Citation Nr: 20004830 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 16-57 641 DATE: January 23, 2020 ORDER The claim for service connection for a right knee disorder, to include as due to or aggravated by service-connected left knee disability, is granted. The claim for service connection for obstructive sleep apnea is granted. FINDINGS OF FACT 1. With both favorable and unfavorable medical opinions, and considering other evidence, the evidence is in equipoise as to whether the Veteran’s service-connected left knee disability has caused his current disability of the right knee. 2. The Veteran’s OSA had its onset during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder, to include as due to or aggravated by service-connected left knee disability, are met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 2. The criteria for service connection for OSA are met.38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1993 to May 2008. This appeal comes before the Board of Veterans’ Appeals (Board) from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a September 2019 videoconference and a transcript thereof is on file. This appeal was processed using the Veteran's Benefits Management System (VBMS) and, in addition there is a Legacy (formerly Virtual VA) paperless claims electronic file. Accordingly, any future consideration of this appeal should take into consideration the existence of these electronic records. Background Service treatment records (STRs) show that in March 2003 the Veteran’s chief complaint was of snoring of several years duration. He was noted to be six feet and four inches in height and weighed 277 lbs. It was noted that he had had snoring with apneic episodes which had been witnessed, and which had worsened. The assessments included allergic rhinitis, bilaterally, and snoring. OSA was to be ruled out. A formal sleep study, with apnea analysis, was conducted during military service, in March 2003. The interpretation was that there was no evidence of significant sleep apnea. VA outpatient treatment (VAOPT) records include a report of a May 2013 Sleep – Polysomnography Consultation. The impressions were split-night polysomnogram, and non-positional OSA. In the Veteran’s November 2014, VA Form 21-0958, Notice of Disagreement (NOD), he reported that his snoring and apnea were witnessed by his wife beginning several years before the inservice sleep study. He now used a CPAP machine to obtain significant rest at night. He also reported that he had had bilateral knee problems since his discharge from active service. His right knee had worsened as a result of his left knee disability, which required him to compensate by placing greater weight on his right lower extremity. Both knees had been affected by excessive use during strenuous physical training and carrying heavy objects during his 15 years of military service. The Veteran was afforded a VA examination in June 2015, which was conducted by a Nurse Practitioner, to evaluate the severity of his service-connected left knee disability. The Veteran’s records were reviewed in September 2016, following which an opinion was rendered as to the claimed right knee disability. The examiner opined that the claimed right knee disability was less likely than not proximately due to or the result of his service-connected left knee disability. The rationale was that: The veteran was not interviewed and examined as this was not required. The Virtual VA/VBMS as well as all pertinent records were examined. Therefore, after reviewing the Virtual VA/VBMS, and all pertinent records, it is the opinion of this examiner that the veteran's right knee condition is less likely as not (<50 percent or greater probability) proximately due to or the result of left knee condition. The contention that one side of the body having pain causes a person to favor or "unload" on the other and therefore causes arthritis on the contralateral side is often cited. It is biomechanically incorrect and has been disproven in the orthopedic and occupational medicine literature. Arthritis formation would require increase speed and increase sheer forces across the joint, a situation only seen in the paralytic or waddling gait abnormality. The veteran does not have this. In a Sleep Apnea Disability Benefits Questionnaire in January 2017 it was reported that the Veteran had OSA which had been diagnosed in March 2003. It was reported that it had been noted and confirmed by inservice testing in March 2003. It was reported that he had weight gain due to lethargy and was slowly improving. It was concluded that sleep apnea had been noted and diagnosed during military service. On VA examination in November 2017 it was reported that the Veteran had degenerative arthritis of the right and the left knees. On physical examination flexion of each knee was to 102 degrees, while extension was to 10 degrees in the left knee and to 5 degrees in the right knee. He had crepitus in each knee. He had pain on weight-bearing of the left lower extremity but not the right lower extremity. As to each knee he had frequent episodes of joint locking, frequent episodes of joint pain, and frequent episodes of joint effusion. A left knee MRI in October 2013 had found, in part, a nondisplaced impaction fracture of peripheral lateral tibial plateau, and Grade 1 degeneration of the posterior medial and lateral menisci. Right knee X-rays in October 2016 revealed moderate degenerative changes. A right knee MRI in October 2016 had found a lesion within the lateral tibial plateau with associated bone marrow edema, as well as tricompartmental osteoarthritis with chondral loss worse in the patellofemoral medial compartments, which had progressed since the prior examination. In March 2019 the Veteran wife reported that he had been a heavy snorer when they got married in 1997. In 1999, she had noticed that he would completely stop snoring and breathing during sleep and she would have to awaken him repeatedly during the night. She had insisted he see a physician and he had done so in 2000 or 2001, during service, at which time she had expressed her concern that he snored very loudly and would stop breathing. He had finally had a sleep study done but he continued to snore loudly and would stop breathing until he was finally given a CPAP machine. In April 2019 a VA medical opinion was obtained which found that the Veteran’s diagnosed major depressive disorder, in partial remission, was at least as likely as not incurred during military service. The Veteran reported that after learning that he would be discharged for failing a body fat measurement test (three times in three years), he began developing depressive symptoms. The chart that his measurements were rated on did not make any allowances for his body build type, only the specific measurements relative to his height. Despite the weight loss, his score on the measure was unchanged. He perceived other servicemen of higher rank as having weight issues, but they were clearly not being subjected to the same standard. He did not feel that his Captain advocated for him in a meaningful way despite the fact that he was functioning independently as a hospital corpsman and he remained in his duty station for an additional 5 months before a replacement could be identified, demonstrating that he could fulfill his duties. He was able to pass all other physical standards (running, etc.) without issue. Data from the clinical interview and record review indicated that he reported having periods of depressed mood for two weeks or longer with weight gain, low motivation, and low energy/fatigue. An August 2019 VA outpatient treatment (VAOPT) records shows that after an evaluation for bilateral knee pain a VA physician reported that it was likely that the Veteran’s premature wear of his knees was the result of his active duty service, carrying heavy loads, marching, and excessive physical training. At the September 2019 Board videoconference the Veteran testified that his military occupational specialty (MOS) during service had been a hospital corpsman. He had had quite a bit of medial training which was almost, but not quite, to the paramedic level. He had had secondary training as a combat medic, and training for “independent duty corps” which was similar to a physician’s assistant. The Veteran testified that his service-connected left knee disability had caused him to limp and to occasionally need a cane as an ambulatory aid during flare-ups. He had noticed that he had more right knee problems when he limped due to his left knee. Physicians had told him that his right knee problems were due to his shifting his weight to his right leg, because of his left knee disability. He testified that he had limped for the last 8 to 9 years. As to sleep apnea, the Veteran testified that he was having problems with his sleep during his active duty which had led to his having had a sleep study during active service. Eventually, VA had rendered a diagnosis of sleep apnea after conducting another sleep study in 2013. It was contended that the combination of the Veteran’s service-connected musculoskeletal disabilities of his left knee and both shoulders, together with depression due to his service-connected major depressive disorder had prevented, or led to his being unable to engage in, physical activity, that had in turn led to his obesity that caused his sleep apnea. Following the Board videoconference, in October 2019 a medical report from James Dauphin, M.D., was submitted, together with a waiver of initial RO consideration of such evidence. In that report it was reported that during military service the Veteran had been very physically active, carrying heavy packs, driving trucks, and marching. He was now service-connected for left knee disability in which he had obvious signs and symptoms of degeneration with a history of repeated refusion. He had had multiple knee injections. The Veteran contended that he also had right knee pain since military service as a result of the same heavy physical activities that brought on the degeneration in his left knee. It was also reported that the Veteran had gained considerable weight since leaving military service, which had taken a toll on his joints. He had been engaged in heavy physical activity on the job but had had bilateral knee pain shortly after his discharge from service in 2008. Dr. Dauphin noted the June 2015 VA examination and reported that the VA examiner at that time, who was a nurse practitioner, had stated that “there is no basis for connecting the right knee.” Dr. Dauphin reported that the Veteran frequently wore braces on both knees. He had been noted to have an antalgic gait, and since service he had developed much more problems with this, developing an asymmetric gait putting more stress on his right knee as a result of the left knee. Also, since service he had had significant right knee effusion, and needle aspirations. He had little to no cartilage in his knees. Dr. Dauphin also quoted some of the Veteran’s testimony, as recorded in the transcript of that videoconference. As to sleep apnea, Dr. Dauphin stated that a recent examination had noted that the Veteran weighed 379 lbs. Dr. Dauphin stated that there was evidence of sleep apnea during service, as demonstrated in the service records, and for which a sleep study had been done during service. While sleep apnea was not diagnosed by the inservice sleep study, he had gained considerable weight since he was first deployed. At service induction, in 1993, he weighed 197 lbs. and was 76 inches in height. As of 2000, during service, his weight had risen to 225 lbs. In September 2017 he weighed 393 lbs. Dr. Dauphin further stated that it could logically be argued that the Veteran’s right knee disability was secondary to the left knee disorder. He had been service-connected for left knee disability for quite some time and had been limping consistently since military service. This had taken a considerable toll on his health and led to weight gain which, in turn, led to further degenerative in his knees. Thus, Dr. Dauphin concluded that: I think it would be as likely as not that his right knee complaints are secondary to his left knee instability and pain. This is based on the fact that his locomotion occurs through both legs and rotates through the lower back during ambulation and back down through the right knee and he is having pain now in the medial aspect of the right knee as a result of instability in the left knee. His gait is unbalanced and this would invariably cause bilateral symptoms. As to sleep apnea, Dr. Dauphin stated that weight gain had caused the Veteran’s sleep apnea to become worse. That physician stated that “with a positive [sic] sleep study in service, I do not think there is any problem with service connecting the sleep apnea to his military service.” Dr. Dauphin concluded that: Obesity is known in the medical literature to lead to [OSA], and there were signs and symptoms of sleep apnea even before he left the military as evidenced by his somnograms before and after service. Therefore, I would say as likely as not his [OSA] are [sic] related to his military service as a result of obesity. Principles of Service Connection Establishing entitlement to service connection generally requires having probative (meaning competent and credible) evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. 38 U.S.C. § 1110; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A rebuttable presumption of service connection exists for chronic diseases, specifically listed at 38 C.F.R. § 3.309(a) (and not merely diseases which are “medically chronic”), including arthritis, if the chronicity is either shown as such in service which requires sufficient combination of manifestations for disease identification and sufficient observation to establish chronicity (as opposed to isolated findings or a mere diagnosis including the word ‘chronic’), or manifests to 10 percent or more within one year of service discharge (under § 3.307). If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required, 38 C.F.R. § 3.303(b), but the use of continuity of symptoms is limited to only those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed.Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or permanently aggravated by, an already service-connected condition. 38 C.F.R. § 3.310(a) and (b). This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis Initially, the Board notes that the Veteran is service-connected for: a major depressive disorder, rated 70 percent disabling; left shoulder dislocation, rated 20 percent disabling; left knee degenerative arthritis, rated 10 percent disabling; right shoulder dislocations, status post surgery, rated 20 percent disabling; right shoulder recurrent dislocations, rated 20 percent disabling; lumbar degenerative disc disease (DDD) rated 20 percent disabling; left ankle strain, rated 10 percent disabling; gastroesophageal reflux disease with hiatal hernia, rated 10 percent disabling; tinnitus, rated 10 percent disabling; and noncompensable disability ratings are assigned for service-connected hypertension, status post left inguinal hernia repair with scar, scars of the anterior and posterior aspects of the right shoulder, and a left inguinal hernia scar. Although a September 2019 rating decision proposed to sever service connection for right shoulder recurrent dislocations (on the basis that this duplicated the service-connected right shoulder dislocations, status post surgery [resulting in pyramiding, i.e., double compensation, which is prohibited under 38 C.F.R. § 4.14) actual severance has not yet been accomplished by any rating decision. Service connection for a right knee disorder, to include as due to or aggravated by service-connected left knee disability The Veteran is service-connected for left knee degenerative arthritis, rated 10 percent disabling. It is undisputed that he now has disability of the right knee. The dispositive matter is whether the former has caused or aggravated the latter. In this connection there is an unfavorable 2019 opinion by a VA Primary Care Physician and a favorable 2019 opinion from a private Orthopedist. The unfavorable VA medical opinion is to the effect that medical literature indicated that shifting body weight due to pain, in this case from the service-connected left knee disorder, to the other side would cause arthritis only if there was paralytic of a waddling gait abnormality, which the Veteran did not have. On the other hand, the favorable private medical opinion was that shifting body weight due to pain would logically cause disability in an unaffected extremity. The rationale was that the Veteran’s unbalanced gait would invariably cause symptoms because of the stress of locomotion. In weighing the probative value of each of these opinions the Board must note that a 2017 VA examination found a similarity of symptoms in each knee, with range of motion being very similarly limited, and having crepitus as well as locking and effusion in each knee but having pain only on weight-bearing of the leg lower extremity and not the right lower extremity. Also, the report of that examination also noted that imaging studies had revealed a similarity of abnormal findings in each knee. Moreover, although the unfavorable VA medical opinion found no relationship between the service-connected left knee disability and the claimed right knee disability, it did not offer any explanation as to any other potential cause of the Veteran’s current right knee disability. The Board is precluded from exercising its’ own independent medical opinion for the purpose of speculating as to other potential causes of the Veteran’s current right knee disability, such as the aging process, and particularly here when the abnormal findings suggest more than mere abnormalities accounted for by aging, or postservice injury inasmuch as there is no evidence that the Veteran sustained any postservice right knee injury. Generally see Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991) (holding that the Board "must consider only independent medical evidence to support [] findings rather than provide [its’] own medical judgment in the guise of a Board opinion."). In light of the foregoing, the Board must conclude that the favorable and unfavorable evidence is in approximate equipoise. In such circumstances, reasonable doubt must be resolved in the Veteran’s favor. Accordingly, the Board finds that service connection for a right knee disorder is warranted. Service connection for OSA In this case it is argued that even though OSA was not formally diagnosed during active service, he had the symptoms of that disorder as attested to by the Veteran’s testimony, his wife, and STRs. Indeed, it is argued that the symptoms were of such severity that a sleep study was conducted during service. It is further argued that the cause of the Veteran’s development of OSA during service was his having gained weight during service, a process that simply continued after military service. It is alternatively argued that separate from any weight gain, or as a cause of weight gain, the Veteran’s service-connected musculoskeletal disorders and perhaps even his service-connected major depression, led to weight gain after service or aggravated any postservice weight gain. In this regard the only medical opinion of record addressing the etiology of the Veteran’s OSA is the 2019 opinion of Dr. Dauphin. As to this, it must be noted that Dr. Dauphin erroneously stated that the Veteran had had a positive sleep study during service; whereas, that sleep study was negative. On the other hand, that physician also correctly reported that the inservice sleep study had not yielded a diagnosis of OSA. In any event, Dr. Dauphin opined that the Veteran’s current OSA had its’ onset during active service, as evidenced or caused by inservice weight gain. Here, given the credible testimony of the Veteran and statement of his wife, together with the inservice evidence of sleep disturbance, including episodes of apnea reported in the STRs, giving rise to such a concern that he had OSA that evaluating clinicians during service took the unusual step of conducting a sleep study, the Board finds that the favorable and unfavorable evidence is in approximate equipoise. In such circumstances, reasonable doubt must be resolved in the Veteran’s favor. Accordingly, the Board finds that service connection for OSA is warranted. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, 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.