Citation Nr: 1803984 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-06 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a sleep disorder, to include Obstructive Sleep Apnea (OSA). 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1988 to July 2010. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. After affording the Veteran the benefit of reasonable doubt, the evidence supports that the Veteran has a sleep disorder related to his active duty military service. 2. After affording the Veteran the benefit of reasonable doubt, the evidence supports that the Veteran has a right knee disability related to his active duty military service. 3. After affording the Veteran the benefit of reasonable doubt, the evidence supports that the Veteran has a left knee disability related to his active duty military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a sleep disorder are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for entitlement to service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for entitlement to service connection for a left knee disability are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria: Entitlement to Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans' Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). In this case, VA made a formal finding in August 2011 that some of the Veteran's service treatment records from 1988 to 2003 appear to be lost or unavailable and that future attempts to locate such records would be futile. In circumstances where the Veteran's service treatment records are destroyed or lost through no fault of the Veteran, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Analysis: Entitlement to Service Connection for a Sleep Disorder The Board finds that the first Shedden element is met. Shortly after the Veteran's active duty service, a November 2010 Positive Airway Pressure Titration Report revealed an impression of Obstructive Sleep Apnea (OSA). While a June 2015 VA examiner opined that the Veteran did not have obstructive sleep apnea per an April 2010 sleep study, the examiner did indicate that the Veteran had sleep disorder breathing, which comprises a wide spectrum of sleep-related breathing abnormalities. Therefore, the Board finds that the evidence shows the Veteran has a current sleep disorder. The Board finds that the second Shedden element is met. The Veteran's service treatment records show a history of symptoms including a lack of restful sleep and daytime drowsiness, which may be aggravated by pain from his service-connected back disability. See, e.g., Air Force Web-Based Health Assessment completed July 2009 in the Veteran's service treatment records. In light of this evidence, the Board finds that the Veteran experienced symptoms in service that may be related to his current sleep disorder. After affording the Veteran the benefit of reasonable doubt, the Board finds that the third Shedden element is met. The Board notes that the Veteran's sleep symptoms and abnormalities were documented both during the Veteran's service and shortly thereafter. See, e.g., November 2010 Positive Airway Pressure Titration Report. There is no compelling evidence indicating that the Veteran's current disability is distinct from the symptoms reported in service. Although the Board could remand for a definitive medical opinion as to the relationship between the diagnosed sleep disorder breathing and the Veteran's military service, the Board will resolve reasonable doubt and grant service connection for a sleep disorder. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003); but see Douglas v. Shinseki, 23 Vet. App. 19 (2009). Analysis: Entitlement to Service Connection for a Bilateral Knee Disability The Board finds that the first Shedden element is met. The Veteran's treatment records show he was diagnosed with bilateral osteoarthritis of the knees during the period at issue. See December 2012 VA examination; October 2011 treatment records from Keesler Air Force Base. The Board finds that the second Shedden element is met. The Veteran's service treatment records show a history knee pain and inflammation in service, which may be related to the current disability. See, e.g. January 2004 Quarters Authorization from Keesler Medical Center. After resolving reasonable doubt in the Veteran's favor, the Board finds that the third Shedden element is met. The Board notes that the December 2012 VA knee examiner indicated that the Veteran's bilateral knee disability is less likely than not related to his service because the only complaint of knee pain was on his separation examination. However, the opinion did not consider later records received by VA showing substantial treatment for knee complaints in service. The Board observes the March 2015 opinion of J.H., M.D., who indicated that the Veteran suffers from chronic bilateral osteoarthritis of the knee, which is more likely than not related to military service. However, Dr. J.H. did not provide an adequate rationale to support the opinion. Nevertheless, there is evidence that during the Veteran's 20 plus years of military service that he had knee complaints, to include at the time of his separation from service, which were diagnosed shortly after his separation from service as arthritis. Although the Board could remand for a definitive medical opinion as to the relationship between the diagnosed bilateral knee disabilities and the Veteran's military service, the Board will resolve reasonable doubt and grant service connection for a bilateral knee disorder. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003); but see Douglas v. Shinseki, 23 Vet. App. 19 (2009). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a sleep disorder is granted. Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a left knee disability is granted. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs