Citation Nr: 1325545 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 10-33 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for obesity, to include as secondary to a left knee disability. 3. Entitlement to service connection for patellar tendonitis of the right knee, to include as secondary to a left knee disability. 4. Entitlement to service connection for sleep apnea, to include as secondary to obesity, right knee disorder, and/or left knee disability. 5. Entitlement to a rating higher than 10 percent for service-connected patellofemoral and medial compartment arthritis of the left knee with patellar tendon rupture. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from December 1993 to September 1995. This matter comes before the Board of Veterans' Appeals (BVA or Board) from March 2009, October 2009, and January 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in St. Petersburg, Florida and Nashville, Tennessee. The Veteran now resides in Tennessee, so the matter is now handled by the RO in Nashville, Tennessee. The Veteran requested a hearing before the Board. The requested hearing was conducted in January 2012 by the undersigned. A transcript is associated with the claims file. The issue of entitlement to a rating higher than 10 percent for patellofemoral and medial compartment arthritis of the left knee with patellar tendon rupture is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In January 2012, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal for entitlement to service connection for hypertension. 2. The Veteran's obesity is aggravated by his service-connected left knee disability. 3. The Veteran's patellar tendonitis of the right knee is proximately due to his service-connected left knee disability. 4. The Veteran's sleep apnea is proximately due to his obesity. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of entitlement to service connection for hypertension by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. Service connection for obesity, as aggravated by a service-connected left knee disability, is established. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). 3. Service connection for patellar tendonitis of the right knee, as caused by service-connected left knee disability, is established. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). 4. Service connection for sleep apnea, as caused by obesity, is established. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting the benefits sought on appeal. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Withdrawn Claim The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn his appeal of entitlement to service connection for hypertension. See January 2012 VA Form 21-4138. Therefore, there remains no allegation of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. III. Service Connection Claims The Veteran seeks entitlement to service connection for obesity, patellar tendonitis of the right knee and obstructive sleep apnea. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternate method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) (2012) is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). However, service connection on the basis of a continuity of symptomatology is only possible if a claimed disability is among the chronic conditions listed in 38 C.F.R. § 3.309(a), see Walker. Obesity, patellar tendonitis and obstructive sleep apnea are not listed in 38 C.F.R. § 3.309(a) and have not been attributed to any disease listed in that section. Thus, an award of service connection on the basis of continuity of symptomatology since service for these disorders is precluded. In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson in reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ([T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Lyno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In addition to the regulations cited above, service connection is warranted for a disability that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). A. Entitlement to Service Connection for Obesity, to Include as Secondary to Service-Connected Left Knee Disability The Veteran asserts that his left knee disability and resulting knee surgeries caused his obesity. Service records were reviewed. The Veteran's entrance examination from November 1992 indicated he had a height of 72 inches and a weight of 204 pounds. A consultation sheet from November 1992 noted that the Veteran's minimum allowed weight was 137 pounds and maximum weight allowed was 197 pounds. In November 1993, his weight was 213 pounds and in December 1993, his weight was recorded as 210 pounds. In May 1994, the Veteran suffered a left knee patella tendon rupture, which resulted in surgery in June 1994. His weight was recorded in September 1994 as 215 pounds. In February 1995, his weight was 223 pounds and it was noted that he put on twenty pounds because of lack of activity from his knee injury. In a March 1995 Physical Evaluation Board report, it was noted that due to the knee injury, the Veteran experienced a lack of physical activity and inability to run, resulting in a 20-pound weight gain. In April 1995, the Veteran reinjured his left knee while jogging. The Veteran's separation examination from July 1995 reports his weight as 220 pounds. There are no notations in the service treatment records that the Veteran was diagnosed as clinically obese during service. Post-service records were reviewed. In a private record from September 2007, it was noted that the Veteran was "overweight." Then, the Veteran sought VA treatment in September 2008, complaining of left knee pain. He reported that he became tired easily since gaining weight. His weight was recorded as 262 pounds, with a body mass index (BMI) of 36, and the Veteran was informed that he was obese. It was noted that he was aware, and he was instructed to stop eating sweets and drinking sodas. As such, the Board notes that while the Veteran had documented weight problems in service, he was not diagnosed as clinically obese until post service, in 2008. The Veteran has submitted multiple private medical opinions. In January 2012, Dr. K. stated that the Veteran's patellar tendon rupture clearly led to inactivity, which in addition to dietary indiscretion, led to significant weight gain. The Board notes that this statement does not support that the Veteran's left knee disability directly caused his obesity, as the Veteran's dietary indiscretion is not a result of his left knee injury; the statement does, however, indicate that the Veteran's left knee disability aggravated his weight gain, by causing inactivity, which ultimately led to his current obesity. As such, the Board finds that service connection is warranted on a secondary basis for obesity, as it is aggravated by his service-connected left knee disability. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). It is the function of the Board to resolve all doubt in favor of the Veteran. Here, the Veteran's private physician has opined that his left knee aggravates his obesity. See January 2012 statement. There are no medical opinions to the contrary. When the Veteran's statements, service treatment records, post-service treatment records and the positive private medical opinion are considered, the Board finds that the evidence is in the Veteran's favor, and concludes that service connection for obesity, based on aggravation, is warranted. The Board notes in passing that although 38 C.F.R. §3.310(b) indicates that VA will not concede aggravation unless the baseline severity of the nonservice-connected disease or injury is established, the next sentence indicates that the rating activity will determine the baseline and current levels of severity and determine the extent of aggravation. Given that the Board is not bound by the RO's determination that aggravation is not present, and as the Board does not assign ratings in the first instance, the Board reads 38 C.F.R. §3.310(b) as permitting the Board to determine whether service connection on an aggravation basis is warranted, with the RO having the responsibility for determining the degree of aggravation in assigning the rating. B. Entitlement to Service Connection for Patellar Tendonitis of the Right Knee, to include as Secondary to Service-Connected Left Knee Disability The Veteran seeks entitlement to service connection for patellar tendonitis of the right knee. Service treatment records indicate complaints and treatment for left knee injuries, but do not include reported symptoms of a right knee injury or treatment. Post service, VA treatment records prior to October 2008 do not indicate any complaints or treatment for right knee symptoms. The Veteran was afforded a VA examination in October 2008. The Veteran's left knee injuries during service were noted and it was noted that he continues to have severe left knee pain. The Veteran reported right knee pain off and on, in the area of the patellar tendon, since about 2006, but that he has not been treated for the right knee. It was noted that the right knee did not really limit him from walking, but it caused him pain. Examination revealed tenderness to palpation along the patellar tendon, but no instability or loss of range of motion. X-rays were normal. The Veteran was diagnosed with mild, right knee patellar tendinitis. The examiner opined that the Veteran's right knee disorder is less likely than not a result of his left knee disability, as it appears he is limited secondary to his left knee pain, and this lack of activity would more likely than not decrease the pain in his right knee. In November 2008, VA outpatient records indicate the Veteran was seen for the left knee; however, examination of the right knee was also completed. It was noted that his right patella mobility was within normal limits, but he had tenderness. Right knee extension and flexion strength were noted as 4/5. The Veteran's private physician, Dr. C., submitted a statement in November 2010. The physician noted that the Veteran has full flexion of his right knee with no instability; however, he lacks approximately 15 degrees of full extension actively. The physician noted that the Veteran has had to depend more on his right knee as a result of his left knee surgeries, and from overuse, he has developed some episodes of tendinitis in the right knee. The physician noted that the Veteran's right knee hurts periodically and is becoming worse over time, as he has had to protect his left knee. On review of all evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's right knee disorder is caused by his left knee disability. While the October 2008 VA examiner opined that the Veteran's right knee disorder is not due to his left knee disability, the Veteran's private physician, in November 2010, opined that overuse of the right knee, leading to tendonitis, was a result of protecting his left knee disability. It is the function of the Board to resolve all doubt in favor of the Veteran. Here, when the Veteran's statements, post-service treatment records and the VA and private medical opinions are considered, the Board finds that the evidence is at least in equipoise, and concludes that service connection for patellar tendonitis of the right knee, as secondary to his left knee disability, is granted. C. Entitlement to Service Connection for Sleep Apnea, to include as Secondary to Obesity, Right Knee Disorder, and/or Left Knee Disability The Veteran seeks entitlement to service connection for sleep apnea. Service records were reviewed and do not include any complaints, treatments, or a diagnosis of sleep apnea during service. Post-service, the Veteran sought treatment from a private facility in September 2007. It was noted that his girlfriend was concerned that he might have sleep apnea, as he had gained weight over the prior several years and had increased snoring. The Veteran reported increased daytime somnolence, almost falling asleep when stopped at a stop light or at work when things are quiet and reported that he had moderate fatigue. He stated that his girlfriend had witnessed episodes of apnea while he was sleeping. The physician noted that the symptoms were concerning for obstructive sleep apnea, and a sleep study was scheduled. There is no evidence that a sleep study was conducted at that time. In September 2008, the Veteran sought treatment at the VA, and it was noted that he reported he snored and felt tired during the day. Again, obstructive sleep apnea was suspected, and he was referred for a sleep study. The Veteran underwent a sleep study in November 2008, and he was diagnosed with obstructive sleep apnea and hypoxia. In October 2009, a private treatment record indicated the Veteran's sleep apnea symptoms had increased in the last several years, and appeared to be related to weight gain, which was largely related to the inability to exercise due to his left knee injuries. See October 2009 treatment record of Dr. N. In January 2012, an additional private physician statement was submitted. The physician stated that the Veteran had severe obstructive sleep apnea, which had increased as a result of his weight gain. The physician noted that the Veteran developed a significant physical disability as a result of his two patellar tendon ruptures and surgical repairs, which left him unable to exercise, and resulted in weight gain, which essentially led to progressive sleep apnea. The physician then opined that the Veteran's worsening obstructive sleep apnea is more likely than not associated with the weight gain that resulted from his patellar tendon rupture. See January 2012 statement of Dr. K. The Veteran's friends have submitted lay statements indicating that the Veteran experienced symptoms of sleep apnea post-service, such as snoring, gasping for air, and choking in his sleep. See January 2012 statements. The Veteran has asserted that his sleep apnea began prior to service, but he has also made statements that it began during service. In a December 2008 statement, the Veteran asserted that he had "no symptoms of sleep apnea" nor did he "suffer from excessive snoring prior to obtaining his knee injuries." See December 2008 statement. However, more recently, the Veteran's father submitted a statement in January 2012 asserting that he and his wife, a registered nurse, witnessed the Veteran having sleeping problems prior to his entry in service, which later became worse after his knee surgery and gaining weight. The Veteran also indicated recently, in February 2012 that he "made an error in writing the proper association" in his originally submitted claim, and believes his current sleep apnea is secondary to his left knee. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the Veteran's assertions and those of his friends and family are inconsistent and speculative in regard to a date of onset. Indeed, some statements indicate the onset was prior to service and continued during service, while some suggest that it began after his knee injuries occurred. Importantly, the medical evidence indicates that obstructive sleep apnea was not clinically diagnosed until 2008, which coincided with a complaint of increase in symptoms coexisting with an increase in weight. The Board finds that service connection for sleep apnea is warranted on a secondary basis as it is caused by his obesity. There are no medically documented sleep apnea symptoms during service. Additionally, the Veteran has presented conflicting evidence regarding the onset of his symptoms. Medical evidence indicates the Veteran received a sleep apnea diagnosis post service, in November 2008. Importantly, the Board notes that the Veteran's private physician, in January 2012, opined that the Veteran's weight gain worsened his sleep apnea. It is the function of the Board to resolve all doubt in favor of the Veteran. Here, when the Veteran's statements, service treatment records, post-service treatment records and the positive private medical opinion are considered, the Board finds that the evidence is at least in equipoise, and concludes that service connection for sleep apnea, as caused by obesity, is warranted. ORDER Entitlement to service connection for hypertension is dismissed. Entitlement to service connection for obesity, as aggravated by service-connected left knee disability, is granted. Entitlement to service connection for patellar tendonitis of the right knee, as caused by service-connected left knee disability, is granted. Entitlement to service connection for sleep apnea, as caused by obesity, is granted. REMAND The Veteran seeks entitlement to a rating higher than 10 percent for patellofemoral and medial compartment arthritis of the left knee with patellar tendon rupture. The Board finds that the claim must be remanded to the RO. The Veteran was granted service connection for patellar tendon rupture of the left knee in an April 1996 rating decision, which found that while the current disability was 20 percent disabling, 10 percent should be deducted as the Veteran had a knee injury that pre-existed service and was permanently worsened as a result of service. The RO noted that prior to service, the Veteran was treated for jumper's knee. In November 2010, the Veteran submitted a private medical report indicating that jumper's knee is a relatively common problem in children and it does not predispose individuals to patella tendon ruptures. The private physician explained that he would not attribute any of the Veteran's military related rupture that he sustained to the jumper's knee that he had prior to service. As such, this post-rating medical evidence relates to the issue of whether the evidence of record continues to support the deduction of 10 percent for a pre-existing disability. This new evidence should be considered by the RO/AMC in the first instance, as it may affect the Veteran's left knee disability evaluation. Accordingly, the case is REMANDED for the following actions: 1. Review the additional medical evidence provided by the Veteran's private physician, particularly the November 2010 statement regarding the Veteran's left knee. Any additional development deemed necessary by the RO/AMC should be completed. The RO/AMC should then readjudicate the Veteran's left knee increased rating issue on appeal. 2. If the claim remains denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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. 2012). ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs