Citation Nr: 1805613 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-15 340A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Dale K. Graham, Agent ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from September 1980 to September 1984, May 1992 to March 1993, October 2001 to October 2003, September 2004 to April 2005, and October 2009 to July 2010, to include combat duty and service in the reserves. These matters come before the Board of Veterans' Appeals (Board) from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This matter was remanded in December 2015 for further development. Along with the above listed issues, claims for service connection for bilateral shoulder and back disabilities were also remanded. While pending return to the Board, the RO issued a June 2016 rating decision granting the shoulder and back claims; thus they are no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). For clarification purposes, the Board notes that a claim for service connection for a bilateral knee condition was also remanded in December 2015 for further development. However, upon closer inspection of the record the Board finds that jurisdiction has never been established for a claim for a right knee condition. In that regard, the record reflects that the Veteran originally filed a claim for service connection for only a left knee disability. See May 2011 Representative Correspondence and VA 21-526 Veterans Application for Compensation and Pension. Thereafter, in August 2012, the RO adjudicated and denied service connection for only a left knee disability. That said, the claim for a bilateral knee condition appears to stem from the Veteran's September 2012 notice of disagreement wherein he objected to the RO's denial of service connection for "bilateral knee pain." Nevertheless, at no point has the RO provided a rating decision addressing the claim for service connection for a right knee disability. As such, the Board did not, and does not, have jurisdiction to adjudicate this claim. Therefore, the claim for service connection for a right knee condition must be referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). In light of the aforementioned procedural history, the Board has stylized the Veteran's claim as one for entitlement to service connection for a left knee disability. The issue entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The Veteran's left knee disability is as likely as not related to his active service. CONCLUSION OF LAW The criteria for service connection for a left knee disability have been met. 38 U.S.C. § 1110, 1131, 5107(b) (2012); 38 C.F.R. § 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran asserts that a left knee disability was incurred in and aggravated by service to include his work as a security forces officer. See May 2011 Application for Compensation and Pension and see generally, January 2012 Ellis Clinic Records. Turning to the record, personnel records confirm military occupational specialties (MOS) of security forces craftsman and fire protection specialist. As to current disability, clinical and examination records reflect diagnoses including degenerative arthritis. See January 2012 Ellis Clinic Records and May 2016 VA Examination Report. Therefore, his specified MOS and current disability are conceded. As to in-service injury, a December 9, 2003 service treatment record confirms that the Veteran reported pain and decreased weight-bearing ability following a trip and fall. The Board acknowledges that the record initially notes the Veteran injured his right knee in this incident. However, this notation appears to be a topographical error as the remainder of the record notes examination of only the left knee. In addition, a January 23, 2004 treatment record notes a follow up examination for left knee pain, tenderness, and stiffness. Therefore, in-service injury is conceded. What remains for consideration is a nexus between in-service injury and the Veteran's current disability. Addressing the negative evidence first, a May 2016 VA examiner opined that the Veteran's left knee disability was unrelated to service. However, the rationale provided failed to address the Veteran's conceded in-service injury, repeat treatment, and his competent and credible reports of on-going symptomatology since service. Therefore, this opinion is insufficient to form the basis of a denial of service connection. With regard to positive evidence, in January 2016, a private physician Dr. J. E., M. D. opined that the Veteran's current degenerative arthritis was a direct result of service. As rationale, Dr. E. cited to the Veteran's in-service injury and subsequent aggravation of that initial injury through his strenuous work as a "security forces" officer. Dr. E.'s opinion was predicated upon consideration of service and post service medical records, in-person physical examination, and interview of the Veteran. There is no competent opinion to the contrary. That said, the Board recognizes that Dr. E. attributed the Veteran's in-service fall to his right knee instead of his left. Nevertheless, the opinion is still considered highly probative as it supports the proposition that the Veteran's in-service fall, and repeat aggravation thereafter, was sufficient to be the cause of degenerative arthritis. The opinion also retains value as the clinical and examination evidence of record indicate that the Veteran's right and left knee arthritis conditions are essentially equivalent in severity and presentation. See January 2012 Ellis Clinic Records and May 2016 VA Examination Report. In light of this evidence, the Board finds it appropriate to afford the Veteran the benefit of the doubt that Dr. E.'s positive opinion would be just as equally applicable to his left knee disability as to his right. Thus, service connection is warranted. Finally, in granting the above claim, the Board notes that without the negative VA examination opinion service connection would also likely be achievable on a presumptive basis. Here, the Veteran's degenerative arthritis, is among the chronic conditions in which presumptive service connection may be granted. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, the record documents report of left knee symptomatology since within a year of service separation. See May 2011 Application for Compensation and Pension. In sum, the preponderance of the evidence is for the claim and entitlement to service connection for a left knee disability is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a left knee disability is granted. REMAND In December 2015, the Board remanded the Veteran's claim for sleep apnea for a VA examination and opinion as to the nature and etiology of his condition. Thereafter, a May 2015 VA examiner opined that the Veteran did not suffer from sleep apnea. In brief, the examiner's opinion was predicated solely upon the Veteran's report of undergoing a sleep study in 2012 and being verbally instructed that he did not have sleep apnea. The Board finds this opinion and examination inadequate. Importantly, the examiner indicated not reviewing or having access to the Veteran's reported 2012 sleep study. Moreover, no diagnostic testing was conducted in conjunction with the May 2016 VA examination to determine if the Veteran currently has sleep apnea. In light of these failings, a new VA examination complete with diagnostic testing and etiology opinion is required. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Once VA undertakes to provide an examination it is obligated to insure that the examination is adequate). See also 38 U.S.C. § 5103A (d) (2012). Finally, review of the record is negative for the Veteran's reported 2012 sleep study. On remand, the RO must specifically clarify the location of the Veteran's reported 2012 sleep study and attempt to obtain said study. See May 2016 VA Sleep Apnea Examination. Additionally, all outstanding private and VA treatment records must be requested and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA and private treatment records. Specifically request clarification from the Veteran as to the location of his reported 2012 sleep study. This study and associated treatment records are not in evidence and should be obtained. 2. Schedule the Veteran for a VA examination by an appropriate examiner, other than the May 2016 VA examiner, to determine the nature and etiology of his sleep apnea. The claims file must be made available to the examiner for review of the case. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. Appropriate diagnostic testing must be conducted. After reviewing the claims folder and examining the Veteran the examiner must: a. Opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's sleep apnea is a result of a disease or injury incurred in service. i. Note, any negative opinion must be rationalized against the Veteran's documented report of experiencing sleep apnea within a year of service separation. See May 2011 Veterans Application for Compensation and Pension. The examiner must also address his reports of continued snoring and "sleep apnea events" since service separation. See May 2016 VA Examination. A clear explanation for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion he or she should explain why. 3. If any benefit 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 case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs