Citation Nr: 18155615 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-50 698 DATE: December 4, 2018 ORDER Service connection for a left knee disorder is denied. Service connection for a right knee disorder is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a left knee disorder began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that a right knee disorder began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disorder have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for a right knee disorder have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Navy from March 1969 to March 1989. The issues of entitlement to service connection for diabetes and erectile dysfunction will be addressed in later Board decision. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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 v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While 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. Bilateral Knee Disorders The Veteran filed his service connection claims for a left knee disorder and a right knee disorder in October 2011, which were denied by an August 2013 rating decision. He asserts that his bilateral knee disorders are either due to his active service or due to his obesity. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has had a diagnosis of bilateral knee arthritis as early as 2002, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). First, regarding obesity, the general requirements for direct and secondary service connection notwithstanding, obesity is not considered a disease or disability for VA purposes and is not subject to service connection. Accordingly, service connection may not be granted for obesity. Additionally, obesity cannot be the underlying basis for service connection. That is to say, obesity is not an in-service incurrence, and, therefore, service connection may not be granted for a separate disability medically linked to in-service obesity. Additionally, as obesity is not a disability per se, service connection may not be granted for another disability rating proximately caused by obesity. As such, service connection for bilateral knee disorders secondary to obesity much be denied. Regarding direct service connection, the Veteran’s STRs do not include any reference to any injuries to, or treatment of, the Veteran’s knees. He had normal physicals in January 1969, March 1973, April 1974, March 1983, February 1986, March 1987, March 1988, and January 1989 with no knee complaints reported. The Veteran has not identified how this service injured his knees, and he does not identify any specific injuries or events, including in sufficient detail to trigger VA’s duty to afford an examination. Accordingly, the Veteran has not satisfied the second prong of service connection showing an in-service event, injury, or treatment for his bilateral knees. Essentially there is no medical evidence of record even suggesting that the Veteran’s bilateral knee disorders may have either begun during or been otherwise caused by his naval service. As such, entitlement to service connection for a left knee disorder and a right knee disorder are denied. REASONS FOR REMAND Regarding the Veteran’s service connection claim for obstructive sleep apnea, the Veteran’s medical records show that he was diagnosed with obstructive sleep apnea in October 2011. The Veteran has submitted multiple lay statements from his wife and fellow sailors regarding the Veteran’s symptoms. A September 2016 VA examiner did not consider these lay statements in his opinion. As such, a new VA examination is required to adjudicate the service connection claim. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of his obstructive sleep apnea. The claims file should be provided to the examiner. The examiner should offer the following opinion: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea either began during or was otherwise caused by his active service? Why or why not? The examiner should address the multiple lay statements regarding the Veteran’s symptoms during his active service. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel