Citation Nr: 18140397 Decision Date: 10/03/18 Archive Date: 10/02/18 DOCKET NO. 10-28 687 DATE: October 3, 2018 ORDER Service connection for sleep apnea is denied. Service connection for fibromyalgia is granted. REMANDED Entitlement to service connection for depression, to include as secondary to service-connected disability. Entitlement to a rating in excess of 10 percent for left knee chondromalacia. Entitlement to a rating in excess of 10 percent for right knee chondromalacia. Entitlement to a total disability rating based on individual unemployability (TDIU). FINDINGS OF FACT 1. Fibromyalgia symptoms were present during active service. 2. Sleep apnea did not have onset during active service and was not caused by active service. CONCLUSIONS OF LAW 1. The criteria for service connection for fibromyalgia have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.303 (2018). 2. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1995 to January 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision. This case was previously before the Board in June 2014. The June 2014 Board decision, in pertinent part, reopened the claim of service connection for fibromyalgia and remanded that claim and the other claims on appeal for further development. In February 20146 the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Duties to Notify and Assist Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran offered testimony before the undersigned Veterans Law Judge at a Board hearing in February 2014. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). VA’s duties to notify and assist are met, and the Board will address the merits of the claims. Laws and regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). 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 between the present disability and the disease or injury incurred or aggravated during service- the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran’s military records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). Analysis The Veteran stated that her fibromyalgia began during service as she was complaining about joint pain at that time. She essentially indicated that the symptoms she had during service were the same as when she was diagnosed with fibromyalgia in 2003. Fibromyalgia The Veteran’s service treatment records (STRs) contain numerous orthopedic complaints related primarily to the knees. STRs also indicate that the Veteran underwent testing for Lyme disease and rheumatoid arthritis. Records indicate that the Veteran was diagnosed with fibromyalgia in 2003. At an August 2016 VA examination, the diagnosis was fibromyalgia. The examiner stated that the Veteran’s fibromyalgia was not related to service, and noted that there was no consistent multiple joints or muscle pain reported during service. The Board finds that service connection for fibromyalgia is warranted. First, there is a current diagnosis of fibromyalgia. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The first element of service connection is met. Second, the Board finds that there was an in-service event. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran has provided consistent and credible statements that she had joint pain (other than just of the knees) during service. Accordingly, the first two elements of service connection are met. Third, the Board finds that the evidence of record supports a finding that fibromyalgia is related to service. Although the Veteran is not competent to state that she had fibromyalgia during service, she is competent to report that the symptoms she had during service are basically the same as those she had at the time of her fibromyalgia diagnosis in 2003. Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the diagnosis confirms the Veteran’s reports of pain. Moreover, the Board also finds it significant that the Veteran underwent testing for Lyme disease and rheumatoid arthritis during service, facts which tend to strongly suggest that the Veteran did indeed make complaints of joint pain during service that encompassed more than just her knees. In short, and even acknowledging the August 2016 negative VA opinion, the Board finds that the Veteran has presented a credible and competent report of a continuity of fibromyalgia symptoms since service, and service connection for fibromyalgia is warranted. REASONS FOR REMAND Remand is required in this case as to the issue of entitlement to service connection for depression, to include as secondary to service-connected disability. 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). Although the Veteran underwent a VA mental disorders examination in August 2016, the results from that examination were incomplete, partially due to some misunderstanding as described in her May 2018 statement on the part of the Veteran. Thus, another VA examination is needed. Remand is required regarding the claim for service connection for sleep apnea to obtain an adequate VA examination. Barr, 21 Vet. App. at 311. Here, an August 2016 VA examination was conducted. The examiner provided a negative nexus opinion, noting that a review of the service treatment records during active duty does not support sign and symptoms of obstructive sleep apnea. The examiner, however, did not address the Veteran’s lay statements that she would sometimes wake up in a panic after stopping breathing. Sometimes she would wake and not know that she had stopped breathing, but someone would tell her she had done so. Due to other circumstances during service her sleep problem was overlooked by the doctors. She stated that her sleep symptoms began in 1996 and she had the same symptoms currently. As for the issues of entitlement to a rating in excess of 10 percent for left and right knee chondromalacia, remand is also required to obtain an adequate examination. In examinations regarding joint disabilities, “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016) (citing to 38 C.F.R. § 4.59). An examination must address the necessary findings to evaluate functional loss during flare-ups, or clearly explain why the required testing cannot be completed or is not necessary. Correia, 28 Vet. App. 158. In increased evaluation claims, a VA examination report is not adequate without an explanation for an examiner’s failure to evaluate the functional effects of a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board may accept a VA examiner’s statement that he or she cannot offer an opinion in that regard without resorting to speculation, but only after determining that this 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. Although not binding on VA examiners, the VA Clinician’s Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves. Sharp, 29 Vet. App. at 34-35, citing VA CLINICIAN’S GUIDE, ch. 11. The examinations on record (including the August 2016 VA examination) do not address all of these required items. Accordingly, the Veteran should be afforded another VA knee examination. As for the issue of entitlement to a TDIU, this issue is intertwined with the issues being remanded herein and must be deferred pending adjudication of the other claims on appeal. The matters are 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 on and after April 24, 2018. 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 her representative. 2. Contact the Veteran and afford her 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 her representative. 3. After any additional records are associated with the claims file, provide the Veteran with the appropriate examination to determine the etiology of any current psychiatric disorder. The claims file must be made available to and 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. First, the examiner must identify all current psychiatric disorders. For each disorder, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran’s military service. Second, the examiner must state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran currently has a psychiatric disorder that was caused by or permanently aggravated by her service-connected disabilities, to include pain from those disabilities. In providing these opinions, the examiner is asked to consider and discuss the following: mental health diagnoses in the private treatment records (Delta Associates); diagnoses in the VA treatment records; the Veteran’s reports of depression symptoms during service, as well as symptoms beginning, shortly after service; the Veteran’s statements of depression due to her chronic pain and limitations due to her various physical disorders; evidence of ongoing VA and private treatment with multiple mental health evaluations; and a September 2012 VA mental health hospitalization. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of her sleep apnea. The entire claims file must 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 sleep apnea had onset in, or is otherwise related to, active military service. The examiner must specifically address the Veteran’s assertions of in-service symptoms that were not reported to sick call. The Veteran stated that she would sometimes wake up in a panic after stopping breathing. Sometimes she would wake and not know that she had stopped breathing, but someone would tell her she had done so. Due to other circumstances during service her sleep problem was overlooked by the doctors. She stated that her sleep symptoms began in 1996 and she had the same symptoms currently. The examiner must also address the 2016 VA examination report. 4. After any additional records are associated with the claims file, provide the Veteran with an examination to determine the severity of the service-connected left and right knee disability. The entire claims file must 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 Questionnaires. The examiner must test the range of motion and pain in the knees in 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. The examiner must describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. 5. Notify the Veteran that it is her 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 (2018). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which 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, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David Nelson