscus derangement with resolving bursitis anterior knee have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71(a), DC 5259 (2019). 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 4. The criteria for service connection for chronic cough have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from August 1993 to December 1993 and active duty from February 2003 to April 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from September 2011 and March 2012 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in May 2019. A transcript of the hearing is associated with the electronic claims file. The Board issued a prior remand on these claims in July 2020. I. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pertinent regulations also provide that it is not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Id. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran's right knee arthritis is rated under DC 5261 for limitation of extension of the leg. DC 5261 provided a 0 percent rating for extension limited to 5 degrees; a 10 percent rating for extension limited to 10 degrees; a 20 percent rating for extension limited to 15 degrees; a 30 percent rating for extension limited to 20 degrees; a 40 percent rating for extension limited to 30 degrees; and a 50 percent rating for extension limited to 45 degrees. 1. Entitlement to a rating in excess of 10 percent for traumatic arthritis, right knee with meniscus derangement with resolving bursitis anterior knee. 2. Entitlement to a separate rating of 10 percent under DC 5259 for traumatic arthritis, right knee with meniscus derangement with resolving bursitis anterior knee. The Veteran was initially granted service connection for right knee arthritis in an April 2005 rating decision, effective April 30, 2004, evaluated at 10 percent. In April 2010, the Veteran requested an increased rating for his right knee arthritis. As a result, he was given a VA examination for his knees in June 2010. Here, the examiner noted pain and swelling of the right knee but found that the Veteran was able to perform all of his activities of daily living unassisted and was scheduled for surgery in June 2010. Right knee flareups were noted that caused pain and swelling that lasted for 1-3 hours about 2-3 times per week. No instability of the right knee was found but stiffness was noted. The examiner noted the Veteran's right knee extension to have a loss of 20 degrees and flexion was 20-56 degrees, however due to pain when exercising the examiner opined flexion to be 20 degrees to 50 degrees at maximum. The examiner provided that he was unable to give an estimate as to function during a flareup without speculation. Based on this examination and additional records confirming a right knee arthroscopy and partial medial meniscectomy in June 2010, the RO issued a May 2011 rating decision grating a temporary 100 percent rating based on surgical treatment necessitating convalescence from June 25, 2010 to September 30, 2010, and continued a rating of 10 percent beginning October 1, 2010 due to painful motion. The Veteran appealed this rating up to the Board. The Veteran was given another VA examination for his knees in June 2011. Here, the examiner noted that the Veteran was complaining of a burning pain in the knees worsened with walking up steps, prolonged sitting and prolonged walking. The examiner noted flareups that occur about 2 times per week and persist for about an hour causing the Veteran to stop what he is doing and get off of his feet. No right knee instability was found and range of motion of the right knee was flexion 10 degrees to 68 degrees and after repetitive motion flexion was 10 degrees to 64 degrees. No objective pain was noted at the end of flexion. The examiner again opined that he was unable to estimate function during a flareup without speculation. The Veteran was given a third VA examination for his knees in September 2014. Here, the examiner noted that walking on cement caused pain and edema and listed flareups causing increased pain with ambulating on concrete. The examiner found the Veteran's right knee flexion to be to 90 degrees, with pain beginning at 90 degrees and his extension to 0 degrees with no objective evidence of pain. After repetitive use testing range of motion remained the same. The examiner indicated that she was unable to test for instability in the right knee due to hypersensitivity in the right knee. She noted the Veteran's prior meniscal condition of the right knee but found that the Veteran did not currently suffer from any symptoms, nor did he have any residual signs and/or symptoms due to his meniscectomy. Finally, the examiner indicated that she could not opine without resorting to mere speculation what additional range of motion loss the Veteran might have during flareups or in repetitive use over time. Based on these findings, the RO issued a September 2014 rating decision again continuing to evaluate the Veteran's right knee arthritis at 10 percent. In July 2020, the RO remanded that claim to update the record and provide the Veteran with another VA examination consistent with recent caselaw. The Veteran was given another VA examination for his knees in October 2020. Here, the examiner noted no flareups, but wrote that the Veteran reported functional loss as "No squatting. Cannot walk more than short distances." Range of motion testing of the right knee showed flexion to be to 90 degrees and extension to 5 degrees, pain that causes functional loss was noted on exam. After repetitive use over time, the examiner found the Veteran's flexion to be to only 85 degrees with extension remaining the same. No further limitation of motion was found, nor was ankylosis. No subluxation or lateral instability was found, but the examiner did note chronic bilateral knee swelling which was worse if the Veteran was on his feet a lot. The examiner found that the Veteran's right knee meniscal condition caused meniscal tear, frequent episodes of joint pain, and frequent episodes of joint effusion. He further noted that the Veteran's right partial meniscectomy caused continued swelling and pain. Finally, the examiner opined that the Veteran's 2010 right partial meniscectomy was at least as likely as not due to his meniscus derangement. As noted above, the Veteran's right knee arthritis is evaluated under DC 5261 for limitation of extension. VA examinations show that the Veteran's right knee extension was limited to 20 degrees at most, which is consistent with a 30 percent rating. The Board has reviewed the other knee diagnostic codes and find that no other codes would provide the Veteran with a higher rating as he has no right knee subluxation or instability (DC 5257), no ankylosis (DC 5256), nor a dislocated semilunar cartilage (DC5258). The Veteran is also not entitled to a separate compensable rating under DC 5260 because flexion has not been limited to 45 degrees or less. However, the Board does find that the Veteran's June 25, 2010 right partial meniscectomy resulted in continued pain and swelling, therefore a separate compensable rating of 10 percent is warranted under DC 5259 for cartilage, semilunar, removal of, symptomatic. See Lyles v. Shulkin, 29 Vet. App. 107 (2017) (providing that the "evaluation of a knee disability under DC 5257 [knee instability] or 5261 [limitation of extension] does not preclude, as a matter of law, separate evaluation of a meniscal disability of the same knee under DC 5258 or 5259 [addressing menisceal pathology].") The Veteran is competent to provide evidence about his disability; for example, he is competent to describe symptoms such as pain. See Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify a specific level of disability according to the appropriate Diagnostic Code. Competent evidence concerning the nature and extent of the condition was provided by multiple VA examiners who interviewed and evaluated him during the current appeal. The medical findings as provided in the VA examination reports directly address the criteria under which these disabilities are evaluated. Thus, while the Board has considered the Veteran's lay statements regarding the severity of his right knee arthritis, the lay evidence is outweighed by the competent and credible medical evidence that evaluated the true extent of the impairment of the service-connected conditions based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings regarding the type and degree of impairment due to the Veteran's disabilities. Accordingly, entitlement to a rating of 30 percent under DC 5261 for traumatic arthritis, right knee with meniscus derangement with resolving bursitis anterior knee is granted. Additionally, entitlement to a separate 10 percent rating under DC 5259 for traumatic arthritis, right knee with meniscus derangement with resolving bursitis anterior knee is granted. II. Service Connection Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 3. Entitlement to service connection for sleep apnea. 4. Entitlement to service connection for chronic cough. In April 2010 the Veteran requested service connection for sleep apnea and in June 2011 the Veteran requested to reopen his claim for service connection for a chronic cough. The Veteran has contended that both conditions were due to his experiences while he was deployed in Iraq, wherein he had trouble sleeping and was exposed to burn pits, sandstorms, and chemicals. The Board notes VA treatment records from October 2007 show the Veteran complaining of a dry cough for one month, which the examiner lists as secondary to lisinopril, the Veteran's hypertension medication. A plan was made to discontinue the use of lisinopril and prescribe Claritin for the Veteran's cough. The Veteran was given a general medical examination per Gulf War guidelines in May 2011. Here, the examiner noted that "The patient states he has experienced a chronic nonproductive cough since his period of active duty in Iraq. He notices the cough mainly at nighttime. He describes no episodes of asthma, pneumonia, or tuberculosis. He states he experiences mild wheezing once or twice per month. He describes no shortness of breath. He is a nonsmoker. Otherwise, he has noted loud nocturnal snoring associated with daytime drowsiness and frequent awakening through the night for approximately 2 years. He has not been diagnosed with sleep apnea, but thinks he may have such." In his report, the examiner opined "I find no multisystem disease or undiagnosed illness that would suggest a Gulf War Syndrome. See the various consultants' notes for potential disabilities related to their areas of expertise. The exact etiology of the chronic cough is not clear. Pulmonary function studies show normal flows and volumes, with exception of a low ERV compatible with obesity. Speculation would be required to list a specific etiology." Moreover, the examiner noted that the sleep study has been ordered to evaluate possible sleep apnea but could not be obtained in a timely manner for purposes of this exam. In November 2011 the Veteran underwent a sleep study. His VA treatment records include a December 2011 letter that his sleep study results had been reviewed and there was no evidence of obstructive sleep apnea, thus no further sleep study testing was indicated. The RO issued a March 2012 rating decision denying service connection for both sleep apnea and chronic cough. However, the Board notes that the Veteran was granted service connection for chronic vasomotor rhinitis in the same decision. The Veteran appealed these issues up to the Board. In May 2015 the Veteran was given a VA examination for his sleep apnea and the examiner found no diagnosis of such. He wrote "Claimed condition: 'OSA/ sleep disturbances'. There is insufficient evidence to warrant or confirm a diagnosis of an acute or chronic 'OSA/ sleep disturbances' condition or its residuals. No medical opinion can be rendered as no condition is diagnosed. Normal sleep study performed on Nov 2011 demonstrate no obstructive sleep apnea nor any sleep disturbance. Veteran reported symptomatology most likely than not 2ry to his current job demand and shift changes as documented on 2014 notes." In July 2020, the Board remanded the claims in order to obtain additional treatment records and addendum opinions regarding the Veteran's conditions, which included consideration of his May 2019 hearing testimony and recent diagnosis of sleep apnea. The Veteran was given another VA examination for his sleep apnea in October 2020. Here, the examiner diagnosed the Veteran with obstructive sleep apnea, but opined that it was less likely than not related to his active service. Specifically, the examiner wrote "The Veteran states he has trouble getting to sleep, and waking up and not being able to go back to sleep. These symptoms are not consistent with and are less likely than not due to obstructive sleep apnea. 'Regarding his snoring like a hog now,' he exited active duty in 2004. In 2011, sleep test was not diagnostic of sleep apnea, so despite snoring, he was not diagnosed with sleep apnea. Snoring is not always diagnostic for sleep apnea. It was not until his 07/11/17 test that he was diagnosed with OSA. In general, it is not unusual for sleep apnea to develop with aging." Also, in October 2020 the Veteran was given a VA examination for respiratory conditions. Here, the examiner diagnosed the Veteran with a chronic cough. However, the examiner also opined that this condition was less likely than not due to the Veteran's active service. Specifically, the examiner wrote "The Veteran noted he had complaints of an acute cough and congestion dated 4/22/99. He has another acute episode in 2004. After that he was diagnosed with rhinitis and treated with cetirizine. It is less likely than not that his current chronic cough is due to a pulmonary condition, but rather from rhinitis. It is less likely than not that his post-deployment cough and sinus congestion/shortness of breath is due to his SE Asia deployment since he had documented symptoms prior to his deployment." The Board finds both of these opinions to be consistent with the record and well-reasoned, entitling them to significant probative weight. The record does not contain any positive nexus opinions regarding the Veteran's sleep apnea or chronic cough. Moreover, the Board notes that the Veteran is already service connected for rhinitis, from which the most recent examiner opined that Veteran's cough is due. Aside from his contentions that his sleep apnea and chronic cough are due to his deployment to Iraq, the Veteran has provided no further evidence in support of such a finding. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on these matters possess a level of expertise that a layperson simply does not possess. The preponderance of the evidence is against both claims. Accordingly, entitlement to service connection for sleep apnea and chronic cough are denied. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Ruiz, 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.