Citation Nr: 23050488 Decision Date: 09/12/23 Archive Date: 09/12/23 DOCKET NO. 16-16 100 DATE: September 12, 2023 ORDER Entitlement to an earlier effective date of January 18, 2010, for the 20 percent rating assigned for left shoulder dyskinesis is granted. Entitlement to an earlier effective date of January 18, 2010, for the 10 percent rating assigned for right knee instability associated patellofemoral syndrome is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to a higher initial rating for left shoulder dyskinesis, rated as 20 percent disabling since January 18, 2010, is remanded. Entitlement to a higher initial rating for right knee patellofemoral syndrome, rated as 10 percent disabling under Diagnostic Code 5260 since January 18, 2010, is remanded. Entitlement to a higher initial rating for right knee instability associated with patellofemoral syndrome, rated as 10 percent disabling prior to February 7, 2021, and 20 percent disabling thereafter under Diagnostic Code 5257, is remanded. FINDINGS OF FACT 1. The Veteran's service-connected left shoulder dyskinesis has at least as likely as not resulted in painful motion since the effective date of service connection for the disability. 2. The Veteran has at least as likely as not experienced at least slight right knee instability since the effective date of service connection for right knee patellofemoral syndrome. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of January 18, 2010, for the 20 percent rating assigned for left shoulder dyskinesis have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.3, 4.59, 4.71a. 2. The criteria an earlier effective date of January 18, 2010, for the 10 percent rating assigned for right knee instability associated with patellofemoral syndrome have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.3, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 2000 to January 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2010 and September 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The matters were most recently before the Board in May 2021. At that time, the Board, in pertinent part, adjudicated the issue of service connection for obstructive sleep apnea, as well as the ratings assigned for the Veteran's service-connected left shoulder and right knee disabilities, but remanded the issue of entitlement to a total disability rating based on individual unemployability (TDIU) to the Agency of Original Jurisdiction (AOJ) for further development. In February 2023, the United States Court of Appeals for Veterans Claims (Court) issued a memorandum decision that set aside the Board's May 2021 decision to the extent that it denied (1) service connection for obstructive sleep apnea; (2) a rating greater than 10 percent for right knee patellofemoral syndrome; (3) a rating greater than 10 percent for right knee instability from October 13, 2020, to February 6, 2021; (4) a rating greater than 10 percent for left shoulder dyskinesis prior to October 13, 2020; and (5) a rating greater than 20 percent for left shoulder dyskinesis from October 13, 2020. Specifically, the Court determined the Board provided an inadequate statement of reason and bases for its denial of service connection for obstructive sleep apnea, as well as its reliance on an October 2020 examination when determining the effective dates of higher ratings assigned for the Veteran's service-connected left shoulder and right knee disabilities. The matters have now been returned to the Board for readjudication consistent with the Court's order. The Board recognizes the issue of entitlement to TDIU can be an element of a rating when appeal when unemployability has been raised by the record, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009); however, the Board notes it recently issued a decision in July 2023 denying entitlement to TDIU. This decision was not based on a lack of schedular eligibility or a finding that a nonservice-connected disability resulted in unemployability but rather a finding that the Veteran failed to establish he was unable to secure or follow a substantially gainful occupation in light of evidence indicating he has been able to work since his separation from active service and is currently employed full time. As a result, the basis of the Board's July 2023 decision regarding TDIU is not inextricably intertwined with the issues in this appeal, vitiating the applicability of Rice in the present appeal. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Veteran is advised to file a notice of appeal with the Court if he disagrees with the Board's factual findings in the July 2023 decision. 1. Entitlement to an earlier effective date of January 18, 2010, for the 20 percent rating assigned for left shoulder dyskinesis is granted. The Board finds an earlier effective date for the 20 percent rating assigned for the Veteran's left shoulder disability is warranted. In Sowers v. McDonald, 27 Vet. App. 472 (2016), the Court explained a 20 percent rating is warranted for painful motion of the shoulder, in accordance with 38 C.F.R. § 4.59, since a 20 percent rating is the minimum compensable rating authorized by the VA Rating Schedule for limitation of the arm/shoulder. The Veteran's initial June 2010 shoulder examination report is suggestive of painful motion to the extent the Veteran reported he felt like he had a pinched nerve in his shoulder. As a result, the Board finds his service-connected left shoulder disability has at least as likely as not resulted in painful motion since the effective date of service connection, warranting a 20 percent rating throughout the appeal period in accordance with Sowers. To that extent, the Veteran's appeal is granted. Entitlement to a rating in excess of 20 percent will be addressed in the REMAND section below. 2. Entitlement to an earlier effective date of January 18, 2010, for the 10 percent rating assigned for right knee instability associated patellofemoral syndrome is granted. The Board also finds an earlier effective date is warranted for the 10 percent rating assigned for right knee instability under 5257, prior to the increase to 20 percent, effective February 7, 2021. The AOJ assigned a 10 percent rating for right knee instability based on the date of the October 2020 examination, finding this is the date entitlement arose. In English v. Wilkie, 30 Vet. App. 347 (2018), the Court held objective evidence is not necessary to establish entitlement to a rating for instability under Diagnostic Code 5257; therefore, the Veteran's lay reports are sufficient to establish some degree of instability. Further, a March 2012 treatment note clearly documents right knee instability. Thereafter, an April 2014 examination report documents the Veteran's reports that his knee occasionally gives out him, requiring the use of a brace. These records are consistent with the October 2020 VA examination that led to the assignment of a 10 percent rating for instability based on the examiner's finding of "subjective instability" further described as "slight anterior instability." When the evidence is reviewed in a sympathetic manner, the Board finds it establishes the instability noted on examination in October 2020 has been present throughout the appeal period, warranting an earlier effective date of January 18, 2010, for the 10 percent rating assigned under Diagnostic Code 5257 for right knee instability. To that extent, the Veteran's appeal is granted. Entitlement to a higher initial rating for right knee instability will be addressed in the REMAND section below. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. In its February 2023 memorandum decision, the Court noted the Board provided an inadequate statement of reasons and bases for its May 2021 denial of service connection for obstructive sleep apnea to the extent that it failed to consider whether the Veteran's service-connected joint disabilities may have played a role in the development of obesity, which has been identified as a risk factor for his obstructive sleep apnea. See Walsh v. Wilkie, 32 Vet. App. 300 (2020). After the Court returned this matter to the Board, the Veteran submitted medical literature to support his contention in this regard. Further, efforts should be made to ensure VA fulfills its duties under the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act since VA has conceded participation in toxic exposure risk activity (TERA) in the Veteran's case. See PACT Act, Pub. L. No. 117-168 3373, 136 Stat. 1759 (2022). As a result, the Board finds a new opinion is necessary to facilitate a fully informed decision on the Veteran's service connection claim for obstructive sleep apnea. 2. Entitlement to a higher initial rating for left shoulder dyskinesis, rated as 20 percent disabling since January 18, 2010, is remanded. 3. Entitlement to a higher initial rating for right knee patellofemoral syndrome, rated as 10 percent disabling under Diagnostic Code 5260 since January 18, 2010, is remanded. 4. Entitlement to a higher initial rating for right knee instability associated with patellofemoral syndrome, rated as 10 percent disabling prior to February 7, 2021, and 20 percent disabling thereafter under Diagnostic Code 5257, is remanded. The Board finds it necessary to remand the appeals of the ratings assigned for the Veteran's service-connected left shoulder and right knee disabilities due to the possibility that additional relevant evidence may be developed in the process of obtaining a new opinion regarding service connection for obstructive sleep apnea. Further, this secondary service connection issue must be resolved in the context of the Veteran's rating appeals to ensure compliance with Bailey v. Wilkie, 33 Vet. App. 188 (2021). The matters are REMANDED for the following action: Schedule the Veteran for an examination to obtain a new opinion regarding his service connection claim for obstructive sleep apnea with an examiner who has not previously provided an opinion regarding the claim. The selected examiner must first address whether the Veteran's obstructive sleep apnea was at least as likely not present during active service, despite the lack of a sleep study confirming such diagnosis, given his reported symptoms and the previously identified risk factors such as obesity prior to his separation from service. In addressing this question, the examiner must acknowledge that his or her rationale cannot be based solely on the lack of a confirmed diagnosis during service since such confirmed diagnosis would make the requested nexus opinion unnecessary and must consider whether the presence of sleep apnea risk factors during active service supports a finding that it is at least as likely as not the Veteran's obstructive sleep apnea was present during his active service although not yet diagnosed, considering his reported symptoms and the temporal proximity of his confirmed diagnosis to his release from active service since the condition most certainly manifest at some point prior to the date of diagnosis. The examiner is also asked to address whether the Veteran's claimed obstructive sleep apnea is at least as likely as not etiologically related to his conceded TERAs. The examiner must address the synergistic, combined effect of all of the Veteran's TERAs, and any potential toxic exposures from his MOS duties generally. If service connection for sleep apnea is not established as directly related to service or due to TERA, the examiner must then address whether the Veteran's obstructive sleep apnea is at least as likely as not proximately due to, or aggravated by, a service-connected disability or disabilities. The opinion must explicitly address both causation and aggravation to be deemed adequate. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. In this context, the examiner must address whether obesity related to the Veteran's service-connected disabilities served as an intermediate step to the development of the claimed obstructive sleep apnea. In particular, the examiner must answer the following three questions: (1) Did any the Veteran's service-connected disabilities or a combination of service-connected disabilities cause the Veteran to become obese or aggravate the Veteran's obesity?; (2) If so, whether the obesity or aggravation of obesity as a result of service-connected disability was a substantial factor in causing the Veteran's obstructive sleep apnea; and (3) Whether the Veteran's obstructive sleep apnea would not have occurred but for obesity caused or aggravated by service-connected disability. The examiner must be advised the Veteran's service-connected disabilities include multiple musculoskeletal disabilities (lumbar spine, left shoulder, right knee, and bilateral shin splints) that limit his ability to exercise and perform physical activity, as well as other service-connected disabilities, to include, post-traumatic stress-disorder (PTSD), traumatic brain injury (TBI), gastroesophageal reflux disease (GERD), migraines, tinnitus, and left ear hearing loss, which all must be considered. (Continued on the next page) ? The examiner must be further advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided. The examiner's report must include a complete rationale for all conclusions contained therein. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.