Citation Nr: 18155670 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 14-35 703 DATE: December 4, 2018 ORDER The request to reopen a claim for service connection for sleeping disorder is granted. Service connection for obstructive sleep apnea (OSA) is granted. Entitlement to 100 percent rating for left knee meniscal tear with degenerative disease of the left femoral condyle contusion with osteoarthritis/ left knee replacement from December 10, 2012 to December 10, 2013, and 30 percent thereafter is granted. REMANDED Entitlement to a rating in excess of 30 percent disabling for left knee replacement/left knee meniscal tear with degenerative disease of the left femoral condyle contusion with osteoarthritis from December 10, 2013, is remanded. FINDINGS OF FACT 1. In an October 2007 rating decision, the RO denied entitlement to service connection for a sleeping disorder. 2. Evidence received since the October 2007 rating decision does relate to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. Resolving all doubt in favor of the Veteran, the evidence shows that the Veteran’s OSA is the result of his active service. 4. On December 10, 2012, during the pendency of this appeal, the Veteran underwent a partial knee replacement of his service-connected left knee disability CONCLUSIONS OF LAW 1. The criteria to reopen the claim of entitlement to service connection for a sleep disorder have been met. 38 U.S.C. §§ 5108, 7105 (West 2012); 38 C.F.R. §§ 3.156, 20.1100 (2018). 2. The criteria for service connection for OSA have been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 3. The criteria for a temporary 100 percent disability rating based on partial knee replacement of the service-connected left knee disability for a period from December 10, 2012 to December 10, 2013, with 30 percent effective from December 11, 2013, have been met. 38 U.S.C. §§ 1155, 5103, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a Diagnostic Code (DC) 5055 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The provisions of 38 C.F.R. § 3.156 (a) create a low threshold for the reopening of claims. The Court of Appeals for Veterans Claims (Court) noted that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which, does not require new and material evidence as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Whether new and material evidence has been received to reopen a claim for service connection for a sleeping disorder Initially, the Veteran’s claim for service connection for a sleeping disorder was denied in an October 2007 rating decision on the basis that the available service medical records did not show chronic complaints, diagnosis, or treatment for a sleeping disorder, nor did he submit evidence of a current disability. New and material evidence was not received within a year of notice of the decision. See 38 C.F.R. § 3.156(b). The Veteran did not initiate an appeal of this decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board has considered all the evidence received since the October 2007 rating decision. Specifically, a January 2013 Sleep Study that indicates a diagnosis of obstructive sleep apnea. This evidence is new in that it was not evidence of record at the time of the last denial of the claim; and it is material as it does address an unestablished fact necessary to substantiate the claim. The Board therefore finds that the submitted evidence is new and material, and that it raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010); 38 C.F.R. § 3.156 (2017). Therefore, the claim of entitlement to service connection for sleeping disorder (now diagnosed as obstructive sleep apnea) is reopened. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Entitlement to service connection for a sleeping disorder The Veteran contends that his sleeping disorder had its onset in service. Although service treatment records do not document any sleep complaints or disorders, the Veteran, his spouse and another service member have described symptoms associated with obstructive sleep apnea that began during service and continued to its formal medical diagnosis in 2013. Resolving reasonable doubt in favor of the Veteran, it may be concluded his sleep apnea had its onset in service. Knee Rating As an initial matter, the Board notes that the issue on appeal concerning the left knee evaluation had been expressed in a confusing way in the Statement of the Case. The issue was clarified at the March 2018 Board hearing in that the Veteran seeks to have his December 2012 left knee surgery recognized as a total knee replacement for VA purposes, entitling him to a total 100 percent rating for a year from the date of surgery, and then a minimum 30 percent rating thereafter, although he considers his impairment to warrant a rating in excess of 30 percent. For the following reasons the Board finds that a total 100 percent rating for a year from the date of surgery, and then a minimum 30 percent rating thereafter is warranted. The record indicates that on December 10, 2012, the Veteran had a left unicompartment knee arthroplasty, which given the holding in Hudgens v. McDonald, 823 F.3d 630 (Fed. Cir. 2016), and that the Veteran’s claim was pending at the time, permits an award of a 100 percent rating under diagnostic code 5055 for knee replacement, and assignment of a minimum schedular 30 percent evaluation thereafter. Accordingly, subject to the law and regulations governing the payment of monetary benefits, a 100 percent rating for the Veteran’s left knee disability from December 10, 2012 to December 10, 2013, with a 30 percent rating thereafter, is granted. REASON FOR REMAND Entitlement to a rating in excess of 30 percent for left knee disability from December 10, 2013 is remanded. With regard to the left knee rating after December 2013, the record indicates the condition may have increased in severity since it was last examined for VA purposes. A more current evaluation is indicated. The matter is REMANDED for the following action: 1. Associate any and all outstanding relevant VA medical records with the claims file. 2. Schedule the Veteran for an evaluation of his left knee disability, to ascertain the extent of its impairment. Any indicated studies should be accomplished and all findings reported in detail. 3. Thereafter, re-adjudicate the claim for an increased rating for the Veteran’s service connected left knee disability. If the decision remains adverse to the Veteran, provide him a supplemental statement of the case that reflects consideration of all the evidence of record, and after an opportunity to respond, return the appeal to the Board if otherwise in order. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel