Citation Nr: 1802523 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 08-38 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness related to service in the Southwest Asia Theater of Operations during the Persian Gulf War, or as secondary to service-connected hypertension, knee and shoulder disabilities. 2. Entitlement to an increased rating for status post-surgical repair, bony exostosis, right anterior tibial tubercle (right knee), currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to November 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2009 and September 2015 rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The April 2009 rating decision denied a rating in excess of 10 percent for the Veteran's right knee disability. A notice of disagreement was received in November 2009, a statement of the case was issued in May 2010, and a substantive appeal was received in June 2010. The September 2015 rating decision denied entitlement to service connection for sleep apnea. A notice of disagreement was received in September 2015, a statement of the case was issued in November 2016, and a substantive appeal was received in December 2016. In November 2009 and September 2011, the Veteran testified at Board hearings before Veterans Law Judges who are no longer employed by the Board. However, he has subsequently indicated that he does not want another Board hearing. In January 2016, the Board issued a decision that, in pertinent part, denied an increased rating for a right knee disability based on limitation of motion. It also remanded the issue of entitlement to service connection for obstructive sleep apnea for a statement of the case. The Veteran appealed the Board's decision as to the issue of an increased rating for a right knee disability to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand (Joint Motion), the Court, in a July 2016 Order, vacated the Board's January 2016 decision as to the denial of entitlement to an increased rating a right knee disability and remanded the matter to the Board. In January 2017, the Board remanded both issues that are currently on appeal for additional development. The requested development has been completed, and the case has been returned to the Board. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) was resolved by the Board in its January 2017 decision, as a TDIU was granted effective September 19, 2011. Therefore, that issue is no longer on appeal. The issue of entitlement to an increased rating for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War. 2. The Veteran has been diagnosed with sleep apnea, which is a known clinical diagnosis. 3. Sleep apnea is not a medically unexplained chronic multisymptom illness. 4. A preponderance of the evidence is against finding that the Veteran's sleep apnea is attributable to his military service, to include as due to his Gulf War service or as caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for establishing service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 1117 (2012); 38 C.F.R. §§ 3.303, 3.310, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C. §§ 5103, 5103A (2012)). In addition, VA published regulations that were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2017)). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the claimant is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements, however, may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See id. The Board observes that no VCAA notice has been issued in this case. However, the Veteran and his private attorney have demonstrated, through evidence and argument they have submitted to the AOJ and the Board throughout the course of this appeal, actual knowledge of the VCAA requirements with respect to what evidence is necessary to substantiate his claim, what evidence VA will attempt to obtain, and what evidence he is responsible for providing. Therefore, the Board finds no use will be served in delaying adjudication of this issue for the purpose of sending out a VCAA letter at this time, as there is no prejudice to the appellant in proceeding with the issuance of a final decision in this case. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent evidence associated with the claims file consists of service treatment records, VA and private treatment records, reports of VA examination, Board hearing transcripts, and the statements from the Veteran. Furthermore, the Veteran was medically evaluated in conjunction with his claim in May 2017, and opinions were also obtained in September 2015 and May 2016. The Board finds that the resulting examination report and opinions are adequate for the purpose of determining entitlement to service connection. The reports reflect review of the claims file, and the May 2017 report reflects interview and examination of the Veteran. During the examination, the examiner elicited from the Veteran his history of complaints and symptoms, performed a physical examination, and conducted any appropriate testing. The resulting reports, taken together, provide an etiology opinion with sufficient rationale that addresses all of the Veteran's theories of entitlement to service connection. For these reasons, the Board concludes that the VA examination reports of record in this case provide adequate bases for a decision on the Veteran's claim. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection The Veteran has claimed entitlement to service connection for sleep apnea. He contends that this disability was either caused or aggravated by service, to include as due to his Gulf War service or by service-connected disabilities. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, 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). A disability that is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310(b), and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability and not due to the natural progress of the nonservice-connected disease. Allen v. Brown, 7 Vet. App. 439 (1995). Under 38 C.F.R. § 3.317, service connection may be granted on a presumptive basis if there is evidence (1) that the claimant is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317. In the case at hand, the Veteran has qualifying service under 38 C.F.R. § 3.317(e). The Veteran's service treatment records reflect that he sought treatment for difficulty sleeping in May 1977 shortly after arriving in Korea, and that this difficulty was attributed to his anxiety about being separated from his family. Otherwise, the Veteran reported frequent trouble sleeping on his February 1992 retirement medical history report. No medical expert who has reviewed the record (including the September 2015, May 2016, and May 2017 VA examiners) has found that these or any other service treatment records indicate the presence of sleep apnea during service. The September 2015 examiner expressly stated that the Veteran did not have sleep apnea upon his 1992 separation, while the May 2016 VA examiner noted that trouble sleeping is not necessarily from obstructive sleep apnea. The May 2016 examiner expressly found that there is a less than 50 percent probability that the records from up to and including the Veteran's 1992 separation reflect symptoms of sleep apnea, as he noted that sleep apnea would not have been present for so long without troubles being noted or diagnoses being made. The May 2017 examiner expressly noted that he found no evidence of a symptom complex during service that would suggest the onset of obstructive sleep apnea during service, and therefore found it less likely than not that the claimed obstructive sleep apnea had its onset in service or is related to an event or injury in service. Therefore, the Board finds that direct service connection based on evidence of in-service sleep apnea must be denied. The Board further finds that direct service connection based on initial manifestation of sleep apnea post-service must be denied, as there is no competent medical opinion of record that attributes the Veteran's post-service sleep apnea manifestation to service. The VA examination reports note that the Veteran was diagnosed with obstructive sleep apnea following an October 2013 sleep study, while the May 2017 examiner further noted that the Veteran has stated that his obstructive sleep apnea was first noted at the time of a 2004 knee surgery. The May 2017 examiner noted that even a 2004 diagnosis would be long after his exit from service and would negate nexus to service from a timeframe standpoint. The Veteran does not contend, and the evidence does not demonstrate, an earlier onset of sleep apnea symptoms. Therefore, in the absence of a competent medical opinion linking post-service onset sleep apnea with service, the Board finds that entitlement to direct service connection for sleep apnea based on initial post-service onset is not warranted. Nor is direct service connection for sleep apnea based on exposures during his Gulf War service warranted. The September 2015 VA examiner determined that such a relationship was less likely than not, as "there are no repeated [sic] peer review objective medical research studies showing a cause and effect relationship between Gulf War exposures/service and [obstructive sleep apnea]." [Capitalization omitted.] The Board surmises that the examiner intended to say "there are no reported peer review objective medical research studies showing...." Even if this is an incorrect supposition, the May 2017 VA examiner found that the absence of symptoms in service made it less likely than not that the Veteran's sleep apnea was related to an event or injury in service. Such a conclusion includes consideration of his in-service exposures during service in the Persian Gulf. The record contains no competent medical opinion that supports the Veteran's contention of a direct link between his sleep apnea and his Gulf War service. The evidence of record also weighs against finding that the Veteran's sleep apnea was caused or aggravated by service-connected hypertension, shoulder problems, and knee problems. The May 2017 VA examiner expressly noted that these conditions do not cause obstructive sleep apnea from a pathophysiologic standpoint (i.e., increased transthoracic pressure/upper airway collapse), and also noted that this rationale applies with respect to the question of whether obstructive sleep apnea was aggravated by these conditions. He further noted that, while pain from the Veteran's service-connected conditions may disrupt sleep, it would not add additional stresses on the upper airway to aggravate obstructive sleep apnea. Therefore, it is less likely than not that the Veteran's obstructive sleep apnea was aggravated by his service-connected conditions. The May 2017 examiner further noted that the Veteran has reported that his CPAP pressures have remained unchanged over the years, and this would be evidence against aggravation of obstructive sleep apnea from service-connected conditions, or from treatment of such conditions. With respect to the undiagnosed illness contention, the Board notes that, because it is a diagnosis, sleep apnea cannot be considered to be an "undiagnosed illness." Therefore, presumptive service connection under 38 U.S.C. § 1117 is not warranted. Furthermore, the Board acknowledges the contention of the Veteran's representative, presented in a December 2016 response to the statement of the case, that the Veteran's sleep apnea should be considered a medically unexplained chronic multisymptom illness pursuant to 38 C.F.R. § 3.317(b). The Board notes, however, that the VA Adjudication Manual expressly states that sleep apnea cannot be presumptively service-connected under the provisions of 38 CFR 3.317, as it is a diagnosable condition. M21-1 Manual, Section IV.ii.2.D.1.n. Therefore, service connection for sleep apnea as due to an undiagnosed illness or as a manifestation of a medically unexplained chronic multisymptom illness must be denied. The etiology opinion that supports the Veteran's claim comes from the Veteran himself. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim, specifically the questions involving whether the Veteran's obstructive sleep apnea may be attributed to service, a service-connected disability, or Gulf War exposures, are of such complexity as to require that individuals who provide competent medical evidence on these matters possess a level of expertise that a layperson simply does not possess. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, entitlement to service connection for obstructive sleep apnea must be denied. ORDER Entitlement to service connection for sleep apnea, to include as due to undiagnosed illness or medically unexplained chronic multisymptom illness related to service in the Southwest Asia Theater of Operations during the Persian Gulf War, or as secondary to service-connected hypertension, knee and shoulder disabilities, is denied. REMAND Unfortunately, the claim of entitlement to an increased rating for limitation of motion of the right knee must again be remanded so that the Veteran may undergo an examination that complies with recent caselaw and with the directives of the Joint Motion. As noted in the January 2017 remand, the Joint Motion indicated that the VA examination reports of record were inadequate because they did not "express[] an opinion as to the degree of additional range of motion loss, if any, due to pain during Appellant's reported flare-ups.... Nor do the reports explain why such details could not be provided." The Joint Motion noted that, where an examination report fails to provide such detail regarding functional loss due to pain during flare-ups and fails to state why such detail could not feasibly be determined, it lacks sufficient detail necessary for a disability rating. Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). It vacated and remanded this issue so that VA could obtain an examination that complies with the terms of the Joint Motion. On remand, the May 2017 VA examiner declined to describe the additional range of motion lost on flare-ups, noting that such an opinion would be speculative. The Court recently issued an opinion addressing the precise question of whether a VA examiner is permitted to decline to offer an estimate as to additional functional loss during flare-ups if the veteran is not undergoing a flare-up at the time of the examination. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that the Board may accept a VA examiner's assertion that he or she cannot offer such an opinion without resort to speculation only after it determines that the examiner's conclusion is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. It must be clear that such an opinion is not procurable based on a lack of knowledge among the "medical community at large" and not merely on a lack of expertise, insufficient information, or unprocured testing on the part of the specific examiner. The May 2017 VA examination report is therefore incomplete and requires clarification. The Board will again remand this claim to obtain an opinion that either attempts to estimate additional functional impairment on flare-up or provides a satisfactory rationale for why such an estimate is not possible. Accordingly, the case is REMANDED for the following action: 1. The AOJ should ask the Veteran to identify the provider(s) of any and all evaluations and/or treatment he has received for the right knee and provide authorizations for VA to obtain records of any such private treatment. The AOJ should obtain for the record complete clinical records of all pertinent evaluations and/or treatment (records of which are not already association with the record) from the providers identified. If a private provider does not respond to the AOJ's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. 2. After instruction (1) is completed, the AOJ should arrange for an orthopedic examination of the Veteran to determine the level of impairment due to his service-connected status post-surgical repair, bony exostosis, right anterior tibial tubercle (right knee disability). * The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the Remand have been reviewed. * All studies and tests needed to ascertain the status of the service-connected right knee disability, to include all indicated tests and studies to include x-ray examination and diagnostic imaging studies, if deemed necessary, should be performed and written interpretation of such should be associated with the examination report. * Based on the examination of the Veteran, and review of the record, the examiner should fully describe the functional effects of the Veteran's service-connected right knee disability on his activities of daily living. * In particular, the examiner should describe what types of activities would be limited because of the service-connected right knee disability and what types of activities would not be limited (if any), and whether any limitation on activities is likely to be permanent. * The examiner should record the pertinent medical complaints, symptoms, and clinical findings regarding the service-connected right knee disability. * The examiner should describe, in degrees of excursion, active and passive ranges of motion for BOTH knees, as well on weight-bearing and non-weight bearing, as demonstrated on examination; and this determination should be expressed in terms of the degrees of excursion in extension and flexion. If the examiner is unable to conduct any aspect of the required testing, he or she should explain why that is so. * With respect to the Veteran's subjective complaints of pain, the examiner is asked to comment on whether pain is visibly manifested on range of motion testing (and during any other types of movement/use) of the right knee, and if so, at what point (expressed in degrees of excursion in extension and/or flexion, if possible) such pain is elicited during such testing. * The examiner is asked to comment on whether the Veteran's subjective complaints regarding any pertinent right knee symptoms are consistent with the clinical data/objective findings. * The examiner is asked to comment on whether pain limits range of motion of the right knee during flare-ups and/or when the right knee joint is used repeatedly over a period of time; and this determination, if possible, should be expressed in terms of any additional limitation (in the degrees of excursion in extension and/or flexion) of the right knee due to pain on use and/or during flare ups. * The examiner is asked to comment on whether there would be additional functional impairment on repeated use or during flare-ups (if the Veteran describes flare-ups). The examiner is asked to assess OR ESTIMATE the additional functional impairment on repeated use and/or during flare-ups in terms of any additional limitation (in the degrees of excursion in extension and/or flexion) of the right knee. * If the Veteran is not having a flare-up when examined, the examiner is ask to comment on whether he or she can estimate, given the Veteran's description of symptoms, of what the Veteran's range of motion may be (in terms of degrees of excursion in extension and flexion) on flare-up. If it is not feasible to offer such an opinion to any degree of medical certainty without resort to speculation, the examiner must explain why that is so. * The examiner should identify the presence and degree of, or absence of the following: muscle atrophy; changes in condition of the skin indicative of disuse; weakness; incoordination; temperature changes; bone deformities; or, any other manifestations that would demonstrate disuse or functional impairment due to pain attributable to the service-connected right knee disability. * With respect to the Veteran's right knee, the examiner should state the degree of impairment, if any, due to recurrent subluxation or lateral instability of the right knee, and this determination should be expressed in terms of slight, moderate, or severe. The examiner should state if the knee locks; and if it does, the examiner should note the frequency of the locking, and note the presence of any effusion into the right knee joint. * The examiner should identify the presence, or absence of ankylosis of the right knee. If the presence of ankylosis is identified in any of the right knee joint, this determination should be expressed in terms of whether any such ankylosis is favorable or unfavorable. * If the severity of the manifestation cannot be quantified, the examiner should explain why that is so. A detailed explanation (rationale) is requested for all opinions provided, citing supporting clinical data and/or medical literature, as appropriate. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. Then, the AOJ should review the record, conduct any additional development deemed necessary, and readjudicate the claim. If the benefit sought on appeal remains denied, the AOJ should issue am appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should be returned to the Board for further review, if otherwise in order. 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 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. §§ 5109B, 7112 (2012). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs