Citation Nr: 20023096 Decision Date: 04/03/20 Archive Date: 04/03/20 DOCKET NO. 17-13 413 DATE: April 3, 2020 April 3, 2020 REMANDED 1. Entitlement to service connection for sleep apnea is remanded. 2. Entitlement to service connection for restless leg syndrome is remanded. 3. Entitlement to a rating in excess of 10 percent each for bilateral knee strain is remanded. REASONS FOR REMAND The Veteran served on active duty for training in the United States Army National Guard from April to August 2007 and on active duty from May 2009 to June 2010 and from January 2012 to January 2013 including service in Afghanistan and Egypt. He was awarded the Combat Action Badge. He also had additional National Guard service through retirement in 2018. The Veteran’s appeal for service connection for sleep apnea comes before the Board of Veterans’ Appeals (Board) from a July 2014 decision, issued by the Department of Veterans Affairs (VA), Regional Office (RO). The Veteran’s appeal for initial ratings in excess of 10 percent for right and left knee strain comes from a January 2017 rating decision, and the appeal for service connection for restless leg syndrome comes from a May 2017 rating decision. The Veteran testified before the undersigned Veterans Law Judge at an August 2019 hearing, and a transcript of this hearing is of record. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to service connection for sleep apnea The Veteran contends that he suffers from sleep apnea as a result of his service-connected post-traumatic stress disorder (PTSD). A November 2016 VA outpatient record cited a 2014 polysomnogram showing a diagnosis of obstructive sleep apnea. The Veteran was provided a Board Hearing in August 2019. There, the Veteran was granted a request to keep the record be kept open for 30 days so that he could submit a supporting statement that would include a statement from his girlfriend who right after service observed him stopping breathing while sleeping . See August 2019 Hearing Transcript, p. 4. The Veteran subsequently submitted a disc that contained “Dr Notes May 2017 – Present” and “Statement from old girlfriend about waking up.” See September 2019 Third Party Correspondence. Although a large number of medical records from an electronic disc were added to the claims file, the supporting statement from the girlfriend could not be found. As the issue before the Board is whether there is a nexus between the Veteran’s sleep apnea and his active duty service and his service-connected PTSD, a copy of the statement is relevant and necessary to decide the claim. As such, on remand, VA must take appropriate action to attempt to obtain any outstanding records. The Veteran and his representative are advised that they may submit the referenced outstanding information. Entitlement to service connection for restless leg syndrome The Veteran contends that his restless leg syndrome was caused by his military service. The Veteran has testified that he noticed this condition while deployed. In his own words, he would “chalk it up to just constantly being aware of my surroundings because we were outside the wire.” See August 2019 Hearing Transcript. The Board notes that the Veteran has not been provided a VA examination for restless leg syndrome. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § § 5103A(d); 38 C.F.R. § § § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence “indicates” that these “may” be a nexus between the current disability or symptoms and the veteran’s service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, the Board notes that the Veteran has been diagnosed with restless leg syndrome, and as such, the first element has been met. Furthermore, the Veteran currently suffers from service-connected PTSD, stemming from combat exposure. As such, the second prong has been met. The Board also notes that his restless leg syndrome began when exposed to stressors while over the wire during his deployment. As the Board finds the Veteran’s testimony to be credible, the third factor for VA to provide a medical examination and opinion is met. The Board finds that there is insufficient competent medical evidence of record to make a decision on the claim. Entitlement to an increased rating for bilateral knee strain The Veteran’s bilateral knee strain was rated as being noncompensable under diagnostic code (DC) 5257 when the Veteran submitted his claim for an increased rating. See August 2015 VA 21-526EZ, Fully Developed Claim (Compensation). The Veteran was provided a VA examination in February 2016, and based upon the results, the Veteran’s evaluation for bilateral knee strain was increased to 10 percent in March 2018, with an effective date of November 3, 2011 to January 26, 2012, and from January 15, 2013. See March 2018 SOC. An examination of the Veteran does not become outdated after any arbitrary amount of time. The duty to get a new examination is triggered only when the available evidence indicates that the previous examination no longer reflects the current state of the Veteran’s disability. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). In the present case, though, a new examination is required. At the Board hearing, the Veteran testified as to the worsening condition of his knees. In particular, the Veteran stated that when walking or running, he experiences “unstable running motions” which the Veteran described as “veering” as if though “the structure isn’t there.” Considering the Veteran’s reports of worsening since his last VA examination. See 38 C.F.R. § 3.159 (c)(4)(i); see also Snuffer v. Gober, 10 Vet. App. 400, 403. The Board finds that a new examination is necessary to adjudicate the claim. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and obtain missing supporting statement concerning Veteran’s sleep apnea from his friend. 2. Schedule the Veteran for a VA examination for restless leg syndrome. Request an opinion from an appropriate VA physician as to the etiology of the Veteran’s restless leg syndrome. The physician should review the electronic records contained in the electronic claims file. The Board brings attention to the Veteran’s diagnosis of PTSD. After reviewing the relevant evidence of record, the physician should provide an opinion whether it is as least as likely as not (50 percent probability or more) that the current restless leg syndrome is either (i) caused or (ii) aggravated, by any aspect of service or by his service-connected PTSD. A complete rationale should be provided for any opinion expressed. The examiner should reconcile any opinion with the clinical evidence of record and the Veteran’s and other lay contentions. The examiner is advised that the Veteran and other providers of lay statements are competent to report their observations of his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, she or he must provide an explanation for such rejection. If the examiner is unable to reach an opinion as to any of the information requested above without resorting to speculation, she or he should explain the reasons for such inability, and comment on whether any further evidence or information would be useful in rendering the opinion being sought. 3. Provide a VA examination by an appropriate medical professional to determine the current severity of the Veteran’s bilateral knee strain. The entire claims file must be provided to the examiner for review. All necessary tests and studies should be accomplished, and all clinical findings reported in detail. The examiner should provide a thorough description of the Veteran’s bilateral knee strain. The examiner should test the range of motion in active motion, passive motion, weight-bearing and non-weight bearing, as appropriate. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary or appropriate in this case, she or he should state why. The examiner should portray the degree of any range-of-motion loss due to pain on repeated use or during flare-ups. If the Veteran is not experiencing a flare-up of his bilateral knee strain at the time of the examination, the examiner must attempt to ascertain information, such as frequency, duration, characteristics, severity, and functional loss, regarding any flare-ups by alternative means (including history provided by the Veteran) and to estimate the functional impact of any flare-ups in terms of range of motion on the basis of that information. If no estimate can be provided, the examiner should provide a sufficiently detailed explanation. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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.