Citation Nr: 18158808 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 17-21 488 DATE: December 18, 2018 ORDER New and material evidence has been received to reopen a previously denied claim of service connection for a right knee disability, and the application to reopen is allowed; to this extent only, the claim is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for vertigo, to include nausea and dizziness, is denied. Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to an initial rating higher than 10 percent for a lumbar spine disability is remanded. FINDINGS OF FACT 1. In an unappealed May 2012 rating decision, the RO denied the Veteran’s original claim for service connection for a right knee disability. 2. Evidence received since the final May 2012 rating decision is new and material, and raises a reasonable possibility of substantiating the claim of service connection for a right knee disability. 3. Pure tone auditory thresholds do not meet the criteria to establish that the Veteran has a current left ear hearing loss disability for VA compensation purposes. 4. Chronic symptoms of right ear hearing loss and tinnitus were not shown during service; did not manifest to a compensable degree within one year of service separation; were not continuous since service; manifested many years after service separation; and are not causally or etiologically related to service. 5. Chronic symptoms of vertigo were not shown during service; did not manifest to a compensable degree within one year of service separation; were not continuous since service; manifested many years after service separation; and are not causally or etiologically related to service. 6. Resolving all reasonable doubt in the Veteran’s favor, he had symptoms of sleep apnea during service and since service separation. CONCLUSIONS OF LAW 1. The May 2012 rating decision denying service connection for a right knee disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2018). 2. The additional evidence received since the May 2012 rating decision is new and material, and the claim of service connection for a right knee disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria to establish service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2018). 4. The criteria to establish service connection for tinnitus are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2018). 5. The criteria to establish service connection for vertigo are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2018). 6. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1994 to October 2003. The Board notes that a May 2018 statement of the case denied the Veteran’s claims for increased ratings for right ankle, right hand ring finger, and right-hand ring finger scar disabilities, as well as service connections claims for right eye glaucoma and an acquired psychiatric disorder, to include posttraumatic stress disorder. The Veteran submitted an untimely substantive appeal in August 2018, and the RO notified him that his VA Form 9 was untimely by an August 14, 2018 correspondence. Accordingly, these issues are not in appellate status. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2018). If the Board issues a decision on appeal, confirming the RO’s decision, then the Board’s decision subsumes the RO’s decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board’s decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, the RO denied the Veteran’s service connection claim for a right knee disability in a May 2012 rating decision, finding that the evidence did not show a current diagnosed disability; an event, disease, or injury in-service; or a nexus. The evidence considered at the time included the Veteran’s original claim for compensation; available service treatment records from December 1994 to October 2003; 2010 and 2011 private treatment records; and, a February 2012 VA examination report. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the May 2012 rating decision became final. See 38 U.S.C. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received since the May 2012 denial of the claim includes the Veteran’s petition to reopen his claim for a right knee disability, private treatment records, and lay assertions from the Veteran, his spouse, and service members. This evidence, specifically private treatment records showing a diagnosis of posttraumatic residual degenerative joint disease of the right knee complicated by mild instability, pain, and limited range of motion, which the Veteran’s chiropractor noted was related to his reported in-service knee injury, relates to the unestablished elements of a current disability and a lack of nexus in the prior denial. The additional evidence received since the May 2012 final denial is therefore new and material. The criteria for reopening the claim for service connection for a right knee disability are met. 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 service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Where a current disability due to hearing loss is present, service connection can be granted for a hearing loss disability where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). Hearing loss, tinnitus, and vertigo are considered “chronic diseases” under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give an appellant the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Bilateral Hearing Loss and Tinnitus The Veteran asserts that he has hearing loss, which he attributes to acoustic trauma sustained during active service. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence shows that the Veteran does not have a current left hearing loss disability as defined by the VA regulatory criteria at 38 C.F.R. § 3.385. Nevertheless, he has a current diagnosis of a right ear hearing loss for VA purposes and can self-diagnose tinnitus because its symptoms are observable through the senses. However, the weight of the credible lay and medical evidence demonstrates that symptoms of right ear hearing loss and tinnitus were not chronic during service and have not been continuous since service separation. The Veteran’s service treatment records (STRs) showed that his hearing was within normal limits at separation from active duty, and showed no hearing loss or tinnitus complaints during service, and his separation examination showed normal ears. The Board notes that the Veteran’s exposure to hazardous noise during service is conceded. Notably, his service records specifically document that he was routinely exposed to noise. Private treatment records dated in March 2012 showed that the Veteran had no ear discharge; no ear pain; no tinnitus; and, no hearing loss. Additional treatment records dated in August 2013 indicate that the Veteran had a growth behind the left ear that started about a month earlier, but he had no earache and no trouble hearing. In addition, private treatment records from March 2012 to February 2014 continuously indicated that the Veteran’s hearing for conversational voices was normal. In a statement received by VA in June 2014, the Veteran reported that he had ringing in his ear (without specifying which one) after a 20-round mission during service, when it was washed out with peroxide. He noted that since that day he has had to continuously wash his ear with peroxide. He further stated that since leaving the military he had worked in factories and plants where the “noises [were] extremely high” and had failed several hearing tests while he was employed at these jobs. Lastly, he stated that he averaged at least two or three ear infections per year. At the July 2014 VA audiology examination, pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 30 30 20 15 LEFT 35 30 25 20 10 Speech audiometry revealed speech recognition ability of 96 percent in the right ear, and 100 percent in the left ear. Based on these objective testing, the Board notes that left ear hearing loss for VA purposes was not demonstrated. However, as noted above, since the pure tone threshold in decibels at 500 Hz was 40, right ear hearing loss for VA purposes was shown. The VA audiologist opined that the right ear hearing loss was not related to service and explained that in-service audiograms, to include the Veteran’s separation examination, showed normal hearing bilaterally. The examiner concluded that the late onset of hearing loss was less likely related to service. Regarding tinnitus, the Veteran reported at the July 2014 examination that it started “a while ago.” The examiner opined that the tinnitus was not related to noise exposure in service, since tinnitus was known to be a symptom associated with hearing loss, which in this Veteran was not related to service. In support of his claim, the Veteran submitted a June 2015 opinion authored by his chiropractor, who indicated that the Veteran was exposed to acoustic trauma for nine years during service and suffered from progressive hearing loss and bilateral tinnitus. The chiropractor further stated that the Veteran hearing was tested in a room with normal day to day noise and that “256 cps, 512 cps stimuli” were employed along with spoken words, and whispered words at a distance of five feet, which revealed bilateral hearing loss under normal condition of 40 percent, bilaterally. The chiropractor opined that it was more likely than not that the Veteran’s bilateral hearing loss and tinnitus were directly and causally related to the acoustic trauma he sustained in-service. In his April 2017 substantive appeal, the Veteran stated that during his July 2014 VA examination, he was told that he had hearing loss and tinnitus, but his claim was still denied. Regarding the left ear, the Board finds that the objective and competent medical evidence does not demonstrate left ear hearing loss for VA purposes. In reaching this conclusion, the Board assigns no probative weight to the chiropractor’s testing or opinion regarding the presence of left ear hearing loss. Notably, the chiropractor is not a state-licensed audiologist, and there is no indication he used the proper testing, to include the Maryland CNC test, to diagnose hearing loss. On the contrary, the Board assigns high probative value to the July 2014 VA examination report, which was conducted by a VA licensed audiologist, who used the required Maryland CNC test and a pure tone audiometry test. Accordingly, the Board finds that the objective and competent medical evidence shows no left ear hearing loss for VA purposes. At no point have any audiometric results demonstrated that left ear auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) were 40 decibels or greater; or that the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz were 26 decibels or greater; or that speech recognition scores using the Maryland CNC Test were less than 94 percent. “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (recognizing the disability could arise at any time during the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (recognizing disabilities that occur immediately prior to filing of a claim). A hearing loss disability is diagnosed primarily on objective clinical findings and audiometric testing; thus, while the Veteran is competent under the facts of this case to relate symptoms of left ear hearing loss that he experienced at any time, he is not competent to diagnose a hearing loss disability because such diagnosis requires specific medical knowledge and training in audiology and must be supported by objective clinical findings and audiometric testing. The Board recognizes that the Veteran has left ear hearing difficulty, but such simply does not rise to the level of a hearing loss disability for VA purposes. Because a left ear hearing loss disability as defined by the VA regulatory criteria at 38 C.F.R. § 3.385 is not demonstrated in this case, service connection is not warranted for left ear hearing loss. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Regarding the right ear hearing loss and tinnitus, the Board notes that the first documented post-service complaint of hearing impairment was not until June 2014, at which time the Veteran specifically stated that he was exposed to extreme noise post-service and failed hearing tests at his post-service jobs. Furthermore, during his July 2014 VA examination, he did not specify an onset date for his hearing loss and reported only that his tinnitus began “a while ago.” The evidence also does not show that right ear hearing loss or tinnitus manifested to a compensable degree within one year of service separation. As indicated, the earliest reports of hearing loss and tinnitus were not shown until 2014. An objective diagnosis of right ear hearing loss based on audiogram findings was not rendered until June 2014, approximately a decade after separation from active duty service. Although the Board notes the Veteran’s lay reports that his tinnitus and hearing loss began in-service, the Board assigns more probative weight to the Veteran’s contemporaneous statements made for medical purposes, where he specifically denied having hearing loss and tinnitus until 2014, than his statements made to VA in support of this appeal of the denial of compensation benefits. See Fed. R. Evid. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (“[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board’s reasons.”)); Pond v. West, 12 Vet. App. 341, 345 (1999) (interest may affect the credibility of testimony). For these reasons, the criteria for presumptive service connection under 38 C.F.R. § 3.303(b) based on either chronic symptoms in service or continuous symptoms since service have not been met, and presumptive service connection for right ear hearing loss and tinnitus under the provisions of 38 C.F.R. § 3.309(a) is not warranted. The weight of the evidence is also against finding that service connection is warranted on a direct basis. Although the Veteran is competent to report symptoms of hearing loss and can self-diagnose tinnitus, he is not competent to offer an opinion as to the etiology of his hearing loss and tinnitus, which involves making findings based primarily on medical knowledge of auditory disorders. The Veteran is not shown to possess the requisite medical expertise to render a competent medical opinion regarding the relationship between his current right ear hearing loss or tinnitus and active service. Furthermore, he specifically admitted that he was exposed to extreme noise working in factories and plants post-service. In addition, for the same reasons discussed above, the Board assigns no probative weight to the June 2015 chiropractor’s opinion. To the contrary, the July 2014 VA examiner, an audiologist, opined that the Veteran’s right ear hearing loss is less likely related to any acoustic trauma sustained during service, approximately a decade earlier. The examiner considered the Veteran’s lay assertions and rendered a negative opinion supported by a rationale explaining that delayed onset of hearing loss could not be related to service. Similarly, regarding tinnitus, as aforementioned, the Veteran specifically denied tinnitus for years after service, and although he later reported tinnitus began in-service, the Board finds these statements not credible, especially given his lay reports of exposure to extreme noise post-service. In addition, the July 2014 VA examiner concluded that the tinnitus was a symptom of his hearing loss, which is unrelated to service. As such, the Board concludes that the July 2014 VA audiology opinion outweighs the lay evidence and the private chiropractor’s opinion in this case. As the preponderance of the evidence is against the claims, there is no reasonable doubt to be resolved, and the claims are denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Vertigo with Dizziness and Nausea The Veteran asserts that he has vertigo manifested by dizziness and nausea that is related to his active duty service. The Veteran has a current diagnosis of vertigo. See, e.g., private treatment records dated in May 2012. However, the weight of the credible lay and medical evidence demonstrates that symptoms of vertigo were not chronic during service and have not been continuous since service separation. The Veteran’s service treatment records (STRs) showed that his hearing was within normal limits at separation from active duty, and showed no hearing loss or tinnitus complaints during service, and his separation examination showed normal ears. A careful review of the Veteran’s STRs revealed no complaints, treatment, or diagnosis for vertigo or symptoms of dizziness and nausea. Post-service private treatment records dated in March 2012 specifically indicate “no vertigo.” Thereafter, in May 2012, it was noted that the Veteran had no past medical history, but complained of dizziness and lightheadedness that started a day earlier. The medical professional noted that this happened when the Veteran turned his head to the right side and that he was suffering from sinus congestion and sinus drainage for approximately a week. The Veteran reported some ear pressure and headache, but no other associated symptoms such as diarrhea, fever, or chills. The medical professional stated that the Veteran was positive for vertigo, sinus congestion, ear pressure, nausea, and vomiting. The assessment was acute vertigo, sinusitis, nausea, and vomiting. The medical professional further stated that the neurological examination was “completely normal,” and this was a typical presentation of a sinus infection. In a statement received by VA in June 2014, the Veteran stated that he remembered having headaches, ringing in his ears, and feeling dizzy after a 20-round mission in-service. He stated that he was sent to the medic who washed his ear out with peroxide. He stated that he was diagnosed with vertigo and was prescribed medications for nausea and dizziness. Based on the foregoing, the Board finds that presumptive service connection for vertigo is not warranted. The Veteran’s service treatment records are silent for any complaints, treatment, or diagnosis of vertigo or associated symptoms. The evidence also does not show that vertigo manifested to a compensable degree within one year of service separation. Post-service, the first documented complaint of vertigo was not until 2012, approximately nine years after discharge from active duty. Although the Board notes the Veteran’s lay reports that vertigo began in-service, the Board assigns more probative weight to the Veteran’s contemporaneous statements made for medical purposes, where he specifically denied having vertigo in March 2012 and stated that the symptoms associated with his May 2012 diagnosis began approximately a day earlier. See Fed. R. Evid. 803(4); Rucker, 10 Vet. App. at 73; Pond, 12 Vet. App. at 345. For these reasons, the criteria for presumptive service connection under 38 C.F.R. § 3.303(b) based on either “chronic” symptoms in service or “continuous” symptoms since service have not been met, and presumptive service connection under the provisions of 38 C.F.R. § 3.309(a) is not warranted. The weight of the evidence is also against finding that service connection is warranted on a direct basis. Notably, the isolated episode of vertigo in 2012 was diagnosed as “acute” in nature and made no reference to the Veteran’s service or chronic symptoms. Moreover, the medical professional explained that the Veteran’s vertigo at the time was directly related to his sinus infection. Additional private mental health treatment records dated in June 2015 indicated that the Veteran reported feelings of dizziness, unsteadiness, and lightheadedness, which were reported to occur in the context of anxiety attacks. The Veteran has asserted that his vertigo is related to military service. However, his lay assertions that vertigo began in-service are contradicted by the competent and credible evidence of record. A mere conclusory generalized lay statement that a service event or illness caused the claimant’s current condition is insufficient to establish medical etiology or nexus. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Therefore, the Board finds the Veteran’s lay opinion regarding nexus is not competent or probative. The Board acknowledges that the Veteran has not been provided with VA examination for vertigo. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Here, there is simply no medical evidence establishing that an event, injury, or disease that occurred in service was related to the Veteran’s isolated episode of vertigo almost a decade later. A mere conclusory generalized lay statement that military service caused the claimant’s current condition is insufficient to require an examination under McLendon. Waters, 601 F.3d at 1278-79 (rejecting appellant’s argument that his “conclusory generalized statement that his service illness caused his present medical problems was enough to entitle him to a medical examination under the standard of [38 U.S.C. § 5103A(d)(2)(B).]”). “[A] claimant has the responsibility to present and support a claim for benefits.” See 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant’s general evidentiary burden to establish all elements of the claim). As the preponderance of the evidence is against the claim for service connection for vertigo, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Sleep Apnea The Veteran asserts that his currently diagnosed sleep apnea had its onset during active duty. The Veteran has a current diagnosis of sleep apnea. See e.g., January 2005 private polysomnography report. After a careful review of all the evidence, lay and medical, the Board finds that symptoms of the currently diagnosed sleep apnea had their onset during active duty service. The Veteran’s service treatment records are silent to any complaints, treatment, or diagnosis of sleep apnea. A January 2005 polysomnography report noted that the Veteran had a history of loud snoring and stopping breathing in his sleep. The sleep study confirmed a diagnosis of severe obstructive sleep apnea. Post-service treatment records dated in March 2012 noted that the Veteran was diagnosed with sleep apnea in 2005 and was prescribed a CPAP machine since that time. The diagnosis was rendered after the Veteran went to the ENT with complaints of snoring. In a March 2014 statement, the Veteran’s spouse indicated that she was married to him for fifteen years, to include during his time on active duty. She stated that since she met him he never slept well, which she described as averaging about three to four hours of sleep per night, and even during those hours, he tossed and turned, and snored “very very loud.” She additionally noted that he always complained of dry and sore throat when he woke up as well as headaches. She further noted that he was always tired during the day and called her to tell her he felt sleepy. She indicated that one day she began reading about loud snoring and came across information about sleep apnea, which concerned her, since many of the symptoms described were present. She noted that she scheduled the Veteran for a sleep study the following day, which confirmed a diagnosis of sleep apnea. In statements received by VA in September 2015, two servicemembers who were the Veteran’s roommates during service indicated that they witnessed his loud snoring that could be heard across the hall as well as him waking up gasping for air like he had stopped breathing. The Board notes that both the Veteran’s spouse and servicemembers are competent to describe witnessing incidents of the Veteran snoring, stopping to breathe, or that he was fatigued, as they would have observed those symptoms firsthand. See Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds these lay assertions credible. The Board additionally notes that proof of symptoms in service that are later diagnosed may be evidence of service “incurrence.” See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The finding that the Veteran has had sleep apnea symptoms, particularly to include snoring and apnea episodes in-service, as well as the competent and credible statements of his loud snoring while in service, is supportive of the claim overall, because it tends to show that the same symptoms that began in service were the basis for the later diagnosed sleep apnea. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements are competent on in-service and post-service symptoms - dizziness, loss of balance, hearing trouble, stumble and fall, and tinnitus - that were later diagnosed as Meniere’s disease). Significantly, the Board notes that the Veteran’s sleep apnea was formally diagnosed approximately only 14 months after his separation from active duty. Accordingly, based on the competent and credible lay and medical evidence on record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that his sleep apnea had its onset during active service. REASONS FOR REMAND The Board finds that a remand is necessary in order to provide the Veteran with VA examinations for his claims for service connection for a right knee disability and increased rating for a lumbar spine disability. Right Knee In February 2012, the Veteran underwent a VA examination, at which time the examiner noted a diagnosis of a right knee strain since February 2002, but failed to determine whether there was a current diagnosis at the time of the examination. The examiner opined that the current reports of pain were less likely than not related to the same pain he had while on active duty, since a contusion and abrasion normally heal without any long-term effects. In a January 2015 opinion, the Veteran’s chiropractor stated that the Veteran sustained an injury to his right knee during service and suffered from progressive pain and dysfunction since that time. The chiropractor rendered a diagnosis of posttraumatic residual degenerative joint disease of the right knee complicated by mild instability. The chiropractor then opined that the diagnosed disability was more likely than not directly and causally related to the Veteran’s military service. However, the Board does not find either opinion adequate. First, the February 2012 VA examiner acknowledged only pain, but did not address the objective evidence of limitation of motion. Notably, in April 2018, the Federal Circuit issued a precedential decision holding that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment.). Furthermore, the VA examiner stated that contusion and abrasions “normally” heal without any long-term effects, but failed to address the Veteran’s competent lay assertions that his knee pain was present since service. Regarding the private chiropractor’s opinion, the Board notes that the available medical evidence does not support the chiropractor’s assertion that the Veteran has degenerative joint disease of the right knee. The chiropractor did not associate any studies or test results with the opinion, and the only x-ray evidence of record, which was associated with the February 2012 VA examination, failed to show arthritis. Moreover, there is no indication that the chiropractor reviewed the claims file or the Veteran’s service treatment records. As such, the Board does not find this opinion to be well-informed regarding the nature and etiology of the Veteran’s right knee disability. Lumbar Spine The Veteran was last provided with a VA examination for his lumbar spine in February 2012. Although the duty to assist does not require that a claim be remanded solely because of the passage of time, the Board finds that in this instance, a contemporaneous VA medical examination is warranted to determine the current severity of the Veteran’s lumbar spine disability, given the subsequent private medical treatment records and lay assertions by the Veteran and his spouse suggesting that the disability increased in severity since the February 2012 VA examination. The matter is REMANDED for the following action: 1. Provide the Veteran with a VA examination to determine the nature and etiology of his right knee disability. The claims file must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all currently diagnosed right knee disabilities. In doing so, please also clarify whether the Veteran has arthritis of the right knee. (b) For each currently diagnosed right knee disability, provide an opinion as to whether it is at least likely as not (50 percent probability or higher) that the disability had its onset during active duty service or is otherwise causally or etiologically related to service. In doing so, please address the documented February 2002 in-service injury as well as the Veteran’s lay reports of continuous symptoms since that time. A complete rationale for all opinions must be provided. 2. Then, provide the Veteran with a VA examination to identify the severity of his lumbar spine disability. The claims file must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following: Elicit from the Veteran all signs and symptoms of his lumbar spine disability throughout the pendency of the appeal from January 2013. Test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. In doing so, also obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. To the extent possible, identify any symptoms and functional impairments due to the lumbar spine disability alone and discuss the effect of the Veteran’s lumbar spine disability on any occupational functioning and activities of daily living. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel