Citation Nr: 18141730 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 12-05 926 DATE: October 11, 2018 ORDER Entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease is remanded. FINDING OF FACT The Veteran’s obstructive sleep apnea was incurred in, or caused by, his active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1976 to January 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A July 2010 rating decision denied entitlement to service connection for sleep apnea. A January 2012 rating decision denied the Veteran’s claim for an increased disability rating for his service-connected right knee disorder. In June 2014 and March 2017, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. Entitlement to service connection for obstructive sleep apnea. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran asserts that his sleep apnea is related to his military service. For the following reasons and bases, the Board finds that the criteria for entitlement to service connection for sleep apnea have been met. The Veteran has been diagnosed with sleep apnea. See May 2009 Sleep Medicine Note. Accordingly, the Board finds that the Veteran has a current disability. Davidson, 581 F.3d 1313. The Veteran stated that he first noticed issues with his sleep during the 1980s when he began reporting for duty at 4:00 am. He documented how he needed to take naps during the day to combat his fatigue, and would fall asleep at noisy and crowded events or while driving. See September 2009 Correspondence. The Veteran’s wife stated that she first observed the Veteran stop breathing while he was asleep in the early 1980s. She further stated his increased symptomatology as the years passed, requiring her to wake him in the night. See Undated Correspondence received September 2009. Also in support of his claim, the Veteran submitted statements by fellow servicemembers who each detailed their own observations of the Veteran’s sleep symptomatology. See April 2011 D.J. Statement (documenting the Veteran’s excessive daytime sleepiness, loud snoring, and gasping for breath); Undated R.S. Statement received March 2012 (stating the Veteran would snore loudly at night and fall asleep during the daytime). The Board notes that the Veteran, his wife, D.J., and R.S. are competent to report on his in-service sleep issues. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (finding that a veteran is competent to report on factual matters of which he has firsthand knowledge). The Board also finds these statements credible. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Baldwin v. Brown, 13 Vet. App. 1 (1999) (reflecting that determinations concerning the credibility of evidence are within the purview of the Board). In support of his claim, the Veteran submitted a statement by a private physician. Following a review of the Veteran’s medical records, the physician opined that it was more likely than not that he had obstructive sleep apnea while in the military. See May 2011 Michael B. Miller, M.D. Statement. The physician rationalized that the Veteran exhibited numerous symptoms of obstructive sleep apnea since his military service, including excessive daytime sleepiness, snoring, gasping for breath, and cessation of breathing. Id. The Board notes that there are two negative etiological opinions of record in the form of VA examination reports of May 2016 and January 2018. Each report opined that the Veteran’s sleep apnea was not related to his military service. See May 2016 Medical Opinion; January 2018 Medical Opinion. However, these examination reports merely rely on the absence of clinical evidence from the Veteran’s service treatment records and do not adequately address the competent and credible statements of the Veteran, his wife, D.J., and R.S. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on the Veteran’s report of in-service injury and instead relied on the absence of evidence in the Veteran’s service medical records to provide a negative opinion). In sum, the criteria for entitlement to service connection for sleep apnea have been satisfied. See Davidson, 581 F.3d 131. Accordingly, the Veteran’s claim is granted. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease is remanded. In support of his claim, the Veteran submitted a statement detailing his right knee symptoms, stating they have increased in severity since his last VA examination. The Veteran specifically noted he has experienced increased instability in his right knee. See September 2018 Correspondence. The January 2018 VA examination report noted there was no instability on the examination. Accordingly, a new examination should be conducted. Additionally, the Veteran must be provided with a new examination that complies with Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this regard, VA examiners are required to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). VA examiners are also required to estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran’s own statements. Sharp, 29 Vet. App. at 34-35. If an estimate cannot be provided without resort to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large, or insufficient knowledge of the specific examiner. Id. at 36. The January 2018 VA examination report noted the Veteran reported flare-ups of his right knee. The examiner did not address the additional loss of range of motion during flare-ups as is required under Sharp. See January 2018 VA Examination Report. As this matter is being remanded, the Veteran’s updated VA treatment records should be obtained. The matter is REMANDED for the following action: 1. Make arrangements to obtain the Veteran’s VA treatment records, dated from June 2016, forward. 2. Schedule the Veteran for an appropriate VA examination to assess the severity of his service-connected right knee disability. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the examination. The examination should be performed in accordance with the appropriate DBQ. The examiner must specifically comment upon the presence and extent of any right knee instability. Should studies of knee instability not be practicable or feasible, the examiner should indicate in detail the reason why this is the case. The examiner is to specifically test the range of motion of the knees in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or conclude that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate. All examination findings, along with a complete rationale for all opinions expressed, must be set forth in the examination report. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel