Citation Nr: 21064071 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-34 144 DATE: October 19, 2021 ORDER Entitlement to service connection for a right knee disability, diagnosed as degenerative joint disease and patellofemoral syndrome of the right knee, is granted. Entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the probative evidence of record demonstrates a right knee disability, diagnosed as degenerative joint disease and patellofemoral syndrome of the right knee, is related to his active service. 2. Resolving reasonable doubt in the Veteran's favor, the probative evidence of record demonstrates obstructive sleep apnea is related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability, diagnosed as degenerative joint disease and patellofemoral syndrome of the right knee, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ADT) from January 1988 to May 1988 and on active duty from October 2004 to January 2006. He also served in Southwest Asia. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before a Veterans Law Judge of the Board in January 2020. A transcript of that hearing has been associated with the claims file. In an April 2020 decision, the Board reopened the claims for service connection for a right knee disability and obstructive sleep apnea, denied special monthly compensation based on aid and attendance and/or housebound status and remanded the claims for service connection for a right knee disability, obstructive sleep apnea and TBI. In an August 2021 notice letter, the Veteran was notified that the Veterans Law Judge who conducted the January 2020 hearing is no longer at the Board and he was provided the opportunity for a new hearing. As no response was received within 30 days of that letter, it is assumed the Veteran did not want another hearing and the Board will proceed with the claims. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Right Knee Disability and Obstructive Sleep Apnea The Board concludes that the Veteran has current diagnoses of a right knee disability and obstructive sleep apnea that began during his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The probative medical evidence or record reflects that the Veteran has current diagnoses of right knee patellofemoral syndrome and degenerative joint disease as well as obstructive sleep apnea. See December 2006 and November 2020 VA examinations; see also December 2018 private medical record. Service treatment records (STRs) reflect that a December 2005 post-deployment health assessment revealed the Veteran reported problems of difficulty breathing, still feeling tired after sleeping and swollen and painful joints during deployment and currently. At that time, he also specifically reported concerns with right knee pain. Also, in December 2005, right knee x-rays were ordered, within a month prior to the Veteran's separation from active service. The Veteran filed his initial claims for service connection for a right knee disability and sleep apnea in July 2006, within seven months from his separation from active service. In a July 2006 VA outpatient treatment report, the Veteran reported that he had knee pain and sleep apnea which were potentially related to or exacerbated by service while on active duty. In a December 2006 VA examination, the Veteran was diagnosed with right knee patellofemoral syndrome. Subsequent VA outpatient treatment reports reflect the Veteran was treated for and diagnosed with right knee pain. He was thereafter diagnosed with degenerative joint disease of the right knee in a November 2020 VA examination. In a December 2008 private treatment report, the Veteran was initially diagnosed with sleep disordered breathing, specified as apnea and characterized as severe. Subsequent VA outpatient treatment reports reflect the Veteran was treated for and diagnosed with sleep apnea. In August 2018 and November 2020 VA examinations, the Veteran was also diagnosed with obstructive sleep apnea. Although VA examiners throughout the record found the Veteran's right knee disability and obstructive sleep apnea were less likely than not incurred in or caused by the claimed in-service injury, event or disease, these examiners failed to consider several key pieces of evidence concurrently, including: the STRs documenting right knee pain and difficulty breathing during his active service; the post service VA medical records demonstrating complaints of right knee pain and sleep apnea within six to seven months after the Veteran's discharge from active service; the fact that the Veteran also filed a claim for service connection for a right knee disability and sleep apnea within seven months of his separation from active service, stating that these conditions began during his active service; and the Veteran's lay statements of a continuity of right knee pain and snoring symptoms since his active service. In a December 2006 VA examination, the Veteran was diagnosed with patellofemoral syndrome of the right knee and the VA examiner found it was unlikely that this was a result of the Veteran's military activity. The VA examiner failed, however, to consider the Veteran's reports of right knee pain in service and within several months following his discharge from active service. In a September 2013 VA opinion, the VA examiner at that time found that it was less likely than not that the right knee disability was proximately due to or the result of the Veteran's service-connected left ankle condition. In his rationale, the VA examiner included a statement that there was no documented continuum of care from service, speaking to a lack of evidence to support direct service connection, however, he did not address the documented continuity of right knee pain symptoms reported in both VA medical records and in the Veteran's statements of record. In August 2018 VA opinion for sleep apnea, the VA examiner found that it was at least as likely as not that sleep apnea was incurred in or caused by the Veteran's military service. In so finding, she concluded that there was evidence in the record of current, chronic and continuous care. Thereafter, a new opinion was requested for clarification by a different VA examiner in November 2018. In that opinion, the VA examiner concluded it was less likely than not that sleep apnea was incurred in or caused by service. He explained in his rationale that, although the Veteran reported symptoms of sleep problems in service and reported a history of sleep apnea within several months after the Veteran's active service, the fact that the Veteran did not have a sleep study which confirmed sleep apnea until 2008, the earlier reports of symptoms were not evidence of a nexus. In this case, the VA examiner dismissed the Veteran's competent lay statements of symptoms and complaints of sleep apnea because there was no confirmed diagnosis until 2008. In November 2020, the Veteran was provided VA examinations and opinions for the right knee and sleep apnea. At that time, the Veteran reported having right knee pain since 2005 and reported symptoms of sleep trouble, fatigue and snoring both during service and within months of his discharge from active service. Similar to prior VA examinations, this examiner found that it was less likely than not that a right knee disability and sleep apnea were incurred in or caused by service. In his rationales, the VA examiner found there was no documentation of ongoing right knee pain that connected his current right knee osteoarthritis to right knee pain for which he was seen in 2004 in service, disregarding the Veteran's competent lay statements of a continuity of knee pain, noted in service and in post service procedural and medical records. With regard to sleep apnea, he found that the symptoms of difficulty sleeping, fatigue or breathing in sand/dust during service were not causes of sleep apnea, however, he failed to address the symptoms of snoring in service and after service and relied on the fact that the condition was not diagnosed until years after service. The VA examiner also specifically noted fatigue was a symptom of sleep apnea. The Veteran is competent to report his right knee pain and snoring and sleep difficulty symptoms began in service and continued since his active service, as these are lay observable symptoms, and these reports are credible as they are consistent with the overall evidence of record, including the STRs, the VA outpatient treatment reports and the July 2006 claims. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See Baldwin v. West, 13 Vet. App. 1 (1999). Accordingly, the Board finds the probative evidence of record to be at least be in equipoise as to whether the Veteran's current right knee disability and sleep apnea were incurred during active service. Therefore, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a right knee disability, diagnosed as degenerative joint disease and patellofemoral syndrome of the right knee, and obstructive sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. TBI Although a VA examination for the Veteran's TBI was obtained in November 2020, pursuant to the Board's April 2020 remand, the VA examiner failed to illicit a full history from the Veteran and consider the lay statements of record or provide an opinion as to whether any current TBI or TBI residuals were present which onset during service or were otherwise related to an in-service injury, event, or disease, per the Board's remand instructions. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Specifically, the November 2020 VA examiner did not illicit a medical history of TBI or residuals of a head injury in service and did not address any of the Veteran's lay statements, medical records or his current complaints of headaches or vertigo. Compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, the VA examiner referred to a 2018 neuropsychiatric evaluation but did not include the results in the examination and no findings of this evaluation are in the VA outpatient treatment reports of record. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all pertinent VA and private medical records the Veteran adequately identifies, including any VA neuropsychiatric evaluations in 2018. 2. The Veteran should be afforded a VA examination(s) to determine the current nature and etiology of any currently diagnosed TBI or similar disability. The examination report is to contain a notation that the examiner reviewed the claims file. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Please Note: the Veteran is competent to attest to factual matters of which he has first-hand knowledge. PLEASE REVIEW AND ADDRESS: (1) The STRs demonstrating complaints of headaches in service; (2) the Veteran's lay statements of headaches and vertigo and his hearing testimony of being driven off road while hauling fuel, causing him bounce around in the truck, hitting his head; AND (3) the post-service VA medical records demonstrating findings of positive TBI screenings and diagnoses and histories of TBI. The examiner is then asked to answer the following: (a). Whether the Veteran has a currently diagnosed TBI disability or other residuals from his reported head injuries in service. (b). Whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed TBI or residuals of a head injury had its onset during the Veteran's period of active service; or was caused by any incident or event that occurred during such period, including his reported head injuries in service. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saira Spicknall, 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.