Citation Nr: 22029068 Decision Date: 05/17/22 Archive Date: 05/17/22 DOCKET NO. 18-28 217 DATE: May 17, 2022 ORDER 1. Entitlement to an increased initial disability rating in excess of 10 percent for a right knee strain with degenerative arthritis and patellofemoral pain syndrome (right knee strain) is denied. REMANDED 2. Entitlement to service connection for obstructive sleep apnea is remanded. FINDING OF FACT Right knee strain has not been manifested by limitation of flexion of the leg to 30 degrees or less or limitation of extension of the leg to 10 degrees or more. CONCLUSION OF LAW The criteria for entitlement to an increased rating in excess of 10 percent for a right knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the US Army from June 1978 to June 1981. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a March 2020 Board of Veterans' Appeals (Board) hearing. The within matters, along with the Veteran's claim for service connection for insomnia, were remanded in a June 2021 Board decision in order to obtain outstanding records and to obtain VA knee examination results. Thereafter, the Veteran was granted entitlement to service connection for insomnia in a January 2022 rating decision. The award of service connection for insomnia represented a full grant of the benefits sought, and the issue is no longer on appeal. The agency of original jurisdiction (AOJ) performed development requesting the Veteran to identify any potentially outstanding treatment records. The treatment records identified by the Veteran in response were already of record. Additionally, the Veteran underwent a VA knee examination in July 2021. As such, there has been substantial compliance with the remand directives relating to the right knee, and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Following the June 2021 VA knee examination, the AOJ granted service connection for right knee instability and assigned a 10 percent disability, effective May 3, 2021. In a July 2021 notification letter, the AOJ notified the Veteran of the award of service connection for right knee instability, to include the assignment of a 10 percent rating, effective May 3, 2021, and that if he disagreed with this determination, he could appeal the decision and provided him with the three options available if he disagrees with this determination. As this disability has been granted, the Board finds that this rating is not part of the current appeal. 1. Right knee strain Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. See 38 C.F.R. § 4.14. However, those provisions should only be considered in conjunction with the DCs predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable DC. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's right knee strain is rated under DC 5260, relating to impairment of flexion in the leg. As stated, the Veteran's right knee strain is also separately rated under DC 5257, relating to knee instability. The Veteran was informed of the grant of service connection for instability of the right knee and provided his appeal rights. He has not appealed the evaluation assigned for instability of the right knee. During the course of this appeal, some of the schedular ratings for evaluating impairments of the knee were amended. Specifically, the criteria pertaining to recurrent subluxation or lateral instability of the knee, as well as the criteria pertaining to impairment of the tibia and fibula, under 38 C.F.R. § 4.71a, were amended effective February 7, 2021. See 85 Fed. Reg. 76,453 (November 30, 2020). There was no change to the criteria for evaluating limitation of motion or dislocated semilunar cartilage. Thus, the amendments do not apply to the Veteran's right knee disability, which is evaluated based upon range of motion. Under DC 5260, limitation of flexion of the knee to 60 degrees warrants a noncompensable rating. Limitation of flexion of the knee to 45 degrees warrants a 10 percent rating. Limitation of flexion of the knee to 30 degrees warrants a 20 percent rating. Limitation of flexion of the knee to 15 degrees warrants a 30 percent rating. DC 5261 is unchanged by the amended rating criteria. Under DC 5261, limitation of extension of the knee to 5 degrees warrants a zero or noncompensable rating. Limitation of extension of the knee to 10 degrees warrants a 10 percent rating. Limitation of extension of the knee to 15 degrees warrants a 20 percent rating. Limitation of extension of the knee to 20 degrees warrants a 30 percent rating. Limitation of extension to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. Under DC 5258, a 20 percent rating is warranted for cartilage, semilunar dislocated, with frequent episodes of locking, pain, and effusion into the joint. The 20 percent rating is the only rating available under DC 5258. DC 5259 provides that a 10 percent rating is warranted for surgically removed cartilage that is symptomatic. A semilunar cartilage is one of the menisci of the knee joint. A 10 percent rating is also the highest schedular evaluation allowed under DC 5259. Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. The VA General Counsel has also held that separate ratings could be provided for limitation of knee extension and flexion under DCs 5260 and 5261, as long as both ranges of motion meet the criteria for a compensable rating. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). When determining the severity of musculoskeletal disabilities, VA must also consider the extent of any additional functional impairment above and beyond the limitation of motion objectively demonstrated due to the extent of pain/painful motion, limited or excess movement, weakness, incoordination, and premature/excess fatigability, etc., particularly during times when the symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995), see also 38 C.F.R. §§ 4.40, 4.45, 4.59. A veteran may receive a compensable disability rating based on pain, pursuant to 38 C.F.R. § 4.59, which relates to painful motion. This regulation notes: "The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." 38 C.F.R. § 4.59. The United States Court of Appeals for Veterans Claims (Court) has explained that 38 C.F.R. § 4.59 applies when evaluating joint pain, even if such pain is not arthritis related. Burton v. Shinseki, 25 Vet. App. 1, 4 (2011). The Board has carefully reviewed the evidence of record and finds that the evidence is persuasively against an initial evaluation in excess of 10 percent for right knee strain. The reasons follow. The Veteran has reported worsening bilateral knee pain over the course of the relevant period with decreased functional abilities, including difficulty with prolonged standing and walking. He is prescribed bilateral knee braces, which he wears daily. The Veteran underwent a VA examination for the right knee in July 2018. However, the examiner described the findings as "inconsistent due to sub-optimal effort" on functional testing. Therefore, this examination did not contain clinical findings to determine the present severity of the Veteran's right knee strain based on the Veteran not cooperating during the examination. Concurrent right knee x-rays were indicative of mild patellofemoral osteoarthritis with no evidence of joint effusion or subluxation. A new VA examination was scheduled thereafter and took place in July 2021. The Veteran was assessed with degenerative arthritis of the right knee, as well as bilateral chronic knee pain, bilateral knee strain, and bilateral patellofemoral pain syndrome with knee instability. The Veteran reported experiencing instability in his knees with swelling, causing him to fall at times. He was found to have a complex tear of the lateral meniscus. On examination, the Veteran recorded flexion to 135 degrees and extension to zero degrees. It was noted that pain caused the Veteran's decreased ability to perform a full range of motion. The Veteran was able to perform repetitive use testing without additional loss of range of motion. The examiner estimated that the Veteran would also not suffer additional loss of range of motion with repeated use over time or during flare-up due to such factors as pain, fatigability, weakness, lack of endurance, or incoordination. The evidence of record does not support the award of an increased rating for the Veteran's right knee strain based upon limitation of motion. Examination findings do not demonstrate limitation of flexion of the leg to 30 degrees or less to warrant an increased rating under DC 5260 or limitation of extension of the leg to 15 degrees or more to warrant an increased rating under DC 5261. The Board has also considered whether the Veteran's right knee disability would be entitled to a rating under DCs 5258 or 5259. DC 5259 contemplates the removal of the semilunar cartilage, and the Veteran has not undergone knee surgery. DC 5258 contemplates dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. In the July 2021 VA examination report, the examiner documented that the Veteran had a meniscal tear and that he had frequent periods of joint pain, but found the Veteran did not have frequent episodes of joint locking or joint effusion. All three symptoms of frequent locking, pain, and effusion must be present for the 20 percent rating under DC 5258. Thus, the Veteran's right knee strain does not meet the criteria of the 20 percent rating under DC 5258. Additionally, the Board notes that the record does not document that the Veteran has ankylosis, tibia or fibula impairment, or genu recurvatum. Thus, a rating higher than 10 percent and/or a separate compensable rating is unavailable under Diagnostic Codes 5256, 5262, or 5263. The Board has considered the effects of the Veteran's symptoms, including pain, flare-ups, and functional loss. The Board finds that the 10 percent rating already assigned contemplates the Veteran's symptoms of pain, stiffness, and swelling, to include pain on weightbearing, which pain was documented in the July 2021 VA examination report. The examiner estimated the Veteran's range of motion during a flare-up to be 0 to 135 degrees. The examiner did not find that the evidence suggested pain, fatigability, weakness, lack of endurance, or incoordination significantly limited the Veteran's functional ability with repeated use over time. He estimated the Veteran's range of motion after repetitive use to be 0 to 135 degrees. The examiner did not document there was atrophy in the right lower extremity. The examiner found that the Veteran had a decreased ability in performing activities that required weight bearing, such as standing, walking, climbing, or lifting. These clinical findings are evidence that the Veteran has weakness in the right knee, but they do not show weakness that is more than mildly disabling. In 2021, the Veteran reported that he was "very active," which further supports the finding that the Veteran does not have more than mild weakness in the right knee. Thus, a higher initial rating in excess of 10 percent under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria is not approximated in the Veteran's disability picture for the period on appeal. In sum, the evidence is persuasively against the award of an increased rating in excess of 10 percent for the Veteran's right knee strain. Accordingly, there is no reasonable doubt to be resolved, and the claim for a higher rating is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 2. Obstructive sleep apnea The Veteran underwent a VA examination for assessment of his sleep apnea in December 2021 pursuant to the Board's July 2021 remand order to determine the etiology of the Veteran's obstructive sleep apnea. The examiner provided an opinion that the Veteran's obstructive sleep apnea was less likely than not incurred in or caused by the Veteran's military service. However, the Board finds that the opinion was inadequate and did not comply with the Board's remand directives, and, therefore, an addendum opinion must be sought on remand. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the Board asked the examiner to address whether the Veteran's initial assessment of obstructive sleep apnea being "mild" in December 2017, more than 35 years after the Veteran's discharge from service and before the implementation of prescribed treatment makes it less likely than not that the Veteran's sleep apnea had its onset in service and more likely attributable to intercurrent causes. The examiner did not address this directive. Additionally, although the examiner specifically noted that the Veteran reported experiencing symptoms of snoring, gasping for air, waking up with a dry mouth, dizziness, insomnia, headaches, and daytime sleepiness during service, the examiner did not address the Veteran's contentions in his rationale, instead only stating that there was "no documentation on any reports of trouble sleeping, diagnosis in the Veteran's VA e-folder." Accordingly, remand is necessary to ensure compliance with the July 2021 remand directives and to address the Veteran's contentions regarding his symptomology in service. The matter is REMANDED for the following action: Refer the claims file to an appropriate clinician to provide a medical opinion in relation to the Veteran's claim for service connection for obstructive sleep apnea. The examiner should review the claims file. If the examiner finds that an in-person examination is necessary to provide the requested opinion, then schedule the Veteran for a VA examination. A copy of the below facts should be provided to the examiner. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: The Veteran served on active duty in the United States Army from June 1978 to June 1981. The Veteran alleges that he has experienced symptoms of snoring, gasping for air, waking up with a dry mouth, dizziness, insomnia, headaches, and daytime sleepiness, dating back to his military service. Service treatment records do not show complaints of or treatment for the above symptoms during service. The April 1981 Report of Medical Examination performed at service separation shows the Veteran received normal clinical evaluations of the mouth and throat. The Veteran was documented to be 65 inches tall and weigh 120 pounds. See VBMS entry with document type, "STR Medical," receipt date 05/15/2009, pp. 8-9 (items 21, 51 & 52). Three, separate servicemembers who reportedly served alongside the Veteran submitted statements consistent with the Veteran's reported symptomology during service. They claimed they heard the Veteran snoring, having difficulty breathing, and gasping for air. See three, separate VBMS entries, each with document type, "Buddy / Lay Statement," receipt date 04/05/2018. At the March 2020 hearing, the Veteran testified that, despite his chronic symptoms, he did not know what sleep apnea was in service, or that he could receive treatment for his symptoms prior to 2015. See VBMS entry with document type, "Hearing Transcript," receipt date 03/09/2020, p. 28. In June 2015, when establishing care with VA, the Veteran reported feeling healthy except for his knees. At that time, he denied headache, sore throat, hoarseness, shortness of breath, and dyspnea on exertion. He was documented to be 67 inches tall and 147 pounds. See VBMS entry with document type, "CAPRI," receipt date 01/30/2018, pp. 54-55. In September 2017, the Veteran was seen with complaints of daytime somnolence and falling asleep in permissive situations. His BMI was noted to be 23.07, and the examiner entered an impression of presumptive sleep apnea. He was referred for further evaluation. See VBMS entry with document type, "CAPRI," receipt date 01/30/2018, pp. 29-30. An October 2017 sleep study shows that the Veteran presented with complaints of snoring and insomnia. The Veteran's height was documented to be 5'6" with his weight at 153 pounds and a BMI of 24.9. The sleep study shows that mild snoring was observed throughout the study, and the Veteran demonstrated a total of 66 respiratory events, and, of those, three were obstructive sleep apneas, 20 were hypopneas, and 43 were respiratory effort-related arousals. The overall AHI was 5 per hour and REM AHI was 14 per hour. The overall RDI was 13 per hour. The lowest oxygen desaturation recorded was 86% from a baseline SpO2 of 95% on room air. The conclusion was mild obstructive sleep apnea. See VBMS entry with document type, "C&P Exam," receipt date 12/20/2021, with "#1" in the subject field, pp. 2-7. In June 2021, the Board remanded this claim to provide the Veteran with a VA examination and determine if the Veteran's obstructive sleep apnea was related to service. The examiner was asked if the Veteran's obstructive sleep apnea had its onset in or was otherwise related to the Veteran's active military service from June 1978 to June 1981. The examiner was also asked to address whether the Veteran's initial assessment of obstructive sleep apnea being "mild" in October 2017, which was more than 35 years after the Veteran's discharge from service and before the implementation of prescribed treatment, made it less likely than not that the Veteran's obstructive sleep apnea had its onset in service and more likely attributable to intercurrent causes. See VBMS entry with document type, "BVA Decision," receipt date 06/17/2021, pp. 8-10. A December 2021 VA examination report shows the examiner concluded that the Veteran's sleep apnea did not have its onset in or was otherwise related to the Veteran's active military service from June 1978 to June 1981. The examiner explained that there is no documentation on any reports of trouble sleeping and that the earliest mention of sleep problems with insomnia was in 2015 and is dated June 23, 2017. The examiner also noted there is documentation of needing Zolpidem 5 mg for sleep since 2015. See VBMS entry with document type, "C&P exam," receipt date 12/20/2021, with "#2 DBQ Medical Opinion" in the subject field. The Board finds the examiner's opinion to be inadequate because the examiner did not comply with the Board's July 2021 remand directives. Specifically, the Board asked the examiner to address the October 2017 sleep study finding that the Veteran had mild obstructive sleep apnea. The examiner did not address this question. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided to assist the examiner in locating potentially relevant evidence. After a review of the file, the examiner is asked to answer the following questions: a. Did the Veteran's obstructive sleep apnea have its onset in or was otherwise related to the Veteran's active military service from June 1978 to June 1981. The examiner should address the Veteran's allegations of experiencing symptoms of snoring, gasping for air, waking up with a dry mouth, dizziness, insomnia, headaches, and daytime sleepiness during service, as well as the statements from the three individuals who claimed they witnessed symptoms in service. Please explain upon what facts, medical principles, and/or medical literature the opinion is based. b. Additionally, the examiner is asked to address whether the sleep study assessment of obstructive sleep apnea being "mild" in October 2017, which is more than 35 years after the Veteran's service discharge, makes it less likely than not that the Veteran's obstructive sleep apnea had its onset in service and more likely attributable to intercurrent causes. Please state upon what facts and medical principles the opinion is based. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.