Citation Nr: 1424567 Decision Date: 06/02/14 Archive Date: 06/16/14 DOCKET NO. 11-16 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for sleep apnea, as secondary to service-connected bilateral knee disability. 2. Entitlement to a rating in excess of 10 percent for right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1980. These matters come before the Board of Veterans' Appeals (Board) from April 2009 and August 2009 rating decisions issued by the Jackson, Mississippi Department of Veterans Affairs (VA) Regional Office (RO) which, continued a 10 percent rating for service-connected right knee disability, and, in pertinent part, denied service connection for sleep apnea, respectively. In April 2013, a Travel Board hearing was held before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. During the hearing, the Veteran was afforded an additional 60-90 days in order to submit evidence. No new evidence has been received at this time. A review of the Virtual VA paperless claims processing system reveals only the additional, pertinent evidence of the Veteran's hearing transcript. There is no evidence currently uploaded to the Veterans Benefits Management System (VBMS) electronic file. The issue of an increased rating for right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence reasonably shows that the Veteran's service-connected bilateral knee disability contributes to his obstructive sleep apnea. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, the criteria for secondary service connection for sleep apnea based upon aggravation have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159, 3.326(a) (2013). In this case, the Board has granted in full the maximum benefit allowed by the law in this case. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Additionally, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). See Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). For purposes of claims for Veterans' benefits, aggravation is defined as permanent worsening beyond the natural progression expected for the disorder. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993). Temporary or intermittent flare-ups of a disease are not sufficient to be considered aggravation of a disorder. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that his current obstructive sleep apnea is secondary to his service-connected bilateral knee disability. Indeed he contends that based on the severity of his bilateral knee disability, he was unable to exercise properly which led to obesity and subsequent sleep apnea. After a careful review of the Veteran's claims file the Board finds that by granting the Veteran the benefit of the doubt service connection for sleep apnea is warranted on a secondary service connection basis. In the present case, the Board finds that the Veteran has obstructive sleep apnea. Such was noted on a July 2009 private sleep study from Somnus Sleep Clinic. The Board also notes that the Veteran is service connected for a bilateral knee disability. Turning to the question of whether there is a nexus, or link, between the current shown disability and service-connected bilateral knee disability, the Board finds that the evidence reasonably shows that the obstructive sleep apnea is proximately due to the Veteran's service-connected bilateral knee arthritis. First, the Veteran's private treating physician, Dr. D.B.W. stated, in pertinent part, in a June 2009 letter that he has treated the Veteran since 1998 for severe bilateral knee pain and swelling; and that the deteriorating condition of the Veteran's knees over the years has caused him to become more and more sedentary and has helped attribute to his weight gain. Second, in an October 2009 letter, Dr. M.R., Medical Director for the Somnus Sleep Clinic stated, in pertinent part, that the Veteran's obesity is the majority cause of his obstructive sleep apnea. Dr. M.R. noted that other physicians have found that the obesity was the direct result of the service-connected bilateral knee disability, and he had no reason to doubt that. Third in a September 2010 letter, Dr. D.B.W. stated, in pertinent part, that due to the Veteran's bilateral knee disability, he is unable to exercise and has difficulty controlling his weight. Dr. D.B.W. noted that the lack of exercise and weight gain have contributed to the Veteran's sleep apnea. He reiterated that the Veteran's service-connected bilateral knee disability has contributed to, if not causative of his sleep apnea. Fourth on July 2011 VA examination, Dr. T.S. noted that the Veteran had significant degenerative arthritis in both knees; and that he was limited in his ability to exercise as a result of such. The examiner noted that it was as likely as not, the diminished physical activity contributed to the significant weight gain, which as likely as not contributed to the onset of obstructive sleep apnea. The examiner noted that while the exact cause of sleep apnea is unknown, there are contributing factors such as obesity. In summary Dr. T.S. found that the Veteran's degenerative arthritis had resulted in an inability to exercise with resultant development of obesity, which contributed to the Veteran's sleep apnea development. The AOJ requested clarification as to how the Veteran's service-connected knee disability would adversely impact his ability to diet and/or perform non-impact type exercise in order to maintain a healthy weight. The examiner noted in pertinent part, that whether or not the Veteran is capable of exercising is irrelevant. He indicated that the fact is the Veteran did gain weight and subsequently developed sleep apnea. He stated that the bilateral knee arthritis made it more difficult for the Veteran to exercise on a regular basis and therefore contributed to his weight gain. While the examiner noted that there were certainly many different factors contributing to the Veteran's weight gain; it was apparent that the arthritis of the knees reduced his ability to exercise, at least in some fashion and, as likely as not, contributed to his weight gain. Fifth, on February 2012 VA examination, Dr. B.K.H. remarked that the Veteran has been somewhat diligent with his diet but has not tried non-impact exercises since 2009 due to financial constraints. He opined that the Veteran's service-connected degenerative arthritis in both knees reduced his ability to exercise which contributed to his weight gain. Sixth, on May 2012 VA opinion, Dr. T.S. again opined that there were many possible reasons why the Veteran did not exercise in some capacity, one being his bilateral knee arthritis. Other potential factors could be lack of motivation, overeating, etc. Dr. T.S. noted that it would require speculation to suggest other etiologies for the weight gain since they are unknown. He noted, in pertinent part, that the Veteran's service-connected bilateral knee problems played a role in the development of obesity by making exercise more difficult and uncomfortable and promoting a sedentary lifestyle. He indicated that the cause of obstructive sleep apnea is unknown, but obesity is a known risk factor and therefore, as likely as not, played a role in the development of sleep apnea. In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, all three elements of service connection for a claimed disability on a secondary basis are met. First, there is medical evidence that the Veteran has a current disability of obstructive sleep apnea. Second, the Veteran's treatment records show that he has severe bilateral knee degenerative arthritis, which is currently service connected. Finally, the Veteran's VA and private treatment providers reasonably establish that the bilateral knee disability made it difficult for him to exercise which led to a sedentary lifestyle and subsequent obesity which subsequently caused obstructive sleep apnea. See Wallin, 11 Vet. App. at 512. Accordingly, the benefit of the doubt will be conferred in the Veteran's favor and his claim of entitlement to service connection for obstructive sleep apnea is granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.400; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for sleep apnea, as secondary to service-connected bilateral knee disability is granted. REMAND A review of the record discloses further development is necessary prior to the adjudication of the Veteran's remaining claim of entitlement to a disability rating greater than 10 percent for right knee disability. During the April 2013 Board hearing, the Veteran testified that he was scheduled to have a series of symvisc and/or supartz shots into his left knee. He indicated the next one was scheduled for May 7. The Veteran also testified that he was unable to bend his right knee all the way, and that he was unable to extend the knee without pain. See pages 4-6 of the Board Hearing Transcript. The Veteran also testified that his new private physician Dr. K. told him that he would probably have to have a knee replacement very soon. See page 14 of the Board Hearing Transcript. During the hearing, the Veteran was afforded an additional 90 days to obtain outstanding treatment records from July 2010 forward from his private orthopedist. As noted above, no additional evidence has been received. The Board finds as the Veteran was last examined in February 2012, and it appears that his right knee has increased in severity, to include a possible right knee replacement, he should be scheduled for a VA examination to determine the current severity of his service-connected right knee disorder. Moreover, the Veteran also receives medical care through VA. VA is required to make reasonable efforts to help a Veteran obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992). The AOJ should attempt to obtain all VA medical records pertinent to the Veteran's right knee disability that are dated from May 2012. Accordingly, the case is REMANDED for the following action: 1. With any needed assistance from the Veteran, obtain outstanding private treatment records. The Veteran should be specifically asked to provide authorization to obtain records from Dr. Kennedy at the Capital Orthopedic and Sports Clinic. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 2. Associate with the claims file relevant VA treatment records pertaining to the Veteran's right knee dated from May 2012 to the present which are not already of record. All efforts to obtain these records should be fully documented. If these records do not exist or cannot be obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2013). 3. After the relevant records, if available, have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his right knee disability. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should include range of motion studies and note any range of motion loss which is specifically attributable to pain. Note any additional functional loss with repetition. Discuss whether any functional loss is attributable to pain during flare-ups and then quantify in degrees the motion loss during such flare-ups. Note whether there is any less or more movement than is normal; weakened movement; excess fatigability; incoordination; and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Categorize any instability and/or subluxation found to be present as slight, moderate, or severe. 4. After the development requested above has been completed, the AOJ should readjudicate the Veteran's claim. If the benefit sought continues to be denied, the AOJ should issue a supplemental statement of the case to the Veteran and his representative. Thereafter the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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. 2013). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs