Citation Nr: 1639964 Decision Date: 10/04/16 Archive Date: 10/19/16 DOCKET NO. 12-34 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II as secondary to service-connected bilateral knee patellofemoral syndrome. 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected bilateral knee patellofemoral syndrome. 3. Entitlement to an evaluation higher than 10 percent for service-connected right knee patellofemoral syndrome. 4. Entitlement to an evaluation higher than 10 percent for service-connected right knee patellofemoral syndrome. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Smith, Associate Counsel INTRODUCTION The Veteran served honorably in the U.S. Marine Corps from November 1987 until September 1990. This case comes to the Board of Veterans' Appeals (Board) on appeal from January 2011 and January 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in Newark, New Jersey and Cleveland, Ohio respectively. Jurisdiction currently resides with the RO in St. Petersburg, Florida. In March 2015, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA electronic claims file contains additional, relevant treatment records from 2013 onward, and other documents that are either duplicative of the evidence in the VBMS electronic claims file, or not relevant to the issues on appeal. The issues of entitlement to service connection for obstructive sleep apnea, and entitlement to an evaluation higher than 10 percent for service-connected bilateral patellofemoral syndrome are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Diabetes mellitus type II has not been shown to be etiologically related to the Veteran's service-connected bilateral patellofemoral syndrome. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus type II as secondary to service-connected bilateral patellofemoral syndrome are not met. 38 U.S.C.A. §§ 1110, 1131, 5103 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). The VCAA provides that the VA will notify the claimant of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice to a claimant should be provided at the time that, or immediately after, VA receives a complete or substantially complete application for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In this case, the VA satisfied its duty to notify the Veteran in a letter dated January 2014, prior to adjudication of the claim in January 2015. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA satisfied its duty to assist the Veteran in the development of his claim. The RO associated the Veteran's service treatment records and VA medical records with the electronic record. The Veteran has not identified any other relevant private treatment records, or outstanding VA medical records for the RO to assist him in obtaining. Thus, VA has made every reasonable effort to obtain all records relevant to the Veteran's claims. In January 2015, VA provided the Veteran with a VA diabetes mellitus examination. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A central issue in determining the probative value of an examination is whether the examiner was informed of the relevant facts in rendering a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). The examination and report are adequate as the examiner considered the relevant history of the Veteran's diabetes mellitus, addressed his symptoms, and provided opinions with supporting explanations. Therefore, VA has fulfilled the duty to assist the Veteran in obtaining evidence necessary to substantiate his claims. See 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c). Because VA has satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or § 38 C.F.R. 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. The Veteran was also provided with an opportunity to set forth his contentions during the hearing before a Veterans Law Judge (VLJ). A Decision Review Officer or VLJ who chairs a hearing must fulfill two duties: (1) the duty to fully explain the issues; and (2) the duty to suggest the submission of evidence that may have been overlooked. 38 C.F.R. § 3.103(c)(2) (2015); Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). At the Board hearing, the VLJ outlined the issues on appeal and the hearing focused on the elements necessary to substantiate the claims. Additionally, additional subsequent development was conducted based on deficiencies in the record, such that the submission of additional evidence is not required. Moreover, there is no indication that the Veteran has any additional evidence to submit. As such, the Board finds that the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). There has been no allegation to the contrary. The Board will proceed to address the merits of the claim. Service Connection In this case, the Veteran is seeking entitlement to service connection for diabetes mellitus, which he asserts is etiologically related to his service-connected bilateral patellofemoral syndrome. Specifically, the Veteran reports that he is unable to exercise as a result of his bilateral knee pain, and is morbidly obese as a result. In turn, he claims that his morbid obesity has caused or aggravated the diagnosed diabetes mellitus type II. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) 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 in or aggravated by service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. 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) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc). The Board must assess the credibility and weight of all 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 Veteran. Equal weight is not accorded to each piece of evidence in the record; every item of evidence does not have the same probative value. When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In an August 2010 VA treatment record, it was reported that the Veteran had gained 20 pounds over the prior year. The Veteran also reported intermittent bilateral knee pain and knee locking with no relation to activity. At that time the Veteran was assessed as being morbidly obese and having diabetes mellitus type II. In an October 2010 VA record, the Veteran reported a history of diabetes mellitus and worsening knee pain. At a February 2011 VA primary care appointment, the Veteran reported following a diet and losing five pounds in three months. In an April 2012 physical rehabilitation note, it was reported that the Veteran had lost 20 pounds since he was last evaluated. The Veteran continued to endorse bilateral knee pain that was made worse by walking. In an August 2013 VA primary care note, it reported that the Veteran had gained weight because he was unable to exercise due to his knees. It was further reported that the Veteran's diabetes mellitus was now uncontrolled as a result of his obesity. The Veteran was referred for a weight management program. At an August 2013 VA weight management consultation report, the Veteran recalled a typical diet comprised mainly of fast food and regular soda. The dietician reported that the Veteran's nutrition problem was extreme obesity, the etiology of which was his poor eating habits and choices limited by physical activity. The Veteran was provided with comprehensive nutritional education, and advised to limit his caloric intake by avoiding high fat foods. At that time the Veteran weighed 311 pounds. In a March 2014 VA primary care note, Dr. D.G. reported that the Veteran was morbidly obese; that he was unable to exercise due to his bilateral knee pain; and that his knee pain had contributed to his morbid obesity and diabetes. At that time the Veteran weighed 295 pounds. At an October 2014 VA appointment, the Veteran weighed 284 pounds. The Veteran underwent a VA diabetes mellitus examination in January 2015. At that time the Veteran gave a history of diabetes mellitus since 2009. He reported that he enrolled in a weight loss program in 2013 and in one year he lost 31 pounds. The Veteran then stated that his primary care physician had told him that his diabetes was aggravated by his obesity, which was due to his inability to exercise because of his bilateral knee disorders. The VA examiner opined that it was less than a 50 percent probability that the Veteran's diabetes mellitus was caused or aggravated by his service-connected bilateral patellofemoral syndrome. First, the examiner reported that the most up-to-date medical research did not show a causal relationship between morbid obesity and diabetes mellitus, although obesity could aggravate the condition. Then, the examiner recited VA medical records noting the Veteran's poor eating habits and evidencing significant weight loss during a period of dieting without activity change. Thus, the examiner reasoned that the Veteran's obesity was more than likely related to his poor eating habits as opposed to his inability to exercise due to his bilateral knee disorder, and therefore his bilateral knee condition had not aggravated his diabetes mellitus. At the June 2016 hearing, the Veteran testified that he did not lose any weight by dieting as reported by the 2015 VA examiner. The Veteran further reported that his primary care physician had told him that his diabetes was related to his bilateral knee disorder; however, his doctor advised him she was unable to provide him with a nexus opinion for his file. Based on the foregoing, the Board finds that entitlement to service connection for diabetes mellitus as secondary to service-connected bilateral patellofemoral syndrome is not warranted. Although the Veteran has currently diagnosed diabetes mellitus type II, the most probative medical evidence of record demonstrates that it is less than a 50 percent probability that the Veteran's diabetes mellitus is caused or aggravated by his service-connected knee disabilities. The record demonstrates that the Veteran successfully reduced his weight during periods of time where he was dieting or under weight management consultation. See February 2011 VA primary care note; see January 2015 VA examination. Those periods of weight loss occurred during a time the Veteran was reporting increasing knee pain that prevented him from exercising. See April 2012 VA physical rehabilitation note. Although Dr. DG indicated that the Veteran's morbid obesity was a result of his inability to exercise due to knee pain, Dr. DG did not address the Veteran's documented weight loss during periods of dieting in the absence of exercise, nor was it apparent what records were considered in rendering the opinion. Thus, the Board finds the opinion not significantly probative because Dr. DG was either uninformed of or did not consider relevant facts in rendering a medical opinion. See Nieves-Rodriguez, 22 Vet. App. at 302-04. Rather, the Board affords the most probative weight to the findings of the January 2015 VA examiner, which were based upon a full review of the Veteran's medical history, in-person interview, and examination. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Nieves-Rodriguez, 22 Vet. App. at 302-04. Those findings indicated that it was more than likely that the Veteran's morbid obesity was a result of his diet rather than his inability to exercise, therefore the Veteran's bilateral patellofemoral syndrome was not etiologically related to his diabetes mellitus. The 2015 VA examiner adequately supported the opinion provided by citing to the relevant medical evidence of record. The Board has also considered the Veteran's June 2016 testimony that he did not lose weight by dieting as reported by the January 2015 examiner, but that testimony conflicts with the Veteran's VA treatment records and thus is not significantly credible or probative. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). First, in February 2011 the Veteran told his primary care provider he had recently lost weight with dieting. Second, the Veteran was enrolled in a weight loss management program in August 2013, and weighed 311 pounds. By October 2014, the Veteran's weight had dropped to 284 pounds, for a total loss of 27 pounds. That recorded weight loss is consistent with the Veteran's statements as reported in the January 2015 examination report. Thus, the Board does not find the Veteran's June 2016 hearing testimony to be credible in that regard. Thus, the most probative evidence of record demonstrates that the Veteran's diabetes mellitus type II is not etiologically related to his service-connected bilateral patellofemoral syndrome. As the evidence preponderates against the claim, there is no reasonable doubt to be resolved and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for diabetes mellitus type II as secondary to service-connected bilateral patellofemoral syndrome is denied. REMAND With regard to the remaining claims on appeal, remand is required to secure VA examinations and opinions. As to the Veteran's claim of entitlement to service connection for sleep apnea, remand is required to secure an addendum opinion. In January 2015, the Veteran was afforded a VA examination to determine whether the Veteran's obstructive sleep apnea was etiologically related to his service-connected bilateral knee disorder. At the examination, the Veteran gave a history of apnea, snoring, and daytime sleepiness for over 20 years. The examiner provided a negative nexus opinion. At the June 2016 Travel Board hearing, the Veteran testified that he may have first experienced symptoms of sleep apnea during his period of active service. As the Veteran is competent to report his in-service symptoms, remand is required to secure an addendum opinion addressing whether the Veteran's currently diagnosed obstructive sleep apnea had its onset in, or is otherwise related to the Veteran's period of active service. Regarding the Veteran's claim for an evaluation higher than 10 percent for service-connected bilateral patellofemoral syndrome, remand is required to secure an adequate examination report. Examination reports regarding joint conditions must contain range of motion measurements for painful joints on both active and passive motion, and in weight bearing and non-weight bearing. See 38 C.F.R. § 4.59 (2015); Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran was afforded VA orthopedic examinations in September 2010, October 2012, and November 2014. Unfortunately, those examination reports do not show range of motion findings in active and passive motion, and in weight bearing and non-weight bearing. The record does not otherwise contain sufficient information in the absence of those findings to allow the Board to make an informed adjudication, thus remand for a new examination is required. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his obstructive sleep apnea. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the currently diagnosed obstructive sleep apnea had its onset in, or was otherwise caused by, by the Veteran's military service. The examiner must specifically address the following: 1) the Veteran's January 2015 report of symptoms of apnea, snoring, and daytime drowsiness over a span of 20 years; and 2) the Veteran's June 2016 testimony that he may have first experienced sleep apnea symptoms in service. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected bilateral patellofemoral syndrome. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. The examination report must include all findings necessary to rate the disability, including range of motion measurements for painful joints on both active and passive motion, and in weight bearing and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained that shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. Ensure compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs