Citation Nr: 18149979 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 12-03 458 DATE: November 14, 2018 ORDER Service connection for left knee degenerative arthritis and meniscal injury is granted. Service connection for right knee degenerative arthritis is granted. Service connection for chronic sinusitis is granted. Service connection for sleep apnea is denied. FINDINGS OF FACT 1. The Veteran’s currently diagnosed left knee degenerative arthritis and meniscal injury is related to an injury sustained while on active duty. 2. The Veteran’s currently diagnosed right knee degenerative arthritis is related to an injury sustained while on active duty. 3. Resolving all doubt in the Veteran’s favor, chronic sinusitis is related to the Veteran’s military service, including exposure to dust and toxins from service in Southwest Asia. 4. The preponderance of the evidence shows that the Veteran was not diagnosed with sleep apnea at any time during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for left knee degenerative arthritis and meniscal injury have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right knee degenerative arthritis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.6(a), 3.102, 3.303. 3. The criteria for service connection for chronic sinusitis have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6(a), 3.102, 3.303. 4. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6(a), 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1986 to October 1990. He also served on active duty in the United States Army from June 1996 to October 1996, from April 1999 to May 1999, from April 2005 to June 2006, and the month of August 2011. He also had periods of ACDUTRA and INACDUTRA with the Army Reserves, the USMC Reserves, and the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In May 2017, the Board remanded the case for additional development and it now returns for further appellate review. 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, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of a current disability is satisfied if the veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the veteran’s filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a right knee disorder. The Veteran contends he currently has bilateral knee disabilities that are due to injuries he sustained while on active service, or while in ACDUTRA or INACTDUTRA. Alternatively, he contends that his right knee disability caused an altered gait which caused or aggravated his left knee disability. After a review of the evidence, the Board finds that the Veteran has currently diagnosed disabilities in the left and right knee, which are due to injuries sustained during military service, and accordingly, service connection for such disabilities is warranted. Initially, the Board notes that the Veteran has current diagnoses of degenerative arthritis in the left and right knees from an August 2017 VA examination, with x-ray evidence from a September 2017 x-ray. Moreover, the Veteran’s service treatment records (STRs) contain complaints and treatment for knee injuries, including an August 1991 complaint of right knee pain after falling in a hole, with an impression of a right knee sprain, and a May 1992 complaint of knee pain after a rappelling incident where his knee popped out of joint, with an assessment of rule out MMT. Additionally, treatment records from May 2006 document a left meniscal injury. Thus, the remaining inquiry is whether the Veteran’s current knee disabilities are related to his in-service injuries. In this regard, in March 2016 the Veteran underwent a VA examination for his knee disorders. At such time, the examiner noted the Veteran’s subjective history of intermittent bilateral knee pain, but found that no current diagnosis of a disability was warranted based on the lack of objective medical evidence. Therefore, the examiner declined to provide an etiological opinion. The Board previously found the above examination inadequate as it did not accurately reflect the Veteran history of meniscal injury, and subsequently in August 2017, the Veteran underwent another VA examination. At such time, the examiner noted the Veteran’s diagnosis of bilateral minimal degenerative changes, as well as a review of the medical record, including the Veteran’s in-service injuries. After noting the components of service connection, the examiner opined that as the claim contains both a current diagnosis and an in-service complaint, the knee disabilities are at least as likely as not due to service because they occurred during service, and he presently is diagnosed with minimal bilateral knee degenerative disease. The Board finds the August 2017 VA examiner’s opinion highly probative to the question of a nexus between the Veteran’s knee disabilities and his military service. In this regard, the opinion proffered considered all the pertinent evidence of record, to include the Veteran’s statements and the conflicting medical evidence of record, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Further, as previously noted, this is the only adequate opinion of record which addresses the question of a direct link between the Veteran’s in-service injuries and his current disability. Accordingly, there is no probative medical evidence to the contrary regarding such question. Therefore, the Board resolves all doubt in the Veteran’s favor and finds that his left knee degenerative arthritis and meniscal injury, and right knee degenerative arthritis are related to his in-service injuries. Consequently, service connection for such disorder is warranted. 38 U.S.C. 5107; 38 C.F.R. § 3.102; Gilbert, supra. 3. Entitlement to service connection for chronic sinusitis. The Veteran also contends that he has chronic sinusitis which is due to dust and toxin exposure from service his in Iraq. After a review of the evidence, and resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s chronic sinusitis is related to his military service, and therefore service connection for such disorder is warranted. In this regard, the Veteran’s STRs contain a subjective complaint of sinusitis from November 2006, and he endorsed having a history of sinusitis on a January 2008 evaluation, noting he had it 8 months prior and took antibiotics, it was also noted to have resolved. However, the Veteran also indicated that he still experienced symptoms of sinusitis in a November 2008 evaluation. The record also reflects treatment for symptoms the Veteran attributed to sinusitis, without a diagnosis. In this regard, the Veteran was noted in a July 2007 record to have a past medical history of “sinus headaches q 2 weeks – treated at Kaiser with abx and resolved.” Such timeline for treatment correlates with the notation in his STRs from January 2008. In March 2009, the Veteran complained of intermittent sinus symptoms at least every three months, for which he takes Alka-Seltzer sinus medication, and the Veteran was given the assessment of intermittent sinus allergy symptoms. Notably, the Veteran did not receive any diagnosis of sinusitis in the above treatment records, all the notations were subjective complaints based on symptoms. However, the Veteran underwent a VA examination in May 2010, at which time he was diagnosed with chronic sinusitis. The Veteran reported chronic sinusitis that began when he went to Iran [Iraq], stating that he lived in Hawaii for 23 years previously with no sinus problems. The examiner noted that the Veteran had trouble breathing through his nose at night, and he had a greenish discharge through the nose. The Veteran reported monthly dull pain in his maxillary sinus lasting 3 to 4 days. The examiner then opined that chronic sinusitis is most likely caused by the result of exposure to some type of allergen in Iran. The agency of original jurisdiction afforded the above opinion no weight as it was conclusory and based on incorrect facts. The Board notes that such opinion did not provide a sufficient rationale for its conclusion, nor did it cite to the medical evidence of record, and lastly, it had clear error as the Veteran service in Iraq as opposed to Iran. See Nieves-Rodriguez, supra; Stefl, supra. Thus, the opinion is given little probative weight. The Veteran underwent another VA examination for his sinus complaints in March 2016. The examiner noted the Veteran’s diagnosis from the previous examination, and the prior examiner’s opinion that such was related to exposure to some type of allergen, however the March 2016 examiner opined that such conclusion was not supported by the objective medical record. In supporting this opinion, the examiner erroneously stated there was no complaint, treatment, or diagnosis is referable to sinusitis from the Veteran’s service in Southwest Asia, and his post-service medical record do not contain complaint, treatment, or diagnosis referable explicitly to chronic sinusitis. As noted above however, while the Veteran did not have a clinical diagnosis of chronic sinusitis at such times, he did consistently complain of symptoms of chronic sinusitis. The examiner further noted examinations from January 2006 and January 2008 which found normal clinical evaluation of the sinuses. The examiner opined that these examinations, which found normal sinuses, precluded the Veteran’s diagnosis from the May 2010 examination from being connected to his service in Iraq. The Board previously found the March 2016 examination inadequate because it does not show any consideration of the Veteran’s statements. Further, the Board currently finds the opinion was based on an incomplete or incorrect record as the Veteran did in fact complain of sinus or sinusitis symptoms in and after service. Accordingly, the March 2016 opinion is given no probative weight. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay person is competent to identify the presence of disability or symptoms of disability subject to lay observation); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Veteran was then scheduled for another VA examination in August 2017. The examiner noted the Veteran’s current complaints of a runny nose and sinus congestion, as well as the pertinent medical evidence of record, including citations to the relevant treatment records noting the Veteran’s complaints and treatment of sinus related symptoms during and post-service. The examiner then diagnosed the Veteran with allergic rhinitis only, noting that there is not enough clinical evidence to make a diagnosis of chronic sinusitis. Specifically, the examiner found there were no signs or symptoms attributable to sinusitis, and his diagnostic imaging results were negative for sinusitis. However, despite not making at formal diagnosis at such time, the examiner included a speculative opinion based on the May 2010 diagnosis of sinusitis, concluding that such diagnosis was not incurred in or caused by any exposure during the gulf war. In this regard, similar to the prior examination, the examiner noted the Veteran’s medical examination from January 2006 and January 2008 which included normal clinical evaluations of the sinuses. The examiner reiterated the March 2016 examiner’s conclusion that such evaluations establish that the diagnosis of sinusitis from May 2010 cannot be the result of military service to include exposure to allergens. The examiner then reiterated her opinion that the May 2010 diagnosis is not supported by the objective medical evidence, including the service records which note complaints of sinusitis and associated symptoms. Therefore, the examiner concluded, the diagnosis of sinusitis from the May 2010 examination is not incurred in or caused by the claimed in-service event, injury, or illness, nor is it caused by exposures in Southwest Asia. The Board finds the August 2017 VA examiner’s opinion, which offered a speculative opinion based upon a diagnosis internally refuted, has very little probative value to the question of a nexus between the Veteran’s current sinusitis and his active service. See Nieves-Rodriguez, supra; Stefl, supra. In this regard, the Board has found the Veteran’s statements regarding the onset and continuity of his symptoms more probative. Notably, the Veteran has consistently maintained that he has experienced the symptoms of sinusitis since service, and that such symptoms wax and wane. See e.g. April 2009 Statement in Support of Claim. The Veteran is competent to report such symptoms as they are immediately observable. See Layno v. Brown, 6 Vet. App. 465 (1994). Further, the Board has no reason to doubt the veracity of his statements, especially in light of his continuing complaints and symptoms in medical records and VA examinations. Thus, whereas the August 2017 VA examiner relied on normal sinus findings from January 2006 and January 2008, it is entirely possible that such results occurred during a waning period when the Veteran did not have any symptoms. Moreover, the record contains complaints of sinusitis or sinus symptoms immediately before and after such evaluations. Consequently, the probative evidence of record is at least in equipoise as to whether the Veteran’s chronic sinusitis is related to his military service, and to toxin or allergen exposure in Iraq. Therefore, the Board resolves all doubt in his favor and finds that service connection for such disorder is warranted. 38 U.S.C. 5107; 38 C.F.R. § 3.102; Gilbert, supra. 4. Entitlement to service connection for sleep apnea The Veteran also contends that he has sleep apnea, which is due to his military service, to include exposure to dust and toxins in Iraq, and alternatively due to sinusitis. However, the Veteran does not have a current diagnosis of sleep apnea, and thus, service connection is not warranted. In this regard, the Veteran’s STRs are silent for any complaint, treatment, or diagnosis referable to sleep apnea. Additionally, and more importantly, the post-service record is negative for a diagnosis of such disorder as well. See McClain, supra. In this regard, the Veteran underwent a VA examination for sleep apnea in August 2017. The examiner found the Veteran did not have, nor ever had a diagnosis of sleep apnea. The examiner noted the Veteran underwent a sleep study in April 2009, which found the Veteran had primary snoring, but the results were not consistent with sleep apnea syndrome. The Board finds the August 2017 VA examiner opinion that the Veteran does not have or has ever had a diagnosis of sleep apnea the most probative of evidence because it was provided after a review of the record on appeal and an examination of the Veteran, and it is supported by citation to evidence found in the record. See Nieves-Rodriguez, supra; Stefl, supra. Additionally, there is no conflicting medical evidence of record. Therefore, the Board finds that the record reflects that the Veteran does not have a current diagnosis of sleep apnea at any point pertinent to the appeal. In this regard, the Board has considered the Veteran’s assertions that he has sleep apnea. Moreover, as a layperson, he is competent to report matters within his personal knowledge, such as treatments and diagnoses he has received, and symptoms he experiences. See Jandreau, supra. However, a diagnosis of sleep apnea is not the type of condition that may be rendered by a lay person as medical testing and expertise is needed to properly assess and diagnose such a disorder. See Woehlaert, supra. Thus, the Board finds that Veteran is not competent to diagnose sleep apnea, and his opinion is given no probative weight. Similarly, the Veteran’s girlfriend, while competent to report his snoring and gasping for air while sleeping, is not competent to diagnosis sleep apnea or relate the Veteran’s symptoms to the claimed diagnosis. Id. Therefore, the Board finds that service connection for sleep apnea is not warranted as the Veteran does not have a current diagnosis of such during the pendency of his claim. Furthermore, the record does not contain a recent diagnosis of such disorder prior to the Veteran’s filing of a claim. See McClain, supra; Romanowsky, supra. Thus, where, as here, there is no probative evidence indicating that the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection. See Brammer, supra. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims for service connection. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. 5107; 38 C.F.R. 3.102; Gilbert, supra. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jonathan M. Estes, Associate Counsel