Citation Nr: 20004860 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 17-62 171A DATE: January 22, 2020 REMANDED An initial rating in excess of 10 percent for tendonitis and degenerative arthritis of the right knee is remanded. Service connection for a left knee condition is remanded. Service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1, 2004 to May 25, 2005, from September 25, 2005 to December 31, 2005, from July 5, 2010 to October 28, 2010, and from April 22, 2013 to September 30, 2013. He also had additional service in the Army National Guard. The case is on appeal from a July 2016 rating decision. 1. An initial rating in excess of 10 percent for tendonitis and degenerative arthritis of the right knee. The Veteran maintains that he is entitled to a higher rating for his service-connected right knee condition. Medical records indicate that while the claim was on appeal, the Veteran underwent arthroscopic partial medial meniscectomy of the right knee in October 2018, with postoperative diagnoses of complex tear of the posterior horn medial meniscus, and anterior cruciate ligament deficiency of the right knee. The Veteran was granted a temporary total evaluation from October 17, 2018 to November 30, 2018 for the knee treatment requiring convalescence. The Veteran was afforded VA examinations of the knees in May 2016, July 2017, January 2019, August 2019, and November 2019. The Board finds that a remand is warranted for a retrospective medical opinion because the May 2016, July 2017, and January 2019 examinations are not wholly adequate for rating purposes. The examinations failed to address range of motion (ROM) in both passive and active motion, weightbearing and non-weightbearing circumstances, or during flare-ups. See Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that, per 38 C.F.R. § 4.59, in order to assess the effect of painful motion, ROM tests for both passive and active motion, and in both weightbearing and non-weightbearing circumstances, should be done). See also Sharp v. Shulkin, 29 Vet. App. 26 (2017) (holding that the examiner should “estimate the functional loss that would occur during flares”). The Board also notes that the January 2019, August 2019, and November 2019 VA examinations were associated with the claims file after the August 2017 statement of the case. The Board has determined that this additional evidence regarding the severity of the right knee condition is pertinent and relevant to the claim. Thus, without a waiver of Regional Office consideration of the new evidence in the first instance, a remand is required. See 38 C.F.R. §§ 19.31, 19.37, 20.1304(c). In light of the remand, updated VA treatment records should also be obtained. 2. Service connection for a left knee condition. The Veteran contends that his left knee condition is a result of his active military service. The Veteran was afforded a VA examination in May 2016 in connection with his service connection claim. He stated that he began to have bilateral knee pain while under federal orders during Hurricane Katrina, with his left knee hurting more than his right knee. He also reported that he went to sick call and was provided pain medication for his knee pain. The examiner found a diagnosis of degenerative arthritis in both the left and right knee. However, she opined that the Veteran’s left knee condition is less likely than not incurred in service, with the rationale that there are no service treatment records (STR’s) found referencing a left knee condition. The Board finds the May 2016 VA examination to be inadequate. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). The medical importance of the absence of documented treatment in service was not sufficiently explained in the examiner’s rationale. Furthermore, while the examiner provided a diagnosis of degenerative arthritis, she did not adequately explain why arthritis did not have onset within service or within one year of service, given his age and the fact that the examination was only two and a half years after his last active duty. Therefore, the Board finds the May 2016 examination opinion to be inadequate as to the Veteran’s left knee condition, and a remand for a new medical opinion as to service connection is warranted. 3. Service connection for sleep apnea. The Veteran seeks service connection for a sleep disorder, either directly as a result of service, or secondarily to his already service-connected PTSD. The Board notes that service connection is already in effect for PTSD with an unspecified sleep wake disorder as part of the compensated condition. Thus, the sleep apnea claim remaining on appeal must be distinct from this aspect. In his November 2019 Appellate Brief, the Veteran’s representative provided URL links to two articles highlighting medical research regarding sleep apnea and PTSD were submitted in support of his contentions: (1) Sleep Apnea Found in 57% of Veterans with PTSD; and (2) Study Finds High Risk of Sleep Apnea in Young Veterans with PTSD. The Veteran’s STRs are silent as to a diagnosis, complaints, or treatment of symptoms related to sleep apnea. His VA medical records indicate that the Veteran underwent a polysomnography in August 2019 and was diagnosed with obstructive sleep apnea (OSA). Given the Veteran’s statements and recent diagnosis, a VA examination is warranted to determine the etiology of the claimed condition and to clarify the nature and extent of the Veteran’s disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, a VA examiner can address the submitted research articles regarding the correlation between PTSD and OSA. In addition, all updated VA treatment records should be obtained and associated with the Veteran’s file. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records since November 2019 and associate with the Veteran’s file. 2. Forward the claims file to an orthopedic specialist for a medical opinion as to the nature and etiology of his left knee condition, and to assess the severity of his service-connected right knee. The need for an in-person clinical examination of the Veteran should be determined by the examiner. The record, including a complete copy of this remand, should be made available for review. (a) First, the examiner should provide an opinion as to whether the Veteran’s left knee condition at least as likely as not (50 percent or greater possibility) had its onset during or within one year of service, or is otherwise related to, his active military service. Consideration should be given to, and the examiner is requested to comment on, (1) the Veteran’s statements reporting symptoms of knee pain during active service; and (2) the diagnosis of arthritis 2.5 years following service and the age of the Veteran at the time of diagnosis. If the absence of record treatment during service plays a role in the formation of the opinion, the medical importance of this should be explained. (b) Second, the examiner should provide retrospective findings in regard to pain on range of motion testing and an estimation of functional loss, per Correia and Sharp. (i) Specifically, the examiner should estimate the amount in degrees of range of motion lost due to pain in both weightbearing and non-weightbearing positions, and on both active and passive motion experienced by the Veteran at the time of VA examinations conducted in May 2016, July 2017, and January 2019, for both the right and left knees. (ii) The examiner should also estimate the amount in degrees of range of motion lost due to flare-ups experienced by the Veteran at the time of VA examinations conducted in May 2016, July 2017, and January 2019, for both the right and left knees. (iii) Finally, the examiner is requested to provide an opinion as to the severity of instability of the Veteran’s knees (e.g., absent, slight, moderate, severe) throughout the appeal period with consideration of the July 2017 examination diagnosis of knee instability. If the examiner cannot provide some or all of such retrospective opinions, the examiner must make clear that he or she has considered all relevant, procurable data, but that any member of the medical community at large could not provide such an opinion without resorting to speculation. A complete rationale should be provided for the opinions offered. 3. Schedule the Veteran for an examination by an appropriate medical professional to determine the nature and etiology of his sleep apnea. The examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that his sleep apnea had its onset during, or is otherwise related to, active service, or is caused or aggravated by his service-connected PTSD. The examiner is asked to review and address the following articles in relation to the current sleep apnea claim: (1) the March 2016 article entitled Sleep Apnea Found in 57% of Veterans with PTSD, that can be located at https://www.mdedge.com/chestphysician/article/107080/sleep-medicine/sleep-apnea-found-57-veterans-ptsd; and (2) the May 2015 article entitled Study Finds High Risk of Sleep Apnea in Young Veterans with PTSD, that can be located at https://aasm.org/study-finds-high-risk-of-sleep-apnea-in-young-veterans-with-ptsd/. (Continued on the next page)   A complete rationale should be provided for all opinions reached. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morford, Associate 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.