Citation Nr: 21004957 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-25 830 DATE: January 28, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a lumbar spine disability, to include as secondary to a knee disability, is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from June 1992 to June 1996. Most recently, in January 2020, the Board remanded the matters of entitlement to service connection for tinnitus, a left knee disability, a lumbar spine disability, and sleep apnea for additional development. During that development, the regional office awarded service connection for tinnitus. As that award represents a full grant of the benefit sought regarding that claim, it is no longer before the Board. The Board finds that further action on the remaining three claims is warranted, even though such will regrettably, further delay an appellate decision. Remand is again required to ensure compliance with the prior Board remand and to afford the Veteran every possible consideration. 1. Entitlement to service connection for a left knee disability is remanded. The Veteran maintains entitlement to service connection for a left knee disability. In January 2020, the Board remanded this issue for additional development, to include the provision of a VA examination. The Veteran underwent the requested examination in August 2020. There, the Veteran was diagnosed with left knee strain. The examiner determined that this disability was less likely than not incurred in or caused by the claimed in-service event, reasoning that there was no documentation of treatment in service. She further noted that had the Veteran experienced knee pain from his activities in service, he would have experienced such pain prior to 2007 (the date of the first treatment record for it). The Board finds that this opinion is inadequate as it is predicated, in large part, upon lack of documentation. Dalton v. Peake, 21 Vet. App. 23 (2007). The examiner did not address the Veteran’s competent, credible lay statements that he experienced consistent left knee symptoms from service to this present. In another opinion proffered the same month, the examiner acknowledged the Veteran’s description of in-service events but concluded that the Veteran’s left disability was more likely due to aging. The Board finds that this opinion is also inadequate for decisional purposes. The examiner did not provide an adequate rationale explaining why the Veteran’s left knee is related to the aging process rather than his in-service work. As such, the issue must be remanded so an addendum opinion concerning the etiology of the Veteran’s diagnosed left knee disability can be obtained. 2. Entitlement to service connection for a lumbar spine disability, to include as secondary to a knee disability, is remanded. The Veteran maintains entitlement to service connection for a lumbar spine disability, to include as secondary to a knee disability. In January 2020, the Board remanded this issue for additional development, to include the provision of a VA examination. The Veteran underwent the requested examination in August 2020. There, the Veteran was diagnosed with degenerative arthritis of the spine. The examiner determined that this disability was less likely than not incurred in or caused by the claimed in-service event. The examiner acknowledged the Veteran’s description of in-service events but concluded that the Veteran’s lumbar spine disability was more likely due to aging. The Board finds that this opinion is inadequate for decisional purposes. The examiner did not provide an adequate rationale explaining why the Veteran’s lumbar spine is related to the aging process rather than his in-service work. Further, while an opinion concerning whether the Veteran’s lumbar spine disability was proximately due to a knee disability was proffered, an opinion concerning whether this disability was aggravated beyond its normal progression by a knee disability was not. If it is determined that the Veteran’s left knee disability is service-connected, a medical opinion must also be provided regarding aggravation. 3. Entitlement to service connection for sleep apnea is remanded. The Veteran maintains entitlement to service connection for sleep apnea. In January 2020, the Board remanded this issue for additional development, to include the provision of a VA examination. The Veteran underwent the requested VA examination in April 2020. There, the VA examiner declined to render a diagnosis of sleep apnea, pointing to the negative results of a sleep study performed in March 2009. However, as VA treatment records as recent as March 2020 document a diagnosis of sleep apnea, the Board finds that an examination that includes a current sleep study is warranted to determine whether the Veteran presently has such a diagnosis, and, if so, whether it is related to his active duty military service. The matters are REMANDED for the following action: 1. Obtain all updated VA treatment records and associate them with the claims file. 2. After any additional records are associated with the claims file, request addendum medical opinions concerning the etiology of the Veteran’s left knee and lumbar spine disabilities. The entire claims file must be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided and due consideration must be taken of the Veteran’s lay statements regarding onset and continuity of symptomatology. 3. Upon completion of the foregoing, the examiner is requested to provide the following information and opinions: (a.) Whether it is at least as likely as not that the Veteran’s diagnosed left knee disability is related to an in-service injury, event, or disease, including working on his hands and knees, climbing in and out of the superstructure of the ship, climbing in and out of lockers, and working the sails. (b.) Whether it is at least as likely as not that the Veteran’s diagnosed lumbar spine disability is related to an in-service injury, event, or disease, including working on his hands and knees, climbing in and out of the superstructure of the ship, climbing in and out of lockers, and working the sails. (c.) If, and only if, the Veteran’s left knee is determined to be service-connected, the examiner is also asked to address whether it is as likely as not that the Veteran’s lumbar spine disability is aggravated beyond its natural progression by the left knee disability. 4. Provide the Veteran with an appropriate examination to determine the etiology of any sleep apnea disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished. A new sleep study must be provided. All clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. Upon completion of the foregoing, the examiner is requested to provide the following information and opinions: (a.) First, the examiner is requested to state all diagnoses related to a sleep disorder. If obstructive sleep apnea is not diagnosed, the examiner must so state and explain why. The examiner must not rely on the results of the March 2009 sleep study; a new sleep study must be provided. (b.) Second, regarding each diagnosed sleep disorder, is it at least as likely as not (a 50 percent or greater probability) that the disorder manifested during service, or is otherwise related to the Veteran's military service? The examiner must consider the Veteran's lay statements regarding the onset of symptoms. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.