Citation Nr: 1518357 Decision Date: 04/29/15 Archive Date: 05/05/15 DOCKET NO. 10-44 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to an increased evaluation for a left knee disability, currently rated as 10 percent disabling. 3. Entitlement to an increased evaluation for a right knee disability, currently rated as 10 percent disabling, exclusive of a period of an assigned temporary total rating from January 11, 2011 to February 28, 2011. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to August 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. An April 2010 rating decision denied the Veteran's claim of entitlement to increased ratings for his left and right knee disabilities, and an April 2012 rating decision denied the Veteran's claim of entitlement to service connection for sleep apnea. In September 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge, a transcript of which has been prepared and associated with the claims file. During the September 2014 hearing, the Veteran submitted additional medical evidence accompanied by a waiver of initial RO consideration. In light of the waiver accompanying the additional evidence, the Board notes that it may consider such evidence in the first instance. See 38 C.F.R. § 20.1304 (2014). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. The issues of an increased rating for the service-connected left and right knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has a current disability of sleep apnea. 2. The Veteran's sleep apnea is related to symptoms he experienced in service. CONCLUSION OF LAW The criteria for sleep apnea have been met. 38 U.S.C.A. §§ 1110 , 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303 , 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to grant service connection for sleep apnea herein constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 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) . Establishing direct service connection generally requires (1) the existence of a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that his currently diagnosed sleep apnea had its onset in service or, alternatively, that it preexisted service and was permanently aggravated therein. See August 2013 VA Form 9; September 2014 Hearing Transcript. He asserts that he experienced symptoms of sleep apnea in service, including snoring and daytime sleepiness. In support of his claim, the Veteran submitted numerous statements from family and friends. The Veteran's siblings reported that the Veteran displayed symptoms of sleep apnea, such as snoring and gasping for air while sleeping, during his early teen years and that these symptoms worsened while the Veteran was in service. Similarly, the Veteran's in-service roommate submitted a statement attesting to the Veteran's loud snoring while in service. The Board notes that the Veteran's April 1980 service entrance examination found no relevant abnormalities and that he reported that he did not have frequent trouble sleeping in an accompanying Report of Medical History (RMH). The available service treatment records are silent for complaints relating to sleep apnea. However, the Veteran testified that he was treated for snoring in service and that he was in a motor vehicle accident when he fell asleep while driving. An October 1982 service treatment record shows treatment for back pain related to an automobile accident. An August 1984 discharge examination also found no relevant abnormalities; however, an accompanying separation RMH is not of record. Post-service, VA treatment records show treatment for obstructive sleep apnea beginning in January 2003. In June 2011, the Veteran underwent a private pulmonary consultation to evaluate sleep apnea with hypersomnolence and snoring. The private physician noted that the Veteran underwent a polysomnography "about 12 years ago which revealed sleep apnea." A March 2013 private treatment record shows that the Veteran reported increased drowsiness and snoring. The private physician noted that the Veteran's "snoring and witnessed apnea were present as long ago as when he was in the navy and shipmates commented on these symptoms." The assessment was "sleep apnea, persistent after UPPP, and most likely present since the 1980s." The Veteran was afforded a VA examination in July 2013. The examiner noted that the Veteran was diagnosed with sleep apnea in 2000 after undergoing a sleep study as a civilian in California. The examiner also noted that the Veteran had an Uvulopalatopharyngoplasty (UPPP) in February 2009 at TAMC. After reviewing the claims file and examining the Veteran, the examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by service because service treatment records were silent for treatment for sleep apnea and because the Veteran was not diagnosed with sleep apnea until 16 years after service. With regard to the Veteran's assertions that his sleep apnea preexisted, and was aggravated by, service, the Board notes that a Veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b). In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is used in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Here, although the Veteran contends that his sleep apnea preexisted service, no such condition was diagnosed or noted upon the Veteran's entry into service. The Court has held that lay statements by a Veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See e.g., Gahman v. West, 13 Vet. App. 148, 150 (1999) (recorded history provided by a lay witness does not constitute competent medical evidence sufficient to overcome the presumption of soundness, even when such is recorded by medical examiners); Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (a lay person's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a preexisting condition). Therefore, the presumption of soundness attaches with respect to this portion of the claim, see 38 U.S.C.A. § 1111, and the burden is on VA to rebut the presumption by clear and unmistakable evidence that the disorder was both pre-existing and not aggravated by service. A review of the claims file fails to show clear and unmistakable evidence showing that sleep apnea existed prior to service and was not aggravated by service. As such, the claim must be adjudicated on a direct service connection basis. In the instant case, the evidence clearly shows that the Veteran has a diagnosis of sleep apnea. The evidence also shows that there are credible lay statements to the effect that the Veteran had loud snoring in service and that it continued after service. A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). The determinative question in this case is whether the Veteran's current sleep apnea is due to service, including the snoring in service. The Board notes that there are two medical opinions of record addressing the nexus element. The Board notes that the July 2013 VA negative nexus opinion is not adequate for adjudication purposes. When VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion must support its conclusion with an analysis the Board can consider and weigh against the other evidence of record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the July 2013 VA examiner based her negative nexus opinion exclusively on a lack of evidence of treatment for sleep apnea while in service, or for 16 years after service, without considering the many lay statements alleging sleep apnea symptoms in service and continuity since. Relying on the absence of evidence in medical records to provide a negative opinion is contrary to established case law, and such opinions are therefore inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). In this regard, the Board highlights that the credibility of lay statements may not be refuted solely by the absence of corroborating medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). The second nexus opinion is positive and the Board finds such opinion probative. In an August 2013 letter, the Veteran's private physician, Dr. T.J., indicated that the Veteran reported sleep apnea symptoms "for the majority of his adult life, and recalls an evaluation for snoring while in the navy, and reports a motor vehicle accident due to drowsiness while in the military." The physician opined that, based upon the Veteran's reported symptoms and recent sleep studies, the Veteran "had sleep apnea during his military career." The Board finds that this opinion is probative. In this regard, the Board finds credible the history upon which the opinion is based. Additionally, the Board finds that the rationale is sound in that it was based on credible history, as well as diagnostic testing by way of sleep studies. In light of the foregoing, the Board finds that the probative evidence of record shows that the Veteran's has sleep apnea which was incurred in service. As such, service connection for sleep apnea is warranted. ORDER Service connection for sleep apnea is granted. REMAND The Veteran was last afforded a VA examination to assess the severity of his service-connected knee disabilities in February 2012, over three years ago. While the mere passage of time since the last VA examination does not, in and of itself, warrant additional development, the evidence suggests that the Veteran's disabilities have worsened since the last VA examination. Specifically, in a March 2014 VA treatment note, the Veteran's VA physician indicated that the Veteran's knee disabilities had "worsened considerably since his last C&P evaluation." Additionally, the Veteran testified at the September 2014 hearing that his knee symptoms had worsened since the last VA examination. As worsening symptomatology has been alleged, the Veteran should be afforded a new VA examination to determine the current nature and severity of his service-connected left and right knee disabilities. See VAOPGCPREC 11-95; Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). Finally, because the record indicates that the Veteran receives regular treatment for knee disabilities, any updated private and VA treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization in order to obtain any additional evidence pertinent to the claims for increased ratings for the service-connected right and left knee disabilities. 2. After receipt of any outstanding records, the Veteran should be scheduled for an appropriate VA examination so as to determine the current the nature and extent of all impairment due to the Veteran's service-connected left and right knee disabilities. The claims file must be made available to the examiner for review in conjunction with the examination. All indicated tests should be performed and all findings should be reported in detail. The examiner should conduct range of motion testing. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner is reminded that he should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. Additionally, the examiner should determine whether the Veteran has ankylosis of the knees; instability or subluxation of the knees; nonunion of the tibia and fibula with loose motion and requiring knee braces; or dislocated semilunar cartilages with frequent episodes of locking, pain, and effusion If instability or subluxation is found, the examiner should describe the severity in terms of slight, moderate or severe. The examiner should also address any contentions by the Veteran pertaining to any instability or giving way of the knee. In this regard, the examiner should state whether any such complaint is indicative of instability or subluxation. A complete rationale must be provided for all opinions offered, which should reflect consideration of both the lay and medical evidence of record. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. 3. Thereafter, the RO/AMC must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested examination reports to ensure that they are responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Following the completion of the foregoing, and any other development deemed necessary, the RO/AMC should readjudicate the Veteran's claims. If the claims are denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs