Citation Nr: 19137774 Decision Date: 05/15/19 Archive Date: 05/15/19 DOCKET NO. 10-41 299 DATE: May 15, 2019 ORDER Service connection for right knee osteoarthritis with patellar chondromalacia is granted. Service connection for a left hip strain is granted. Service connection for obstructive sleep apnea is denied. FINDINGS OF FACT 1. The probative evidence of record demonstrates that it is at least as likely as not that the Veteran’s right knee osteoarthritis with patellar chondromalacia was incurred in or caused by service. 2. The probative evidence of record demonstrates that it is at least as likely as not that the Veteran’s left hip strain was incurred in or caused by service. 3. The preponderance of the evidence is against a finding that the Veteran’s obstructive sleep apnea was incurred in or caused by service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for right knee osteoarthritis with patellar chondromalacia have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for establishing entitlement to service connection for a left hip strain have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for establishing entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1978 to June 1982 and from November 2004 to February 2006, with additional reserve service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was initially before the Board in April 2013, at which time it was remanded for further development. In April 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge, and a transcript of that hearing is of record. In April 2016, the Board reopened the Veteran’s previously denied service connection claims for a right knee and left hip disability and remanded the claims for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. The Board notes that the Veteran’s service treatment records (STRs) are not available. The record shows that the RO made multiple attempts to obtain the Veteran’s STRs, including making requests to the National Personnel Records Center, the Records Management Center, the Army Human Resources Command, and the Veteran’s reserve units. In January 2006, the RO issued a formal finding of unavailability of the Veteran’s STRs detailing the efforts made to locate such records. After the Veteran submitted a September 2006 e-mail from a fellow servicemember who advised him that his STRs may have been sent to a government contractor to be loaded into MEDPROS, a VA employee requested a search for the Veteran’s STRs which may have been sent to MEDPROS. In December 2017, a few pages of reserve STRs were received. However, an accompanying correspondence from the Army Records Processing Center indicated that a thorough review of all known Department of Defense systems had been accomplished as directed by Department of Defense Instruction 6040.45, and it was concluded that no further records exist for the Veteran other than the enclosed records. The Board acknowledges its heightened duty “to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision” when service treatment records are lost or missing. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) and O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, no presumption, either in favor of the claimant or against VA arises when there are lost or missing service records. See Cromer, 19 Vet. App. at 217-18 (2005) (Court declined to apply an “adverse presumption” against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Right Knee Disability The Veteran seeks service connection for a right knee disability, which he asserts was incurred during service. During the April 2015 Board hearing, he testified that he received treatment for right knee pain during his 2005 deployment to Iraq. Upon review of the record, the Board finds that it is at least as likely as not that the Veteran’s current right knee disability was incurred in or caused by service. As previously noted, the Veteran’s STRs are unavailable. However, a January 2006 post-deployment health assessment questionnaire shows that the Veteran reported swollen, stiff, or painful joints and reported being treated in sick call seven times during his deployment. In February 2006, the Veteran filed a claim for service connection for a right knee disability in which he asserted that the condition began in 2005. Post-service treatment records show that in May 2006, the Veteran reported constant right knee pain ever since his 2005 Iraq service. A physical examination revealed decreased muscle strength, and the diagnoses were probable chondromalacia of the patella and patellofemoral syndrome. A July 2013 VA treatment record shows that the Veteran reported worsening right knee pain ever since he served in Iraq. X-rays revealed early degenerative changes in the superior and posterior aspect of the patella. The Veteran underwent a VA examination in January 2014, during which he reported injuring his knee while taking shelter under a vehicle during mortar fire in Iraq. The examiner diagnosed the Veteran with right knee osteoarthritis and opined that it was less likely than not incurred in or caused by service because there was no evidence of a right knee injury during service. The Veteran underwent another VA examination in May 2018. The examiner indicated that he had to resort to a considerable amount of speculation to formulate a medical opinion because the Veteran’s STRs were unavailable. However, the examiner indicated that Veteran’s personal medical history was consistent with a right knee condition that started prior to his discharge from active duty. The examiner explained that the Veteran reported injuring his knee while taking shelter under a vehicle during mortar fire in Iraq; a January 2006 post-deployment questionnaire showed that the Veteran reported being treated in sick call seven times during his deployment; and the Veteran filed a claim for service connection for a right knee disability just two weeks after his discharge from active duty. The examiner concluded that such was consistent with a current right knee disability being at least as likely as not incurred in or caused by service. However, the examiner then noted that medical records were essentially silent for a right knee condition from 2007 to 2013, and the Veteran’s period of about six years without major right knee complaints was consistent with the condition being less likely than not incurred in or caused by service. In summary, the Veteran reported injuring his right knee during service. Available service records show that he reported joint pain and stiffness upon returning from Iraq and reported going to sick call seven times during his deployment. He then filed a claim for service connection for a right knee disability just two weeks after his discharge from active duty. Shortly thereafter, he was diagnosed with patellar chondromalacia, and subsequent x-rays revealed right knee osteoarthritis. In May 2018, a VA examiner provided opinions seemingly in support of and against the claim for service connection. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current right knee disability was incurred in or caused by service. After resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for right knee osteoarthritis with patellar chondromalacia is warranted. 2. Left Hip Disability The Veteran seeks service connection for a left hip disability, which he asserts was incurred during service. During the April 2015 Board hearing, he testified that his left hip never felt the same after jumping under a Humvee during service and that he received treatment for a left hip disability during service. Upon review of the record, the Board finds that it is at least as likely as not that the Veteran’s current left hip disability was incurred in or caused by service. As previously noted, the Veteran’s STRs are unavailable. However, a January 2006 post-deployment health assessment questionnaire shows that the Veteran reported swollen, stiff, or painful joints upon returning from Iraq and reported being treated in sick call seven times during his deployment. In February 2006, he filed a claim for service connection for a left hip disability in which he asserted that the condition began in 2005. Post-service treatment records show that in March 2006, the Veteran reported occasional pain and weakness in left hip since his 2005 service in Iraq. X-rays were normal, and the assessment was history of occasional pain and weakness in the left hip. The Veteran underwent a VA examination in January 2014, during which he reported injuring his left hip while taking shelter under a vehicle during mortar fire in Iraq and reported current symptoms of left hip pain. The examiner diagnosed the Veteran with a left hip strain by history and opined that it was less likely than not incurred in or caused by service because there was no evidence of a left hip injury during service. The Veteran underwent another VA examination in May 2018. The examiner indicated that he had to resort to a considerable amount of speculation to formulate a medical opinion because the Veteran’s STRs were unavailable. However, the examiner indicated that the Veteran’s personal medical history was consistent with a left hip condition that started prior to his discharge from active duty. He explained that the Veteran reported injuring left hip while taking shelter under a vehicle during mortar fire in Iraq; a January 2006 post-deployment questionnaire shows that the Veteran reported being treated in sick call seven times during his deployment; and the Veteran filed a claim for service connection for a right knee disability just two weeks after his discharge from active duty. The examiner then noted that the Veteran’s post-service treatment records were essentially silent for a left hip condition from 2007 through January 2014, which was consistent with the condition being less likely than incurred in or caused by service. In summary, the Veteran reported injuring his left hip during service. Available service records show that he reported joint pain and stiffness upon returning from Iraq and reported going to sick call seven times during his deployment. He then filed a claim for service connection for a left hip disability just two weeks after his discharge from active duty. Shortly thereafter, he was diagnosed with left hip pain and weakness, and a VA examiner subsequently diagnosed him with a left hip strain. In May 2018, a VA examiner provided opinions seemingly in support of and against the claim for service connection. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current left hip disability was incurred in or caused by service. After resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for a left hip strain is warranted. 3. Sleep Apnea The Veteran seeks service connection for sleep apnea, which he asserts was caused by exposure to fumes and chemicals while serving in Iraq. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s sleep apnea was incurred in or caused by service. As previously noted, the Veteran’s STRs are unavailable. However, a January 2006 post-deployment health assessment questionnaire shows that the Veteran reported exposure to vehicle or truck exhaust fumes, insect repellents, pesticides, jet fuels, solvents, sand, and dust while serving in Iraq. He also reported a chronic cough during his deployment. Post-service treatment records show no complaints of symptoms prompting a treatment provider to order a sleep study until September 2007. At that time, the Veteran reported daytime sleepiness and being told that he snored loudly. The treatment provider indicated that the Veteran’s symptoms of loud snoring, hypersomnolence, borderline hypertension, obesity, and findings of crowded oropharynx (enlarged tonsils) indicated a moderate risk for obstruct sleep apnea. The Veteran was referred for a sleep study, which subsequently confirmed the diagnosis of obstructive sleep apnea. The Veteran underwent a VA examination in January 2014, and the examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by service because he was diagnosed with sleep apnea in 2007, after his discharge from active duty. The Veteran underwent another VA examination in May 2018. The examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by the Veteran’s claimed in-service exposures. In support of this, the examiner explained that obstructive apneas and hypopneas are caused by repetitive collapse of the upper airway during sleep. The examiner further explained that the condition is related to the upper airway anatomy, and exposure to chemicals, including diesel fumes, exhaust fumes, solvents, insect replants, environmental pesticides, sand, and dust, does not cause upper airway abnormality or sleep apnea. The examiner also indicated that the Veteran’s sleep apnea was not due to an undiagnosed illness, as it is a disease with a clear and specific diagnosis and etiology. There is no competent opinion to the contrary. Although the Veteran believes that his sleep apnea is related to service, as a lay person, he has not shown that she has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of sleep apnea are matters not capable of lay observation and require medical expertise to determine. Thus, Veteran’s opinion regarding the etiology of his sleep apnea is not competent medical evidence. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See Gilbert, 1 Vet. App. at 56. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Banister, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.