Citation Nr: 1807445 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-17 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for right knee. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Yonelle Moore Lee, Associate Counsel INTRODUCTION The Veteran had active service during the Gulf War Era. He served in the Marine Corps from November 1993 to October 1997; the Navy from June 2003 to April 2004; and the Army from June 2006 to September 2007. The Veteran served in both Kuwait and Iraq, including during Operation Iraqi Freedom. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Houston, Texas Department of Veterans Affairs Regional Office (RO). A videoconference hearing before the undersigned Veterans Law Judge was held in June 2016. A transcript of the hearing has been obtained and associated with the claims file. The issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving doubt in the Veteran's favor, the Veteran's right knee disability is related to service. CONCLUSION OF LAW The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION II. Legal Criteria and Analysis Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §3.303(d) (2017). Certain chronic diseases, to include arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). In this case, the Veteran's diagnosis of degenerative joint disease in the right knee is considered a chronic disease under 38 C.F.R. § 3.309(a); therefore, the provisions of subsection 3.303(b) for chronic disabilities apply, and a claim for this disability may be established by evidence of a continuity of symptomatology since service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran asserts that he has experienced right knee problems since sustaining a right knee injury while on deployment in Kuwait in 2003. VA treatment records show that the Veteran was noted to have mild degenerative changes in the left knee as early as February 2013 and that he suffered a meniscus tear which was diagnosed via Magnetic Resonance Imaging scan (MRI) in 2014. Additionally, a November 2014 operative report, documenting surgical intervention for his meniscus tear, notes a diagnosis of grade two chondromalacia in the right knee. As such, the Board finds that a current disability has been shown. The Veteran's service treatment records show that he began complaining of right knee pain during his first period of active service in January 1997, at which time he was assessed with a strain of the biceps femoris. A service treatment record from January 2004 documents the Veteran's reports of pain in his knee after falling several months earlier. Based on the Veteran's service treatment records, the Board concedes the Veteran's reported in-service event. What remains for consideration is whether the Veteran's current right knee disability is related to the documented in-service right knee injuries. Based on the evidence of record, the Board finds that there is sufficient competent and credible medical and lay evidence to establish that there is continuity of symptoms from the time of service until the Veteran's diagnosis of mild degenerative changes in November 2013. VA treatment records show that the Veteran first sought outpatient treatment for his right knee in May 2005, at which time he reported first injuring his knee while in the U.S. Navy. Records show that the Veteran continued to receive relatively regular outpatient treatment for his right knee through 2013, when he was diagnosed with mild degenerative changes in November of that year. The Board notes that the Veteran had another period of active duty, with a deployment , from June 2006 to September 2007. The record as it currently stands, does not contain any service treatment records for that period, aside from a post-deployment health assessment from 2008, which notes that the Veteran denied any symptoms of swollen or painful joints during his deployment. The Board acknowledges that on a September 2010 VA examination, the Veteran's right knee was assessed as normal and there were no findings on X-ray at that time. However, the examiner did not take into account the Veteran's continuous treatment for his right knee since his separation from active service in 2004. The Veteran was afforded a second VA examination in March 2015, at which time he was noted to have a right knee meniscal tear status post arthroscopic surgery with residual decreased range of motion; X-Rays were not conducted during the examination. The examiner opined that the Veteran's right knee disability was at least as likely as not related to his active service, explaining that the Veteran had numerous episodes of treatment during service for his right knee and that he has received continuous treatment since separation. Having carefully considered the claim in light of the record and the applicable law, the Board finds that the following evidence should be afforded the greatest amount of weight: (1) the Veteran's medical evidence of a current disability, (2) his documented in-service right knee injury and treatment, (3) the lack of any evidence of an intervening event, (4) his competent and credible history of relevant symptoms during and ever since service discharge, (5) the March 2015 examiner's opinion the Veteran's disability was related to his active service and (6) the VA outpatient treatment records that show the Veteran began receiving treatment in May 2005 and was eventually diagnosed with degenerative arthritis in November 2013. Regarding the Veteran's assertions of continuous symptoms of a right knee disability since service, the Board notes that the Veteran, as a lay person, is competent to report on matters observed or within his personal knowledge. See 38 C.F.R. § 3.159 (a)(2); Barr v. Nicholson, 21 vet. App. 303 (2007). See also Layno, supra; Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Veteran is also competent to testify as to observable symptoms or injury residuals. Thus, the Veteran is without a doubt competent to report that he experienced right knee pain during service and that it has existed from service to the present. See 38 C.F.R. § 3.159(a)(2); Charles v. Principi, 16 Vet. App 370, 374 (2002). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469. Here, the Board finds that the Veteran has consistently provided competent and credible evidence that he has had continuous symptoms of a right knee disability since his military service, and the Board finds no reason to question the veracity of such statements. See Charles, supra; Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). This grant is based on that continuity of symptomatology. Thus, resolving any reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for a right knee disability are met. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for a right knee disability is granted. REMAND The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered regarding the other remaining issue on appeal. The Veteran contends that his sleep disorder began in service while deployed in Iraq and has continued since his discharge from service. The Veteran further asserts that he was treated for sleep disturbances while on active duty. The Veteran's primary care physician diagnosed him with sleep apnea.. In addition to two of his own written lay statements regarding his sleep apnea, the Veteran also provided several written lay statements that attested to his difficulty sleeping while on active duty. After review of the evidence currently of record, the Board finds that an additional VA examination with an opinion in necessary prior to adjudicating this appeal on the merits. Further, service connection has recently been granted for asthma. On the evidence, the Board finds that the issue of secondary service connection has been raised. The Board finds that the examiner should address these two aspects of the claim. Of record previously, an examiner provided an opinion regarding the contended connection between sleep apnea and the service-connected psychiatric disability. In light of the remand, updated VA treatment records should also be obtained. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, afford the Veteran a VA examination to determine the nature and etiology of his sleep apnea. The AOJ should then review the obtained VA examination and opinion to ensure that the opinion contained therein is responsive to the question posed. A complete rationale for all opinions expressed should be provided. The rationale for this opinion must include some discussion of the Veteran's June 2016 testimony and related buddy statements regarding sleep problems during service. Upon review of pertinent medical history, the examiner should provide a response to the following: a) Is it as least as likely as not (50 percent probability or greater) that a sleep apnea disability manifested during active service or is otherwise causally or etiologically related to his active service, to include the Veteran's reports of sleep disturbance therein and considering the Veteran's service in the Southwest Asia theater of operations. b) If not, is it as least as likely as not that a sleep apnea disability was caused or aggravated by the service-connected asthma. 3. Then readjudicate the issue on appeal, with consideration of the complete record. If the benefits sought remain denied, the Veteran and his representative should be furnished an appropriate SSOC and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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 the appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs