Citation Nr: 18156368 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 16-56 834 DATE: December 11, 2018 ORDER New and material evidence having been received, the application to reopen the claim of service connection for a right shoulder disability is granted. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for a respiratory disability to include asthma is denied. Entitlement to an effective date prior to April 28, 2014 for the award of service connection for a left knee strain is denied. REMANDED Entitlement to service connection for depressive disorder, claimed as secondary to service-connected left knee strain, is remanded. Entitlement to service connection for obstructive sleep apnea, claimed as secondary to depressive disorder, is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to an initial rating in excess of 30 percent for service-connected left knee strain is remanded. FINDINGS OF FACT 1. In a June 2009 decision, the RO denied the claim of entitlement to service connection a right shoulder disability. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. The evidence received since the June 2009 decision includes VA treatment records, which relate to unestablished facts necessary to substantiate the matter of entitlement to service connection for a right shoulder disability and, if presumed credible, raise a reasonable possibility of substantiating the claim. 3. The Veteran does not have a right shoulder disability that had its clinical onset in service, was manifest to a compensable degree within one year of separation from active duty, or is otherwise related to active duty. 4. The Veteran does not have a left shoulder disability that had its clinical onset in service, was manifest to a compensable degree within one year of separation from active duty, or is otherwise related to active duty. 5. The Veteran does not have hypertension that had its clinical onset in service, was manifest to a compensable degree within one year of separation from active duty, or is otherwise related to active duty. 6. The Veteran does not have a respiratory disability to include asthma that had its clinical onset in service, was manifest to a compensable degree within one year of separation from active duty, or is otherwise related to active duty. 7. The Veteran’s claim of entitlement to service connection for a left knee disability was received by VA on April 28, 2014. CONCLUSIONS OF LAW 1. The June 2009 RO decision denying the Veteran’s claim of service connection for a right shoulder disability is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008). 2. New and material evidence has been received to warrant reopening of the claim of entitlement to service connection for a right shoulder disability. 38 U.S.C. §§ 5107, 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. A right shoulder disability was not incurred in or aggravated by the Veteran’s active service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. A left shoulder disability was not incurred in or aggravated by the Veteran’s active service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 5. Hypertension was not incurred in or aggravated by the Veteran’s active service, and is not presumed to have been incurred in active military service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 6. A respiratory disability, to include asthma, was not incurred in or aggravated by the Veteran’s active service, and is not presumed to have been incurred in active military service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 7. The criteria for an effective date prior to April 28, 2014, for the award of service connection for a left knee disability are not met. 38 U.S.C. §§ 5110, 7105 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1971 to October 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In August 2017, the Veteran, through his attorney, submitted additional evidence directly to the Board. At that time, a written waiver of local consideration of this evidence was also submitted; this waiver is contained in the VA claims file. See 38 C.F.R. §§ 19.9, 20.1304(c). Service Connection 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to a right shoulder disability. In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims filed on or after August 29, 2001, new evidence means existing 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 (2017). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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(b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In a June 2009 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a right shoulder disability. The Veteran did not appeal the decision. As new and material evidence was not received within one year of the decision, it became final as to the identified claim. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Under these circumstances, the RO’s June 2009 rating decision is final as to the Veteran’s claim of entitlement to service connection for a right shoulder disability, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. The Veteran now seeks to reopen his claim. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). Thus, the Board has reviewed the entire record, with attention to the additional evidence received since the last final decision in June 2009. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156 warranting reopening of the claim of service connection for right shoulder disability. The evidence associated with the Veteran’s claims file at the time of the last final denial in June 2009 included service treatment records (STRs) and the Veteran’s April 2009 claim. The Veteran served on active duty from October 1971 to October 1973. STRs do not document any disability as to the right shoulder. As described above, based on this evidence, the Veteran’s claim of entitlement to service connection for a right shoulder disability was denied in a final June 2009 RO decision. Relevant evidence received since the June 2009 decision includes VA treatment records and statements of the Veteran. Without the need to discuss every piece of newly received evidence in detail, the Board finds that new and material evidence has been received regarding the request to reopen the Veteran’s claim of entitlement to service connection for a right shoulder disability. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Namely, VA treatment records dated in March 2012 indicate that the Veteran has been treated for a dermatological cyst on his right shoulder for 10 years, which has been excised. See the VA treatment records dated March 2012 and June 2012. Critically, this evidence relates to the previously unestablished element of current diagnosis as to the right shoulder disability claim. Accordingly, the standards under 3.156(a) have been met and the claim is reopened. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Shade, supra. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for a right shoulder disability. 4. Entitlement to service connection for a left shoulder disability. 5. Entitlement to service connection for hypertension. 6. Entitlement to service connection for a respiratory disability to include asthma. The Veteran has claimed entitlement to service connection for a right shoulder disability, a left shoulder disability, hypertension, and a respiratory disability (claimed as asthma). See the Veteran’s claim dated April 2014. VA treatment records dated in March 2012 and June 2012 document a continuing diagnosis of hypertension, as well as the Veteran’s treatment for a right shoulder dermatological cyst status-post excision. VA treatment records dated in August 2013 show that the Veteran’s history of exertional dyspnea. It was further noted that the Veteran’s exertional dyspnea is most likely related to his morbid obesity and deconditioning. The pulmonologist further stated that chronic obstructive pulmonary disease (COPD) “is not present and asthma is unlikely by his pulmonary function testing (PFT)”. The Veteran’s STRs, including his September 1973 separation examination, do not document complaints of/treatment for right or left shoulder symptoms, elevated blood pressure readings, or respiratory impairment. Indeed, his upper extremities, chest and lungs were examined at service separation and affirmatively determined to be normal at that time. In addition, a blood pressure reading of 112/70 was recorded. Moreover, in connection with the separation examination, the Veteran completed a Report of Medical History on which he specifically denied having or ever having had high blood pressure, a painful or “trick” shoulder, and asthma, shortness of breath, a chronic cough, and pain or pressure in his chest. Significantly, there is no evidence of record, nor has the Veteran asserted, that the claimed right and left shoulder disabilities, hypertension, and/or respiratory disability were incurred during his active duty service. Moreover, there is no competent medical evidence which suggests that the claimed disabilities are due to his military service. In fact, the nature of the Veteran’s theory of entitlement with respect to these claims is unclear. Although the Veteran’s attorney submitted a brief on appeal to the Board in March 2018, it contained no reference to right or left shoulder disabilities, hypertension, or respiratory disability. The Veteran and his attorney have been given multiple opportunities to submit or identify evidence or arguments in support of these claims, but have not done so. See 38 U.S.C. § 5107(a) (noting that it is a claimant’s responsibility to support a claim for VA benefits). In appeals to the Board, claimants should allege specific errors of fact or law, see 38 U.S.C. § 7105(d)(5), and counsel are expected to present those arguments they deem material and relevant to their clients’ cases. See Barela v. Peake, 22 Vet. App. 155, 159 (2008) (noting that an attorney has the ethical duty to educate himself about the relevant law, analyze the factual and legal elements of a case, adequately prepare, and zealously represent his client’s interest); see also Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005). Moreover, Mr. Woods is reminded of his ethical duties as an attorney. See Model Rules of Professional Conduct R. 3.1 (A lawyer shall not bring or defend a proceeding & unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.). Given the evidence of record, and absent any specific argument or evidence from the Veteran’s attorney, there is no basis upon which to award service connection. 7. Entitlement to an effective date prior to April 28, 2014 for the award of service connection for a left knee strain. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim or a claim reopened after final adjudication “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of service connection and compensation based on an original claim or a reopened claim will be the “[d]ate of receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400. The “date of the claim” means the date of the application based upon which benefits are awarded, not the original claim for service connection. See Sears v. Principi, 16 Vet. App. 244, 246-47 (2002), aff’d, 349 F.3d 1326 (Fed. Cir. 2003). In this context, it should be noted that the provisions of 38 U.S.C. § 5110 also refer to the date an application is received. While the term “application” is not defined in the statute, the regulations use the terms “claim” and “application” interchangeably, and they are defined broadly to include “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. §§ 3.1(p), 3.155; Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The Board notes that VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case. Here, the Veteran contends that he is entitled to an effective date prior to April 28, 2014, for the grant of service connection for a left knee strain. In April 2014, the Veteran filed a claim of entitlement to service connection for a left knee disability. Service connection for a left knee disability was granted in a November 2014 rating decision, with 30 percent rating assigned. The Veteran seeks an earlier effective date for the award of service connection for left knee strain. See, e.g., the Veteran’s notice of disagreement (NOD) dated February 2015. Based upon a review of the evidence, and for reasons expressed immediately below, the Board finds that the currently assigned effective date of April 28, 2014, is the earliest effective date legally assignable for the award of service connection for left knee strain. As noted above, the assignment of an effective date for service connection is essentially governed by the date of filing with VA of a claim. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In this case, the current effective date corresponds to the date of receipt of the Veteran’s claim of service connection for a left knee disability. The evidence does not show, nor does the Veteran contend, that he filed an earlier claim of service connection for left knee strain. To the extent the Veteran’s appeal of the effective date issue is an allegation that he did file a claim of service connection prior to April 2014, the Board has carefully reviewed the record in its entirety and can identify no communication from the Veteran that may be considered to be a claim of entitlement to service connection for left knee strain at any time prior to April 28, 2014, the date the claim was received. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992) (the Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits). In addition, the record contains no prior claim of service connection for a left knee disability and no prior general statement of an intent to seek service connection for a left knee disability occurring during active service. Sellers v. Wilkie, No. 16-2993 (U.S. Vet. App. August 23, 2018). Absent evidence to the contrary, the Board concludes that had the Veteran filed a claim of service connection for left knee strain at any time prior to April 28, 2014, it would have been associated with the file. See Ashley v. Derwinski, 2 Vet. App. 307 (1992); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (discussing “presumption of regularity” under which it is presumed that Government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity). Absent any evidence of an earlier claim in the record, the Board finds that the only effective date for award of service connection that may be assigned for the Veteran’s left knee strain is the presently assigned date of April 28, 2014, corresponding to the date of receipt of his claim. The Board does not dispute that the Veteran experienced left knee symptoms prior to the assigned effective date; that he did was evidence that provided a basis for the grant of service connection. However, the Board is obligated to apply the law as Congress has created it. As explained above, the law does not support the assignment of an effective date prior to April 28, 2014. In conclusion, for the reasons and bases set forth above, the Board finds that the effective date for the grant of service connection for left knee strain is no earlier than the currently assigned date of April 28, 2014. Accordingly, the benefits sought on appeal are denied. REASONS FOR REMAND 1. Entitlement to service connection for depressive disorder, claimed as secondary to service-connected left knee strain is remanded. The Veteran asserts that he suffers from an acquired psychiatric disorder, which is secondary to his service-connected left knee strain. See, e.g., the appellant’s brief dated March 2018. The Board has reviewed the record and concludes that additional evidentiary development is necessary. As indicated above, the Veteran served on active duty from October 1971 to October 1973. The Veteran’s service treatment records, including his September 1973 separation examination, are entirely negative for any complaint or finding of a psychiatric disability. The post-service record on appeal includes VA treatment records dated in June 2014 showing a diagnosis of depression. VA examination and treatment records also show that the Veteran suffers from chronic pain due to his service-connected left knee strain. See, e.g., the VA treatment records dated August 2013 and November 2015; see also the VA examination report dated August 2014. In support of his claim, the Veteran recently submitted a May 2015 disability benefits questionnaire (DBQ) completed by a private psychologist who concluded that the Veteran meets the diagnostic criteria for depressive disorder. The psychologist stated, “[i]t is the belief of this examiner, based on interview and the claims file that [the Veteran’s] left knee strain is more likely than not aggravating his depressive disorder due to another medical condition.” The medical professional explained, “[t]here is a body of literature detailing the connection between medical issues, like the issue that [the Veteran] struggles and psychiatric disorder, similarly to his depressive disorder complaints.” The medical professional further stated, “[i]n fact, there is a causal relationship between medical and psychiatric difficulty.” The Board finds that the medical opinion submitted by the Veteran is of limited probative value. The examiner’s conclusions are somewhat difficult to ascertain, given the confusing wording. For example, it is unclear whether she has concluded that the Veteran’s depressive disorder is causally related to his service-connected left knee disability or whether it is aggravated by it and, if so, to what degree. Moreover, the studies cited by the psychologist indicate only a correlation between pain and depression, not a causal relationship. Given these significant deficiencies, the opinion is insufficient to support an award of service connection. Nonetheless, because the opinion contains an indication that the Veteran has depressive disorder which may be related to or aggravated by a service-connected disability, an examination is necessary. 2. Entitlement to service connection for obstructive sleep apnea, claimed as secondary to depressive disorder is remanded. The Veteran asserts that he suffers from obstructive sleep apnea secondary to his depressive disorder. See the appellant’s brief dated March 2018. As set forth below, the record also contains some indication that his sleep apnea is related to medication for his service-connected left knee disability. The Veteran served on active duty from October 1971 to October 1973. His service treatment records, including his September 1973 separation examination, do not document any sleep-related abnormalities or complaints. VA treatment records dated in September 2011 and April 2012 documented a continuing diagnosis of obstructive sleep apnea. In support of his claim, the Veteran submitted a May 2017 DBQ with attached nexus opinion from a medical professional who indicated that “[i]t is as likely as not that the Veteran’s obstructive sleep apnea is caused and permanently aggravated by his use of opiod medication for his service-connected left knee condition, inability to tolerate his CPAP mask and his depressive disorder.” The medical professional noted that “[t]he Veteran is prescribed Tramadol for service-connected left knee condition, which is noted throughout his claims file, but also specifically in a primary care note dated June 4, 2014.” The medical professional continued, “Tramadol is an opioid medication. It is known that opioid pain medications have several effects on respiration including increasing upper airway resistance leading to ineffective ventilation and upper airway obstruction. The effects are more pronounced during sleep.” The medical professional further noted, “[s]everal studies have shown significant increase in sleep disordered breathing, such as [obstructive sleep apnea], in patients taking long and short-term opioid pain medications.” The medical professional then explained that “[r]esearch has shown that psychiatric disorders are commonly associated with obstructive sleep apnea.” The medical profession concluded, “[a]fter review of the Veteran’s claims file, medical records and interview, I feel it is as likely as not that his depressive disorder, inability to tolerate his CPAP full face mask and chronic use opioid pain medications for service-connected conditions have aided the development of obstructive sleep apnea and have permanently aggravated his obstructive sleep apnea.” The Board finds the opinion to be of limited probative value. Again, the opinion is unclear as to whether the clinician believes that the Veteran’s depression and/or medications for his service-connected left knee disability caused his obstructive sleep apnea or aggravated it, and, if so, to what degree. Moreover, the studies cited by the clinician note only an association between obstructive sleep apnea and depression, not a causal relationship. However, because the opinion contains an indication that the Veteran’s obstructive sleep apnea may be causally related to or aggravated by medications prescribed to treat his service-connected left knee disability, an examination is necessary. 3. Entitlement to service connection for a right knee disability is remanded. The Veteran asserts entitlement to service connection for a right knee disability. VA treatment records dated in July 2013 confirm a diagnosis of osteoarthritis of the right knee. Additionally, the Veteran’s treatment provider noted that the Veteran reported a 30-year history of bilateral knee pain. See the VA treatment records dated July 2013. With respect to in-service injury, although the Veteran has identified no specific cause of injury to the right knee, an August 2014 VA examiner indicated that “[t]he vigorous activities of military maneuvers including marching, running, wearing of heavy boots” aggravated the Veteran’s pre-existing left knee disability beyond its natural progression. However, the examiner did not address the etiology of the diagnosed right knee disability. The Veteran has not been afforded a VA opinion as to his right knee disability claim. As such, the Board finds that this matter must be remanded in order to provide the Veteran with a medical opinion as to the etiology of his claimed disability. 4. Entitlement to an initial rating in excess of 30 percent for service-connected left knee strain is remanded. With respect to the claim of entitlement to higher ratings for service-connected left knee strain, the Veteran was last afforded a VA examination in August 2014. VA treatment records, subsequently added to the claims file, document the Veteran’s complaints of worsening left knee symptomatology. See, e.g., the VA treatment records dated November 2015. Moreover, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Correia v. McDonald, 28 Vet. App. 158 (2016), in which the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing (and, if possible, with range of motion measurements of the opposite undamaged joint). Further, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court recently held that in addressing the nature of any flare-ups examiners must address the frequency, duration, characteristics, severity, and functional loss due to the flare-up. In light of the foregoing and the fact that the August 2014 examination report does not fully satisfy the requirements of Correia, Sharp and 38 C.F.R. § 4.59, the Veteran should be afforded new VA examination before a decision can be rendered on his initial rating claim. Prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all pertinent, outstanding records. The matters are REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Schedule the Veteran for a VA medical examination to determine the nature and etiology of his claimed psychiatric disability. The VA claims must be made available to the examiner for review in connection with the examination. After examining the Veteran and reviewing the record, the examiner should respond to the following: (a) Is it at least as likely as not that any current psychiatric disability had its onset in service or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not that any current psychiatric disability was caused by a service-connected disability, to specifically include the service-connected left knee disability? (c) If not, is it at least as likely as not that a current psychiatric disability is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a service-connected disability, to specifically include left knee disability? If the Veteran’s current psychiatric disability is aggravated by a service-connected disability, the clinician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The clinician must provide a rationale for each opinion given. In providing the requested rationale, the examiner must discuss the relevant evidence of record, to include the May 2015 disability benefits questionnaire (DBQ) completed by the private psychologist, which is discussed above. 3. Schedule the Veteran for a VA medical examination to determine the nature and etiology of his claimed sleep apnea. The VA claims must be made available to the examiner for review in connection with the examination. After examining the Veteran and reviewing the record, the examiner should respond to the following: (a) Is it at least as likely as not that any current sleep apnea had its onset in service or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not that any current sleep apnea was caused by a service-connected disability, to specifically include the service-connected left knee disability or medications used to treat that disability? (c) If not, is it at least as likely as not that any current sleep apnea is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a service-connected disability, to specifically include left knee disability or medications used to treat that disability? If the Veteran’s current sleep apnea is aggravated by a service-connected disability, the clinician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The clinician must provide a rationale for each opinion given. In providing the requested rationale, the examiner must discuss the relevant evidence of record, to include the May 2017 DBQ with attached nexus opinion from a private medical professional, which is discussed above. 4. Refer the VA claims file to an appropriate clinician for an opinion on the etiology of the claimed right knee disability. The clinician is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. Then, the clinician should respond to the following: (a) Is it at least as likely as not that any current right knee disability to include osteoarthritis had its onset in service, or within the year immediately following any period of service, or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not that any current right knee disability to include osteoarthritis was caused by a service-connected disability, to specifically include left knee disability? (c) Is it at least as likely as not that the Veteran’s current right knee disability to include osteoarthritis is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a service-connected disability, to specifically include left knee disability? If the Veteran’s current right knee disability to include osteoarthritis is aggravated by a service-connected disability, the clinician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The absence of evidence of treatment in the Veteran’s service treatment records cannot, standing alone, serve as the basis for a negative opinion. The clinician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the physician rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. Should the clinician decide that a physical examination of the Veteran is required to address these questions, one should be scheduled. The clinician must provide a rationale for each opinion given. 5. The Veteran should also be afforded a VA examination in order to determine the extent of his service-connected left knee strain. The examination should be conducted in accordance with the current disability benefits questionnaire, to include testing for pain on both active and passive motion, and in weight bearing and nonweight-bearing, consistent with 38 C.F.R. § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner must also address at what point in the arc of motion pain limits function both regularly and during flare-ups, even if a flare-up is not observed on that day. In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. K. CONNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel