Citation Nr: 21042336 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-56 834 DATE: July 12, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected left knee strain and/or service-connected depressive disorder, is denied. Entitlement to an initial rating higher than 30 percent for service-connected left knee strain ("left knee condition") is denied. FINDINGS OF FACT 1. The Veteran's sleep apnea did not manifest in service and is not otherwise related to service, nor to a service-connected disability. 2. The Veteran's left knee condition was manifested by, at worst, extension to 20 degrees, with complaints of pain and functional limitations. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea, to include as secondary to service-connected conditions, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1153, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. 2. The criteria for entitlement to an initial rating higher than 30 percent for the service-connected left knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1971 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter most recently in February 2021 for agency of original jurisdiction (AOJ) review and an addendum medical opinion. Specifically, the Board directed the RO to review new evidence received after the prior Supplemental Statement of the Case (SSOC) was issued, and to obtain an addendum medical opinion addressing aggravation of the Veteran's OSA by his service-connected conditions and medications. The Board finds that the requested development was completed, and the remand instructions were substantially complied with; therefore, further remand is unnecessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that there may be missing treatment records that have not been associated with the claims file. Specifically, VA treatment records and the May 2017 private Disability Benefits Questionnaire reference a OSA diagnosis prior to 2011, which is not shown by the records currently in the claims file. The Veteran was previously asked to provide information regarding dates and places of VA and private treatment, as well as to complete releases for the VA to obtain any relevant private treatment records. He has not provided any information regarding treatment records that may document a prior OSA diagnosis. The duty to assist a claimant is not a one-way street, and in the instant case, the Veteran has failed to cooperate to the full extent in the development of his claim. See Wood v. Derwinski, 1 Vet. App. 406 (1991). Because VA has previously notified the Veteran that additional evidence may be needed to decide his claim, including information regarding VA and private treatment records, and the Veteran has not provided such information, the Board will not further remand the OSA claim. 1. Entitlement to service connection for OSA, to include as secondary to service-connected left knee condition and/or service-connected depressive disorder, is denied. The Veteran seeks service connection for OSA, contending that his OSA is caused or aggravated by his service-connected depressive disorder, chronic pain from his service-connected conditions, and/or by the medications prescribed for his service-connected knee condition. He cited to and submitted medical articles suggesting a positive correlation between OSA and chronic pain and OSA and psychiatric disorders. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. The Veteran was diagnosed with OSA by VA in April 2012 following a polysomnogram. The polysomnogram revealed an apnea-hypopnea index (AHI) of 46, with the reviewing physician noting that the Veteran's OSA was severe. The April 2012 polysomnogram is the only sleep study of record. The Veteran submitted a private sleep apnea examination from May 2017 and was afforded a VA sleep apnea examination in September 2019, with an associated VA addendum opinion from March 2021. The May 2017 private examiner referenced the Veteran's OSA diagnosis, stating that he underwent a sleep study prior to the April 2012 diagnosis, but was unable to obtain documentation. The examiner noted that he was diagnosed with OSA after complaints of severe daytime fatigue, witnessed apneas, and loud snoring. The examiner opined that it as likely as not that the Veteran's OSA is caused and permanently aggravated by his use of opiod medications for his service-connected left knee condition, inability to tolerate his CPAP mask, and his depressive disorder. As part of her rationale, the examiner stated that opioid pain medications have several effects on respiration that are more pronounced during sleep, with studies showing a significant increase in sleep disordered breathing among patients taking long- and short-term opioid pain medications. Additionally, she referenced a study finding that subjects with depressive disorder have a higher prevalence of a OSA diagnosis, and another study finding that OSA symptoms and psychiatric symptoms decreased with CPAP treatment. The Board notes, regarding the private examiner's reference to a pre-2012 OSA diagnosis, and as briefly discussed above, VA has previously asked the Veteran to provide information regarding private and VA treatment records relevant to his pending claims, but the Veteran has not responded to these requests. See December 2016 Correspondence; August 2020 Correspondence. It is unclear when the Veteran may have been diagnosed with OSA prior to April 2012, though VA treatment records include a statement by the Veteran from September 2011 that his then-current CPAP machine was seven years old. See September 2011 Primary Care Initial Evaluation Note. The September 2019 VA examiner discussed the Veteran's April 2012 OSA diagnosis, noting his AHI of 46 and determining that he did not have any symptoms attributable to OSA. The examiner concluded, regarding secondary service connection, that the Veteran's OSA is less likely than not proximately due to or the result of his service-connected left knee condition. In making this conclusion, the examiner explained that "the Veteran has other risk factors of obesity and advanced age more closely associated with causing OSA than left knee disability or medications used to treat that disability. The medical literature supports a medical relationship between obesity and OSA. The medical literature does not support a medical relationship between OSA and left knee disability or medications used to treat that disability." Regarding the possibility of aggravation, the examiner indicated that a baseline severity of the Veteran's OSA could be determined, referenced the April 2012 AHI of 46, and noted that the current severity of the OSA was not greater than the baseline. The examiner did not address whether it was at least as likely as not that the Veteran's OSA was aggravated beyond its natural progression by the service-connected left knee condition and/or medication used to treat it. The Board remanded the matter in February 2021 for an addendum opinion addressing this inadequacy and new evidence, and the RO obtained an adequate addendum opinion in March 2021. The March 2021 examiner reviewed the claims file and determined that the Veteran's OSA is not caused or aggravated by either his service-connected depression, his service-connected left knee condition, or medications for his service-connected conditions. The examiner provided extensive rationale regarding each of the Veteran's contentions. As to the contention of aggravation by the Veteran's service-connected depression, the examiner explained that there is no mechanism by which depression or other psychological conditions can impact OSA as to cause or aggravation; sleep disturbances, which are common with psychological and mental conditions, are mediated through the central nervous system (CNS) and are not related to the mechanism of OSA. The examiner further explained that adjustments of and/or difficulty adjusting CPAP are common throughout the course of the condition and do not necessarily represent aggravation beyond that natural course. As to the contention of aggravation by the Veteran's service-connected left knee condition, the examiner explained that OSA is due to upper airway obstruction associated with apneic episodes, and is not caused or aggravated by orthopedic conditions as there is no physiologic or anatomic mechanism by which psychological conditions could impact OSA. As to the contention of aggravation by the Veteran's medications used to treat his service-connected disabilities, the examiner explained that any effects of medication would be on the CNS and would not impact the mechanism of OSA. He added that any impact of the Veteran's narcotic medications on sleep is a direct effect of the sedating effect and again does not impact the mechanism of OSA, and anti-inflammatories and steroid injections would have absolutely no impact on OSA. The Veteran's VA treatment records, which are associated with the claims file, frequently reference his OSA diagnosis and poor sleep history. An October 2020 Home-Based Primary Note stated that the Veteran's "poor sleep history has been consistently stable for years." The Veteran's VA treatment records do not include any significant discussion regarding the severity of his OSA or potential contributing factors. The September 2019 and March 2021 VA opinions are highly probative. Taken together, they are based on a full review of the claims file, include extensive rationale regarding each of the Veteran's OSA contentions, describe the mechanisms involved in OSA, and address additional risk factors related to OSA. The May 2017 private examiner opinion is not as probative as the VA opinions. While the private examiner provided some rationale as to her conclusion and generally referenced studies in support of the Veteran's contentions, she did not address what medical evidence supports her conclusion that the Veteran's OSA has increased in severity and did not address the Veteran's non-service-connected risk factors for OSA, including obesity and advanced age. The VA opinions, taken together, provide a more thorough discussion specifically relevant to the Veteran's medical conditions, both service-connected and not, as compared to the private opinion. With respect to the medical evidence indicating a relationship between the Veteran's obesity and his OSA, obesity is not considered a disease for purposes of VA benefits, and therefore may not be service connected on a direct or secondary basis, but obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis (1) if a previously service-connected disability caused him to become obese; (2) that obesity was a substantial factor in causing secondary disability; and (3) the secondary disability would not have occurred but for the obesity. See VAOPGCPREC 1-2017. Recently, in Garner v. Tran, No. 18-5865, the United States Court of Appeals for Veterans Claims (CAVC) concluded that in order to reasonably raise the theory of secondary service connection via obesity as an intermediate step, there must be some evidence in the record that draws an association or suggests a relationship between the Veteran's obesity, or weight gain resulting in obesity, and a service-connected disability. Conversely, the CAVC determined that incidental references to obesity, or weight gain resulting in obesity, are insufficient to reasonably raise this theory of entitlement. In this case, there is no evidence that reasonably raises the theory of secondary service connection via obesity as an intermediate step. The Board thus finds that the weight of the competent and probative evidence is against a finding of service connection for the Veteran's OSA as secondary to his service-connected depressive disorder, left knee condition, and medication used to treat his service-connected conditions. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Secondary service connection is not warranted. Moreover, the Board notes that there is no persuasive evidence that the Veteran's OSA began during service or that he has had continuous symptoms since service. His service treatment records are silent as to any treatments or diagnosis for OSA. He reported frequent trouble sleeping at his September 1971 enlistment examination, but then denied frequent trouble sleeping at his September 1973 separation examination, stating "I am in good health." There are no other reports of sleep-related issues during service or immediately following his separation from service, and there is no indication of OSA in his VA treatment records until over 30 years post-service. Similarly, the September 2019 VA examiner reviewed the Veteran's claims file and noted that his military records are silent for OSA and that there is no evidence of chronicity of care, concluding that it was less likely than not that the Veteran's OSA was incurred in or caused by an in-service injury, event, or illness. The most probative evidence, including the lack of in-service treatment for OSA and first indication of OSA over 30 years post-service, shows that the Veteran's OSA is not related to service. Accordingly, direct service connection is also not warranted. 2. Entitlement to an initial rating higher than 30 percent for service-connected left knee condition is denied. The Veteran seeks a higher initial rating for his left knee condition. The Veteran's disability is rated under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Knee and Leg, Diagnostic Code 5261. Under Diagnostic Code 5261, a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. Other diagnostic codes may be applicable to the Veteran's left knee disability, including Diagnostic Codes 5256, 5258, 5259, and 5260. Under Diagnostic Code 5256, a 30 percent rating is warranted for knee ankylosis with a favorable angle in full extension, or in slight flexion between zero and 10 degrees; a 40 percent rating is warranted for knee ankylosis in flexion between 10 degrees and 20 degrees; a 50 percent rating is warranted for knee ankylosis in flexion between 20 degrees and 45 degrees; and a 60 percent rating is warranted for extremely unfavorable knee ankylosis, in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion. A separate 10 percent rating is available under Diagnostic Code 5259 for symptomatic removal of semilunar cartilage. Under Diagnostic Code 5260, a non-compensable rating is warranted for flexion limited to 60 degrees; a 10 percent rating is warranted for flexion to 45 degrees; a 20 percent rating is warranted for flexion to 30 degrees; and a 30 percent rating is warranted for flexion to 15 degrees. 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. Additionally, 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. The Veteran was afforded three VA knee examinations in August 2014, September 2019, and November 2020. The Board recognizes that the August 2014 VA examination is deficient as to the requirements set out in Correia v. McDonald and Sharp v. Shulkin. That does not mean, however, that all objective findings noted therein are not probative. At the August 2014 examination, the Veteran reported constant pain and limited mobility, and flare-ups that cause his knee to give out often with constant pain and swelling. Initial range of motion (ROM) testing revealed left knee flexion to 80 degrees with pain at 75 degrees and extension to 20 degrees with pain at 15 degrees. Repetitive use testing revealed no additional loss of motion after three repetitions, but the examiner noted additional functional loss, including: less movement than normal, weakened movement, pain on movement, swelling, instability of station, and disturbance of locomotion. The examiner did not provide the degree of additional ROM loss during flare-ups, but noted that the Veteran experienced increased pain and stiffness with decreased speed and mobility during flare-ups. The Veteran's muscle strength was limited to 4/5 in both left knee flexion and extension, and his left knee joint stability was normal. The Veteran did not have a history of recurrent patellar subluxation/dislocation or a meniscal condition of the left knee, although frequent episodes of locking, pain, and effusion were noted. The examiner noted that the Veteran constantly used a cane for knee support. At the September 2019 examination, the Veteran reported left knee pain at 6/10 while sitting and 10/10 while standing, and he denied flare-ups. Initial ROM testing revealed left knee flexion to 90 degrees and extension to 5 degrees, with pain during both movements causing functional loss. Repetitive use testing revealed no additional loss of function or motion after three repetitions. The Veteran's muscle strength was limited to 3/5 in both left knee flexion and extension, and his joint stability was normal. There was no evidence of ankylosis. The Veteran did not have a history of recurrent patellar subluxation/dislocation or a meniscal condition of the left knee, and no frequent episodes of locking, pain, and effusion were noted. The examiner noted that the Veteran constantly used a wheelchair and walker for his bilateral knee conditions. At the November 2020 examination, the Veteran reported chronic pain and limited motion, and occasional flare-ups depending on any activity. Initial ROM testing revealed left knee flexion to 65 degrees and extension to 15 degrees, with pain during both movements and with weight-bearing causing functional loss. Repetitive use testing revealed no additional loss of function or motion after three repetitions. The examiner opined that pain, fatigue, weakness, and lack of endurance would cause functional loss with repeated use over time and during flare-ups, which the Veteran denied, limiting left knee flexion to 65 and 70 degrees and extension to 15 and 20 degrees, respectively. The Veteran's muscle strength and joint stability were normal, and there was no evidence of ankylosis. The Veteran did not have a history of recurrent patellar subluxation/dislocation or a meniscal condition of the left knee, and no frequent episodes of locking, pain, and effusion were noted. The examiner noted that the Veteran constantly used a wheelchair for his bilateral knee conditions. The Veteran's VA treatment records are also associated with the claims file. He was occasionally noted to have limited left knee ROM due to pain, with some clinicians noting that he had full left knee ROM with no pain. See April 2014 and January 2021 Physical Medicine Rehab Notes; July 2020 Telehealth Note; see also July 2014 and May 2015 Physical Medicine Rehab Notes; January 2016 Primary Care Note. Multiple clinicians noted that he had no effusion, and in November 2015, he reported locking only in his right knee. See April 2014, July 2014, and May 2015 Physical Medicine Rehab Notes; June 2015 and January 2016 Primary Care Notes; see also November Physical Medicine Rehab Note. Finally, the Board considered the Veteran's lay statement submitted by his friend. His friend stated that the Veteran has been embarrassed and withdrawn because of pain and limited mobility of his knees. After review of the medical and lay evidence, the Board finds that a rating higher than 30 percent for left knee limitation of extension is not warranted. The evidence shows that at no point did the Veteran have extension limited to 30 degrees, nor did he have symptoms approximating the functional equivalent of ankylosis of the knee. See Chavis v. McDonough, No.18-2928, 2021 U.S. App. Vet. Claims, LEXIS 660, *20 (Apr. 16, 2021). In Chavis, the CAVC noted that the rating criteria define ankylosis in terms of limitation of motion. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5) (ankylosis is a condition in which the spine or a spinal segment is fixed in flexion or extension). Essentially, ankylosis contemplates "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012); see also Villareal v. Principi, 18 Vet. App. 13 (2001) (defining ankylosis to mean that "a joint is fixed, or 'frozen' in one position."). In concluding the Veteran's left knee impairment is not functionally equivalent to ankylosis, the Board considered the Veteran's lay statements and principles outlined in 38 C.F.R. §§ 4.40 and 4.45, and based the rating on the extent to which motion is limited by the factors outlined in those regulations. In this case, although the Board acknowledges the Veteran's reports of pain and difficulty carrying out some daily activities, including difficulty walking more than a few stepsall indicative of some functional loss the Board concludes that such functional loss is not consistent with that contemplated by ankylosis. Notably, there is no suggestion of any limited motion of the knee comparable to any type of immobility; he was still able to perform extension, and his extension was limited to 20 degrees at worst. While his motion may be limited, he has not alleged functional impairment comparable to that experienced by an individual with immobility of the knee. While his left knee condition may interfere with some activities of daily living, such interference is fully contemplated by the assigned schedular rating. The DeLuca concepts of functional loss, painful motion, etc. are still used to apply the rating criteria found in the diagnostic codes. Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016) and Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011). The Thompson court explained: "Section 4.40 also makes clear that functional loss may be due to pain and that pain may render a part seriously disabled. When evaluating a disability, § 4.40 provides a broad canvas. However, whatever the background, an applicant for disability benefits is rated based on the criteria set forth in § 4.71a." Thompson, 815 F.3d at 786. So, in other words, pain alone without it resulting in any functional loss is not enough to warrant an increased rating. Here, he has been able to perform repetitive use testing with no additional loss of function or range of motion. As such, the current rating adequately compensates him for his pain with limited motion and functional impairment, and a higher rating is not warranted under DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995), nor is his disability the equivalent of ankylosis. Additionally, separate ratings under Diagnostic Codes 5258 and 5260 are not warranted. Although the Veteran's medical records indicate some symptoms relevant to these diagnostic codes, these symptoms are not severe enough to warrant either compensable or non-compensable ratings. While frequent episodes of locking, pain, and effusion were noted at the August 2014 examination, they were not noted at the later examinations, and none of the examiners determined that the Veteran had a left knee meniscal condition. Similarly, while the Veteran was noted to have limited left knee flexion throughout his VA treatment records and examinations, his left knee flexion was, at worst, limited to 65 degrees. The Board also considered whether other diagnostic codes pertaining to the knee and leg were applicable. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Diagnostic Code 5257 is inapplicable as there is no evidence (lay or medical) of recurrent subluxation or instability and/or patellar instability during the period on appeal. Although the Veteran has complained of pain, limited motion and functional impairments, he has not complained of instability, nor has any been shown in the medical evidence. Diagnostic Codes 5262 and 5263 are not applicable as the Veteran was not diagnosed with any impairment of the tibia or fibula, nor was he diagnosed with genu recurvatum. Accordingly, the Veteran's claim of entitlement to an initial rating higher than 30 percent for his service-connected left knee condition is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.