Citation Nr: 1010243 Decision Date: 03/18/10 Archive Date: 03/31/10 DOCKET NO. 05-32 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for residuals of brain tumor. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for a right hip disability, claimed as secondary to service connected right knee disorder. 4. Entitlement to a disability rating in excess of 10 percent for service connected residuals of left patella fracture. 5. Entitlement to disability ratings in excess of 10 percent prior to June 23, 2003, and in excess of 20 percent from June 23, 2003, for service connected residuals of right patella fracture. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The Veteran had active service from August 1980 to June 1983. These matters come before the Board of Veterans' Appeals (Board or BVA) on appeal from April 2004 and July 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The issues of entitlement to service connection for residuals of brain tumor and right hip disability, and for increased ratings for right and left knee disorders, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Sleep apnea was not manifested during service or for many years thereafter, and is not otherwise related to such service. CONCLUSION OF LAW Service connection for sleep apnea is not established. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Preadjudication notice was sent in September 2003. The claim was readjudicated in a March 2008 supplemental statement of the case. Mayfield, 444 F.3d at 1333. Although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection for sleep apnea is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has obtained service treatment records, assisted the appellant in obtaining evidence, and afforded the appellant the opportunity to give testimony before the Board although he failed to report for his hearing. All known and available records relevant to the issue of entitlement to service connection for sleep apnea have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The record overwhelmingly demonstrates that the Veteran did not have sleep apnea during service, and that sleep apnea was not shown for approximately two decades following his separation from service. There is no indication that the condition may be associated with service or a service-connected disability. For these reasons, the Board declines to provide an examination or obtain an opinion as to this issue. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim for service connection for sleep apnea at this time. Service Connection- Sleep Apnea Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Veteran apparently contends that he has sleep apnea that is related to his period of active service. The service treatment records do not show any complaints or findings related to sleep apnea. The Veteran underwent a sleep study in June 2003 that resulted in a diagnosis of sleep apnea. A VA general medical examination report dated in March 2004 noted a history of sleep apnea. It is noteworthy that the earliest evidence of sleep apnea was in 2003. Such a long interval between service and the initial postservice clinical manifestation of the disability for which service connection is sought (approximately 20 years) is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F.3d. 1330, 1333 (Fed. Cir. 2000). There is medical evidence of a current disability, but no medical evidence demonstrating that sleep apnea was present in service or is otherwise related to service. The Veteran himself has made no specific contentions related to his sleep apnea. The Board concludes that the evidence of record weighs against a finding of service connection for the Veteran's sleep apnea; therefore the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for sleep apnea is denied. REMAND The Veteran underwent a surgical resection of a "giant" meningioma (brain tumor) in November 2001. Medical records at that time noted he had an 18 month history of headaches and also had experienced seizures as a child which apparently resolved at age 9. The service treatment records do not show any complaints or findings related to headaches or seizures. On a September 2005 VA Form 9, the Veteran reported that the VA physician who examined him when the tumor was first detected in 2001 stated that it is a slow growing type of tumor and given the size of the tumor when discovered, it would have taken 30 years to reach that stage. Given the size of the meningioma discovered in 2001, that meningiomas are slow growing tumors, and that the Veteran apparently had a history of seizures as a child, the Board believes that a VA examination with an opinion as to the likely period of onset of the Veteran's meningioma is appropriate. The Veteran also contends that he has a right hip disability that is secondary to his service-connected right knee disability. In addition to service connection based on incurrence or aggravation in service, a disability may also be service connected if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service- connected disability aggravates a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The record shows a diagnosis of right hip degenerative joint disease, however the Veteran has not been provided with a VA examination of his right hip with an opinion as to the likely etiology of any current disability. Such examination is necessary. Finally, the Veteran contends that his service-connected left and right knee disabilities have worsened since the most recent VA examination in May 2005. The Board finds that a current examination is necessary in order to properly evaluate the severity of the left and right knee disabilities. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination to clarify the existence and likely etiology of any current right hip disorder. The examiner must be provided with the Veteran's claims file for review. After examining the Veteran and reviewing the claims file, the examiner should provide findings and opinions addressing the issues outlined below. Does the Veteran have a chronic right hip disorder? If so: (1) Is it at least as likely as not that any current right hip disorder is proximately due to or the result of the Veteran's service connected right knee disorder? (2) The examiner should also offer an opinion as to whether it is at least as likely as not that any current right hip disorder has been aggravated by the Veteran's right knee disorder. "Aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the right hip disability (i.e., a baseline) before the onset of the aggravation. If the examiner must resort to speculation to answer any question, he or she should so indicate and explain why it would be speculative to respond. The examiner is also requested to provide a rationale for any opinion expressed. 2. Schedule the Veteran for a VA orthopedic examination to determine the current severity of his service-connected left and right knee disabilities. The claims file must be made available to the examiner. All necessary tests should be conducted and all clinical findings reported in detail. The examiner should undertake range of motion studies for the left and right knees, noting the exact measurements for flexion and extension, specifically identifying any excursion of motion accompanied by pain. The extent of any incoordination, weakened movement and excess fatigability on use should be described. To the extent possible, the functional impairment due to incoordination, weakened movement and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. The examiner should provide an opinion concerning the degree of severity of any instability or subluxation of the left and right knees. The examiner should also determine if either knee locks and, if so, the frequency of the locking. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 3. Schedule the Veteran for an appropriate VA examination to address the etiology and likely period of onset of his meningioma as well as to identify all current residuals of the meningioma. The claims file must be made available to the examiner for review in connection with the examination. All necessary special studies should be performed and all pertinent clinical findings reported in detail. After reviewing the claims file and examining the Veteran, the examiner should opine as to whether it is at least as likely as not that the Veteran's meningioma had its onset during his period of active service. If the examiner must resort to speculation to answer any question, he or she should so indicate and explain why it would be speculative to respond. The examiner is also requested to provide a rationale for any opinion expressed. 4. Then, readjudicate the Veteran's claims on appeal, with application of all appropriate laws and regulations and consideration of any additional information obtained. If a decision with respect to a claim remains adverse to the appellant, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs