Citation Nr: 20034465 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 18-22 390 DATE: May 18, 2020 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral knee condition. Entitlement to service connection for a bilateral knee condition is denied. Entitlement to service connection for sleep apnea is granted. FINDINGS OF FACT 1. In January 2012, the Board denied service connection for a bilateral knee disability, finding that there was no current diagnosis of a bilateral knee disability. 2. Following a motion for reconsideration submitted by the Veteran in February 2012, the Board determined the January 2012 decision was proper and the decision became final. 3. Since the January 2012 Board decision, the Veteran has submitted additional evidence that is new and material to raise a reasonable possibility of substantiating the Veteran’s claim for service connection for a bilateral knee condition. 4. The Veteran’s right and left knee disabilities are not shown to be causally or etiologically related to any disease, injury, or incident in service. 5. Resolving all reasonable doubt in favor of the Veteran, the evidence supports a finding that the Veteran has obstructive sleep apnea that is related to a service-connected disability. CONCLUSIONS OF LAW 1. The January 2012 Board decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1100. 2. New and material evidence has been received to reopen service connection for a bilateral knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 4. The criteria for secondary service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1985 to March 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a Board hearing in March 2020. A transcript of that hearing is of record. New and Material Evidence Generally, a claim that has been denied in an unappealed regional office (RO) decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The provisions of 38 C.F.R. § 3.156(a) create a low threshold for the reopening of claims. The Court of Appeals for Veterans Claims (Court) noted that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, does not require new and material evidence as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral knee condition In January 2012, the Board denied the Veteran’s claim for entitlement to service connection for a bilateral knee disability. In the decision, the Board denied service connection for a bilateral knee disability, finding that while the Veteran’s service treatment records showed abrasions of the bilateral knees following an in-service accident, there was no current bilateral knee disability diagnosis. In February 2012, the Veteran filed a motion for reconsideration of the Board decision regarding his bilateral knee condition. In March 2012, the Board responded to the Veteran’s motion for reconsideration and found that the Veteran’s claim was properly denied by the Board in January 2012. The Veteran did not appeal this denial. As such, the January 2012 Board decision became final. The Veteran filed a claim to reopen service connection for his bilateral knee disability. The RO considered the claim reopened, but found that the evidence continued to show that the Veteran’s condition was not incurred in or aggravated by military service. The Veteran has appealed. Since the prior final decision, the Veteran has submitted additional medical records, to include medical records from Carolina Orthopaedic Surgery Associates and a March 2018 VA Examination diagnosing the Veteran with a bilateral knee condition. The Board notes that while the medical record from Carolina Orthopaedic Surgery Associates is dated June 2009, the Veteran did not provide this private record prior to January 2012 and as such it was not considered in the prior final denial by the Board. See June 2013 Statement in Support of Claim. The Board finds this evidence is new, as it has not been part of the record before, and material, as the medical records provide evidence of a diagnosis of the Veteran’s condition. Therefore, the evidence is to be considered new and material, and the claim is reopened. 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 service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). For continuity of symptomatology, the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 26 (1991). The Board may, however, consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection generally requires (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 2. Entitlement to service connection for a bilateral knee condition The Veteran contends that his bilateral knee condition was caused by his time in service. Specifically, he asserts that during active duty he fell on asphalt onto his knees, which were then dragged on the asphalt resulting in the need for his knees to be debrided. See March 2020 Hearing Transcript at 6; October 2010 Hearing Transcript at 2. At the outset, the Board acknowledges that the Veteran has been diagnosed with a current bilateral knee disability. See Medical Treatment Records (June 2009 Carolina Orthopaedic Surgery Associated Letter). The Board also notes that service treatment records show abrasions of the bilateral knees following an accident wherein the Veteran fell off of a truck. Post-service treatment records dated in 2008 and 2009 reflect complaints of knee pain. See June 2008 Medical Treatment Records; October 2008 Medical Treatment Records; February 2009 Medical Treatment Records. At the March 2020 Board hearing, the Veteran testified that at the time of his knee injury, his occupational specialty was as military police in Sicily, North Dakota and there was no access to places that would have documented his knee injury. He also testified that he had supplies on hand to address his injury himself, including creams, wraps, and peroxides. The Veteran described his knee pain as a weakness in his knees with pain upon bending, resulting in an audible clicking sound; the Veteran reported that his knees still click as of the date of the Board hearing. Rather than going in for treatment while in service, the Veteran reported that he continually treated his knees himself as he had the equipment. This self-treatment went on for approximately 3 out of the 5 years the Veteran was in service. Following military service, he went to the doctor to get a diagnosis and was issued neoprene sleeves by the VA as treatment for his bilateral chondromalacia. The Veteran contends that there has been no other incident since his fall in service that could have caused his current knee condition. In his Form 9, the Veteran contends that a VA examiner (Dr. Howard) stated on March 5, 2018 that the Veteran’s file showed injury to both knees in service and that he was on temporary profile for a few weeks. The examiner also stated, however, that there was no documentation of any joint injury or abnormality. In response to this, the Veteran argues that he has sent in several times his diagnosis of bilateral chondromalacia of the patella from Carolina Orthopedic Surgery Associates, P.A. dated June 30, 2009. He reported that he has also sent in a medical statement/opinion from Barnett Family Practice dated February 16, 2009 when he originally filed his knee claim in June 2008. In that submission, the Veteran claims that a Dr. F. found that the Veteran’s injury was at least as likely as not directly related to his previous injuries in service. Dr. F. also mentioned the open wounds on both the Veteran’s knees and the extended profile in his active duty medical records. The Veteran reiterated that he had been issued knee braces from the VA. In the February 2009 letter, Dr. F. opines that the Veteran’s previous history of falling off of a truck while on active duty and sustaining multiple abrasions severe enough to require hospitalization is problematic for subsequent complaints of neck, upper back, low back, and lower extremity complaints with development of degenerative joint disease. In his opinion, Dr. F. concludes that the Veteran’s complaints of neck and back pain and recurrent new pain were at least as likely as not directly related to the Veteran’s previous injuries while on active duty. The Board finds that this opinion is of low probative value. The opinion does not diagnose the Veteran with a knee condition, and in fact, was written in reference to the Veteran’s back condition, rather than to evaluate his knees. In addition, it is not clear that the opinion actually finds that any knee condition of the Veteran’s is at least as likely as not related to his service injury, as the opinion only refers to “neck and back pain and recurrent new pain.” As such, the Board assigns low probative weight to the opinion and regards the Veteran’s later VA examination as the more accurate evaluation of the Veteran’s current bilateral knee condition. The Veteran underwent a VA examination in March 2018. Therein, the examiner determined that the Veteran’s current bilateral knee condition was less likely than not related to his fall from a truck during his time in service. While the Veteran’s service treatment records documented the injury, the examiner noted that the only documented injury to the lower extremities were abrasions to the lower extremities. There is not any documentation of a joint injury or abnormality to substantiate service connection for the Veteran’s current pathology. The Veteran was maintained on temporary profile for a few weeks, and then returned to normal duty, without restriction, for the remainder of his time in service. The Board finds this medical examination to be of significant probative value as the examiner reviewed the Veteran’s record, considered his lay statements, and performed a thorough review of the Veteran’s knee condition as the purpose of the examination. While the Veteran contends that there is no other incident since service which could have caused his knee condition, the record lacks medical records indicating that the Veteran’s bilateral knee condition is related to his in-service injury. The Veteran himself is not competent to opine as to the etiology of his knee condition, as he is a layperson without medical expertise, and the issue of knee etiologies is medically complex, as knee disabilities can have many different causes. Therefore, the Board assigns low probative weight to any of the Veteran’s lay statements regarding etiology. The Board has also considered presumptive service connection under 38 C.F.R. § 3.309(a) for the Veteran’s bilateral knee condition based on a continuity of symptomatology under 38 C.F.R. § 3.303(b). The Veteran purports that he has received treatment for his bilateral knee condition since exiting service in 1990. In an authorization and consent to release information form dated July 2008, the Veteran indicated that he received treatment for his knees from 1990 to 2003 from the Carolina Urgent Care/Walker Medical Center and from 2003 to the present (July 2008) from Barnett Family Physicians. He also indicated that he was seen at the Carolina Orthopedic Surgery since 2004. Unfortunately, the Veteran reported that the Walker Medical Center had shut down around 2003 and while he had tried to get his medical records from the facility, he was unsuccessful, and they were not able to be located. The Walker Medical Center ultimately merged with Carolina Urgent Care, but when the Veteran called, they did not know where his records were from when the facility was Walker Medical Center. While the Veteran contends that he has received treatment for his knees since 1990, there are no medical records on file documenting the Veteran’s knee complaints until 2008. Therefore, the probative evidence does not indicate that the Veteran’s bilateral knee condition manifested within a year of separation of service or that it occurred continuously since discharge from service. Although the Veteran asserts that his bilateral knee disability has pained him since service and asserted that he received treatment between 1990 and 2004, the record lacks medical evidence documenting sufficient chronicity of symptoms from that time period to award presumptive service connection. Therefore, a preponderance of the evidence is against the claim for service connection for a bilateral knee disability on a direct basis or on a presumptive basis as a chronic disease pursuant to 38 C.F.R. §§ 3.307(a)(6), 3.309(a). 3. Entitlement to service connection for sleep apnea The Veteran contends that his sleep apnea is due to his service-connected back disability. He has clarified that he is not claiming that sleep apnea started in service. See Form 9. Rather, the Veteran asserts that his service-connected back disability prohibits him from exercising which has caused him to gain weight, and his weight gain has caused his sleep apnea. See March 2020 Board Hearing Transcript at 3-5; October 2016 Statement in Support of Claim; Form 9 (stating that his service-connected back issue has caused him to gain approximately 30 pounds over the past 5-6 years and that a VA doctor has noted that weight gain can lead to sleep apnea). At the outset, the Board notes that the Veteran has been diagnosed with sleep apnea. See November 2016 VA Examination; October 2016 Medical Treatment Record. The Board also notes that the Veteran has a service-connected back disability. See August 2012 Rating Decision. As such, the remaining question for the Board is whether there is a nexus between the service-connected disability and the current disability. In other words, whether the Veteran’s service-connected back disability caused or aggravated his current sleep apnea. In a letter from a Dr. D. dated October 2016, he reported that the Veteran was under his care for the treatment of his sleep apnea, and that the Veteran’s sleep apnea was related to his weight gain and obesity. In a physician note dated January 2018, the Veteran asked his physician if it was possible that his sleep apnea was related to his service-connected back condition. The physician opined that weight gain from any cause can contribute to the development of sleep apnea. He further noted that the Veteran attributed his weight gain to his back pain decreasing the amount of exercise he could do. The Veteran has submitted medical records which show that he is overweight. See October 2016 Medical Treatment Records (VA Vitals and Readings). In a November 2016 VA examination, an examiner determined that the Veteran’s sleep apnea was less likely than not proximately due to or the result of the Veteran’s service-connected back disability. The examiner reasoned that sleep apnea is a respiratory condition which affects an individual’s breathing during the sleep cycle, specifically apnea (not breathing), which is not related to the Veteran’s lumbar condition. The Board notes that the Veteran has not claimed that his back disability is the direct cause of his sleep apnea. Rather, as has been noted throughout this decision, the Veteran claims that his sleep apnea is due to his weight gain resultant from his back disability. As such, the Board finds that this opinion is less probative than other private medical records submitted by the Veteran which address the Veteran’s sleep apnea in relation to his weight gain caused by his service-connected back disability. In an email chain in February 2019 between the Veteran and a nurse practitioner at Barnett Family Practice, the Veteran inquired whether it was possible that his weight gain over the last 6 years was due to his back issues and not being as active. The nurse practitioner responded that this was a completely reasonable reason for the Veteran’s weight gain. In a follow up, the Veteran asked whether his weight gain was likely related to his currently diagnosed sleep apnea. In response, the nurse practitioner stated that sometimes sleep apnea can be an attributing factor to weight gain, but it was more than likely because of the Veteran’s sedentary lifestyle related to his back issues. The Board notes that on February 24, 2020, the United States Court of Appeals for Veterans Claims (CAVC) issued Walsh v. Wilkie, No. 18-0495, holding that obesity as an “intermediate step” in a causal chain for service connection can be established on either a causal or aggravation basis. In relevant part, CAVC found that service connection may be granted on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability. Id. In the present case, the Veteran has submitted records from medical professionals which proffer that his sleep apnea is caused by his weight gain, and that his weight gain is reasonably a side effect of his service-connected back disability. See February 2019 Email Correspondence. As such, the Veteran’s weight gain is an intermediate step in the causal chain, ultimately causing the Veteran’s sleep apnea. See e.g., October 2016 Private Treatment Record. Accordingly, after a careful review of the evidence of record, the Board finds that the evidence is at least in equipoise to establish that the Veteran’s sleep apnea is secondary to his service-connected back disability. The Board resolves reasonable doubt in favor of the Veteran and finds that service connection for sleep apnea, caused by a back disability, is warranted. Therefore, the claim for secondary service connection for sleep apnea is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.