Citation Nr: 1638473 Decision Date: 09/29/16 Archive Date: 10/13/16 DOCKET NO. 12-17 584A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to an initial disability rating greater than 10 percent for service-connected right knee medial meniscus tear. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from October 2005 to February 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida. The December 2009 rating decision, in pertinent part, denied service connection for obstructive sleep apnea, and granted service connection for right knee medial meniscus tear, assigning an initial noncompensable disability rating, effective February 16, 2009. The Veteran expressed disagreement with the denial and the assigned initial disability rating, and perfected a substantive appeal. During the pendency of this appeal, by rating action dated in May 2012, the RO determined that the service-connected right knee medial meniscus tear warranted an increased initial disability rating of 10 percent. As this rating is still less than the maximum benefit available, the appeal remains pending before the Board. AB v. Brown, 6 Vet. App. 35, 38 (1993). In the July 2012 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran requested that he be scheduled for a hearing before the Board to be held at the RO. The Veteran was scheduled for the requested hearing in June 2016; however, he failed to report and, since that time, has not indicated that he wished to testify at another hearing. The Board, therefore, finds that the Veteran has withdrawn the request to testify before the Board. 38 C.F.R. § 20.704. The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. All such records been considered in adjudicating this matter. In the July 2012 VA Form 9, the Veteran also appears to raise the issue of an increased disability rating for his service-connected low back and psychiatric disorders (to include whether service connection may be warranted for PTSD). The issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND With regard to the issue of service connection for obstructive sleep apnea, in the September 2016 Written Brief Presentation, the Veteran's representative indicated that there were outstanding private medical treatment records that have not yet been associated with the claims file. Specifically, the Veteran's representative identified that a sleep study had been conducted in May 2009 the results of which are not of record. As such, on remand, an effort must be undertaken to obtain the identified records. The Veteran's representative also requested that the VA examiner that conducted the December 2009 VA examination be afforded the opportunity to provide an addendum opinion after review of any additional evidence obtained as a result of this remand. The Board agrees to the extent that an additional opinion is appropriate; however, given that it has been more than six years since the December 2009 examination, the Board finds that a new etiology examination is warranted. With specific regard to the issue of an increased disability rating for the service-connected right knee medial meniscus tear, a review of the evidence of record reveals that the Veteran has not undergone a VA examination of the right knee since the December 2009 examination that was conducted for the purpose of establishing service connection. As this matter is being remanded to obtain additional records as indicated above, and as it has been more than six years since the most recent VA examination, the Board finds that in order to fully and fairly evaluate the Veteran's claim for an increased disability rating, a contemporaneous VA examination is needed. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995); see Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his asserted disabilities should also be obtained. See 38 U.S.C.A. § 5103A (b), (c); 38 C.F.R. § 3.159 (b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The AOJ shall ask the Veteran to identify all locations of VA treatment or evaluation for his asserted disabilities and contact each VA medical facility identified by the Veteran to obtain ongoing medical treatment records pertaining thereto. All records obtained must be associated with the Veteran's claims file. 2. The AOJ shall provide the Veteran with appropriate Authorization and Consent to Release Information to the VA (VA Forms 21-4142), and obtain and associate with the claims file the already identified private treatment records, to specifically include the sleep study referenced by the Veteran's representative in the September 2016 Written Brief Presentation. If a negative response is received from the Veteran, such should be associated with the claims file, and the Veteran informed of that fact, of what steps were taken to obtain them, that the claim will be adjudicated without the records, and that if he obtains and submits them at a later date the claim may be readjudicated. 3. The AOJ shall schedule the Veteran for a VA examination by an appropriate physician so as to determine the nature and etiology of his asserted obstructive sleep apnea. The claims file must be sent to the examiner for review. All tests and studies deemed necessary by the examiner must be conducted. The examiner is requested to opine as to whether the Veteran has a diagnosis of obstructive sleep apnea, and if so, whether the obstructive sleep apnea had its onset in service, was manifested within the year immediately following any period of service, or is otherwise the result of a disease or injury in service, to include sleep disturbance identified in May and November 2008 service treatment records. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for obstructive sleep apnea in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 4. The AOJ shall schedule the Veteran for a VA examination by an appropriate physician so as to determine the nature and severity of his service-connected right knee medial meniscus tear. The claims file must be sent to the examiner for review. The report of examination must include a detailed account of all right knee manifestations found to be present. All studies or tests must be accomplished. The examiner must conduct all necessary testing of the right knee, including range of motion studies (measured in degrees, with normal range of motion specified). The examiner must determine whether there are objective clinical indications of pain or painful motion; weakened movement; premature or excess fatigability; or incoordination; and, if feasible, these determinations must be expressed in terms of the degree of additional range of motion loss due to such factors. The examiner must also determine whether there is functional loss of the knee manifested by decreased or abnormal excursion, strength, speed, coordination, or endurance. These include instances when these symptoms "flare-up" or when each knee is used repeatedly over a period of time. This determination shall also be portrayed, if feasible, in terms of the degree of additional range of motion loss due to these factors. The examiner must specify whether the Veteran has any instability in the knee and, if so, the severity thereof (e.g., slight, moderate or severe), and whether there are episodes of locking. The examiner must identify all current manifestations of any residual scars of the right knee. If, in addition to scarring, any muscle and/or neurological impairment is identified, the examiner shall indicate whether each such impairment constitutes a distinct disability capable of being separately rated. The examiner should provide a description of the scars of the knee, to include the following: the size of the scar in square inches or square centimeters; whether any scar is superficial (not associated with underlying soft tissue damage); whether any scar is deep (associated with underlying soft tissue damage); whether any scar is unstable (with frequent loss of covering of skin over the scar); whether any scar is well-healed, painful, tender, adherent, and/or ulcerated. The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be specifically acknowledged and considered in formulating any examination results. The examiner shall also describe how the symptoms of the service-connected right knee disability affect the Veteran's social and industrial capabilities. A complete rationale for all opinions expressed shall be provided. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 5. The AOJ will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action This claim must be afforded expeditious treatment. Claims 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). _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).