Citation Nr: 21002067 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 18-33 878 DATE: January 12, 2021 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for arthritis of the right knee is denied. Entitlement to service connection for arthritis of the left knee is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that sleep apnea began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that arthritis of the right knee began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that arthritis of the left knee began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea syndromes have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for arthritis of the right knee have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for arthritis of the left knee have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1985 to December 1988 and from September 1989 to June 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board acknowledges the Veteran’s representative, Christopher Boudi of Bosley and Bratch, withdrew representation in September 2019 and confirmed this in a January 2020 letter. The Veteran was issued a September 8, 2020 letter notifying him of his right to elect or appoint a new representative. On September 21, 2020, the VA received a Pro Se Election form from the Veteran indicating that he would represent himself and the Board should proceed with his appeal. The Board also acknowledges the newly associated CAPRI medical treatment records included in the claims file. This record includes notations of the Veterans treatment from the VA from May 2018 to October 2019. However, the records are not related to the claims on appeal. Therefore, the Board will proceed with adjudication of the claims without remand for consideration from the RO. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for sleep apnea. Generally, the Veteran contends that he developed sleep apnea as a result of his military service. The Veteran has not specifically stated how his military service has caused his sleep apnea in the record. In March 2015, the Veteran underwent a sleep study at a non-VA center. The study concluded that the Veteran had obstructive sleep apnea (OSA) and periodic limb movements disorder. Service treatment records, including the June 1993 separation examination, lack any complaint, treatment, or diagnosis of a sleep disorder. The Veteran was afforded a VA examination in February 2017. The examiner stated that the veteran was diagnosed with sleep apnea by sleep study at Delta Medical Center in March 2015. Review of service treatment record does indicate that on a military medical exam in March 1993 the Veteran marked "yes" to the question of trouble sleeping, however, this was not addressed by the examining physician. Later, on his separation military physical in June 1993, the Veteran marked "no" to the question concerning trouble sleeping. The examiner further stated that the clinical records did not document any history concerning sleep trouble until the Veteran was seen at the hospital in December 2014 when he complained of snoring and waking himself up while sleeping. A sleep study, as noted above, was completed and the diagnosis of sleep apnea was made. Since the record is contradictory concerning sleep problems while in the service and since there are no intercurrent records, I cannot say that the Veteran's sleep apnea had its onset while he was on active service without speculation. Therefore, the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The Board acknowledges the Veterans assertion that he has sleep apnea related to his military service. A layperson is competent to report observable symptomatology which comes to him via his senses. See Barr v. Nicholson, 21 Vet. App. 303, 308 (U.S. 2007). However, some medical issues require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology. Layno v. Brown, 6 Vet. App. 465, 470 (U.S. 1994). In this case, the Veteran has shown that he does not have the medical knowledge or expertise to diagnosis a relationship between his condition and his military service. However, the medical evidence of record answered this question. Overall, no specific theory of entitlement has been contended, the in-service records did not show a sleep apnea condition treated or complained, and the diagnosis of a sleep apnea was more than 20 years after discharge from service. The VA examination found no nexus between the Veteran’s service and his current sleep apnea. No evidence has been submitted to oppose this finding. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for sleep apnea. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for arthritis of the right knee. 3. Entitlement to service connection for arthritis of the left knee. The Board addresses the service connection claims together as they stem from the same factual background and are addressed under the same legal basis. Generally, the Veteran contends that he developed a bilateral knee disability as a result of his military service. The Veteran has not specifically stated how his military service has caused his knee disabilities in the record. Post-service treatment records indicate the Veteran has a current diagnosis of a bilateral knee disability. See e.g., December 2014 Primary Care Note (Veteran stated that he injured his right knee in May 2014); October 2016 Greenwood Orthopedic (knee surgery). On a December 1991 service treatment record, the Veteran complained of right knee pain and tenderness. He stated that he injured his knee a while ago before he reported it. At that time, he was diagnosed with knee strain. On a January 1990 service treatment record, the Veteran complained of pain and swelling in his left knee. The Veteran was afforded a VA examination in February 2017. A diagnosis of right knee strain and bilateral osteoarthritis was confirmed. The examiner reviewed the Veteran’s post-service treatment records and in-service notations of knee problems. The examiner noted that there were no complaints of pain or diagnosis of a right knee disorder after service until January 2014. In February 2014, the Veteran reported that he injured his right knee at work and that it was not covered by workman’s compensation. He also stated this during a June 2015 Greenwood orthopedic visit. The examiner opined that the knee conditions were less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner opined this to be true, because the Veteran’s exit physical was normal in service. His right knee strain in service was acute and self-limited. The complaints in December 1991 was of a minimal tenderness vastus medialis oblique strain. It was a normal examination otherwise of the right knee. The examiner also stated there was no finding of any ongoing right knee vastus medialis oblique strain or pain. No finding of any orthopedic complaints, pains, problems, or diagnosis until October 2013. There were no findings of a left knee disability until September 2016. By this time, he had multiple evaluations for the right knee. There examiner further stated was no nexus connecting the acute self-limited left knee chondromalacia to the current left knee arthritis pain. There was not seen any patellofemoral left knee arthritis, just two compartments medial and lateral femorotibial arthritis. Arthritis related to chondromalacia was first patellofemoral, and only much later did it become three compartments. Current radiographic left knee osteoarthritis was age elated and not caused by or related to any in-military event. The Board acknowledges the Veterans assertion that he has arthritis of the right and left knee related to his military service. A layperson is competent to report observable symptomatology which comes to him via his senses. See Barr v. Nicholson, 21 Vet. App. 303, 308 (U.S. 2007). However, some medical issues require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology. Layno v. Brown, 6 Vet. App. 465, 470 (U.S. 1994). In this case, the Veteran has shown that he does not have the medical knowledge or expertise to diagnosis a relationship between his condition and his military service. However, the medical evidence of record answered this question. Overall, no specific theory of entitlement has been contended. There is evidence of knee complaints while in service and a current diagnosis for each knee. This satisfies the two requirements to warrant service connection. However, the medical evidence shows that the Veteran’s knee conditions developed more than 15 years after service with no continuity of symptomatology. The VA examination found no nexus between the Veteran’s service and his current knee conditions. No evidence has been submitted to oppose this finding. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for arthritis of the right and left knee. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harris, Attorney Advisor 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.