Citation Nr: 1623495 Decision Date: 06/13/16 Archive Date: 06/29/16 DOCKET NO. 11-04 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from November 1990 to August 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2009 and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2009, the RO reopened previously denied service connection claims for the right shoulder, right knee, and left knee, but denied them on the merits. In July 2010, the RO denied service connection for sleep apnea. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in August 2013. A copy of the hearing transcript is of record. In January 2014, the Board affirmed reopening the Veteran's previously denied claims, and remanded all of the above claims for additional development. In a September 2014 statement, as well as subsequent written statements, the Veteran requested a review of his payments and an audit of his account. These requests are referred to the AOJ for appropriate action. The issue of entitlement to service connection for a right shoulder disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The current right knee disability is not etiologically related to service. 2. The current left knee disability is not etiologically related to service. 3. Obstructive sleep apnea is etiologically related to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 3. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection is also warranted for a disability which is proximately due to, aggravated by, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2015). A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). A. Right and Left Knee Disabilities With respect to element (1) of service connection, a current disability, an April 2009 VA examination diagnosed left knee strain and chondromalacia, as well as a right knee strain. An additional VA examination in March 2014 diagnosed bilateral knee sprains. Degenerative joint disease was also noted. Therefore, element (1) has been satisfied for the bilateral knees. With respect to element (2), a relevant in-service event or injury, service treatment records dated January 1993 show the Veteran was involved in a motor vehicle accident the prior month. He complained of right knee pain over the lateral area when running. Examination revealed tenderness over the lateral collateral ligament (LCL), but was otherwise normal. He was diagnosed with a 2nd degree right LCL sprain. In addition, May 1996 service treatment records show the Veteran complained of two weeks of left leg numbness. He reported that he knee would start hurting, and that this would radiate into his lower leg, followed by the onset of numbness. A physical examination yielded normal findings. The treating physician diagnosed knee and leg pain, "rule out" shin splints. The Veteran's April 1997 separation examination was normal, and he denied a history of a "trick" or locked knee. Nevertheless, the above findings in service satisfy element (2) for both knees. With respect to element (3), a link between the current condition and service, the March 2014 VA examiner noted that the etiology of degenerative knee conditions is multifactorial, and that such conditions were common even in the general population. The examiner stated that the radiographic findings present in the Veteran's knees were consistent with only age-related degenerative changes, and were less likely than not related to his period of service. The April 2009 VA examiner also provided an opinion, which the Board previously determined to be inadequate, that did not otherwise affirmatively link the Veteran's current knee conditions to service, and there is no other competent medical opinion that does so. The Board has considered the Veteran's own statements made in support of his claims. However, he has not demonstrated any specialized medical knowledge or expertise. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of his diagnosed knee conditions falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, his statements cannot be used to establish a medical nexus. Finally, the Veteran has been diagnosed with degenerative joint disease, i.e., arthritis, which is a chronic disease listed under 38 C.F.R. § 3.309(a). Under 38 C.F.R. § 3.303(b), claims for chronic diseases listed in 38 C.F.R. § 3.309(a), benefit from a somewhat more relaxed evidentiary standard. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Specifically, a showing of continuity of symptoms after discharge can support the claim, as it is a "second route by which a veteran can establish service connection for a chronic disease." Id. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. The Veteran has made statements indicating he has experienced continuous knee symptomatology since service. VA records from July 1999 show the Veteran reported chronic pain in the left knee since 1993. However, these same records noted that an x-ray from one year earlier did not disclose any particular abnormalities. The April 2009 VA examination also noted normal x-ray findings in both knees. Therefore, while there is evidence of arthritis in the March 2014 VA examination report, the objective evidence clearly reflects that this chronic condition was not present for at least 22 years after discharge from service, and therefore service connection based upon continuity of symptomatology of a chronic condition is not appropriate. For these reasons, service connection for right and left knee conditions is denied. B. Sleep Apnea The Veteran has asserted that he has obstructive sleep apnea which is secondary to his service-connected cervical spine disability. VA records dated March 2010 reflect a diagnosis of obstructive sleep apnea, and noted a mild alpha intrusion into stage N3 sleep, possibly reflecting chronic discomfort or pain. Additional records from November 2010 noted increased sleep disturbance in the context of a significant worsening of neck pain. The Veteran submitted a February 2014 opinion from a private physician, who stated that there was a component of the Veteran's sleep apnea that was related to his neck injury and subsequent cervical fusion in 1992. This physician noted that medical literature documented a significant incidence of sleep apnea in patients following cervical surgery, and that cervical pain may be a factor in fragmenting nocturnal sleep. The Veteran had previously submitted medical treatise information which stated that fusion anomalies of the cervical column occurred significantly more often in those with obstructive sleep apnea compared to a control group, indicating that morphological deviations in the upper cervical vertebrae play a role in the diagnosis of obstructive sleep apnea. In contrast, a March 2014 VA examiner concluded that the Veteran's sleep apnea was less likely than not caused or aggravated by his service-connected cervical spine condition, and stated that it was not medically known that such a spine condition could cause sleep apnea. Rather, sleep apnea is caused by low muscle tone and soft tissue around the airway, a crowded oral cavity, and being overweight. The Board finds that the February 2014 private opinion holds greater probative value, as this physician cites to medical treatise information associated with the record to support his conclusion. In contrast, the March 2014 VA examiner stated that it was not medically known that a cervical spine condition could cause sleep apnea, but did not address the aforementioned treatise evidence which contradicts this finding. Therefore, the evidence establishes a link between diagnosed sleep apnea and the Veteran's service-connected cervical spine condition, and service connection on a secondary basis is warranted. II. The Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Here, the Veteran was provided with the relevant notice and information in letters dated January 2009 and April 2010, prior to the initial adjudication of his claims. He has not alleged any notice deficiency during the adjudication of his claims. VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA treatment records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's knee and sleep apnea conditions. VA's duty to assist with respect to obtaining relevant records and an examination has been met. Finally, the Veteran also had a hearing before the Board. The hearing was appropriately conducted as the presiding VLJ duly explained the issue and identified possible sources of evidence that may have been overlooked and that might be potentially advantageous to the claimant's position. Bryant v. Shinseki, 23 Vet. App. 488 (2010). ORDER Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. Service connection for obstructive sleep apnea is granted. REMAND Unfortunately, additional development is necessary prior to adjudicating the merits of the Veteran's claim for service connection for a right shoulder disability. This claim was previously remanded in January 2014, in part, to obtain a VA examination to assess the nature and etiology of the claimed right shoulder disability. The requested examination was conducted in March 2014. The examiner stated that the Veteran's diagnosed right shoulder impingement was not caused by his documented motor vehicle accident in service, based on the service treatment records which noted only left shoulder pain at the time of the accident and contained no documentation regarding the right shoulder. The examiner's statement that the service treatment records do not reference the right shoulder is inaccurate. During the Veteran's April 1997 separation examination, he reported a history of occasional right shoulder cramps and pain after the motor vehicle accident in 1992. Because this evidence was not addressed, the March 2014 VA examiner's opinion is not adequate, and a supplemental opinion must be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain a supplemental medical opinion from the March 2014 VA examiner or, if unavailable, another suitably qualified VA examiner, addressing the likelihood of a relationship between the Veteran's right shoulder disability and his service. There is no need to schedule further examination of the Veteran, unless the reviewer concludes such is necessary. All relevant records, to include a copy of this remand as well as the claims file, must be made available to and reviewed by the examiner, who should indicate in his report that the file was reviewed. Based on review of the record, the examiner should render an opinion as to whether it is at least as likely as not (i.e., to a 50 percent degree of probability or greater) that the Veteran's right shoulder impingement had its onset during military service or is otherwise causally or etiologically related to the Veteran's active service, to include a motor vehicle accident in service. In forming this opinion, the examiner must specifically address the April 1997 Medical History Report contained in the Veteran's service treatment records, which reflects a history of occasional right shoulder cramps and pain after the motor vehicle accident in 1992. 2. Thereafter, readjudicate the Veteran's claim for service connection for a right shoulder disability in light of any additional evidence added to the record. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the issue should be returned to the Board for appellate review. The appellant 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). 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). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs