Citation Nr: 18159781 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-02 507 DATE: December 20, 2018 ORDER Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for right knee pain is remanded. Entitlement to service connection for left knee pain is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has sleep apnea due to a disease or injury in service, to include specific in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1991 to August 1996. This matter is on appeal from a May 2015 rating decision, which denied entitlement to service connection for sleep apnea. 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. § 1131; 38 C.F.R. § 3.303(a). 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); 38 C.F.R. § 3.303. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for sleep apnea is denied. The Veteran contends that she has sleep apnea that is related to an in-service injury, event, or disease. 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 sleep apnea, the preponderance of the evidence is against finding that it began during active service, or that it is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). A review of the Veteran’s service treatment records does not reflect any complaints, findings, or treatment for any conditions related to sleep apnea. The Veteran served on active duty from July 1991 to August 1996. The Veteran’s March 1996 report of medical examination did not report any trouble sleeping. Furthermore, on her March 1996 report of medical history, the Veteran reported that she did not experience frequent trouble sleeping. A December 2012 VA treatment note reported that the Veteran presented for an evaluation of sleep apnea, as she had been snoring and waking up not feeling refreshed. The treating physician diagnosed the Veteran with sleep apnea. In September 2015, the Veteran submitted a notice of disagreement in which she stated that she suffered from excessive sleepiness and snoring while she was on active duty. In December 2016, the Veteran submitted a substantive appeal in which she reported that her sleep apnea began during service, as she stated that she used to fall asleep in the field in the prone position while on watch and while on duty. As previously described, the Veteran’s service treatment records show no evidence of treatment or diagnosis for sleep apnea. Furthermore, at her discharge in 1996, the Veteran reported that she did not have frequent trouble sleeping. Although the Veteran provided statements in 2015 that she suffered from excessive sleepiness while on active duty, the Board finds that the Veteran’s hindsight recollections from more than nineteen years after service are probatively outweighed by the contemporaneous service records that show that the Veteran did not suffer from sleep apnea in service. Furthermore, the Veteran did not provide any medical evidence indicating a link between sleep apnea and service. Thus, the Board finds that the Veteran does not have sleep apnea that had its onset in active service. REASONS FOR REMAND This matter is on appeal from a May 2015 rating decision, which denied entitlement to service connection for right knee pain and left knee pain. Entitlement to service connection for right knee pain is remanded. Entitlement to service connection for left knee pain is remanded. The Board finds that a remand is necessary before a decision on the merits of the claims can be reached. The Veteran contends that she is entitled to service connection for right knee pain and left knee pain. Having reviewed the record, the Board finds that additional development is required prior to appellate review. An August 1991 service medical record reported that the Veteran complained of burning knee pain with a duration of one week. The Veteran’s’ March 1996 report of medical examination reported that her lower extremities were normal except for a sore toe one her left foot. However, on her March 1996 report of medical history, the Veteran reported that her knees hurt sometimes when walking or running. She also reported occasional swelling and that she experienced cramps that started in her knees and spread throughout her leg. The Veteran was afforded a VA examination of her knees in May 2015. The Veteran reported to the examiner that the onset of her knee pain was during her active duty service and that she had been having “problems with her knees off and on since separation from active duty in 1996.” She complained of crepitus and intermittent swelling in both knees. The Veteran reported that her knee pain is aggravated by cold weather, prolonged standing, and prolonged sitting while driving. The examiner reported that the Veteran’s service treatment records show that she complained of knee pain in January and March 1996. The examiner described flare ups as “difficulty with prolonged standing, driving and negotiating stairs. Remains sedentary during flares when she is not at work.” The examiner found that the Veteran does not have a current diagnosis associated with her bilateral knee condition. The examiner opined that the Veteran’s bilateral knee condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner explained that the Veteran’s service treatment records show complaints of bilateral knee pain from only a specific time frame during service of January and March 1996. Furthermore, he explained that post-service treatment records are silent for knee problems. Therefore, the examiner found that there was insufficient evidence to indicate a nexus between complaints of knee pain during active duty and current complaints of knee pain. The Board finds that the May 2015 medical examination and opinion are inadequate for the following reasons. The Veteran reported to the examiner that the onset of her knee pain was during her active duty service and that she had been having “problems with her knees off and on since separation from active duty in 1996.” However, the VA examiner relied on the lack of post-service medical evidence for complaints of a bilateral knee disability, and thus, failed to address the Veteran’s contention of continuity of symptoms after service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir 2006) (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). As to the Veteran’s claim for service connection for right knee pain, the examination and opinion are also inadequate because the examiner overlooked an August 1991 service treatment record in which the Veteran reported of burning right knee pain that lasted one week. As part of the examiner’s rationale for his opinion that the Veteran’s current condition is less likely than not related to service, the examiner explained that the Veteran’s service treatment records show complaints of bilateral knee pain from only a specific time frame during service, which was January and March 1996. Thus, it appears the VA examiner’s opinion is based, in part, upon an in inaccurate factual premise and is inadequate for rating purposes. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Although the examiner was unable to render a diagnosis for the Veteran’s bilateral knee pain, he reported that her right knee pain and left knee pain significantly limited functional ability with flare ups and repeated use over time. He also documented the Veteran’s report of knee pain with prolonged standing, driving, and negotiating stairs. Even if the Veteran does not have a diagnosable knee disability, VA must consider whether the Veteran has functional impairment for which service connection may be granted. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018) (indicating that the term “disability” refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment, and pain alone may be a functional impairment). Thus, on remand, the examiner should assess both the Veteran’s right knee pain and left knee pain to determine whether either constitutes a functional impairment. Accordingly, a remand is warranted for a VA addendum opinion to address the deficiencies described in this decision, and provide rationale for the opinions reached. Notably, once VA undertakes the effort to provide an examination when developing a claim, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. 3. Return the claims file, including a copy of this remand, to the May 2015 VA examiner, or to a physician if that individual is unavailable, to provide an addendum opinion. (A full VA examination should not be scheduled unless it is deemed necessary by the physician or otherwise required by the evidence). It should be confirmed that such records were available for review. 4. The claims folder should be provided to the examiner for review of pertinent documents. The examination report should reflect that such a review was conducted. The examiner should provide opinions on the following: (a.) Identify any current disability associated with the Veteran’s right knee pain or left knee pain. If no such disability is identified, the examiner must indicate whether the Veteran’s reported right knee pain or left knee pain causes any functional impairment. (b.) For any knee disability diagnosed, or if it is determined the Veteran’s right knee pain or left knee pain causes functional impairment, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disability/functional impairment is etiologically related to active service. 5. The examiner must provide a robust rationale for the opinion. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 6. Once the above-requested development has been completed, the claim must be readjudicated. If any determination remains unfavorable to the Veteran, she and her representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on these claims for benefits, and be given an opportunity to respond to the SSOC. The case must then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Moore, Associate Counsel