Citation Nr: 1327445 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 10-06 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1993 to August 1993 and from October 1993 to September 1995. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 and April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the issues on appeal. The Board notes that in April 2008, the Veteran filed a claim for service connection for sleep apnea. In September 2008, the RO addressed the claim as entitlement to service connection for insomnia to include as secondary to the service-connected degenerative changes to the thoracic spine with mechanical low back pain and as to whether new and material evidence had been received for a claim for service connection for a sleeping disorder. However, at his April 2010 hearing before a decision review officer, it was clarified that the Veteran was claiming service connection for sleep apnea and for a sleep impairment, manifested by insomnia, secondary to his service-connected back disability. Thereafter, in the September 2010 rating decision and supplemental statement of the case, the RO granted service connection for a sleep impairment secondary to the service-connected back disability and continued the denial of service connection for sleep apnea, tailoring the original denial of a "sleep impairment" to that of the remaining disorder, that of sleep apnea. In September 2012, the Board remanded the issues on appeal for additional development. They are again before the Board for further review. FINDING OF FACT 1. A chronic right knee disorder did not have its clinical onset in service and is not otherwise related to active duty; right knee arthritis was not exhibited within the first post service year. 2. Obstructive sleep apnea did not have its clinical onset in service and is not otherwise related to active duty or to a service-connected disability. CONCLUSIONS OF LAW 1. A right knee disorder was not incurred in or aggravated by service, nor may arthritis be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. Sleep apnea was not incurred in or aggravated by service, and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a pre-adjudication letter dated in May 2008, the RO notified the Veteran of the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). This letter also informed him of the types of evidence that would be considered to substantiate his claims and the information and evidence needed to sustain a claim for service connection, to include on a secondary basis. In addition, the letter met the notice requirements set out in Dingess. Neither the Veteran nor his representative has alleged that notice has been less than adequate. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). Further, the Board finds that the July 2008 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claim. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). Post-service medical records have been associated with the claims file. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded this case in September 2012 in order to provide the Veteran with a VA examination to determine whether he had a right knee disability related to service or if his sleep apnea was aggravated by his service-connected degenerative changes to the thoracic spine with mechanical low back pain. The Veteran was provided with an examination in November 2012. The opinion regarding the Veteran's service connection claim for a right knee disorder was adequate. After obtaining an opinion regarding the Veteran's sleep apnea, the claims file was returned to the VA examiner for further explanation regarding whether his service-connected back disability was aggravating his sleep apnea. An addendum opinion was provided in February 2012. The Board finds that these VA examinations are adequate because, as shown below, the examinations were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because the reports describe the disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Service Connection - Laws and Regulations 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, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical 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) medical 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); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. A current disability must be present for a valid service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (complaints of pain alone do not meet the current disability threshold); Evans v. West, 12 Vet. App. 22, 31-32 (1998). More recently, the Court has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also 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. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) 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 (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 is 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'). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (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"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Background and analysis - right knee disability Service treatment records are negative for any indication of a right knee injury. An August 1993 examination reflects normal lower extremities, and in Reports of Medical History dated in August 1993 and August 1999, the Veteran denied having or having had a trick or locked knee. He did not report any complaints of knee pain. Private medical records dated from March 2000 to June 2002, February 2004 and from February to August 2006 reflect treatment for a variety of medical conditions, including bilateral carpal tunnel syndrome and right shoulder pain and subsequent surgery. Post-service VA treatment records reflect that in January 2008, the Veteran reported having pain in the right knee joint for three weeks. He denied any trauma or fall. He was diagnosed with patellar tendinitis and was advised to use an ACE bandage on the knee. At his April 2010 hearing, the Veteran contended that he injured his right knee sometime in 1993 when he was stationed in Korea while completing an eight mile run. At the time, he stepped in a hole and felt a pop in the knee. Afterwards, his knee was swollen and he believes he was diagnosed with a bursa sac injury. He was given medication, but he did not seek medical attention as such was not the norm. At his November 2012 VA examination, the Veteran reported that he has had grinding and popping in his knee since service. He indicated that he had been informed that he had a tear in his patellar tendon. X-rays revealed degenerative changes of the right patellofemoral joint. The examiner opined that it was less likely as not that the Veteran's right knee disability was incurred in or caused by his claimed in-service injury, and based his opinion on the rationale that, while the Veteran had an injury in 1993, he had no further problems after discharge until 2008 when he began having pain in his right knee. The examiner noted that the Veteran had worked in occupations requiring bending and squatting, which he did without difficulty in the years following service. He also acknowledged the possibility that the Veteran had suffered an injury in these occupations. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan, supra. The evaluation of evidence generally involves a three step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Then, the Board must determine whether the evidence is credible. The Board must make an express credibility finding regarding lay evidence. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Finally, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. The medical evidence of record clearly shows that the Veteran has a current diagnosis of a right knee disorder, meeting one of the fundamental requirements of service connection. Brammer, supra. Thus, the issue in this case is whether the evidence of record, including medical and lay evidence, attributes his right knee disorder to service. The Veteran reported that he began having popping, grinding and pain in his right knee in service. He described a right knee injury in service with knee pain ever since then. The Veteran is competent to provide this lay evidence. Layno, supra. With regard to the credibility of the Veteran's statements, this factor affects the weight to be given to the Veteran's testimony, and it is the Board's responsibility to determine the appropriate weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When weighing lay evidence, the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (citing State v. Asbury, 415 S.E.2d 891, 895 (W. Va. 1992)). The Veteran's complaints of right knee injury in service are credible as there is nothing in the record to contradict this. However, the Board finds that the Veteran's complaints of right knee problems beginning in service and continuing since then are not consistent with the overall record. While in service, the Veteran indicated on Reports of Medical History that he did not have and never had had a trick or locked knee. In addition, when initially seen for right knee complaints following service in January 2008, the Veteran indicated that his right knee pain had started only three weeks prior to the appointment. Significantly, private medical records show that, while the Veteran reported a number of medical issues prior to January 2008, including other orthopedic problems, he did not report right knee pain or dysfunction until January 2008. Treatment records, generated with a view towards ascertaining the appellant's then-state of physical fitness, are akin to statements of diagnosis and treatment and are of increased probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). These inconsistencies undermine more recent reports of continuous right knee symptoms since service. With regard to whether the medical evidence of record supports the Veteran's claim, the Board finds that there is no medical evidence of record linking the Veteran's right knee disorder to any incident in service. The November 2012 VA examiner found that his right knee disability was not related to service. While this examiner did not consider the Veteran's lay statements regarding his in-service onset of knee problems, these statements have been found unreliable, and therefore do not affect the competency of this opinion. None of the other medical evidence of record supplies the needed nexus between the Veteran's current right knee disorder and his time in service. Arthritis is a disorder for which presumptive service connection is available. However, for the same reasons as set out about regarding service connection, there is no evidence in the claims file that the Veteran's degenerative changes of the right patellofemoral joint manifested to a compensable degree within one year of his discharge. Therefore, service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309. To the extent that the lay statements by the Veteran can be accorded any weight in deciding this case, the Board observes that lay witnesses are not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The question regarding the potential relationship between the Veteran's right knee disorder and any instance of his military service is complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). Without any indication that the Veteran has the requisite medical expertise to opine on the issue of a nexus between any in-service incident and his current right knee disorder, his statements in this regard do not have probative value. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant's claim of entitlement to service connection for a right knee disability. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107. Background and analysis - sleep apnea The Veteran contends his sleep apnea, formally diagnosed in 2004, is related to his service or to his service-connected back disability. He contends that his service-connected back disability is so painful that he cannot sleep or breathe. Recently, the representative has claimed that the sleep apnea is secondary to obesity, which is the result of the Veteran's inability to exercise, which in turn is due to his service-connected disabilities. See Informal Hearing Presentation dated July 19, 2013. Service treatment records do not reflect treatment for or diagnosis of sleep apnea. On this August 1995 Report of Medical History, the Veteran indicated that he had trouble sleeping. The examiner noted that the Veteran had difficulty sleeping, secondary to a motor vehicle accident. It was noted that the Veteran indicated that he "sees cars coming" and that there was the possibility of long term effect mentally. The Veteran did not report sleep apnea. On August 1997 general VA examination, the Veteran reported that beginning in 1993, his sleep pattern changed so that he could rarely get six consecutive hours of sleep per night. He indicated that he was able to fall asleep, but would only sleep two to three hours per night. He indicated that he did not know what kept him awake. He complained of snoring and talking in his sleep. On August 1997 psychiatric VA examination, the Veteran reported sleep disturbance in which he only slept a few hours per night. He would have disturbing dreams of what he saw in Korea. The diagnosis was sleep disturbance with consideration of sleep apnea. A March 2006 private sleep study reflects the Veteran's complaints of excessive daytime sleepiness. There had been observed apneas and snoring. He reported getting about 10-12 hours of sleep a night, including naps during the day. He was diagnosed with obstructive sleep apnea, moderate, supine-related. On August 2010 VA examination, after physically examining the Veteran and reviewing the claims file, the examiner diagnosed the Veteran with obstructive sleep apnea syndrome, moderate, not related to military service. The examiner explained that sleep apnea was not caused by back conditions per medical literature. The examiner did not find evidence of sleep apnea in service or indication of sleep apnea continuing since service in her thorough summarization of the medical of evidence of record. A July 2011 VA sleep study reflects a diagnosis of severe obstructive sleep apnea syndrome. At his November 2012 VA examination, the Veteran reported that, when his back was injured, he had difficulty breathing due to pain, and that this resulted in his inability to sleep. The examiner opined that the Veteran's obstructive sleep apnea was not related to his service-connected back disability. He noted that the Veteran claimed that his sleep cycle became disturbed after his service-connected back disability when he was unable to breath due to his back pain. The examiner found, however, that the sleep study revealed that his sleep apnea was obstructive in nature, and not a central sleep disturbance. In the February 2013 addendum opinion, the examiner added that if the sleep apnea was a central disturbance, than there would have been aggravation; however, it was obstructive, meaning there was a narrowing in the passage of air through the nose or the pharynx. Therefore, the examiner opined, the sleep apnea was less likely as not due to his service-connected back disability. The medical evidence of record clearly shows that the Veteran has a current diagnosis of obstructive sleep apnea. Brammer, supra. Thus, the issue in this case is whether the evidence of record, including medical and lay evidence, attributes his obstructive sleep apnea to service or to his service-connected back disability. The Veteran reported that he began having sleep problems due to pain when he injured his back in service. The Veteran is competent to provide this lay evidence. Layno, supra. The Veteran's statements that his difficulties with sleep began in service are credible, and, as noted in the introduction to this decision, he has been service-connected for sleep impairment due to a service-connected disability. However, the Veteran's service treatment records do not reflect any findings or treatment for sleep apnea. He was provided with a Medical Evaluation Board that determined that he should be discharged due to his back disability. Sleep apnea was not noted at that time. At separation, the Veteran reported sleep difficulties that were linked to the mental effects of his in-service motor vehicle accident. He did not report that he snored until his August 1997 VA examination, two years after his discharge from service. Significantly, while the Veteran can report snoring, without the requisite medical expertise, the Veteran is not considered competent to diagnose sleep apnea or to opine on its etiology, as this is a complex medical issue. Layno,Woehlaert. The Board notes that, in his July 2013 Informal Hearing Presentation, the Veteran's representative contended that his service-connected disabilities have "caused him to suffer obesity by restricting his ability to exercise, which has direct and layman's association for aggravating obstructive sleep apnea." However, none of the medical records in the record of evidence reflect complaints or findings that obstructive sleep apnea was due to obesity. In addition, the treatment providers and examiners have not provided a link between his service-connected disabilities and obesity, or between his obesity and his obstructive sleep apnea. There is no competent evidence in the claims file to this effect. Id. The medical evidence of record does not support a finding that that Veteran's obstructive sleep apnea began during active duty. Service treatment records do not reflect any treatment for such. While sleep apnea was questioned in 1997, a diagnosis of sleep apnea was not made until March 2006, over 10 years after his discharge from service. The August 2010 VA examiner did not relate the Veteran's obstructive sleep apnea directly to service. Likewise, the medical evidence does not link his sleep apnea to his service-connected back disability. The August 2010 VA examiner noted that the medical literature did not reflect that disabilities of the back cause sleep apnea. In addition, the VA examiner who provided the November 2012 examination and the February 2013 addendum opined that the Veteran's obstructive sleep apnea was not caused or aggravated by his service-connected back disability. This examiner provided a clinical rationale, noting that the nature of the Veteran's obstructive sleep apnea was such that it would not be caused by or aggravated by the pain from his back disability. As these examiners have the medical expertise to come to such conclusions, their opinions are considered to have great probative value in this determination. The Board finds that, as there is no competent medical or lay evidence linking the Veteran's obstructive sleep apnea to service or to his service-connected back disability, the claim must be denied. The benefit of the doubt doctrine has been considered, but as the preponderance of evidence is against the claim, it is not for application in this case. 38 U.S.C.A. § 5107. ORDER Service connection for a right knee disability is denied. Service connection for obstructive sleep apnea is denied. ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs