Citation Nr: 18149947 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 17-21 961 DATE: November 14, 2018 ORDER Service connection for sleep apnea is granted. REMANDED The claim for service connection for left knee osteoarthritis is remanded. The claim for service connection for left knee strain is remanded. The claim for service connection for right knee osteoarthritis is remanded. The claim for service connection for right knee tendonitis is remanded. The claim for service connection for hypertension/high blood pressure is remanded. The claim for service connection for diabetes mellitus, type II, to include as due to environmental hazards is remanded. The claim for an initial rating in excess of 10 percent for lumbosacral spondylosis is remanded. FINDING OF FACT Competent medical evidence suggests that the Veteran’s sleep apnea is at least as likely as not related to service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1976 to May 1979 and from May 1982 to April 2000, to include service in Southwest Asia. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by Department of Veterans Affairs (VA) Regional Office (RO). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. “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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Veteran claims that his sleep apnea, or at least symptoms thereof, began during his military service. In support, the Veteran points to a March 2000 in-service medical record noting his reports of fatigue. The Veteran’s spouse has also submitted a statement that, since they were married in late 1996, the Veteran snored so loudly that she would sleep at the foot of the bed and that the Veteran would awake gasping for air. She also noted that the Veteran was unable to drive long distances for fear he would fall asleep at the wheel. In an April 2016 statement, a fellow servicemember, who served with the Veteran in the late 1980s through the mid-1990s, wrote that, during the Veteran’s service, he was a loud snorer, struggled to breathe while asleep, and experienced day-time sleepiness. The Veteran was afforded a VA sleep apnea examination in March 2015. This report shows a diagnosis of sleep apnea with an onset of February 2005. At the time ot the examination, the Veteran reported that, beginning in the 1990s, he snored, fell asleep at the wheel, and experienced daytime somnolence and that his symptoms were thought to be related to antihistamine use. Significantly, the VA examiner opined that it was less likely as not that the Veteran’s sleep apnea was related to the Veteran’s Southwest Asia service as an association between service in Southwest Asia and the development of sleep apnea had not been clearly defined. In September 2016, the Veteran submitted a medical opinion from Dr. G.T.H. who opined that it is at least as likely as not that the Veteran’s sleep apnea is related to service. He noted the Veteran’s numerous complaints of fatigue since March 2000, difficulty sleeping, and reports of nodding off at lunch. He also noted the lay statements noted above as well as a 2002 medical record questioning whether the Veteran then had obstructive sleep apnea. Dr. G.T.H.’s medical opinion is thorough and convincing as it considered the Veteran’s medical history, report of symptoms and the lay statements of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The lay statements of record also indicate that sleep apnea, or symptoms thereof, began at some point during service. Therefore, the Board finds that sleep apnea is at least as likely as not related to service.   REASONS FOR REMAND 1. Knees The Veteran contends that he has a bilateral knee disorder which is related to his military service. Specifically, he notes that he injured his knees during his military service and contends that he has experienced problems with his knees since service. Alternatively, he contends that his bilateral knee problems were caused or aggravated by his service-connected bilateral plantar fasciitis. The Veteran’s service treatment records confirm that the Veteran was seen for right knee tendonitis in April 1998 as well as left knee pain after skiing, diagnosed as left lower extremity muscle strain in August 1985. However, the Veteran’s March 2000 separation examination did not note any knee abnormalities. The Veteran submitted an initial claim for service connection for bilateral knee disorders in March 2014. In connection with this claim, he was afforded a VA knee examination in March 2015. The examiner diagnosed left knee strain, right knee tendonitis/tendinosis, and bilateral knee joint osteoarthritis. Significantly, the examiner wrote that the Veteran’s current knee problems began in 2009 with pain and cracking of the knee joints. The examiner stated that the Veteran’s right knee disorders were less likely than not related to service. In support of this opinion, it was noted that tendonitis occurs secondary to a strain or injury of the tendon. Arthritis occurs when there is degeneration of the joint, due to use, trauma, age, or genetic predisposition, tendonitis does not cause or result in arthritis. In April 2015, an addendum medical opinion was obtained. Significantly, the examiner opined that both the Veteran’s right and left knee disorders were less likely than not related to service. The examiner noted the service treatment records showing right knee tendonitis as well as left knee pain after skiing, but also noted that the Veteran’s separation examination showed normal knees. As 14 years had passed since service, other reasons, such as advanced age, may have contributed to the Veteran’s knee disorders. Thus, there was no clinical evidence to suggest that the Veteran’s current knee disorders are related to his time in service or of a chronic condition. Further, a single entry of right and/or left knee muscle strain is not strong enough to link these disorders conditions during service or conditions outside of service. Thereafter, in September 2016, the Veteran reported that he has had pain, popping, and grinding in his knees since service and self-treated with over-the-counter medication, ice packs, and a knee brace. Only when that did not work did he see treatment from a medical professional. The Board finds than an addendum medical opinion is necessary. First, previous examiners have not had the opportunity to consider the Veteran’s allegations of continuity of symptomatology, specifically reports of pain, popping, and grinding since service. Second, a medical opinion as to whether the Veteran’s knee disorders were caused or aggravated by his service-connected plantar fasciitis is needed. 2. Hypertension and diabetes mellitus The Veteran claims that his hypertension and diabetes mellitus, type II are related to service. The Veteran was afforded a VA examination of his hypertension and diabetes mellitus, type II in March 2015. The examiner noted a diagnosis of hypertension, with an onset in 2009, and a diagnosis of diabetes mellitus, type II, with an onset in 2008. Significantly, the VA examiner opined that it was less likely as not that the Veteran’s hypertension and/or diabetes mellitus are related to the Veteran’s Southwest Asia service as an association between service in Southwest Asia and the development of hypertension and/or diabetes mellitus had not been clearly defined. Unfortunately, the March 2015 VA examiner did not provide an opinion as to whether the Veteran’s hypertension and/or diabetes mellitus are related to any other aspect of the Veteran’s military service. Significantly, in the Veteran’s March 2000 separation examination, the Veteran reported that he was experiencing heartburn, elevated cholesterol, and low blood sugar symptoms. Once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, an addendum opinion is required. 3. Lumbosacral spondylosis The Veteran was most recently afforded a VA spine examination in March 2015. However, the examination did not include testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing, as required by Correia v. McDonald, 28 Vet. App. 158 (2016). Further, the examiner noted that, during a flare-up, the Veteran experiences additional pain, fatigue, weakness, and lack of endurance and that the Veteran limited activity further during a flare-up. The examiner then opined that it was impossible to describe in terms of range of motion any additional functional limitation during a flare-up without examining the Veteran during a flare-up. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. In light of Sharp, additional medical evidence is necessary regarding additional functional limitation, if possible in terms of range of motion, during a flare-up in consideration of the Veteran’s lay statements as to his flare-up symptoms. If such opinion cannot be rendered without resort to mere speculation, the examiner should state why. The matters are REMANDED for the following action: 1. Obtain addendum medical opinions with regard to the etiology of the Veteran’s left and right knee disorders, hypertension, and diabetes mellitus type II. Specifically, the examiner should opine as to whether: (A) It is at least as likely as not that the Veteran’s left knee strain, right knee tendonitis, and/or left and right knee osteoarthritis are related to service. (B) It is at least as likely as not that the Veteran’s left and right knee osteoarthritis onset within a year after separation from service. In answering this question, please note the Veteran’s report that he experienced pain, popping, and grinding in his knees since service. (C) It is at least as likely as not that the Veteran’s left knee strain, right knee tendonitis, and/or left and right knee osteoarthritis were caused or aggravated by the Veteran’s service-connected plantar fasciitis. (D) It is at least as likely as not that the Veteran’s hypertension is related to service or onset within a year after separation from service, to include as due to exposure to environmental hazards in Southwest Asia on a non-presumptive basis. (E) It is at least as likely as not that the Veteran’s diabetes mellitus, type II is related to or onset within a year after separation from service, to include as due to exposure to environmental hazards in Southwest Asia on a non-presumptive basis. A complete rationale should be provided for any opinion rendered. 2. Afford the Veteran an examination of his service-connected lumbosacral spondylosis. The examination should include testing for pain on active and passive motion and in weight-bearing and non-weight-bearing. The examiner should also opinion as to additional functional limitation during flare-ups, if possible in terms of range of motion. Significantly, the examiner should consider the March 2015 VA spine examination findings regarding flare-ups causing additional pain, fatigue, weakness, and lack of endurance and resulting in further limitations on activities during a flare-up. A complete rationale should be provided for any opinion rendered. If an opinion cannot be provided without resort to mere speculation, the examiner should state why. In doing so, please consider lay statements of record. 3. Readjudicate the claim. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George