Citation Nr: 1806443 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-23 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a compensable rating for right knee arthritis. 2. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1979 to June 1982, from June 1984 to May 1985, from January 2003 to September 2003, and from July 2004 to September 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated November 2010 and March 2012 of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in an October 2017 travel board hearing. A transcript of the hearing has been associated with the file. The Board notes that with respect to the issue of a compensable rating for right knee arthritis, the Veteran did not submit a notice of disagreement to the March 2012 rating decision. A statement of the case was issued July 2013, which included the issue of right knee arthritis. The substantive appeal was vague, as the Veteran indicated that he wanted to appeal all issues in the statement of the case, but then on the same form stated that his intent was to only appeal the issue of obstructive sleep apnea. The right knee arthritis claim was discussed at the October 2017 travel board hearing, and therefore, the Board will consider the issue as perfected for appeal. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran was last provided a VA examination in connection with his service-connected right knee arthritis in March 2012. During the October 2017 hearing, the Veteran reported that he experiences flare-ups which were not discussed at the 2012 VA examination. Given the indication of worsening symptoms, a more current examination should be provided. With respect to the Veteran's obstructive sleep apnea, the Board finds that a VA examination is needed. There is a current diagnosis of sleep apnea, testimony from the Veteran and his wife, and lay statements of record from service members, all describing witnessing what they considered OSA symptoms during service. There is one medical opinion of record. A private examiner opined that the Veteran has had obstructive sleep apnea since the age of 30, (which would be since 1991), that it is "related to his time in service/injury from service or secondary to a service connected disability." The opinion does not explain the rationale for these conclusions, some of which appear contradictory. A more comprehensive medical opinion should be sought. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any and all outstanding VA treatment records related to the Veteran's service connected right knee arthritis and claimed obstructive sleep apnea. The Veteran should also be afforded the opportunity to identify and/or provide any outstanding private evidence pertinent to his claims. 2. The AOJ should schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his right knee arthritis. The Veteran's electronic claims file should be made available to and reviewed by the examiner. The examiner is asked to specifically test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing for his right knee arthritis disability. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner also should provide commentary regarding symptoms, including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Any additional loss of motion with repetitive movement should be noted. The examiner should inquire as to periods of flare-up, and note the frequency and duration of any flare-ups. The examiner should estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion (stated in degrees) beyond what is shown clinically, consistent with the Court's holding in Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017). (There, the Court explained that case law and VA guidelines anticipate that examiners will offer flare-up opinions based on estimates derived from information procured from relevant sources, including lay statements of veterans, to ascertain adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. An examiner should do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. All opinions should be accompanied by a clear rationale. 3. The AOJ should provide the Veteran's file to an appropriate person to attempt to determine the etiology of the Veteran's obstructive sleep apnea. After reviewing the claims file, the reviewer is asked to offer an opinion as to the following: i.) whether it is at least as likely as not that the obstructive sleep apnea is etiologically related to, or had its onset during, the Veteran's active military service; ii.) whether it is at least as likely as not (i.e., probability of 50 percent) that the obstructive sleep apnea was caused OR aggravated by the Veteran's service-connected disabilities, (a suggested could be the Oct. 2017 letter from the Veteran's private care provider). In offering the opinions, the various statements concerning the Veteran's symptom presentation in service should be considered. The examiner should provide a complete rationale for any opinions expressed. 4. After completion of the above and any further development deemed necessary by the AOJ, the claims should be re-adjudicated. If any benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. 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 (2012). _________________________________________________ M. E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).