Citation Nr: 1435836 Decision Date: 08/11/14 Archive Date: 08/20/14 DOCKET NO. 10-06 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability, to include as secondary to a left knee disability. 3. Entitlement to service connection for sleep apnea, to include as secondary to the service-connected low back disability. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from June 1977 to August 1992. These matters come before the Board of Veterans' Appeals (Board) from several rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. By April, August and October 2009 rating actions, the RO denied service connection for left knee disability, right knee disability and sleep apnea, respectively. The Veteran perfected an appeal as to each of these determinations. This appeal was most recently before the Board in November 2013. At that time, the Board remanded the matters on appeal for additional development; specifically, to obtain outstanding VA treatment records and to provide the Veteran's representative an opportunity to submit a written argument in support of the appeal. Thereafter, additional VA treatment records were uploaded to the Veterans Benefits Management System (VBMS) electronic claims file of the Veteran. In a February 2014 letter to the Veteran, the RO informed him that they had requested a written argument and/or VA 646 from his representative in support of his appeal. To date, the Veteran's representative had not submitted a written argument in support of the Veteran's appeal. Thus, in view of the foregoing, and in view of the favorable resolution of the Veteran's service connection claims herein, the Board will proceed with appellate review of the instant claims. Further, in October 2012, VA received VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Thus, as this issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. With resolution of reasonable doubt in the Veteran's favor, the evidence supports a finding that the Veteran's current left knee disability had its onset during his period of military service. 2. The Veteran's right knee disability is secondary to gait changes caused by his service-connected left knee disability. 3. The evidence is in relative equipoise regarding whether the Veteran's sleep apnea is related to his service-connected low back disability. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for service connection for a left knee disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. The criteria for service connection for a right knee disability as secondary to the service-connected left knee disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2013). 3. The criteria for service connection for sleep apnea as secondary to the service-connected low back disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107; 38. C.F.R. §§ 3.102, 3.159, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As the Board is granting the Veteran's claims for service connection for left and right knee disabilities and sleep apnea, a determination on whether the Veterans Claims Assistance Act of 2000's (VCAA's) duty to notify and assist provisions were satisfied is unnecessary. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). II. Merits Analysis The Veteran seeks service connection for left and right knee disabilities and sleep apnea. After a brief discussion of the laws and regulations pertaining to service connection claims, the Board will analyze each disability separately below. Service connection may be granted for disability resulting from disease or injury incurred or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303(a) (2013). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, such as arthritis, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the United States Court of Appeals for the Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as arthritis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Left Knee Disability The Veteran contends his current left knee pain and problems are related to his period of military service. He maintains that after military service, he self-medicated his left knee pain with over-the-counter medications. The Veteran's service treatment records (STRs) show that in July 1979, he received treatment for a laceration of the left knee after a generator fell on it. He was treated with a Band-Aid. In January 1985, he complained of left knee pain for three days, on standing only. At that time, the Veteran gave a history of a smoke generator having fallen onto his [left] knee. The examining clinician entered an assessment of tenosynovitis. A service separation examination report is not of record. Having considered the evidence of record, and with resolution of doubt in the Veteran's favor, the Board will award service connection for a left knee disability in the analysis below. The evidence is not in dispute as to the fact that the Veteran currently has a left knee disability. After a physical evaluation of the Veteran's knees in December 2009, the examiner entered an impression, in part, of chronic strain of the knees. (See December 2009 VA examination report). Thus, the Veteran's claim for service connection for a left knee disability hinges on whether there is evidence that relates this disability to military service. There are VA opinions that are supportive of and against the claims for service connection for a left knee disability. Evidence in favor of the claim for service connection for a left knee disability includes opinions from the Veteran's treating VA physician, dated in February 2009 and July 2012. In a February 2009 letter, the Veteran's treating VA physician reported that the Veteran had chronic left knee pain. The VA physician indicated that the Veteran's service treatment records showed that he had received treatment, in part, for left knee pain and that he had continued to have left knee problems. The VA physician further related that in most cases of joint pain, the pain began with an injury; or after having lifted a heavy object; or from having made an abrupt movement; or after an accident, and that once joint pain occurred, people could suffer throughout their life with minor to major pain. The VA physician related that the Veteran had continued to seek treatment for his left knee pain. Thus, the Veteran's treating VA physician opined that it was as likely as not that his problems with left knee pain more likely than not started on active duty and had continued until the (then) current time. (See February 2009 report, prepared by the Veteran's treating VA physician). In a July 2012 report, the Veteran's VA treating physician provided a more in-depth report of the Veteran's service treatment records as it related to the left knee that is consistent with that previously reported herein. The VA physician opined that the Veteran's left knee was clearly injured [during military service] and diagnosed with a chronic condition of tenosynovitis, meaning inflammation of the tendons, while on active duty. With that being established, and based upon the Veteran's report of continued pain and treatment with over-the-counter medication since discharge, it was much more likely than not that his current left knee problems were connected to the injuries and chronic pain that began on active duty. (See February 2009 and July 2012 reports, prepared by the Veteran's VA treating physician). Evidence against the claim includes opinions provided a VA physician, dated in December 2009 and July 2011. During the VA examination in December 2009, the Veteran reported that he first began to have knee pain in service. He reported an incident in the 1970s and 1980 when a generator fell on his knee and when he was bitten by a brown recluse spider on the opposite knee, respectively. He indicated that he continued to have bilateral knee pain after these incidents, which he treated with over-the-counter medications after discharge. After a physical evaluation of the knees, the VA examiner entered an impression, in part, of chronic strain of the bilateral knees. The VA examiner indicated, however, that the Veteran's treating physician had not provided an opinion related to the Veteran's knee condition. The VA examiner opined that the Veteran's current knee problems were less likely than not related to the treatment that he received for his knees in service. The December 2009 VA examiner reasoned that aside from the Veteran's left knee laceration in service in July 1979 and the complaint of left knee pain and diagnosis of tenosynovitis in January 1985, that there was no other mention of knee pain in service following these dates, and that the next mention of knee pain was in June 2009. Thus, the December 2009 VA examiner concluded that the Veteran's current knee problems were less likely than not related to the treatment that he had received for his knees in service. (See December 2009 VA examination report). As the December 2009 VA examiner mistakenly indicated that the Veteran's treating VA physician had not provided an opinion related to the Veteran's knee condition and because he did not consider the Veteran's contentions that he had continued to have knee pain after military discharge that was treated with over-the-counter medications, the Board sought an addendum opinion from the December 2009 VA examiner in June 2011. (See Board's June 2011 remand). The December 2009 VA examiner provided the requested supplemental opinion in July 2011. The December 2009 VA examiner reiterated his conclusion that the Veteran's bilateral knee problems were less likely than not related to the treatment that he had received for his knees in the service. The VA examiner reasoned that although there was a documented injury to the left knee in service, there was no indication that this injury had caused any type of long-term functional disability as evidenced by a onetime visit in the military in 1985 and no other mention of a left knee disability for twenty-four years after this incident. The VA examiner determined that the Veteran's left-knee history did not fit the natural progression or course of a chronic knee disability, which would have become problematic to include seeking out medical care prior to 24 years after the initial complaint in 1985. Thus, it was the VA examiner's opinion that the Veteran's current left knee disability was less likely than not related to active duty service. (See July 2011 VA addendum report). In reaching a determination, the Board has accorded significant probative value to the Veteran's treating physician's February 2009 and July 2012 opinions as it stands to reason that his long-history of having treating the Veteran gave him intimate knowledge of the Veteran's body mechanics and his left knee disability and by that basis alone his opinion is found to be probative. However, the evidence also includes a December 2009 VA examiner's opinion, to include a supplemental opinion provided in July 2011, wherein the examiner concluded that it was less likely than not that the Veteran's left knee disability was related to active duty service. In the Board's view, the opinions are conflicting and none of them are of such probative value that they substantially outweigh the weight of the other evidence of record. Therefore, the evidence is in equipoise. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's left knee disability had its onset during military service. In this case, the evidence is in at least equipoise and thus, resolving doubt in favor of the Veteran, service connection for a left knee disability is granted. Right Knee Disability The Veteran seeks service connection for a right knee disability. He contends that he has had constant pain in his right knee ever since he was treated for a spider bite to that knee during military service. The Veteran's STRs pertinently reflect that in October 1986, he was seen for complaints of right knee pain, and was treated for an insect bite on his right knee. He reported pain and swelling in the right knee, and an abscess developed. Several days later he was seen for a dressing change and was asymptomatic. The assessment was that the abscess had resolved. When determining whether service connection is warranted, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Here, the Board finds that the evidence of record, namely the Veteran's treating VA physician's July 2012 report, has raised the issue of entitlement to service connection for a right knee disability as secondary to the service-connected left knee disability. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). In a July 2012 report, the Veteran's treating VA physician opined, in pertinent part, that it was more likely than not that his right knee problems were the result of gait compensation due to his painful left knee. The VA physician reasoned that considering that the Veteran had had chronic left knee pain for 20 years, during that time he had experienced gait compensation due to that chronic pain. According to the VA physician, gait compensation leads to joint injury in opposing extremities and low back. The most common problem with patients favoring one extremity over the other is how it affects the knees, hips and spine by tilting the pelvic foundation and causing increased stress in those areas. The VA physician referenced medical literature, "Current Opinion In Rheumatology" Sept. 2006, by Thomas Pandriacchi, et al and "American College of Rheumatology," 2005, which supported the conclusion that secondary gait changes in patients with medial compartment knee osteoarthritis increased the load at the ankle, knee, and hip during walking and that gait compensation due to pain in lower extremities affected degeneration and pain in both the patient's knees, hips, and lower back. Therefore, after a careful and thoughtful review of the evidence available, and in determining that the Veteran's chronic left knee pain had resulted from his service on active duty and the injuries sustained therein, the VA examiner concluded that it was more likely than not that the Veteran's right knee problems were the result of gait compensation due to his painful left knee. (See July 2012 report, prepared by the Veteran's treating VA physician). The July 2012 VA treating physician's opinion is supportive of and uncontroverted as to the claim for service connection for a right knee disability on a secondary basis. As the Board is awarding service connection for a right knee disability on a secondary basis, it finds that a discussion of service connection for this disaibliy on a direct incurrence basis is not warranted. Sleep apnea The Veteran essentially contends he has sleep apnea due to his low back condition. The record reflects that service connection has been granted for recurrent low back pain with intermittent nerve root irritation and pain in both legs. The Board finds that with resolution of reasonable doubt in the Veteran's favor, service connection for sleep apnea as secondary to the service-connected low back disability is warranted. In support of his claim, the Veteran submitted an opinion from his treating VA physician, dated in August 2009. The Veteran's VA treating physician indicated that the Veteran had severe sleep apnea and severe degenerative disc disease of the thoracolumbar spine. The Veteran's VA treating physician opined that because of the Veteran's spine problems, it was as likely as not that his sleep apnea was caused directly from his chronic degenerative disc disease of the thoracolumbar spine. The VA physician explained that there were multiple causes of obstructive sleep apnea, such as nasal causes and problems with the spine with osteophytes anteriorly and/or swelling of the retropharyngeal space, which could narrow the airway from the tongue down to the larynx which could cause or worsen sleep apnea. Overall, the Veteran's treating VA physician opined that the lower back could play a significant role in the Veteran's development of sleep apnea. (See August 2009 report, prepared by the Veteran's treating VA physician). Evidence against the claim includes an October 2009 VA examination report and opinion. The October 2009 VA examiner diagnosed the Veteran with obstructive sleep apnea. The examiner noted that a review of the medical literature published in peer reviewed journals did not show any evidence that recurrent low back pain with intermittent radiating pain in the legs caused sleep apnea. The October 2009 examiner further related that research articles indicated that the risk factors for sleep apnea included obesity, craniofacial or upper airway soft tissue abnormalities, heredity, smoking, and nasal congestion, and that peer reviewed medical literature did not indicate that degenerative disc disease of the thoracolumbar spine could cause sleep apnea. The October 2009 VA examiner opined that it was less likely than not that the Veteran's diagnosis of sleep apnea was secondary to his chronic degenerative disc disease of the thoracolumbar spine. Other evidence against the claim includes a December 2009 VA examiner's opinion. The VA examiner noted that service connection had been established for the lower lumbar spine, but that the August 2009 letter from the Veteran's treating physician had discussed the pharyngeal area, which was actually the cervical spine, for which service connection had not been granted. The December 2009 VA examiner further noted that the Veteran did have an osteophyte at the anterior L5 vertebra, which was in the lumbar spine and not the cervical spine, which the examiner claimed was the point that the Veteran's treating physician had made in his August 2009 report. The VA examiner indicated that a review of medical records showed that the Veteran had a septal deviation and enlarged turbinates, and that he had undergone a turbinate reduction and septoplasty in October 2007, after he was diagnosed with sleep apnea in January 2007. The December 2009 VA examiner also noted that the Veteran's treating VA physician had indicated there were numerous upper respiratory causes of sleep apnea, and that the Veteran had a history of deviation of the nasal septum, which required surgery in 2007. Thus, the December 2009 VA examiner opined that the Veteran's sleep apnea was less likely than not secondary to his service-connected lumbar spine disability. (See December 2009 VA examination report). As neither the October nor December 2009 VA examiners addressed the aggravation component of secondary service connection claim for sleep apnea, the Board requested a supplemental option from the December 2009 VA clinician in its June 2011 remand directives. (See June 2011 Board remand). The Board also requested that the December 2009 VA examiner clarify whether the Veteran's treating physician was referring to a cervical osteophyte in rendering his favorable opinion. Id. The December 2009 VA examiner provided a supplemental opinion in July 2011. In the July 2011 addendum, the VA examiner noted that the Veteran's treating physician was referencing the cervical spine in his August 2009 opinion. Thus, it remained the December 2009 VA examiner's opinion that the Veteran's sleep apnea was less likely than not secondary to his service-connected lumbar spine disability. As to the aggravation component of the claim, the December 2009 VA examiner reported that medical literature contained evidence that degenerative joint disease of the lumbar spine (recurrent low back pain with intermittent nerve root irritation to the bilateral lower extremities) could aggravate or worsen sleep apnea. The December 2009 VA examiner then related that sleep apnea was caused from upper airway obstruction, and degenerative joint disease of the lumbar spine (recurrent low back pain with intermittent nerve root irritation to the bilateral lower extremities) was not etiologically related to upper airway obstruction or worsening of upper airway obstruction. Therefore, it was the VA examiner's opinion that sleep apnea was less likely than not aggravated or worsened by the Veteran's service-connected low back condition. (See July 2011 VA examination report). While there is conflicting medical evidence that weighs both for and against the Veteran's claim for service connection for sleep apnea on a secondary basis, the Board finds that there is competent evidence to support the claim that it is medically related to the service-connected low back disability, such as the above-cited August 2009 VA treating examiner's opinion, The Board notes that according to the December 2009 VA examiner's addendum opinion, prepared in July 2011, there are medical studies that degenerative joint disease of the lumbar spine (recurrent low back pain with intermittent nerve root irritation to the bilateral lower extremities) could aggravate or worsen sleep apnea. The Veteran's treating physician opined that the sleep apnea was caused directly by the service-connected low back disability. Thus, resolving all reasonable doubt in favor of the Veteran, there is a basis of entitlement to service connection for sleep apnea as secondary to the service-connected low back disability under 38 C.F.R. § 3.310. Further, as the claim for sleep apnea is being granted as secondary to the service-connected low back disability, the Board finds that there would be no useful purpose in addressing the theory of sleep apnea on a direct incurrence basis. ORDER Service connection for a left knee disability is granted. Service connection for a right knee disability, to include as secondary to the service-connected left knee disability, is granted. Service connection for sleep apnea, to include as secondary to the service-connected low back disability, is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs