Citation Nr: 21062907 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-15 717 DATE: October 12, 2021 ORDER Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a right hip disability as secondary to a service-connected right knee disability is remanded. Entitlement to service connection for bilateral lower extremity varicose veins as secondary to bilateral knee disabilities is remanded. Entitlement to an evaluation in excess of 30 percent for right knee degenerative arthritis with a scar is remanded. Entitlement to an evaluation in excess of 20 percent for right knee instability is remanded. Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU) is remanded. FINDING OF FACT The Veteran has sleep apnea that was caused by his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1986 to November 1988, January 1991 to March 1991, and April 2009 to April 2010, including service in Southwest Asia. He testified at the Board hearing that he served in the U.S. Army Reserve until 2013. These matters come before the Board of Veteran's Appeals (Board) on appeal from a June 2014 rating decision by the Regional Office (RO). In August 2019, the Board remanded the claims for further development. A more detailed procedural history is described in the prior Board remand. These matters are now returned to the Board for further appellate review. The August 2019 Board remand included remands of claims for service connection for bilateral carpal tunnel syndrome, a left shoulder disability, a low back disability, and posttraumatic stress disorder (later recharacterized as a major depressive disorder). Subsequently, the service connection for all of these disabilities was granted by the RO. As such, there remains no issue or controversy for decision on the claims. See Holland v. Gober, 10 Vet. App. 433, 436 (1997) (grant of service connection during the appellate process is "a full award of benefits on the appeal."). Analysis 1. Entitlement to service connection for sleep apnea The Veteran contends that he has sleep apnea that had its onset during his active service. The Veteran testified at the Board hearing that he was told by his bunkmate in service that he snored "like a train," and that he experienced daytime fatigue in service. His service treatment records from his third period of active service include an August 2010 post-deployment health assessment questionnaire showing he reported that during his deployment, he experienced difficulty sleeping and daytime fatigue. He further noted in the assessment that these symptoms either began or worsened during the deployment. See STR, received August 2012 at p.5-6. Post-service, a February 2014 VA sleep medicine record notes he reported snoring, witnessed apneas, and that he once choked in his sleep three years prior. Obstructive sleep apnea was suspected. See CAPRI, received December 2019 at p.402. An April 2014 sleep study report shows severe obstructive sleep apnea was diagnosed. See VA examination report, September 2020 at p.12 of 14 (sleep study records file). More recently, a March 2020 VA sleep medicine consult shows a diagnosis of severe obstructive sleep apnea. See CAPRI, received April 2021 at p.21 of 101. A September 2020 VA examination report shows the VA examiner opined it is at least as likely as not that the Veteran's sleep apnea was caused by his active service. The examiner reasoned that although the Veteran received no treatment in service, his service treatment records showed signs and symptoms of sleep apnea, and he was diagnosed with severe obstructive sleep apnea by 2014. The examiner also reasoned that the Veteran testified that he snored in service and experienced daytime fatigue. In light of the contemporaneous medical evidence showing the Veteran reported difficulty sleeping and fatigue in service, his testimony that he snored in service, and the VA examiner's medical opinion that the Veteran's sleep apnea is at least as likely as not caused by his active service, with a detailed rationale supported by the record, the Board concludes that entitlement to service connection for sleep apnea is warranted and the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability The Veteran claims he has a right shoulder disability due to his active service or Reserve service. Most recently, in August 2019, the Board remanded the claim so that all of the Veteran's service treatment records from his third period of active service (2009 to 2010), and from his subsequent reservist service, could be associated with the claims file. Subsequently, these service treatment records were associated with the file. The Veteran testified at the Board hearing that he injured his right shoulder during his Reserve service. A December 1998 service treatment record (Reserve) shows the Veteran reported he incurred a right shoulder injury in July 1998. See STR, dated December 1988 at p.24 of 91. An August 1998 VA x-ray report for the right shoulder shows a grade II acromioclavicular (AC) separation. See CAPRI, received September 2020 at p.32 of 1595. An October 1998 private chiropractic record shows the Veteran sought treatment for right shoulder pain. See STR, dated December 1988 at p.26 of 91. The Veteran was recently afforded a September 2020 VA examination. The examiner noted a diagnosis of a bilateral rotator cuff tear, 1994, and bilateral shoulder degenerative arthritis, 2020. However, there is no record of a right rotator cuff tear. Rather, the service treatment records document the Veteran incurred a left rotator cuff tear in June 1994 (and the Veteran is presently service connected for a left shoulder disability). See STR, received December 1988 at p.54 and 58 of 91. The examiner opined (see separate opinion document at p.5 of 13) that the Veteran's right shoulder condition is not due to his active service, reasoning that the service treatment records are silent as to any right shoulder complaint or treatment during his active service. However, there is no record of the Veteran's periods of active duty for training (ADT) and inactive duty for training (IDT), if any, during his Reserve service in 1998 when the grade II AC separation was found. Because the Veteran testified at the Board hearing that he injured his right shoulder during his Reserve service, and because records in the file indicate he injured his right shoulder, a grade II AC separation, in July 1998, the claim should be remanded so that a record of his periods of ADT and IDT in the U.S. Army Reserve from 1998 may be obtained. If these personnel records document that the Veteran was on a period of ADT or IDT in July 1998, a new VA medical opinion should be obtained, to include a review of the service treatment records and VA treatment records dated in 1998, to address whether the Veteran has a current right shoulder disability that was caused by an injury during his reservist service in 1998. 2. Entitlement to service connection for a right hip disability as secondary to a service-connected right knee disability The Veteran contends he has a right hip disability secondary to his right knee disability. He testified at the Board hearing that he was told by his doctor after a right knee meniscectomy that he had a one-quarter inch leg length discrepancy due to the surgery, and that it would cause hip problems. The Board will also consider whether the Veteran has a right hip disability related to his active service or Reserve service on a direct basis. See Private opinion, March 2019. An October 1998 private chiropractic record shows treatment for right hip pain. See Service treatment records, received December 1988 at p.26 of 91. A January 2002 VA x-ray report shows the Veteran reported right hip pain, progressively worse, and findings were suggestive of mild early degenerative changes. See CAPRI, received September 2020 at p.31. A June 2002 VA treatment record shows the physician noted the Veteran's history of right knee surgery, that his right lower extremity was consequentially shorter than the left causing his right hip to dislocate recurrently, and that he had difficulty going up stairs. See CAPRI, received April 2021 at p.92 of 101. Degenerative joint disease (DJD) of the right hip was diagnosed, later noted as degenerative osteoarthritis. See id. at p.86 and 90 of 101. An August 2002 VA physical therapy record shows a half-inch leg length discrepancy was found (38.25 inches compared to 37.75 inches). See id. at p.91-92. A December 2012 VA orthopedic record shows the Veteran reported his right hip "popping" out since he underwent surgical treatment on his right knee in 1986. See CAPRI, received December 2019 at p.502 of 1014. In August 2019, the Board remanded the claim so that, among other things, a new VA examination could be performed to address whether the Veteran has any right hip disability secondary to his service-connected right knee disability (as the 2005 VA examiner found no current disability). A September 2020 VA examination report shows a diagnosed right hip strain. The Veteran reported a gradual onset of right hip problems since physical training in 1990. The examiner opined (see separate opinion document) the right hip condition was not caused or aggravated by the right knee disability, but gave no substantive rationale beyond "no pathophysiologic nexus can be established." The Board finds that the September 2020 VA examiner's secondary service connection opinion lacks an adequate rationale, and that the claim should therefore be remanded for a new VA medical opinion to address whether the right hip condition was caused or aggravated by the Veteran's service connected knee disabilities, to include an adequate rationale for the opinion. The examiner's attention should be directed to the June 2002 and August 2002 VA treatment records noting a leg length discrepancy and right hip recurrent dislocation. 3. Entitlement to service connection for bilateral lower extremity varicose veins as secondary to bilateral knee disabilities The Veteran asserted at the Board hearing that he has varicose veins in both lower extremities secondary to his service-connected knee disabilities. An August 1998 VA treatment record shows the Veteran reported right thigh pain, swelling, and tenderness. He reported a similar episode occurred in 1996. Examination revealed tender varicose veins on his right thigh, and superficial phlebitis, right thigh, was diagnosed. See CAPRI, received August 2012 at p.2. A June 2002 VA treatment record notes varicose veins in both lower extremities, and that the Veteran was using compression stockings. See CAPRI, received April 2021 at p.92 of 101. A September 2005 record shows diagnosed thrombophlebitis of superficial varicose veins, right thigh. See CAPRI, received April 2021 at p.75. More recently, a February 2012 letter by a VA doctor shows a general notation of varicose veins, but no specific anatomical location was provided. See Medical records, received March 2019 at p.5 of 13. In August 2019, the Board remanded the claim so that the Veteran could be afforded a VA examination. A September 2020 VA examination report (see separate opinion document) shows the examiner opined that the varicose veins are less likely than not caused or aggravated by his service-connected bilateral knee disabilities, but the only rationale provided was that "no pathophysiologic nexus can be established." The Board finds the rationale provided by the VA examiner is inadequate, and will remand the claim for a new VA examination to address whether the Veteran's varicose veins were caused or aggravated by his service-connected bilateral knee disabilities. 4. Entitlement to an evaluation in excess of 30 percent for right knee degenerative arthritis with a scar 5. Entitlement to an evaluation in excess of 20 percent for right knee instability 6. Entitlement to a TDIU The Veteran's right knee degenerative arthritis with a scar is currently assigned a 30 percent rating, with a separate 20 percent rating for instability. The Veteran seeks increased ratings. He also claims entitlement to a TDIU. Most recently, the Board remanded the claims so that, among other things, the Veteran could be afforded a new VA examination compliant with Correia, to include "the results of range of motion testing 'for pain on both active and passive motion [and] in weight-bearing and nonweight-bearing.'" See Correia v. McDonald, 28Vet. App.158 (2016) (quoting 38C.F.R. §4.59). Subsequently, a September 2020 VA examination (knees) was performed. The examiner noted ranges of motion in active and passive, and noted the Veteran experiences pain with weight bearing, but did not describe whether the ranges of motion provided were in weight bearing or nonweight bearing. Therefore, the claim will be remanded to ask the VA examiner who prepared the September 2020 VA examination report to provide an addendum to clarify whether the ranges of motion in his report were weight bearing, and if so, whether weight bearing ranges of motion would be expected to be more limited than nonweight bearing. If either question is answered in the negative, a new VA examination should be performed. The Board defers decision on the TDIU claim as intertwined with the knee rating claims being remanded herein. The matters are REMANDED for the following action: 1. Associate with the claims file a record of the Veteran's periods of ADT and IDT in 1998 in the U.S. Army Reserve. Because the dates of training must correlate with specific injuries, a record of retirement points for the year may not be sufficient and Defense Finance Accounting Service (DFAS) records of pay during that year may be necessary. 2. After the above development in paragraph (1) has been completed, if the U.S. Army Reserve records indicate the Veteran was in a period of ADT or IDT between July 1998 and August 1998, obtain a VA medical opinion based on a review of the entire claims file, including this remand, to clarify whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a right shoulder disability that was caused by his active service or reservist service. An examination is necessary if required by the examiner to form an opinion. Any opinion must be accompanied by a complete rationale. Direct the VA examiner's attention to the December 1998 service treatment record showing the Veteran's report of a right shoulder injury in July 1998, the August 1998 VA x-ray showing a grade II AC separation, and the October 1998 private chiropractic record showing treatment for right shoulder pain. See STR, dated December 1988 at p.24 and 26 of 91; CAPRI, received September 2020 at p.32 of 1595. 3. Obtain a VA medical opinion based on a review of the entire claims file, including this remand, to clarify whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a right hip disability that was: a) Caused by his active service; or b) Caused or aggravated by his service-connected bilateral knee disabilities. An examination is necessary if required by the examiner to form an opinion. Any opinion must be accompanied by a complete rationale. Direct the VA examiner's attention to an October 1998 private chiropractic record showing right hip pain, a January 2002 VA x-ray report showing degenerative changes, a June 2002 VA treatment record showing recurrent dislocation was noted due to a leg length discrepancy, an August 2002 VA PT record noting measurements of a leg length discrepancy, and a December 2012 VA orthopedic record noting a history of the hip "popping out" since right knee surgery in 1986. See Service treatment records, received December 1988 at p.26 of 91; CAPRI, received September 2020 at p.31; CAPRI, received April 2021 at p.91-92 of 101; CAPRI, received December 2019 at p.502 of 1014. A detailed rationale is required beyond "no pathophysiologic nexus can be established" and citation to a lack of complaint or treatment in the service records. 4. Afford the Veteran a VA examination to address the nature and etiology of his claimed varicose veins of the bilateral lower extremities. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. The examiner should opine as to whether it is "at least as likely as not" that any varicose veins of the lower extremities identified on examination were caused or aggravated by the Veteran's service-connected left and right knee disabilities. Any opinion must be accompanied by a complete rationale. Direct the VA examiner's attention to an August 1998 VA treatment record showing right thigh varicose veins and superficial phlebitis, a June 2002 VA treatment record showing bilateral lower extremity varicose veins and use of compression stockings, and a February 2012 letter from a VA doctor regarding varicose veins. See CAPRI, received August 2012 at p.2; CAPRI, received April 2021 at p.92 of 101; Medical records, received March 2019 at p.5 of 13. A detailed rationale is required beyond "no pathophysiologic nexus can be established." 5. Ask the VA examiner who provided the September 2020 VA examination report (right knee) to provide an addendum opinion clarifying whether: a) The ranges of motion provided were in weight bearing; and b) If so, whether these ranges of motion would be expected to be productive of greater limitation of motion than nonweight bearing. If the answer to either of these two questions is negative, afford the Veteran a new VA examination to address the current severity of his service-connected right knee disability (including arthritis and instability). The claims folder should be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examination must comply with the requirements of 38C.F.R. §4.59 involving measurements of passive and active range of motion -in both weight bearing and non-weight bearing. The examiner must explain why any of these clinical tests are not appropriate or could not be performed. A complete rationale for any opinions expressed should be provided. The examiner should be asked to note whether there is any weakened movement, excess fatigability, incoordination, or pain on use. If so, the examiner should note whether there are any additional degrees of loss of motion as a result (if it is not feasible to quantify, please explain). If flare-ups are noted, the examiner should note whether pain during flare-ups additionally limits functional ability. The examiner should note whether there are any additional degrees of loss of motion due to pain during flare-ups (if it is not feasible to quantify, please explain). (continued next page) The examiner should also address the effect of the Veteran's right knee disabilities (arthritis and instability), and his left knee disability, on his occupational functioning. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Juliano, 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.