Citation Nr: 21061380 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 14-24 956 DATE: October 1, 2021 ORDER Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for seizures is remanded. FINDING OF FACT The Veteran's sleep apnea did not originate in service or until years thereafter, and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1985 to January 2005. In August 2017, the Veteran testified at a hearing before the undersigned; a transcript is of record. In February 2018, the Board reopened the claims for service connection for a right knee disability and service connection for seizures and remanded both issues for further development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 1. Entitlement to service connection for sleep apnea The Veteran asserts that his currently diagnosed sleep apnea had onset in service. Specifically, the Veteran testified that he was having sleep issues in service. A review of the service treatment records reveals no findings of complaints, treatment or diagnosis of sleep apnea. Post-service treatment records show the Veteran was diagnosed with obstructive sleep apnea in 2011, six years after service. An October 2011 buddy statement from M. F. states she worked with the Veteran for approximately 10 years and witnessed the Veteran falling asleep at training classes and events, sometimes snoring loudly. M. F. stated the Veteran told her he was having difficulty sleeping at night and was always tired and sluggish during the day. The Board has considered the Veteran's contention that his sleep issues in service were the onset of his currently diagnosed sleep apnea, as well as the statement from M. F.; however, the most probative evidence does not show that the Veteran had sleep apnea during or as a result of service, or within a year of discharge. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a diagnosis and etiology of a sleep disorder falls outside the realm of common knowledge of a lay person. Such disorders are typically diagnosed through medical studies and testing, and generic symptoms such as snoring and fatigue are common to a number of disorders outside of sleep apnea. The Veteran and his friend are simply not competent to diagnose a sleep disorder or otherwise related a sleep disorder to service. In June 2019, the RO sent the Veteran a letter asking him to identify all outstanding treatment records relevant to his claim for sleep apnea, to include the reported sleep apnea diagnosis in 2004. In a June 2019 statement in support of claim the Veteran responded that he had no new evidence to send in support of his claim and that the VA could move forward with making a decision. Given that there is no medical evidence that supports an in-service diagnosis of sleep apnea, and the only diagnosis was made years after service, and as there otherwise is no competent evidence linking any current sleep apnea to service, the Board finds the most probative evidence is against the claim. Accordingly, the preponderance of the evidence is against the claim for service connection for a sleep apnea disability, the benefit of the doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for a right knee condition is remanded. The Veteran asserts that he has a current right knee disorder that had its onset in service. Specifically, he testified that began to have right knee pain in service as an infantry soldier. The Veteran reported that he was required to march and climb mountains with a heavy ruck sack on his back which put a lot of stress on his knees. He stated that his knee continued to bother him throughout service. He also stated he was able to get a little relief when he switched to recruiting duty, which took the pressure off. In August 2019, the Veteran underwent a VA knee examination. The examiner diagnosed patellar enthesopathy by x-ray done the day of the exam. The Veteran reported he injured his knee several times by jumping from helicopters and running on hills, etc. The Veteran informed the examiner that he had an MRI of the right knee in July 2010 that showed quadriceps tendinosis and lobulated Baker's cyst and was recently diagnosed with degenerative arthritis. The Veteran stated his chronic knee pain has progressively increased and he used a brace as needed. The examiner was unable to test the Veteran's range of motion due to pain in the right knee. The examiner opined it was less likely than not the Veteran's right knee disorder was incurred in or caused by the claimed in-service injury, event or illness. The rationale provided was that the STRs and separation examination were silent for knee problems and the long interval gap between the current condition and discharge from service. The Board finds the VA opinion incomplete. The examiner did not address the Veteran's lay contentions about self-treating his symptoms. Additionally, the examiner did not address whether the 2010 diagnosis of quadriceps tendinosis and lobulated Baker's cyst were related to service. As there is no clear answer on whether the Veteran has a currently diagnosed right knee condition that was caused by or related to his in-service knee pain, the Board finds a remand is warranted for a new VA knee exam and opinion. 2. Entitlement to service connection for seizures is remanded. The Veteran asserts that he had a seizure in May 1999 while on active duty and service connection is warranted. The claims file contains a May 1999 treatment note from Horizon Health System. It shows that the Veteran went to the emergency room complaining of dizziness and swollen eyelids and upper lip. He became syncopal in the triage area and was taken into the emergency department. The treatment note states the Veteran had a seizure while being transferred on the gurney. The final diagnosis was acute anaphylaxis secondary to Aspirin. The Veteran has reported that he has had a seizure on at least three other occasions since then but has not been given a definitive diagnosis of seizures. A review of the claims file shows that there is some conflicting evidence regarding whether the Veteran actually has a seizure disorder. An August 2019 VA examiner determined the Veteran does not have a seizure disorder because and EEG and CT scan in July 1999 were negative, as was a repeat CT scan and EEG in 2010 after another syncopal episode. The examiner did not provide an opinion stating the Veteran does not have a seizure disorder and the episode of seizure in 1999 resolved. The VA examiner's opinion is in conflict with the Veteran's report of several more seizures, and in fact the examiner also noted another syncopal episode in 2010. Additionally, a March 2011 EEG was normal in the awake and restful state without evidence of epileptogenic state, however the neurologist noted on the report that the lack of that feature does not rule out a primary seizure disorder. As there is conflicting information on whether the Veteran's syncopal episodes, including the one in service are a seizure disorder, the Board finds a remand is necessary for a VA examination and opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to obtain a medical opinion regarding the nature and etiology of the claimed right knee disability. After examining the Veteran and reviewing the claims file, the VA examiner should report all right knee diagnoses. The examiner should opine whether it is at least as likely as not, i.e., 50 percent or greater probability, that any current right knee disability had its onset during service or is otherwise due to or related to the reported injuries and symptoms in service. A complete rationale should be provided for all opinions expressed. 2. Schedule the Veteran for a VA examination to obtain a medical opinion regarding the nature and etiology of the claimed seizure disorder. (Continued on the next page) After examining the Veteran and reviewing the claims file, the VA examiner should opine as to whether it is at least as likely as not, i.e., 50 percent or greater probability, that any current seizure disorder had its onset during service or is otherwise due to or related to the seizure the Veteran had during service. A complete rationale should be provided for all opinions expressed. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Mitchell, 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.