Citation Nr: 1808120 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-22 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for asthma. 3. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected asthma and/or as due to exposure to toxins at Camp Lejeune, North Carolina. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Marine Corps from June 1978 to June 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2017. A transcript of that hearing is of record. The issue of entitlement to service connection for OSA is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, his asthma is the result of his active military service. 2. A right knee disorder was not shown in service, knee arthritis was not diagnosed within one year of service discharge, and the weight of the evidence is against a finding that the Veteran's right knee disorder is related to service. CONCLUSIONS OF LAW 1. Asthma was incurred in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C.§§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claims at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs), VA treatment records, and private treatment records have been obtained. Additionally, the Veteran testified at a hearing before the Board in July 2017. The Veteran was also provided VA examinations and neither the Veteran, nor his representative, has objected to the adequacy of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. 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 military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Right Knee Disorder The Veteran filed a service connection claim for a right knee disorder in December 2010, which was denied by a January 2013 rating decision. He asserts that his right knee disorder is due to his active service. The Veteran's STRs show that he injured his right knee in November 1979. A right knee x-ray showed small effusion but no fracture. Afterwards, the Veteran had normal examinations of his lower extremities in October 1982, April 1985, October 1986, June 1989, March 1991, March 1996, and March 1998. In addition, he denied having any knee symptoms on medical questionnaires in conjunction with his physicals in October 1982, October 1986, March 1991, March 1996, March 1998, and March 1998. As such, his STRs do not show he received any ongoing treatment for a chronic right knee disability or was diagnosed with a chronic right knee disability during his active service. His was discharged in June 1998 after approximately 20 years of honorable military service. Medical records after the Veteran's separation from service show that he started treating for right knee pain in February 2010 and reported having experienced right knee pain for the past one and a half years, or approximately since 2008. He underwent right knee surgery later in 2010. In October 2012, the Veteran was afforded a VA examination. He reported that he always has had knee pain. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting a physical examination, the examiner opined that the Veteran's right knee disorder was less likely than not related to his active service, to include his right knee injury in November 1979. The examiner reported that the Veteran's separation physical was silent regarding his right knee. At the July 2017 Board hearing, the Veteran testified that he injured his right knee multiple times during active service, but that he did not go to sick bay and would just treat his right knee on his own. He also testified that he received injection therapy for his right knee twice during his active service, but he received the injections at a private facility off base. The evidence of record does not document that the Veteran received any kind of treatment for his right knee after the November 1979 injury, either on or off base. After weighing all the evidence, the Board finds great probative value in the October 2012 VA examiner's opinion. This opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). This opinion in particular provided substantial reasoning and explanation as to why the Veteran's right knee disorder was not due to his active service, to include the November 1979 knee injury. The Veteran has not submitted any competent medical evidence supporting his assertion that his right knee disorder was proximately due to or the result of his active service. Therefore, after weighing all the evidence, the Board finds great probative value in the October 2012 examiner's opinion. Consideration has been given to the Veteran's assertion that his right knee disorder is due to his actives service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the etiology of knee disorders, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Knee disorders are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding etiology, as the evidence shows that physical examinations that include objective medical tests, such as x-rays and MRIs, are needed to properly assess and diagnose the disorders. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report perceived symptoms of his right knee disorder, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating knee disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and is insufficient to establish the presence of a knee disability continually since service separation. As described, the criteria for service connection have not been met for a right knee disorder. That is, the evidence does not show that a right knee disorder was diagnosed in service or within a year of service, the weight of the evidence is against a finding that chronic right knee disorder has existed continuously since service, and the weight of the evidence is against a finding that a right knee disorder was due to his active service. As such, the criteria for service connection for a right knee disorder have not been met, and the Veteran's claim is denied. Asthma The Veteran's STRs show that he had a normal examination of his lungs and chest at his entrance physical in June 1978. He also denied having asthma on a questionnaire used in conjunction with his entrance physical. However, after his entrance, his STRs show that the Veteran was treated for asthma in April 1994, February 1993, and March 1995. In addition, the Veteran's asthma was noted in other medical treatment records. At the July 2017 hearing, the Veteran credibly testified that he was treated for asthma during his active service and did not have asthma prior to his active service. He added that his asthma has continued since service. The Veteran's testimony is given great probative weight as it is consistent with the medical record showing an onset of asthma during his active military service. As such, the criteria for service connection have been met and the Veteran's claim is granted. ORDER Service connection for asthma is granted. Service connection for a right knee disorder is denied. REMAND The Veteran asserts that his OSA is due to his active service or secondary to his now service-connected asthma. Approximately seven years after separating from service in January 2007, he was diagnosed with OSA. At the hearing, he testified that during his active service, he was told he snored loudly and that he would wake up choking and short of breath. The Veteran's physician Dr. M. Waseem Farra reported that he had treated the Veteran since March 2005 for his OSA. Dr. Farra opined that it was highly possible that his OSA was related to his active service. However, Dr. Farra provided no rational for his opinion, and possible in the context of a medical opinion is the same as possibly not and therefore cannot provide the requisite nexus. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). In October 2012, the Veteran was afforded a VA examination for his OSA. However, the VA examiner did not offer an opinion on etiology. As such, a medical opinion is necessary to determine whether the Veteran's OSA had its onset in service or is otherwise etiologically related to service. Accordingly, the case is REMANDED for the following action: 1. Obtain a medical opinion to address the etiology of the Veteran's OSA. If an opinion cannot be provided without an examination, one should be provided. The examiner is asked to answer the following questions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's OSA either began during or was otherwise caused by his military service? Why or why not? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's OSA was caused by his service-connected asthma? Why or why not? c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's OSA was aggravated by his service-connected asthma? Why or why not? If aggravation is found, a baseline severity of his OSA should be established prior to the aggravation occurring. 2. Then readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs