Citation Nr: 21004034 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-55 150 DATE: January 25, 2021 ORDER A 100 percent rating for left knee replacement under Diagnostic Code 5055 is granted. A 100 percent rating for right knee replacement under Diagnostic Code 5055 is granted. Service connection for sleep apnea, to include as secondary to service-connected disabilities, is denied. Service connection for hypertension, to include as secondary to service-connected disabilities, is denied. REMANDED Entitlement to a disability rating of 10 percent for left knee osteoarthritis is remanded. Entitlement to a disability rating of 10 percent for left knee chondromalacia patella with intermittent subluxation is remanded. Entitlement to a disability rating of 10 percent for right knee fibula fracture with arthritis is remanded. FINDINGS OF FACT 1. In December 2018, the Veteran underwent a total knee replacement on his service-connected left knee. 2. In May 2019, the Veteran underwent a total knee replacement on his service-connected right knee. 3. The evidence does not show that sleep apnea first manifested during active service or is otherwise related to an in-service event, injury, or disease, nor was it caused or aggravated by a service-connected disability. 4. The evidence does not show that hypertension first manifested during active service or is otherwise related to an in-service event, injury, or disease, nor was it caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a 100 percent rating for a left knee replacement have been met, based on surgery performed in December 2018. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5055. 2. The criteria for a 100 percent rating for a right knee replacement have been met, based on surgery performed in May 2019. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5055. 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1966 to November 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2015 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In November 2020, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing has been associated with the record. 100 Percent Ratings for Right and Left Knee Replacement The VA Rating Schedule authorizes a 100 percent rating for one year following the implantation of knee prothesis. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The evidence shows that the Veteran’s service-connected left and right knee disabilities led to the prosthetic replacement of his knee joints in December 2018 and May 2019. Thus, a 100 percent rating authorized by Diagnostic Code 5055 should be awarded for each knee. The RO will assign the effective dates, as well as the initial ratings following the cessation of the 100 percent ratings, in the first instance, to ensure the Veteran is afforded the requisite due process. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Veteran asserts, generally, that he developed obstructive sleep apnea (OSA) and hypertension as a result of his military service. Specifically, he contends that the conditions developed as a result of his service-connected PTSD; or in the alternative, that his service-connected bilateral knee disabilities caused him to become morbidly obese, which in turn caused the conditions. Other than these generalized assertions, the Veteran has presented no medical evidence to support his claims, nor has a connection been reasonably raised by competent medical evidence. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). For the reasons below, the claims must be denied. Review of the available service treatment records does not reveal any complaints of, treatment for or diagnosis of OSA or hypertension during service. The conditions were both diagnosed many years after the Veteran separated from service, and no medical evidence has been submitted to support a claim that they developed due to service, or service-connected disabilities. Therefore, the claims must be denied. The Board notes that hypertension is considered a chronic disease under 38 C.F.R. § 3.309 (a), and service connection could be awarded even in the absence of a positive nexus, if the evidence of record demonstrates continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, however, there is no showing of continuity of symptomatology. In addition, the Veteran’s attorney asserted at the hearing that hypertension developed as a result of exposure to herbicide agents while in Vietnam. The Board notes that veterans with active service in the Republic of Vietnam between January 1962 and May 1975, such as the Veteran in this case, are presumed to have been exposed to herbicide agents. See U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii). Applicable regulations provide that those diseases listed in 38 C.F.R. § 3.309 (e) which are associated with exposure to certain herbicide agents shall be considered to have been incurred in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.309 (e). However, Note 2 to 38 C.F.R. § 3.309 (e) expressly excludes hypertension from presumptive service connection. Rather, and crucial to its analysis, the Board notes that the Veteran has been diagnosed with essential hypertension, which is defined as “hypertension occurring without discoverable organic cause.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY at 909 (31st ed., 2007). Therefore, service connection for the condition is not warranted on any basis. The Board acknowledges that the Veteran has not been afforded a VA examination regarding his claims for service connection for OSA and hypertension. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. As noted supra, the Veteran has submitted no evidence other than his own statements showing a relationship between his OSA or hypertension and his military service, or his service-connected disabilities, and a secondary connection been not reasonably raised by the evidence. Accordingly, the Board finds that the requirements set forth in McLendon have not been triggered and no examinations are necessary. The Board recognizes that obesity may serve as an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310 (a). Walsh v. Wilkie, 30 Vet. App. 300 (2020); see also VAOGCPREC 1-2017. In such a case, the evidence would need to reflect that (1) a service-connected disability or disabilities caused the Veteran to become obese or aggravated the Veteran’s obesity, (2) the obesity or aggravation of obesity resulting from service-connected disability or disabilities was a substantial factor in causing another disability, and (3) the disability would not have occurred but for the obesity caused by the Veteran’s service-connected disability or disabilities or the obesity aggravated by the service-connected disability or disabilities. Walsh, 30 Vet. App. at 306-7. In this case, the evidence is against a finding that the Veteran’s service-connected knee disabilities caused or aggravated his obesity. At a July 2015 VA examination, the Veteran reported flare-ups which manifested as pain and reduced his ability to stand for long periods, or to walk up and down stairs. However, there is no suggestion from this examination that the Veteran’s knee disabilities caused or aggravated his morbid obesity. Rather, he was counseled on weight loss strategies in 2017 and 2018, and repeatedly informed that he would not be able to have knee replacement surgery unless he lost weight. There is no indication of any of the Veteran’s other service-connected disabilities causing or aggravating his obesity. Two well-known contributing factors to obesity include inactivity and high caloric intake. In an August 2018 VA note, the Veteran was advised to eat high fiber foods, reduce his fat intake, and increase the frequency of his walking. A December 2018 note diagnosed the Veteran with morbid obesity due to excess calories. The Veteran ultimately went from a weight of 300.1 pounds in January 2018 to 274 pounds at the time of his March 2019 knee surgery. This is evidence against a finding that the Veteran’s knees or other service-connected disabilities caused or aggravated his obesity. Clearly the Veteran is able to walk and engage in other activity despite his knee disabilities. As the evidence is against finding that the Veteran’s obesity was caused or aggravated by service-connected disabilities, service connection for sleep apnea or hypertension due to obesity is not warranted. The Board has considered the Veteran’s statements that his OSA and hypertension were caused or aggravated by his service-connected disabilities, to include PTSD and his knees. However, as the Veteran is not shown to have medical education or experience, he is a lay person and competent to report (1) symptoms that are observable to a layperson (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Lay persons are not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, these lay assertions do not constitute evidence upon which service connection can be granted. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The claims are denied. REASONS FOR REMAND The Board finds that further development is necessary prior to final adjudication of these issues. The Veteran last underwent a VA knee examination in July 2015. VA examinations must include joint testing for active and passive motion in both weight-bearing and non-weight-bearing circumstances, and the prior exams did not. In addition, it has been over 5 years since the Veteran’s last knee examinations. Since that time, as noted above, he has had total knee replacements. As such, remand for a contemporaneous examination is required. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to assess the severity of his service-connected right and left knee disabilities. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeremy J. Olsen, 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.