Citation Nr: 1807733 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-14 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right knee injury. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for a thyroid disorder, to include thyroid cancer. 5. Entitlement to nonservice-connected disability pension. REPRESENTATION Appellant represented by: Colin Kemmerly, Attorney ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1, 1991, to September 27, 1991, with additional periods of Active Duty for Training (ACDUTRA), including a period from January 18, 2002, to May 10, 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2011 and April 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Board remanded the claim for service connection for a right knee disorder for further development, which has been completed. In the October 2015 decision, the Board noted that in an April 2013 rating decision, claims of service connection for sleep apnea, PTSD, thyroid cancer, and a non-service connected pension had been denied. An October 2013 NOD was submitted, followed by an August 2015 statement of the case (SOC). The Board indicated the Veteran had not filed a substantive appeal with respect to those issues; however, a substantive appeal was submitted in October 2015 and thereafter the issues were certified to the Board. Thus, those issues are presently before the Board. Additional evidence received by VA following the last supplemental statement of the case in September 2016 and certification to the Board in November 2016 was accompanied by a waiver. The Board may review this evidence in the first instance. See 38 C.F.R. § 20.13104 (2017). The issues of entitlement to service connection for sleep apnea, a psychiatric disorder, a thyroid disorder, and entitlement to nonservice-connected disability pension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A right knee disability was not incurred in, and is not otherwise related to, the Veteran's active service. CONCLUSION OF LAW The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159 (b). Notice was provided by standard letter dated in April 2010. VA's duty to assist has also been satisfied. The Veteran's service treatment records and VA treatment records have been obtained. The Veteran has submitted relevant private medical records. The Veteran was provided a VA examination in June 2016. The Veteran's attorney has challenged the adequacy of the June 2016 opinion on the basis that the examiner failed to provide his credentials to establish his opinion as competent evidence and that opinion did not contain sufficient detail or analysis to support the conclusions. The Board finds both arguments without merit. The June 2016 opinion was based upon consideration of the Veteran's prior medical history and examinations, and his self-reported history as it related to his knee, and it provides a sufficiently detailed description of the disability so that the Board can make a fully informed evaluation of the claimed disability. The examiner supported his conclusions with reasoned analysis. For this reason, the opinion is adequate. See Monzingo v. Shinseki, 26 Vet. App. 97, 105(2012); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301(2008); Barr v. Nicholson, 21 Vet. App. 303, 311(2007). Further, despite the challenge to the credentials and competence of the VA medical professional (a medical doctor) who conducted the June 2016 examination, the Board finds that the examiner was competent and has found no valid reason to doubt this. II. Analysis The Veteran contends that his current right knee disability had its onset during service and is related to the in-service February 2002 knee injury. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). "To establish a right to compensation for a present disability, a veteran must show: '(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'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service treatment records show the Veteran injured his right knee in February 2002 while running during physical training. He was diagnosed with retropatellar pain syndrome. The Veteran was afforded a June 2016 VA examination in which he was diagnosed with right knee medial meniscus tear with para-meniscal cyst. He reported that in service while training, he twisted his knee and received physical therapy, crutches and a knee brace, but that no diagnosis was explained. The examiner noted a 2016 MRI showed an oblique tear of the posterior horn medial meniscus with associated posterior para-meniscal cyst. The examiner concluded the Veteran's right knee disability was not caused by service and less likely than not related to the 2002 incident. The examiner explained that an old tear of the meniscus will likely cause degenerative changes visible on X-rays after many years. However, the Veteran's recent X-rays show mild osteoarthritic changes, which suggest a more recent event/injury caused the meniscal tear. The Board finds the June 2016 VA examiner's opinion probative as it was based on a review of the record and interview and examination of the Veteran. Moreover, the examiner clearly considered the Veteran's reported history of his injury and symptoms when assessing the etiology of the diagnosed condition. The examiner's opinion is the only competent evidence of record regarding the etiological relationship between the current knee disability and the injury in service. To the extent that the Veteran has otherwise asserted that his right knee disability is related to his active service, the Board finds he is not competent to provide a medical nexus because he does not possess the requisite medical training or expertise to provide such a complex medical opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As a lay person, he lacks the medical training and expertise to provide a complex medical opinion such as determining the etiology of a meniscal tear. In any event, even assuming the Veteran is competent to address the etiology of his right knee medial meniscus tear with para-meniscal cyst that was diagnosed many years after service, the probative value of his opinion is heavily outweighed by the examiner's opinion due to the examiner's medical expertise and training, and the examiner's consideration of the relevant medical evidence. In sum, the evidence does not establish that the current right knee disability is directly related to service, to include a knee injury therein. There is no doubt to be resolved; service connection for a right knee disability is not warranted. ORDER Service connection for a right knee injury is denied. REMAND Sleep Apnea The Veteran contends his current obstructive sleep apnea had its onset during service. He submitted a May 2015 statement in which he indicated that during service, he reported to his commanders that he had difficulty breathing on several occasions. He stated he was later diagnosed with sleep apnea and underwent surgery to assist the disorder, but still requires the use of the CPAP machine. A November 2013 VA treatment record showed a diagnosis for obstructive sleep apnea and approved CPAP therapy. Further, a January 2014 record showed a history of sleep apnea. The Veteran's service treatment records are silent for complaints, diagnosis or treatment for sleep apnea. The record shows the Veteran has a history of diagnosed obstructive sleep apnea and he has submitted a statement supporting that the disorder had its onset during service. As he has not been afforded a VA examination or opinion addressing his contention, one is required. In view of the evidence, the Board finds it necessary to remand the claim for a VA examination and medical opinion addressing his contention that his sleep apnea started in service. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). B. Psychiatric Disorder The Veteran asserts that he has PTSD due to service. The Veteran's service treatment records are silent for psychiatric complaints or treatment. Although a firm diagnosis has not been established, a March 2017 VA treatment record indicated the Veteran tested positive for PTSD during a PTSD screening. VA medical records also show a diagnosis of depressive disorder. The issue of entitlement to service connection for PTSD has been recharacterized as service connection of a psychiatric disorder in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran reports two stressful events occurred during active service. He reports that a friend with whom he had trained was killed in Iraq by a grenade. The Veteran has indicated that he did not personal witness the incident involving the hand grenade; therefore, no further attempt to corroborate this claimed stressor is needed. Additionally, he reports that a close friend committed suicide during service. He has not identified this individual and did not complete the VA Forms 21-0781 (statement in support of claim for service connection for posttraumatic stress disorder (PTSD) previously sent to him. Thus, there currently is insufficient information to send to the U.S. Army and Joint Services Records Research Center (JSRRC) to corroborate this event. As the appeal is being remanded for other matters, he should be afforded another opportunity to provide further information about his claimed stressor. The Veteran is advised that the duty to assist is a two-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Failure to cooperate with VA and provide the necessary information and evidence to support his claim may have a negative impact. A VA examination is needed to determine if the Veteran has a psychiatric disorder related to service. See McLendon, 20 Vet. App. at 81. C. Thyroid Disorder The Veteran contends he had thyroid cancer is related to service, and specifically to the different vaccinations he took during service, including for typhoid, yellow fever, rubella and anthrax. The available evidence does not reveal a diagnosis of thyroid cancer. However, there are diagnoses of hypothyroidism and adenoma of the thyroid gland (non-toxic). The issue of entitlement to service connection for thyroid cancer has therefore been recharacterized as shown on the title page. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). The Veteran's service treatment records are silent for a diagnosed thyroid disorder. A VA treatment record from November 2011 indicated the Veteran underwent thyroid surgery (thyroid lobectomy). A December 2013 record shows complaints of tightness in his throat which had worsened over time. The claim is remanded for a VA examination to determine whether the Veteran has a current thyroid disorder related to service. D. Nonservice-connected Pension The Board notes that the Veteran currently has no service-connected disabilities. As the four service connection claims addressed above are being remanded, the claim for nonservice-connected pension is inextricably intertwined with these claims and also must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board would emphasize that nonservice-connected pension benefits include a consideration of all of the Veteran's disabilities, both service-connected and nonservice-connected, prior to adjudicating his nonservice-connected pension claim. Further, where a veteran is entitled to both compensation and pension, only the greater benefit will be awarded, unless the veteran specifically elects the lesser benefit. See 38 C.F.R. § 3.151 (a). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VA Form 21-0781 and request that he provide specific details about claimed stressors associated with his PTSD. 2. Upon receipt of the aforementioned VA Form 21-0781 (or other appropriate PTSD development letter), or after a reasonable amount of time has passed without response, if and only if it is determined that sufficient details have been provided so as to warrant an attempt to verify the Veteran's claimed stressor(s), attempt to verify such through the U.S. Army and Joint Services Records Research Center (JSRRC) and/or other appropriate source(s). 3. Schedule the Veteran for a VA examination for his sleep apnea and thyroid disorders. The claims file, and a copy of the remand, should be made available to and reviewed by the examiner(s). The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea and thyroid disorder, to include thyroid cancer, had onset in service, or are otherwise related to active service. The examiner is advised that the Veteran has asserted that his current thyroid disorder may be related to different vaccinations he took during service, including for typhoid, yellow fever, rubella and anthrax. This contention should be addressed. The examiner(s) must provide rationale for all opinions expressed. If the examiner(s) are unable to provide the requested opinions, an explanation must be provided. 4. Schedule the Veteran for a VA psychiatric examination by an appropriate medical professional. The examiner is to conduct all indicated tests. The claim file, AND A COPY OF THIS REMAND, should be reviewed by the examiner. a) The examiner should determine whether the Veteran has a current psychiatric disorder, to include a diagnosis of PTSD meeting the DSM criteria. If PTSD is diagnosed, the underlying stressor(s) should be identified. b) The examiner should opine on whether it is at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disorder, including PTSD, had its onset during, or is otherwise related to, his active service. The examiner must provide rationale for all opinions expressed. If the examiner is unable to provide the requested opinions, an explanation must be provided. 5. Finally, readjudicate the claims. If any of the benefits sought remain denied, issue an SSOC and return the case to the Board. The appellant has the right to submit additional evidence and argument on the 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 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). ______________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs