Citation Nr: 18146540 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-44 379 DATE: October 31, 2018 ORDER New and material evidence has been submitted, the claim of entitlement to service connection for a right knee condition is reopened. New and material evidence has been submitted, the claim of entitlement to service connection for a left knee condition is reopened. Service connection for right knee degenerative joint disease is granted. Service connection for left knee degenerative joint disease is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. In a July 2005 rating decision, the regional office (RO) denied the Veteran’s service-connection claims for right and left knee disabilities. The Veteran did not appeal, nor did he submit new and material evidence within one year of this determination. 2. Since the July 2005 rating decision denying the Veteran’s service-connection claims, new lay evidence has been associated with the claims file that bears on the previously unestablished nexus element, raising a reasonable possibility of substantiating the claim. 3. It is at least as likely as not that bilateral knee degenerative joint disease was incurred in active duty service. CONCLUSIONS OF LAW 1. The RO’s July 2005 denial of the claim for service connection for right and left knee disabilities is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the service connection claim for a bilateral knee disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.157(a) (2017). 3. The criteria for service connection for bilateral knee degenerative joint disease are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1984 to March 1992. New and Material Evidence The RO last denied the Veteran’s claims of entitlement to service connection for right and left knee disabilities in a July 2005 rating decision, based on a finding that the evidence of record did not show that the Veteran’s knee conditions were incurred in or aggravated by military service. The Veteran was notified of the July 2005 rating decision and did not appeal it, nor did he submit additional evidence within one year of that decision in support of his bilateral knee condition claim. As such, the RO’s July 2005 rating decision became final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). For applications to reopen filed after August 29, 2001, as in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened; and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran requested to reopen his claims for service connection for right and left knee disabilities in November 2013. The Veteran’s father submitted a statement in September 2015 indicating that prior to service, the Veteran was active in sports, but following his release, he complained about the pain in his knees, which continued to increase over the years. The Veteran similarly stated to a VA treatment provider in December 2013 that his bilateral knee pain began while on active duty and continued to the present. This new evidence suggests a continuity of symptomatology, which relates to the previously unestablished “nexus” element of service connection. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Therefore, a reasonable possibility of substantiating the claim has been raised, and the claim is reopened. 38 C.F.R. § 3.156(a). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden, 381 F.3d at 1167; see also Caluza v. Brown, 7 Vet. App. 498 (1995). With respect to current disability, the Veteran has been diagnosed with degenerative joint disease of both knees. Service treatment records show that the Veteran injured his right knee in August 1990 playing football. He was prescribed painkillers and given a brace. He injured his right knee again in November 1991 playing basketball, where he noted that he had “bad knees” since high school, and in December 1991, complained of right knee pain. After separating from service in March 1992, the Veteran sought VA medical treatment in June 1997, indicating that he had experienced bilateral knee pain for the previous twelve years. Treatment records in March and April 1998 show that the Veteran continued to experience aching knees. At an April 1997 VA examination, the Veteran indicated that he had chronic knee pain which had developed over the past 6 or 7 years. The examiner’s impression was that the Veteran had bilateral knee pain probably secondary to degenerative arthritis. An August 2000 VA treatment note shows that the Veteran complained that his bilateral knee degenerative joint disease was bothering him more, and that his knees swelled and popped. A February 2004 private treatment record indicates that the Veteran sought to be evaluated for bilateral knee pain, which was noted to be degenerative joint disease related to his time in service. In a June 2004 VA treatment note, the Veteran told his provider that he had experienced pain in his knees since 1989. Dr. D.U. submitted a statement in December 2004, wherein he explained that he had treated the Veteran for the prior ten months. He reported that the Veteran had long-standing knee pain which had worsened over the last two years. Magnetic resonance imaging of both knees revealed effusion and degenerative joint disease in both knees. Dr. D.U. opined that it was at least as likely as not that the injuries the Veteran sustained in competitive sports may have led to or accelerated the development of the Veteran’s degenerative joint disease. On June 2005 VA examination, a VA examiner opined that the Veteran’s right knee condition, diagnosed as degenerative joint disease, was not related to any sports activity undertaken while in service. A December 2013 VA treatment note shows that the Veteran, in seeking treatment for his bilateral knee pain, reported to his VA provider that his knee pain started while he was on active duty in relation to his Army training. In connection with his reopened claim, the Veteran submitted a statement in February 2014 wherein he opined that he was hurt in service playing football, and that over the years, his knees continued to worsen. His father submitted a statement in September 2015 to include a description of how the Veteran’s knee symptoms existed ever since his separation of service, to include his description of how his knee pain continued to worsen over the years. In light of the foregoing, the Board finds that service connection for bilateral knee degenerative joint disease is warranted. Initially, the Board finds no reason to call into question the Veteran’s competent lay assertions of in-service knee pain following his multiple knee injuries in service, as well as the competent lay assertions of his father indicating that the Veteran’s knee symptoms started worsening right after service and continued to worsen over the years. The Board is further persuaded by medical treatment records showing that as early as June 1997, the Veteran sought treatment for bilateral knee pain and specifically indicated to his provider that he had experienced knee pain for the prior 12 years, which corresponds with other statements made by the Veteran that his knee pain started in service. While the Board acknowledges that service treatment records only document injuries to the right knee, the Veteran has consistently asserted that he experienced bilateral knee pain beginning in service. Moreover, the December 2004 opinion or Dr. D.U. found that it was at least as likely as not that the injuries the Veteran sustained in competitive sports may have led to or accelerated the development of the Veteran’s knee degenerative joint disease. For all these reasons, the Board finds that it is at least as likely as not that the Veteran’s bilateral knee degenerative joint disease is related to injuries sustained in performance of his duties during active duty service. The benefit sought on appeal is granted. REASONS FOR REMAND The Veteran contends that his obstructive sleep apnea is related to service, or alternatively, to his service-connected posttraumatic stress disorder (PTSD). See November 2016 VA 646 Statement of Accredited Representative. Private treatment records show a diagnosis of sleep apnea. See September 2013 private sleep study. Service treatment records do not show specific sleep-related complaints, but do show treatment for tonsillitis, enlarged tonsils, and difficulty swallowing. Given the in-service treatment for tonsillitis, continuing treatment for sleep apnea, and current diagnoses of obstructive sleep apnea and PTSD, the Board finds that a remand is required to afford the Veteran with a sleep apnea examination. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 84-86 (2006). Given the Veteran’s ongoing treatment, while the appeal is in remand status any other outstanding VA medical records should be obtained and associated with the record on appeal. See 38 U.S.C. § 5107A(b). The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records dated from February 2016 to the present. 2. Thereafter, schedule the Veteran for an appropriate VA examination to address the etiology of his obstructive sleep apnea. Any clinically indicated testing should be performed. The examiner should take a history from the Veteran as to the progression of his sleep apnea disability. The examiner should then address the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea had its onset during military service or is otherwise related to military service, to include the documented instances of treatment for tonsillitis, difficulty swallowing, and enlarged tonsils in service? (b.) Notwithstanding the above, is it at least as likely as not that the Veteran’s obstructive sleep apnea has been caused or aggravated beyond its natural progression by his service-connected PTSD? 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable period of time within which to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel