Citation Nr: 21032659 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 08-36 705 DATE: May 27, 2021 ORDER The petition to reopen the previously-denied claim for service connection for a right knee disorder is granted. REMANDED Entitlement to a rating in excess of 20 percent for service-connected bursitis with degenerative arthritis, left shoulder (left shoulder disability) from January 20, 2009, is remanded. Entitlement to service connection for a right elbow disorder is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a right knee disorder as secondary to service-connected left knee injury residuals, status post meniscectomy (left knee disability) is remanded. FINDINGS OF FACT 1. In an August 2008 rating decision, the agency of original jurisdiction (AOJ) denied the Veteran's claim for service connection for a right knee disorder; he initiated an appeal but subsequently withdrew his appeal in September 2012. 2. Additional evidence associated with the claims file since the August 2008 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial, it relates to unestablished facts necessary to substantiate the claim for service connection for a right knee disorder, and it raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2008 rating decision that denied the Veteran's claim for service connection for a right knee disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. 2. As evidence received since the August 2008 rating decision is new and material, the criteria for reopening the claim for service connection for a right knee disorder are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1977 to July 1981, April 1982 to April 1984, November 2001 to November 2002, and from March 2003 to November 2005. In September 2012, the Veteran testified at a hearing before a Veterans Law Judge (VLJ); a transcript of that hearing is of record. In Mach 2020, he was notified that the VLJ who held the September 2012 hearing was no longer available to participate in the decision. The Veteran was provided the opportunity to appear at another hearing before a different VLJ and, in February 2021, he testified before the undersigned VLJ. Petition to Reopen The AOJ originally denied the Veteran's claim for service connection for a knee disorder as secondary to a left knee disorder in an August 2008 rating decision because service connection for a left knee disorder had not been established. The Veteran initiated an appeal of that decision, but he subsequently withdrew his appeal in September 2012. As such, the August 2008 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Newly received evidence includes a May 2014 private medical opinion attributing the Veteran's right knee disorder to his left knee disability. Furthermore, the Board notes that service connection for the Veteran's left knee disability was granted in a December 2012 rating decision. The Board finds that the evidence received constitutes new and material evidence under the provisions of 38 C.F.R. § 3.156, and his claim for service connection for a right knee disorder is reopened. REASONS FOR REMAND 1. Left Shoulder In a January 2019 remand, the Board directed the AOJ to obtain a VA medical opinion that addressed the Veteran's pertinent left shoulder symptomatology since January 20, 2009, including during flare-ups, and it asked the examiner to opined as to what extent the Veteran experienced addition loss of motion. Although the Veteran underwent an examination in March 2019, the examiner did not provide a response to the question posed by the Board. Instead, the examiner focused much of the examination report on the fact that the Veteran's left shoulder bursitis was excised in 2003, that it was not an active diagnosis, and that it did not caused any functional limitation. In this regard, however, the Board notes that the Veteran is also service-connected for degenerative arthritis of the left shoulder in addition to the bursitis, but consideration of this diagnosis is not reflected in the examiner's opinion. Given the fact that the examiner did not address the severity of the Veteran's left shoulder disability since January 20, 2009, including during flare-ups, the Board finds that there has not been substantial compliance with the Board's previous remand directives. As such, another remand is required. That stated, the Board also observes that in a prior Joint Motion for Remand, the parties agreed that the Board, in discussing whether referral of the Veteran's left shoulder rating claim was required for extraschedular consideration by the Director of Compensation services in a now vacated August 2015 decision, failed to adequately consider and discuss the collective impact or combined effects of all the Veteran's service-connected disabilties. The parties cited to the holding in Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014) in support. The Board in turn remanded the Veteran's shoulder claim in January 2019 for extraschedular referral under the provsiions of 38 C.F.R. § 3.321(b). On remand, the AOJ did not refer the issue for extraschedular consideration, but rather performed the development discussed above and denied a higher schedular rating. While there is clear noncompliance with the prior Remand instruction, the laws and regulations have changed with respect to extraschedular referrals since the prior JMR, such that remand to ensure compliance with the January 2019 instruction to refer the matter for extraschedualr consideration is no longer necessary. Indeed the Federal Circuit decision in Johnson allowing for an individual extra-schedular disability rating based on the combined effects of multiple service-connected disabilities was later superseded by regulation. See 82 Fed. Reg. 57230 (Dec. 8, 2017). This regulatory change applies to all applications for benefits that were pending before VA on January 8, 2018, which includes this appeal. The final rulemaking clarified that an extraschedular evaluation is to be applied to an individual service-connected disability when the disability is so exceptional or unusual that it makes application of the regular rating schedule impractical and that an extraschedular evaluation may not be based on the combined effect of more than one service-connected disability. In Thurlow v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) held the revised regulation applied retroactively. Thurlow, 30 Vet. App. 231 (2018). The Federal Circuit more recently held in the case of National Organization of Veterans' Advocates, Inc. (NOVA) v. Secretary of Veterans Affairs that the 2017 amendment is not on its face arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. NOVA v. Secretary of VA, 18-1391 (Fed. Cir. 2019). As such, referral of the Veteran's left shouder claim for extraschdular consideration based on the combined effects of all of his service-connected disabilties is no longer necessary. Insofar as a higher schedular rating may still be warranted after completion of the development ordered in this Remand, referral for extraschedular consideration at this time would be premature. On remand, the AOJ should consider whether referral for extraschedular consideration is necessary after review of the newly-ordered examination results and reassement of the schedular rating. 2. Right Elbow The Veteran claims entitlement to service connection for a right elbow disability as secondary to his service-connected disabilities. Specifically, the Veteran argues that his right elbow disability developed as a result of overuse due to the functional impairment associated with his service-connected bilateral shoulder disabilities. See November 2015 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits; February 2021 Hearing Transcript, pp. 10-11. During his February 2021 hearing, the Veteran also argued that he has fallen on his right elbow as a result of the problems associated with his service-connected left knee disability and right knee disorder. In July 2019, the Veteran underwent a VA examination, and he was diagnosed with right elbow medial epicondylitis. Ultimately, the examiner opined that his right elbow disorder was less likely than not proximately due to, or the result of, his service-connected left shoulder disability. The examiner reasoned that he was unable to find a correlation with left shoulder conditions and pain in the right elbow. The Board finds that the July 2019 opinion is insufficient to adjudicate the claim. First, although the examiner indicated in his opinion that the Veteran was unable to provide details on how his left shoulder condition impacted his right elbow, the examiner previously noted that the Veteran's contention was that overuse of the right elbow as a result of the functional impairment associated with the left shoulder disability was the result of his right elbow disorder. Second, the examiner's opinion fails to address whether the Veteran's right elbow disorder was aggravated by his service-connected left shoulder disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Finally, as noted by his representative during the February 2021 hearing, the Veteran had not been awarded service connection for a right shoulder disability at the time of the July 2019 VA examination.. When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given that the medical evidence of record fails to adequately address the issues raised, the Board finds that a new examination is necessary. 3. Sleep Apnea The Veteran claims entitlement to service connection for sleep apnea as secondary to his service-connected disabilities. Specifically, he argues that his sleep apnea is secondary to his service-connected depression and the medication used to treat his depression. See November 2015 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits; February 2021 Hearing Transcript, p. 13. In a May 2016 statement, the Veteran's wife reflected that she remembered him experiencing sleeping difficulties shortly after his discharge from military service, including unusual sleep patterns, gasping for air during sleep, and loud snoring. The Board notes that, in addition to his own lay statements and those of his wife, the Veteran has also submitted a number of medical articles in support of his claim that his sleep apnea is secondary to his service-connected depression. In connection with his claim, the Veteran underwent a VA examination in July 2019. The Board notes at the outset that, in the evidence comments section of the examination report, the examiner appears to have summarized the facts contained in a May 2009 Board decision (pertaining to a different veteran) that the Veteran submitted in May 2016. The examiner then noted the Veteran's statement that his wife would tell him that he would stop breathing during the night. Ultimately, the examiner concluded that his sleep apnea was less likely than not proximately due to, or the result of, his service-connected depression. The examiner reasoned that the literature making a connection between depression and sleep apnea was controversial. The examiner also noted that his sleep apnea was mechanical in nature. The examiner also stated that, while his sleep apnea was stabilized, there had been no improvement in his depression, indicating that the two conditions were unrelated. Because the examiner appeared to consider facts from the May 2009 Board decision pertaining to a different veteran, and failed to address whether the Veteran's sleep apnea was aggravated by his service-connected depression, a new opinion is necessary on remand. 4. Right Knee The Veteran claims entitlement to service connection for a right knee disorder as secondary to his service-connected left knee disability. In this regard, the Veteran argued that his right knee disorder was caused or aggravated by overuse as a result of the functional impairment associated with his service-connected left knee disability. Alternatively, the evidence of record has raised the issue of whether the Veteran's right knee disorder is directly related to his military service. In connection with his claim, the Veteran underwent a VA examination in January 2014. Although he was diagnosed with a right knee sprain, the examiner ultimately opined that such was less likely than not proximately due to, or the result of, his service-connected left knee disability. The examiner reasoned that his service treatment records were silent for any complaints related to the right knee. Further, the examiner stated that the possibility of the Veteran's current right knee condition being caused by his left knee disability was totally medically unjustifiable. The Board finds that the January 2014 opinion is insufficient to adjudicate the claim. First, the examiner's opinion fails to address whether the Veteran's right knee disorder was aggravated by his service-connected left knee disability. Second, the examiner failed to address potentially probative evidence related to direct service connection. Specifically, a September 2006 VA treatment record noted the Veteran's report of bilateral knee pain. The Board notes that this is within one year from when the Veteran was discharged in November 2005. Finally, the examiner did not provide a thorough rationale upon which the Board could base its decision In support of his claim, the Veteran submitted a May 2014 private medical opinion that concluded that his right knee condition was directly related to his left knee disability; however, no rationale was provided in support of the conclusion. Given that the medical evidence of record fails to adequately address the issues raised, the Board finds that a new examination is necessary. On remand, the AOJ should associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent records. The matters are REMANDED for the following action: 1. Associate any VA treatment records dated after February 18, 2020, with the Veteran's claims file. 2. Give the Veteran the opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if he provides the appropriate authorization. 3. The Veteran should be afforded a new VA examination to address the nature and severity of his service-connected left shoulder disability. The entire record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner is asked to address the following: a) Based on all pertinent evidence of record, to include the January 2010, June 2016, March 2019, and February 2020 VA examination reports, the examiner should describe all symptoms associated with the Veteran's service-connected left shoulder disability for the period from January 20, 2009. In this regard, the examiner should also ask the Veteran to provide a history as to the nature and severity of his service-connected left shoulder disability during this period. b) The examiner should then ask the Veteran to report any range of motion loss during flare-ups or following repeated use for the period from January 20, 2009. He should be asked to identify: (1) the frequency of flare-ups; (2) the duration of flare-ups; (3) any precipitating factors; and (4) any alleviating factors. Even if the evidence of record fails to including objective findings documenting the nature and severity of the Veteran's service-connected left shoulder disability during flare-ups or following repetitive, the examiner must elicit from the Veteran relevant information as to his flare-ups and ask him to describe the additional functional loss, if any, he suffered during flare-ups or following repeated use. c) Then, based on the evidence of record and the information elicited during the examination, the examiner should address whether it is at least as likely as not (50 percent probability or greater) that, during a flare-up or following repetitive use, his range of motion of the left shoulder was limited to twenty five degrees from his side (the measurement required for the next higher rating) at any point during the period from January 20, 2009? If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence has been considered, to specifically include his description as to the severity, frequency, and duration of flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. If examination findings conflict with the prior VA examination reports or the Veteran's lay statements, the examiner should attempt to reconcile these discrepancies to the extent possible. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 4. The Veteran should be afforded a new VA examination to determine whether his currently-diagnosed right elbow disorder is secondary to his service-connected disabilities, to include his bilateral shoulder disabilities and left knee disability. The record and a copy of this Remand must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should take a history from the Veteran as to the progression of his claimed disability. Following a review of the entire record, the examiner should address the following question: Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right elbow disorder was caused or aggravated beyond its natural progression by his service-connected disabilities, to include his bilateral shoulder disabilities and left knee disability? The Board emphasizes that causation and aggravation are two separate inquiries, and both must be answered. The examiner must consider the Veteran's contention that his right elbow disorder developed as a result of overuse due to the functional impairment associated with his service-connected bilateral shoulder disabilities. See November 2015 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits; February 2021 Hearing Transcript, pp. 10-11. During his February 2021 hearing, the Veteran also argued that he had fallen on his right elbow as a result of the problems associated with his service-connected left knee disability and right knee disorder. A clearly-stated rationale for any opinion offered should be provided, and must be based on consideration of all pertinent lay and medical evidence. 5. The Veteran should be afforded a new VA examination to determine whether his currently-diagnosed sleep apnea had its onset during or is otherwise related to his military service, or whether such is secondary to his service-connected depression. The record and a copy of this Remand must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should take a history from the Veteran as to the progression of his claimed disability. Following a review of the entire record, the examiner should address the following questions: a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's sleep apnea had its onset during, or is otherwise related to, his active duty service,? In offering any opinion, the examiner must consider the full record, to include lay statements regarding in-service incurrence and continuity of symptomatology, and the opinion should reflect such consideration. For example, both the Veteran and his wife indicate that his symptoms, including loud snoring and gasping for air, began during service or shortly thereafter. See May 2016 Statement from Veteran's Wife; March 2020 Letter from Dr. C.M. b) Regardless of the answers provided to the question above, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's sleep apnea was caused or aggravated beyond its natural progression by his service-connected depression? In this regard, the Board emphasizes that causation and aggravation are two separate inquiries, and both must be answered. The examiner should address the significance, if any, of the medical articles submitted in November 2015 and February 2021 discussing the relationship between sleep apnea and psychiatric problems and symptomatology. A complete rationale must be provided for all opinions, and must be based on consideration of all pertinent lay and medical evidence. 6. The Veteran should be afforded a new VA examination to determine whether his currently-diagnosed right knee disorder had its onset during or is otherwise related to his military service, or whether such is secondary to his service-connected left knee disability. The record and a copy of this Remand must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should take a history from him as to the progression of his claimed disability. Following a review of the entire record, the examiner should address the following questions: a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that a right knee disability had its onset during or within one year following, or is otherwise related to, his active duty service? In offering any opinion, the examiner must consider the full record, to include any lay statements from the Veteran concerning the onset and continuity of symptomatology, as well as the September 2006 VA treatment record noting the Veteran's report of bilateral knee pain. Please note that this is within one year from when he was discharged in November 2005. b) Regardless of any answer provided in response to the first question, is it at least as likely as not (i.e., a 50 percent or greater probability) that his right knee disorder is caused or aggravated beyond its natural progression by his service-connected left knee disability? In this regard, the Board emphasizes that causation and aggravation are two separate inquiries, and both must be answered. The examiner should address the Veteran's contention that his right knee disorder was caused or aggravated by overuse as a result of the functional impairment associated with his service-connected left knee disability. A clearly-stated rationale for any opinion offered should be provided, and must be based on consideration of all pertinent lay and medical evidence (Continued on Next Page) 7. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated. In so doing, the AOJ should consider whether referral of the Veteran's left shoulder increased rating claim for extraschedular consideration is necessary. The reasons for or against referral should be made clear. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.