Citation Nr: 21063871 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-37 399 DATE: October 18, 2021 ORDER Entitlement to service connection for a bilateral knee disability is granted. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDING OF FACT The evidence is in at least relative equipoise regarding whether the Veteran's bilateral knee disability is due to his service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral knee disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1972 to February 1974, with subsequent service in the Army National Guard until October 2008. This appeal to the Board of Veteran's Appeals (Board) arose from a May 2015 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In March 2019, the Board remanded this appeal for further development. Service connection for a bilateral knee disability The Veteran seek service connection for a bilateral knee disability. The evidence of the record establishes that he has a current diagnosis of bilateral patellofemoral pain syndrome. A veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in service injury or event; and (3) a nexus between the current disability and the in service injury or event. 38 C.F.R. §3.303(a). Regarding an in-service injury or event, the Veteran describes ongoing pain in his knees throughout his military service. He notes that he was diagnosed with arthralgia of both knees in 2008. Regarding whether there is a nexus, an October 2019 VA examiner provided conflicting conclusions (both at least as likely as not and less likely than not). The examiner explained that, while there is no in-service treatment noted for the bilateral knee condition, it is reasonable to suspect that a chronic knee condition was incurred during the Veteran's service due to service requirements and full time National Guard duty for 35 years. In the negative nexus opinion, the examiner opined that there were no medical records to link a knee disorder to service. Importantly, however, the Board reminds that the absence of in-service documentation of treatment is not an absolute bar to service connection. Indeed, after a thorough consideration of the evidence of the record, the Board finds that the evidence is in relative equipoise regarding whether the Veteran's bilateral knee condition is due to his service. The examiner rendered both positive and negative nexus opinions. In relevant part, the examiner proffered that it was reasonable that a chronic knee condition could have occurred during the Veteran's service due to his military duty requirements. In addition, the Veteran asserts that he has experienced knee problems throughout his service. The Board determines that his assertions of knee pain due to service requirements are consistent with the types, places, and circumstances of his service. 38 C.F.R. §1154(a). Considering what has been proffered in these medical opinions, taken with the totality of the available evidence of the record, the Board finds that there is sufficient competent evidence to raise a reasonable doubt regarding the onset of the Veteran's bilateral knee disability. 38. C.F.R. §3.102. Resolving all reasonable doubt in favor of the Veteran, the Board finds that a nexus has been established. Thus, the Board finds that the criteria for service connection for a bilateral knee disorder have been met. Service connection for this disorder is, thus, granted. REASONS FOR REMAND Service connection for OSA After a thorough consideration of the evidence of the record, the Board finds that a remand is necessary prior to the adjudication of the claim for service connection for OSA. The Veteran asserts that he experienced symptoms of insomnia during his military service. Service treatment records shows that, in a September 1998 National Guard record, the Veteran reported sleeping difficulties and averaging "4 to 5 hours" of sleep per night. See August 2012 Service Treatment Records. The October 2019 VA examiner opined that it was less likely than not that the Veteran's sleep apnea was due to his service, based on the finding that he did not have a current diagnosis of obstructive sleep apnea. However, this examiner also acknowledged that the Veteran experienced symptoms attributed to sleep apnea, such as persistent daytime hypersomnolence, excessive snoring, and difficulty staying asleep. Indeed, VA and private treatment records show that the Veteran has a diagnosis of OSA. Significantly, VA treatment records note that the records regarding a sleep study were reviewed at VISTA Imaging. These records, however, are not associated with current record. Further, the Veteran describes symptoms of insomnia during his "military service." He does not provide a specific onset date regarding his symptoms. A review of the service treatment records on file show that he reported sleeping difficulties in 1998, during his Reserve period. To the extent that an appellant alleges that he or she has an injury or disease incurred or aggravated during his time in the National Guard, he or she must first establish status as a "veteran" in connection with that service and then that he or she was disabled from disease or injury incurred or aggravated in the line of duty during that service, such as while on ACDUTRA. 38 C.F.R. § 3.1 (a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The fact that an appellant has established status as a "veteran" for other periods of service does not obviate the need to establish that he or she is also a "veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). When a claim for service connection is based on a period of ACDUTRA, there must be evidence that the individual became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Regarding INACDUTRA, there must be evidence that the individual became disabled as a result of an injury (not disease) incurred or aggravated in the line of duty during INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). As outlined above, the reported sleeping difficulties were recorded during the Veteran's reserve period. Therefore, on remand, his periods of ACDUTRA and INACDUTRA need to be verified. Also, the AOJ must make the necessary efforts to obtain pertinent treatment records that were viewed in VISTA Imaging. Lastly, the AOJ should obtain another medical opinion that adequately addresses the evidence of the record regarding the nature and etiology of the Veteran's sleep apnea. Accordingly, this matter is REMANDED for the following action: 1. Take all necessary steps to verify all of the Veteran's period(s) of Active Duty, Active Duty for Training (ACDUTRA), Inactive Duty for Training (IDT), Active Duty for Special Work (ADSW), and/or any other periods of service, with the Army National Guard. Reserve retirement point sheets are not adequate for this purpose. Rather, the specific dates of the Veteran's periods of service, including Active Duty, ACDUTRA, ADSW, and IDT, are required. If this information or documentation is unavailable, this fact should be documented, and a formal finding of unavailability should be made with notice to the Veteran and his representative. Then, the Veteran and his representative should be given an opportunity to respond. 2. Copies of all available private and VA documents should be associated with the Veteran's claims folder. The Board is particularly interested in the medical records noted in the Veteran's VA treatment records as available through VISTA Imaging. If any of these records are unavailable, inform the Veteran and his representative of such and of the efforts made to obtain them. The Veteran and his representative should also be notified that he may submit any such records himself. All efforts should be recorded in the claims folder. 3. Then, refer the Veteran's claims file to a medical professional of appropriate expertise to provide an addendum opinion (or, if the VA examiner determines that it is necessary, schedule the Veteran for a VA examination) to address the nature and etiology of the Veteran's OSA. The claims file and a copy of this REMAND should be made available to the examiner for review. After record review and/or examination, the VA examiner should opine clearly and precisely, with supporting rationale, as to the following inquiries: Is it at least as likely as not (50 percent or greater probability) that the Veteran's OSA was incurred in, or caused by, an established period of active duty service or a verified period of ACDUTRA or INACDUTRA? In rendering this opinion, the examiner is hereby notified that solely relying on the absence of in-service documentation is not sufficient in this matter. The examiner is also advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Then, review the record, conduct any additional development deemed necessary, and readjudicate the service connection issue remaining on appeal. If this benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Then, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.