Citation Nr: 21061544 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 16-38 509 DATE: October 4, 2021 ORDER A rating in excess of 30 percent for a right knee disability (total knee replacement) is denied. For the period on appeal prior to July 9, 2018, a separate rating of 10 percent, but no higher, for a right knee disability (limited flexion and functional loss), is granted. For the period on appeal prior to July 9, 2018, a separate rating of 10 percent for a right knee disability (meniscus removal), is granted. For the period on appeal prior to July 9, 2018, a rating of 20 percent, but no higher, for a right knee disability (moderate instability) is granted. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression, is remanded. FINDINGS OF FACT 1. The Veteran's right knee disability manifested as intermediate chronic knee replacement residuals. 2. For the period on appeal prior to July 9, 2018, the competent and probative evidence shows that the Veteran's right knee had painful flexion causing functional loss. 3. For the period on appeal prior to July 9, 2018, the Veteran's right knee disorder was manifested by swelling. 4. For the period on appeal prior to July 9, 2018, the Veteran's right knee instability was moderate. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for a right knee disability (total knee replacement) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5055. 2. For the period on appeal prior to July 9, 2018, the criteria for a rating of 10 percent, but no higher, for the right knee disorder (limited flexion) are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260. 3. For the period on appeal prior to July 9, 2018, the criteria for a separate rating of 10 percent for the right knee disorder are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5259. 4. For the period on appeal prior to July 9, 2018, the criteria for a rating of 20 percent, but no higher, for a right knee disability (moderate instability) are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from April 1978 to May 1987. These matters are before the Board of Veterans' Appeals (Board) on appeal from July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing in October 2019; a transcript is of record. Subsequently, the Board remanded these issues in May 2020 for additional development, to include issuing a SSOC. These matters have now returned to the Board for appellate consideration. As such, the Board finds there has been substantial compliance with its prior remand directives as a SSOC was issued in September 2020. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran filed a claim for service connection for depression. However, pursuant to Clemons v. Shinseki the Board finds that it is appropriate to characterize the Veteran's claim as noted above. 23 Vet. App. 1, 5 (2009). Additionally, the Board acknowledges the Veteran appeared to withdraw his claim for an increased rating for a right knee disability as indicated through his written submission. However, at the October 2019 Board hearing, the issue that was identified was an increased rating for a right knee meniscus scar. As such, there is some ambiguity about what issue was actually being withdrawn. Therefore, the Board will resolve reasonable doubt in favor of the Veteran and finds that his claim for an increased rating for a right knee disability remains on appeal. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Arthritis due to trauma is rated as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Where there is noncompensable limitation of motion, a 10 percent evaluation is assigned for each major joint or group of minor joints, where the limitation is objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion, a 10 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003, Note (1). Effective February 7, 2021, DC 5010 provides that traumatic arthritis is now to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes "additional functional loss i.e., 'the inability...to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance' including as due to pain and/or other factors" or "reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination." Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. "The question of whether a particular medical issue is beyond the competence of a laypersonincluding both claimants and Board membersmust be determined on a case-by-case basis." Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). In this case, the Board is competent to observe that voluntary range of motion testing is going to be more favorable to the Veteran than involuntary range of motion testing. In DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1592 (32nd ed. 2012), range of motion redirects the reader to "exercise." Passive exercise "is motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient's own body." Id. at 658. Active exercise is "motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part." It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the Veteran's joint farther than he would be able to move it on his own. Therefore, active motion is more favorable to the Veteran, and the results of active motion testing were provided. Similarly, it is reasonable to conclude that non-weightbearing motion is less difficult than weightbearing motion. The competent evidence of record does not tend to indicate that the structural integrity of the Veteran's service-connected joints is compromised, such that passive range of motion in this case would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to test for limitation of motion on passive range of motion and in non-weight-bearing is not prejudicial. The Board will therefore evaluate the Veteran's range of motion using the available findings of active range of motion and looking at all the relevant medical and lay evidence. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). 1. Entitlement to an increased rating for a right knee disability. The Veteran received a 10 percent rating for his right knee disability under DC 5257 prior to July 9, 2018. A September 2018 rating decision granted a 100 percent rating for the Veteran's right knee replacement from July 9, 2018 until September 1, 2019. From that date, he is currently in receipt of a 30 percent rating under DC 5055. 38 C.F.R. § 4.71. Normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II. DC 5055 provides for prosthetic replacement of the knee joint assigns a 100-percent evaluation for one year following implantation of prosthesis. With chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60-percent rating is assigned. With intermediate degrees of residual weakness, pain or limitation of motion, the disability is to be rated by analogy to DCs 5256 (ankylosis), 5261 (limitation of extension), or 5262 (impairment of tibia and fibula). The minimum rating is 30 percent. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71a, DC 5257 covers "other impairment of the knee," and an assignment of a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability. VA revised this DC on February 7, 2021, but it is not applicable here as the period under consideration is prior to the 2021 effective date as the Veteran underwent a total right knee replacement in July 2018. Additionally, DC 5258 covers dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; this warrants a 20 percent rating. DC 5259 covers removal of symptomatic semilunar cartilage, which warrants a 10 percent rating. Other DCs concern motion and under DC 5260 leg flexion limited to 60 degrees warrants a noncompensable rating. Leg flexion limited to 45 degrees warrants a 10 percent rating. Leg flexion limited to 30 degrees warrants a 20 percent rating. Leg flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, leg extension limited to 5 degrees warrants a noncompensable rating. Leg extension limited to 10 degrees warrants a 10 percent rating. Leg extension limited to 15 degrees warrants a 20 percent rating. Leg extension limited to 20 degrees warrants a 30 percent rating. Leg extension limited to 30 degrees warrants a 40 percent rating. Leg extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. A knee disability can be rated for both limitation of leg flexion under DC 5260 and limitation of leg extension under DC 5261. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Additionally, General Counsel Opinion 9-98 directs that with respect to Diagnostic Code 5259, limitation of motion can be a relevant consideration so the provisions of 38 C.F.R. § 4.40 and 4.45 must be considered. For patellar instability also rated under DC 5257, a 10 percent rating is assigned for a diagnosed condition that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted when there is a diagnosed condition with a prescription for either a brace, cane, or walker. A 30 percent rating requires a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription for brace and either a cane or a walker. DC 5055 was changed so that following prosthetic replacement of the knee joint, or resurfacing, a 100 percent rating will be assigned for only 4 months. Thereafter, the rating criteria is the same as the prior code, with the exception of resurfacing the knee, which as a note points out after the DC, after the conclusion of the 100 percent rating a resurfaced knee will be evaluated under DCs 5256 through 5262 with no minimum evaluation for resurfacing. Note (3) to the general section about prosthetic replacements and resurfacing also specifies that the term "prosthetic replacement" in DC 5055 means a total knee replacement. 38 C.F.R. § 4.71a. Diagnostic Code 5262 was amended to now provide that "malunion of" the tibia and fibula is now rated under appropriate knee or ankle diagnostic codes. Additionally, a noncompensable rating is assigned for medial tibial stress syndrome (MTSS) or shin splints for treatment of less than 12 consecutive months, one or both lower extremities. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5262). Prior to February 7, 2021, the Board will apply the prior rating criteria. From February 7, 2021 onward, the Board applies the criteria that is more favorable to the Veteran. The Veteran underwent an examination in July 2014. He reported daily knee pain and flare-ups where he would need to sit and relax for a time. However, he also stated that he did not have loss of motion during flare-ups. He had 120 degrees for flexion and normal extension (zero degrees), both without pain. He was able to perform three times repetitive use testing with the same range of motion. Muscle strength testing was normal (5/5), and his joint stability testing (Lachman, Posterior, and Medial-lateral) were normal. He did not have a history of recurrent patellar subluxation or dislocation. He did not have shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. His prior right knee medial meniscus tear and subsequent medial arthrotomy and excision were reported. His residuals of varus angulation and bony hypertrophy were reported. 15 degrees of varus deformity was reported. The examiner stated that it was not possible to objectively state that there was additional functional limitation or loss of motion due to pain, weakness, fatigability, or incoordination during a flare-up or during repeated use over a period of time. In June 2016, he participated in an examination. He had flare-ups when he would walk a lot, when he would stand up after sitting, and pain with standing. He had functional loss in that he had to stand up slowing and used a cane to stabilize himself after standing. He had flexion of 100 degrees with pain and normal extension. Pain with weight bearing and crepitus were reported. He was able to perform three times repetitive use testing with no additional loss of function or range of motion. The examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and during flare-ups. Pain and fatigue significantly limited functional ability during repeated use over time. His range of motion remained the same. Pain and lack of endurance significantly limited functional ability during flare-ups. His flexion was reduced to 90 degrees. He had right knee deformity, disturbance of locomotion, and interference with standing. He had reduced muscle strength for flexion (4/5 active movement against some resistance). He did not have ankylosis. He did not have a history of recurrent patellar subluxation or dislocation. His joint stability testing (Lachman, Posterior, and Medial, and Lateral) were normal. He regularly used a cane. His most recent examination is from August 2018 after his total knee replacement from July 2018. He did not report flare-ups or functional loss. His range of motion and repetitive use testing were not tested as the examination was too close to his knee replacement. The examiner reported the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. His muscle strength was normal (5/5). At the time, the examiner reported no residuals of the Veteran's knee replacement. He occasionally used a cane. He did not have pain on passive range of motion or in non-weight bearing. His medical records document knee swelling. He submitted lay evidence that he has difficulty walking up and down stairs and getting out of a chair. He had pain, swelling, mild laxity, and medial subluxation. Pain began at 25 degrees of flexion. He had five degrees of extension in July 2018, and normal extension and 120 degrees for flexion in October 2018. After review of the competent and probative evidence, the Board finds that a rating in excess of 30 percent for the right knee replacement under DC 5055 is not warranted. The examination after the total knee replacement document and support a finding of intermediate residuals. Additionally, the other medical records tend to show less than intermediate residuals as the Veteran has no flare-ups reported after his surgery and his range of motion testing had been improving. See Intermediate, Merriam-Webster; https://www.merriam-webster.com/dictionary/intermediate (defining "intermediate" as occurring in the middle of a process or series). Additionally, the competent evidence just noted above does not tend to show that the Veteran's disability manifested as symptoms analogous to a rating higher than 30 percent under DCs 5256 (ankylosis), 5261 (limitation of extension), or 5262 (impairment of tibia and fibula). The Veteran does not have ankylosis or impairment of the tibia and fibula. Additionally, his extension was five degrees or better for this period on appeal. For the period on appeal prior to July 9, 2018, the Board finds that a rating of 20 percent for his right knee disability (moderate instability) is warranted. During this period on appeal, he had right knee weakness (4/5 active movement against some resistance) as reported at the June 2016 examination. Additionally, his private medical records reported mild laxity and medial subluxation. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018) (finding that DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned and when weighing evidence to determine whether there is lateral instability, the Board cannot find objective medical evidence is automatically more probative than lay evidence). The Board finds the evidence above tends to show moderate instability in light of the evidence of record. Given the tests performed are generally recognized in the medical community as diagnostic for instability and subluxation, the results are of probative value and assigned weight. Additionally, a higher rating is not warranted at any point during this period on appeal for his knee as the relevant examination reports, as detailed above, do not show positive instability testing of levels such as 2+ (5-10 mm) or 3+ (10-15 mm). It also does not show a history of recurrent subluxation or lateral instability of the knee. Moreover, the Veteran does not assert that he falls frequently or that his knee is giving out frequently. See Frequent, Merriam-Webster, https://www.merriam-webster.com/dictionary/frequent (defining the adjective "frequent" as, among other things, happing at short intervals or acting or returning regularly or often). As such, a rating in excess of 20 percent from is not warranted. For the period on appeal prior to July 9, 2018, the Board finds that a rating of 10 percent under DC 5259 is also warranted. The Veteran has a history of right knee surgery, to include a meniscectomy in 1979. He has had episodes of pain and swelling noted to be residuals at the 2016 VA examination. As such, a rating under DC 5259 is warranted. The Board has considered whether a rating under DC 5258 is warranted. However, he does not have a history of locking, nor has he asserted that his right knee locks. As such, he did not have right knee pain, swelling, and locking to warrant a rating under DC 5258. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (noting that due to the use of the conjunctive "and" in a provision, all of the conditions listed in in a section must be met before entitlement to a benefit is established); see also Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (use of the conjunctive "and" in a DC means that "all criteria must be must to satisfy" a particular rating). Additionally, the Board finds that a rating of 10 percent, but no higher, under DC 5260 is warranted for the period on appeal prior to July 9, 2018. The Veteran had painful flexion at the 2016 examination and in his private treatment records showing pain began at 25 degrees. The Board acknowledges the Veteran has had flexion range of motion that typically does not warrant a compensable rating. Additionally, the Board acknowledges the 2014 examination showing 120 degrees for flexion without pain. However, he also reported daily pain at that examination. Additionally, when viewed with all evidence of record, to include the later reported examination range of motion testing and private treatment records, the Board finds the 2014 right knee range of motion testing without pain to be more of an anomaly as the Veteran has largely had painful motion for the period on appeal for his right knee flexion. At the multiple examinations, he has had pain and functional loss in the right knee. These reports indicate that there was disturbance of locomotion and interference with standing, and the Board finds that his symptoms are more nearly approximated by a rating of 10 percent for limited flexion under DC 5260 and functional loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45 ); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). Moreover, the Board finds several factors produce a disability picture more nearly approximated by a compensable schedular rating. In this regard, the Veteran reports flare-ups, pain, and has had documented disturbance of locomotion, and interference with standing. As such, a rating of 10 percent for the right knee is warranted. 38 C.F.R. § 4.3, 4.7. Also, there is no indication of flexion limited to 30 degrees on any of the examination reports detailed above. Therefore, the Board finds that under the DeLuca factors and § 4.59, he is entitled to a rating of 10 percent, but no higher, for limited flexion resulting in documented functional loss. 38 C.F.R. §§ 4.40, 4.45. A rating for limited extension is not warranted for any period on appeal. In this regard, the Veteran has had normal extension. The Board acknowledges his extension was briefly limited to five degrees in July 2018. However, during that period on appeal, he received a temporary total rating for his right knee replacement. REASONS FOR REMAND 1. Entitlement to service connection for OSA is remanded. The Veteran asserts service connection for OSA, to include as secondary to his service-connected disabilities. He has a current diagnosis of OSA, to include as reported in VA treatment records. As such, the first element of service connection is met. He submitted lay testimony that he was a heavy snorer during service and that he would try to live off base to avoid disturbing others. He testified at the Board hearing that others have frequently complained of his snoring. His service treatment records documented tiredness and extended sleeping. See 10/28/2019, Medical Treatment Record Tired. The Board finds the Veteran competent and credible to describe his in-service symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). However, he is not competent to provide an etiology opinion as the issue of OSA is medically complex and requires a thorough understanding of multiple body systems. The Veteran has not been scheduled for an examination to assess the nature and etiology of any OSA disability, and whether it is related to service, to include as secondary to service-connected disabilities. As such, the Board finds that an examination is warranted as such would be useful for a full and fair adjudication of this issue. Indeed, VA has not obtained a medical opinion as to whether the Veteran's disability is related to service. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression is remanded. The Veteran asserts service connection for depression, to include as secondary to his service-connected disabilities. He has a current diagnosis of depression, to include as reported in VA treatment records. As such, the first element of service connection is met. He submitted lay testimony that during service his wife left him and he was depressed. However, he explained that he did not admit to anyone that he was depressed or suicidal. He testified at the Board hearing that he met with a priest and that he did not want to be discharged so he minimized his mental health symptoms. He also believes that his tiredness during service, as shown in his service treatment records, was an early symptom of his depression. See 10/28/2019, Medical Treatment Record Tired. The Board finds him competent and credible to describe his experiences in service. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). However, he is not competent to opine on the etiology of his disability as this psychiatric issue is medically complex and requires a thorough understanding of psychiatry and/or psychology. The Veteran has not been scheduled for an examination to assess the nature and etiology of any depression disability, and whether it is related to service, to include as secondary to service-connected disabilities. As such, the Board finds that an examination is warranted as such would be useful for a full and fair adjudication of this issue. Indeed, VA has not obtained a medical opinion as to whether the Veteran's disability is related to service. These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. After completing #1, schedule an examination for the Veteran's OSA. The examiner is to review the Veteran's records and address the following: (a.) Is it at least as likely as not (probability of approximately 50 percent) that his OSA is related to an in-service injury, event, or disease, to include initially manifesting as tiredness/extended sleeping? See 10/28/2019, Medical Treatment Record Tired. (b.) If not, is it at least as likely as not (probability of approximately 50 percent) that the Veteran's disability is either 1) proximately due to OR 2) aggravated by the Veteran's service-connected disabilities? 3. After completing #1, schedule the Veteran for a psychiatric examination. The claims file is to be made available to the examiner (licensed psychologist and/or psychiatrist) and reviewed in conjunction with the examination. Identify any acquired psychiatric disability since August 2013 onward, to include depression which the Veteran receives private treatment for from a private psychiatrist. See 10/28/2019, Medical Treatment Record Non-Government Facility Depression. Then, the mental health specialist, for each current psychiatric disability, is to address and to provide an opinion regarding the following: (a.) For each diagnosed psychiatric disorder, is it at least as likely as not (probability of approximately 50 percent) that any of the Veteran's current (present at any time since August 2013) psychiatric disabilities, in whole or part, had their onset in service, or are otherwise the result of a disease or injury in service, to include initial manifestations of tiredness and/or extended sleeping during service. See 10/28/2019, Medical Treatment Record Tired. (b.) If no, is it at least as likely as not (probability of approximately 50 percent) that his disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? The term "aggravated" refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. Inform each examiner that a comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, Associate 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.