Citation Nr: 21002145 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-02 018 DATE: January 12, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for right knee arthritis is remanded. Entitlement to service connection for left knee arthritis status post total knee replacement is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1968 to August 1973 and the United States Coast Guard from August 1973 to October 1988. A hearing was held before the undersigned on September 16, 2020. A transcript of the hearing testimony has been associated with the claims file. The record was held open for 90 days at the request of the Veteran’s representative to submit additional evidence. No additional evidence has been received since the hearing. 1. Entitlement to service connection for sleep apnea is remanded. The Board cannot make a fully-informed decision on the issue of service connection for sleep apnea because no VA examiner has opined whether the Veteran’s condition is related to service. The record reflects the Veteran has been diagnosed with obstructive sleep apnea and that he had surgical treamttn in 1998. At the time of the hearing, the Veteran testified that other sailors told him he snored very badly. Remand is needed to obtain an opinion as to whether the Veteran’s sleep apnea is related to his service. McClendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a low back condition is remanded. Remand is necessary in order to obtain an adequate VA examination that identifies the Veteran’s current disability and provides an adequate rational regarding whether the Veteran’s low back condition is related to service. Private treatment notes from May 2014 reflect the Veteran reported low back pain and that he slipped while bowling. An MRI from May 2014 demonstrated a disc injury at left L3-L4, bilateral L4-L5 and bilateral L5-S1. It was noted that x-rays demonstrate medial joint line arthritis and degenerative changes of the lumbar spine. Treatment records reflect the Veteran underwent lumbar fusion decompression in June 2014 An August 2016 VA examiner noted only a diagnosis of degenerative arthritis of the spine and indicated that while imaging studies of the thoracolumbar spine had been performed and are available, arthritis was not documented. She then determined that the Veteran’s back condition is “less than likely as not related to his military service.” She explained he had isolated events in the military (1969, 1972, and 1975) and was diagnosed with sprains. He had his retirement physical on March 8, 1988 and there was no mention of his back during that time and his examination was normal. She concluded there was not enough information in his medical records from 1988 to 2014 to show that his back has been a chronic ongoing problem. The Veteran’s service treatment records reflect complaints of lower back pain: in February 1969, when he fell on the main deck; June 1970 when he complained of lower back pain upon lifting; October 1972, when he reported pain in the right low thoracic; January 1984, when he complained of lower right side back pain; March 1984, when he was found to have limited range of motion and stiffness of the mid lower back; and May 1984, when an x-ray was obtained, which was found to be within normal limits. During his hearing, the Veteran also explained that he took Tylenol for his back to take care of the pain. He explained he did not bother going to doctors for the pain he was experiencing after service until he went to Dr. B. He further explained that when he was in service he did not complain about things all the time because if you did complain they would asume you were just trying to get out of work. Remand is necessary for an adequate opinion that reflects accurate facutal information, considers the Veteran’s lay statements, and provides an adequate rationale for the conclusion reached. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 3. Entitlement to service connection for right knee arthritis is remanded. Remand is necessary to obtain an addendum opinion because the August 2016 VA examination is inadequate. Specifically, the examiner opined that the Veteran’s knee conditions are less than likely related to his military service. She explained that he had isolated events in the military (1977, 1969, and 1979) and was diagnosed with sprains. He had his retirement physical on March 8, 1988 and there was no mention of knees during that time and his exam was normal. She concluded that there is not enough information in his medical records from 1988 to 2014 to show that his back has been a chronic ongoing problem. This assessment is not factually complete, provides little rationale for its conclusion, and does not consider the Veteran’s lay statements. Also, the examiner draws a conclusion regarding the Veteran’s back when discussing his knees. With respect to the Veteran’s right knee, service treatment records indicate he experienced a strain in February 1977. The Veteran also reported swollen or painful joints and “trick or locked knee” in his February 1981 report of medical history. Additionally, the Veteran reported swollen or painful joints in his January 1983 report of medical history. It was noted he reported occassional soreness of knees. At his hearing, the Veteran explained his right knee was hit by mooring line and ballooned up and his current doctor believed his arthritis was caused by this. Remand is necessary to obtain an adequate opinion that considers the Veteran’s lay statements and is based on accurate factual information. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 4. Entitlement to service connection for left knee arthritis status post total knee replacement is remanded. As noted above in the discussion of the right knee, the opinion provided by the August 2016 VA examiner is inadequate. The opinion is similarly inadequate with respect to the Veteran’s claim for service connection for his left knee. The Veteran’s service treatment records reflect he reported to sick call for his left knee in: March and June of 1969, February 1977, and August 1979. In his report of medical history from February 1981, the Veteran indicated “yes” to swollen or painful joints and indicated his left knee was causing him to limp. An x-ray showed no problem and he was told not to run or exercise for a couple days. At the time of the hearing, the Veteran explained that he injured his left knee in service in 1969 and again in 1970 and it was treated with heat and ice at that time. After service, when he was working for freight companies pulling pallets, he could feel burning in his knee. He went to the hospital to have it looked at and it was recommended he see Dr. B, who took an x-ray and found the Veteran had no cartilage left in his left knee. He had a total knee replacement in 2015. Treatment notes from September 2015 indicate the Veteran had a “long-standing” history of left knee pain that had been “going on to a certain extent for years.” At that time, he was assessed with “end-stage arthritis.” Remand is necessary to obtain an adequate opinion that considers the Veteran’s lay statements and is based on accurate factual information. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 5. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. At the September 2020 hearing, the Veteran’s representative indicated he had spoken with the Veteran about his hearing loss having gotten worse. Considering the last VA examination was in August 2016, the Board finds that the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his bilateral hearing loss. Hence, remand is warranted. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the etiology of his obstructive sleep apnea. The examiner is requested to review all pertinent records associated with the claims file, including this Remand in its entirety, and to indicate review of the file in the examination report. The examiner must determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s obstructive sleep apnea is related to service, including the symptom of snoring in service? In providing the requested opinion, consider the Veteran’s description of his in-service symptom as well as his post-service symptoms and treatment. If there is any medical reason to accept or reject the proposition that the Veteran’s reported symptom in service thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptom align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Provide a rationale for any opinion rendered. 2. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran’s current back disability. The examiner is requested to review all pertinent records associated with the claims file, including this Remand in its entirety, and to indicate review of the file in the examination report. The examiner must identify all of the Veteran’s low back diagnosis(es) during the period on appeal. For each diagnosed back disability, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s back disability is related to his service. The examiner must consider the in-service reports related to the back, including: in February 1969, when he fell on the main deck; June 1970 when he complained of lower back pain upon lifting; October 1972, when he reported pain in the right low thoracic; January 1984, when he complained of lower right side back pain; March 1984, when he was found to have limited range of motion and stiffness of the mid lower back; and May 1984, when an x-ray was obtained, which was found to be within normal limits. The examiner must also consider the Veteran’s lay statements, including his testimony at the time of the hearing. He explained then that he took Tylenol for his back to take care of the pain. He explained he did not bother going to doctors for the pain he was experiencing after service until he went to Dr. B. He further explained that when he was in service, he did not complain about things all the time because if you did complain they would assume you were just trying to get out of work. 3. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran’s bilateral knee disability. The examiner is requested to review all pertinent records associated with the claims file, including this Remand in its entirety, and to indicate review of the file in the examination report. The examiner must opine whether it is at least as likely as not (50 percent probability or great) that the Veteran’s current right knee arthritis is related to his service. The examiner must consider the Veteran’s contention that his right knee was hit by mooring line and ballooned up; as well as service treatment records reflecting a strain in February 1977, the Veteran reporting swollen or painful joints and “trick or locked knee” on his February 1981 report of medical history, and the Veteran reporting swollen or painful joints on his January 1983 report of medical history and also reporting occasional soreness of knees. The examiner must also opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current left knee arthritis is related to his service. The examiner must consider the Veteran’s contention of being hit by a case of frozen beef; reporting to sick call for his left knee in: March and June of 1969, February 1977, and August 1979; indicating “yes” in his February 1981 report of medical history to swollen or painful joints and “trick or locked knee,” noting his left knee was causing him to limp; and reporting swollen or painful joints in his January 1983 report of medical history in which it was noted he reported occasional soreness of knees. The examiner must also consider the Veteran’s lay statements, including his testimony at the time of the hearing. He explained then that he was hit by a case of frozen beef that slipped from the person above him on a ladder in 1969. He had a problem with his knee in 1970 and they again put heat and ice on it and gave him some medication. After he got out of service it bothered him and got worse. He had to change jobs a couple times after he was out of the service. He was not aware of VA disability benefits and he let it go and kept taking Tylenol whenever it bothered him until it got so bad he had to see an orthopedic surgeon who told him the cartilage between the bones was gone and he would have to have it replaced. (Continued on the next page)   6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 7. Then, readjudicate the Veteran’s claims on appeal. If the benefits sought on appeal remain denied, provide the Veteran and his representative a supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Vemulapalli 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.