Citation Nr: 21065320 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 18-14 310 DATE: October 25, 2021 ORDER Service connection for a left knee disability is granted. REMANDED Service connection for sleep apnea is remanded. FINDING OF FACT The Veteran's left knee disability is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1987 to October 1990. This current matter returns to the Board of Veterans' Appeals (Board) from a most recent May 2021 Board remand following a December 2020 Order of the United States Court of Appeals for Veterans Claims (Court). Service Connection Left Knee Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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). The Veteran seeks service connection for a left knee disability. Throughout the appeal period, he has maintained that his injury began in service and has worsened since then. Initially, in this regard, the Board notes that available medical records reveal that the Veteran has a current diagnosis of a left knee strain and instability. See August 2021 VA examination. Thus, the current disability prong of this service connection claim has been met. According to service treatment records, the enlistment examination revealed no notation of a left knee condition. Subsequent records dated in November 1988, however, document that the Veteran's left knee was "twisted to [the] outside." Further, in a May 1993 Report of Medical History for Reserve service, the Veteran indicated that he had/has tricked or locked knees. As such, the in-service incurrence prong has also been met, and the remaining question here is whether a casual relationship, or nexus, exists between the Veteran's current left knee disability and the in-service notation of a twisted left knee. Pursuant to the May 2021 Board remand, the Veteran underwent a VA examination in August 2021, at which time the examiner diagnosed a left knee strain and instability. The Veteran reported that such condition began in 1987 as a result of physical training. He described symptoms at the time of onset to include knee pain and reported treatment included rest, medication, and a left knee brace. He explained that his left knee condition has worsened over the years with current symptoms of knee pain and stiffness. The examiner found that it was less likely than not that the Veteran's left knee condition was incurred in, or caused by, active service, to include the November 1988 left knee injury. The examiner acknowledged the Veteran's complaints of a "twist" injury and the in-service diagnosis of a left knee strain, but concluded that there were no further records after this injury showing the development of a chronic left knee condition resulting in pain 33 years later. In providing this opinion, however, the examiner failed to consider the Veteran's competent and credible statements regarding the worsening of his left knee symptoms since service. As such, the Board finds the Veteran's statements about his left knee symptoms and their onset credible, as he has consistently reported the same began in service. The Board recognizes that the August 2021 VA examiner opined against service connection based on the Veteran not having reported symptoms nearly 33 years after the in service injury. However, the examiner did not specifically consider the Veteran's competent lay statements regarding the onset, continuation, and worsening of his left knee symptoms. The Board finds the Veteran's statements competent and credible and concludes that continuity of his left knee symptoms can be established by his competent and credible assertions. Accordingly, the Board concludes that the August 2021 medical opinion is not adequate. Affording the benefit of the doubt to the Veteran, the Board further finds that he has been experiencing symptoms related to a left knee strain since active service. Thus, service connection for this disability is warranted. REASONS FOR REMAND Service Connection For Sleep Apnea The Veteran seeks service connection for sleep apnea. As an initial matter, the Board concedes the Veteran has a diagnosis of obstructive sleep apnea. See February 2017 DCH Regional Medical Center History and Physical Note. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Unfortunately, for reasons expressed immediately below, the Board finds that this issue must be remanded again for further development. The Board regrets the delay associated with this remand but finds that this remand is necessary to ensure that the Veteran is accorded full compliance with VA's statutory duty to assist. Pursuant to the May 2021 Board remand, the Veteran underwent VA examination in August 2021. At that time, he reported that his sleep condition began in 1998 with symptoms such as years of snoring, restless sleep, excessive daytime sleepiness, and fatigue. The examiner opined that it was less likely than not that the Veteran's sleep apnea was incurred in, or caused by, his active service. The examiner explained that there are no medical records showing a diagnosis of, or treatment for, sleep apnea while the Veteran was in service. Indeed, a negative opinion based solely on the lack of evidence in service treatment records is inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Thus, a remand is necessary to afford the Veteran a new VA examination with an adequate medical opinion. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for an examination to determine the etiology of his sleep apnea. The examiner should review the claims file and note that review in the report. The examiner should ensure that all indicated tests and studies are conducted. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea had its onset during his active service or is otherwise causally related to such service. The examiner is 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 his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. 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. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a scheduled VA medical examination may impact determinations made. 38 C.F.R. § 3.655. He is also 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 J. R. Bobb, 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.