Citation Nr: 21065791 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 14-34 312 DATE: October 27, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for a right knee limitation of flexion is denied. Entitlement to an increased rating in excess of 10 percent for a right knee limitation of extension is denied. Entitlement to an increased rating in excess of 10 percent for symptomatic removal of right knee semilunar cartilage is denied. Entitlement to service connection for obstructive sleep apnea is granted. FINDINGS OF FACT 1. Throughout the pendency of the appeal, at worst, the Veteran's right knee flexion has been limited to 60 degrees during flare-ups. 2. Throughout the pendency of the appeal, at worst, the Veteran's right knee extension has been limited to 10 degrees. 3. The Veteran's symptoms status-post removal of the semilunar cartilage results in mild pain and he is already in receipt of the maximum 10 percent disability rating under DC 5259 for symptomatic removal of the semilunar cartilage. 4. Resolving doubt in favor of the Veteran, his obstructive sleep apnea is etiologically related to related to an event during service and has continued since service. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for a right knee limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 5003-5260. 2. The criteria for an increased rating in excess of 10 percent for a right knee limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 5261. 3. The criteria for an increased rating in excess of 10 percent for symptomatic removal of right knee semilunar cartilage have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 5259. 4. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1112, 1113,1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1982 to January 2004. He served in Southwest Asia from December 1990 to April 1991 and was in receipt of one Bronze Service Star. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by the Department of Veterans Affairs VA Regional Office. In November 2018, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. In a March 2019 decision, the Board denied the Veteran's increased rating claim for his right knee flexion but granted separate ratings for a right knee extension and for symptomatic removal of the semilunar cartilage. His claim for service connection for an obstructive sleep apnea disability was remanded. Subsequently, he appealed the Board's March 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 joint motion for partial remand (JMPR), the Court remanded the Veteran's claim to obtain a new medical examination to determine the current severity of his right knee disability and to obtain outstanding VA treatment records related to his cortisone shots. In March 2021, his claim for increased rating claim for his right knee and service connection for an obstructive sleep apnea disability was again remanded. In a July 2021 supplemental statement of the case (SSOC), his increased rating claims for his right knee disability and service connection claim for an obstructive sleep apnea disability were denied. These matters are again before the Board for adjudication. Increased Rating In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings). Pertaining to musculoskeletal disabilities, evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. 1. Right knee flexion 2. Right knee extension 3. Symptomatic removal of right knee semilunar cartilage The Veteran contends that he is entitled to a disability rating in excess of 10 percent for limitation of extension and flexion of the right knee. He also seeks an increased rating in excess of 10 percent for symptomatic removal of his right knee semilunar cartilage. Specifically, he asserts that he has a lot of burning pain and that his right knee pain limits his mobility and ability to accomplish daily tasks. The Veteran's right knee flexion is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg. He is also assigned a 10 percent under Diagnostic Code 5259 for symptomatic removal of the semilunar cartilage. The Board notes, effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg; however, DC 5260, 5261, and 5259 were unchanged. The Board observes that the assigned Diagnostic Code 5260 suggests that the Veteran's right knee is rated based on compensable limitation of flexion. 38 C.F.R. § 4.71a. However, a review of the evidence reflects that the right knee has manifested as degenerative joint disease and has been rated based on painful noncompensable limitation of motion. The right knee has not had compensable limitation of motion flexion at any time during the relevant rating period. Therefore, the Diagnostic Code assigned should have been Diagnostic Code 5003-5260, to show that the right knee disability with osteoarthritis is being rated based on noncompensable limitation of motion that is painful. For this reason, the Board is changing the Diagnostic Code for the right knee flexion to 5003-5260 to reflect the actual rating already assigned. 38 C.F.R. § 4.71a. Under Diagnostic Code 5003, when the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under Diagnostic Code 5003. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5259, a 10 percent rating is warranted for symptomatic removal of the semilunar cartilage. For rating purposes, normal range of motion for the knee is from zero degrees (on extension) to 140 degrees (on flexion). 38 C.F.R. § 4.71, Plate II 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Upon review of the evidence, the Board finds that the preponderance of the evidence is against assigning a disability rating in excess of 10 percent for limitation of the Veteran's right knee flexion and extension. In a March 2014 VA examination, the Veteran experienced continuous swelling and frequent fluids after a December 2012 arthroscope to remove large loose bodies in his right knee. He reported having flare-ups described as swelling and pain which interfered with his work. However, upon range of motion testing, his right knee flexion was limited to 135 degrees with pain beginning at 130 degrees and there was no limitation for right knee extension. The VA examiner stated that during repeated use over time or during flare-ups, he did have pain, weakness, fatigability, and/or incoordination and that there was additional limitation of functional ability of the knee joint. The VA examiner further estimated that the degree of range of motion lost during pain on use or flare-ups was approximately by five degrees for flexion. The Board notes this additional loss in degree of motion reflects that his flexion was limited at 130 degrees. There was no additional limitation of extension during flare-ups. In an October 2014 VA treatment record, he reported having persistent pain, swelling, and gait problem. However, range of motion testing during that examination showed his flexion was limited by 30 degrees and his right knee extension was limited by 10 degrees. The Board notes that the doctor's statement regarding his limitation of flexion reflects his range of motion for right knee flexion was limited at 110 degrees and his extension was limited at 10 degrees. In a January 2017 VA treatment record, he was observed ambulating with a slight limp and that his right knee was swollen due to intra-articular effusion. However, upon range of motion testing, he had full extension of both knees and that his flexion was greater than 100 degrees. His general stability was noted as "ok." He was provided with a VA examination in October 2017. However, the Board finds that VA examination is inadequate as the examination of his right knee is inconsistent with his report of symptoms specifically related to his flare-ups. Moreover, the VA examiner did not address the questions of whether he had any additional loss in range of motion during repeated use over time or during a flare-up. As such, the Board finds that the October 2017 VA examination is not consistent with the holdings under Sharp and is inadequate for evaluating the his right knee disability. In a February 2020 VA treatment record, he reported that his right knee pain was worsening. He stated the pain was dull and made worse with prolonged standing, walking, or driving. The doctor noted he had no numbness or tingling, did not use any aids for ambulation, and had no swelling or effusion of the right knee. Upon examination of the right knee, his range of motion was zero (extension) to 130 degrees (flexion). In a July 2021 VA examination, his range of motion for flexion was limited at 80 degrees and his extension was limited at zero degrees. The VA examiner noted his passive range of motion measurements were the same as active range of motion and that pain was noted on both flexion and extension. There was no objective evidence of crepitus, localized tenderness, or pain on palpation of joint. He was able to perform the repetitive-use test with no additional loss in range of motion. Pertaining to repeated use over time, the VA examiner indicated that pain and lack of endurance significantly limited his functional ability resulting in his right knee flexion being limited at 70 degrees. There was no change in his right knee extension. Similarly, pain and lack of endurance also significantly limited his functional ability during flare-ups resulting in his right knee flexion being limited at 60 degrees. There was no limitation in his right knee extension. There was no muscle atrophy, ankylosis, or shin splints. He also had no lateral or joint instability of the right knee. Based on the foregoing evidence, the Board acknowledge that the Veteran experienced dull pain, swelling, and stiffness of his right knee throughout the pendency of the appeal. However, with regards to his increased rating claim for right knee flexion, the medical evidence indicates that his initial range of motion was limited at no less than over 100 degrees. Even with consideration of additional loss in range of motion for his right knee flexion during flare-ups or repeated use over time, at its worst, his flexion was limited at 60 degrees during flare-ups. There is no evidence indicating that his right knee flexion is limited at 30 degrees or less to warrant a higher rating of 20 percent or higher. These objective measurements of his right knee flexion results in a non-compensable rating under DC 5260. However, as the medical evidence continuously shows that he experiences pain with range of motion testing for flexion, a 10 percent disability rating is appropriately assigned to reflect consideration of his symptoms of pain with range of motion testing. As such, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for his right knee flexion. The Board further finds that the evidence also does not support a higher rating in excess of 10 percent for limitation of his right knee extension. The evidence reflects, that its worst, his right knee extension was limited to 10 degrees as noted in an October 2014 VA treatment record. A limitation of extension to 10 degrees results warrants a 10 percent disability rating under Diagnostic Code 5261. The Board has considered whether he experiences any additional loss in range of motion during repeated use over time or during flare-ups. However, the medical evidence discussed above does not demonstrate any additional limitation of right knee extension beyond 10 degrees. As such, the Board finds that he is not entitled to a disability rating in excess of 10 percent for his right knee extension. With regards to his claim for an increased rating for symptomatic removal of the right knee semilunar cartilage, the Board acknowledge that the medical evidence reflects that he experienced swelling, pain, and effusion of the right knee following his right knee debridement. However, the Board finds that he is already in receipt of the maximum schedular rating allowable for under Diagnostic Code 5259, as such, there is no basis to award a higher evaluation in excess of 10 percent. The Board acknowledges the Veteran's lay reports that he experiences functional loss due to pain, swelling, and stiffness, and that he experiences pain and lack of endurance during flare-ups and repetitive use over time. However, the degree of additional limitation reflected by the statements that his severe pain and swelling of his right knee limits his mobility and ability to accomplish daily duties would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. Specifically, despite his report of continued swelling and frequent fluids in his right knee, the medical evidence above does not reflect that his range of motion for his right knee flexion was limited to 30 degrees or less or that his right knee extension was limited to 15 degrees or higher. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. The Board notes that other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Here, the Board finds the Veteran is not be entitled to a separate rating under Diagnostic Code 5256, 5262, or 5263 as there is no evidence that he has a diagnosis of ankylosis of the right knee, impairment of the tibia or fibula, or a diagnosis of genu recurvatum. With regards to Diagnostic Code 5257, the Board notes that, effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg. Pre-February 7, 2021, Diagnostic Code 5257 provides that a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The amended Diagnostic Code 5257 provides that for recurrent subluxation or instability, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A maximum 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. For patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A maximum 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note (1) provides that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Here, the Board finds that the Veteran is not entitled to a separate rating under Diagnostic Code 5257 pre-February 7, 2021 or post-February 7, 2021. The Board acknowledge that a July 2012 x-ray of his right knee shows a degenerative type tear of the medial meniscus and that he underwent an arthroscope bridge debridement of the right knee. However, the medical and the lay evidence consistently shows no instability of the right knee. Specifically, a March 2014 VA examiner indicated he did not have any recurrent patellar subluxation or dislocation or patellar subluxation or dislocation. He had normal joint stability testing and muscle strength. His VA treatment record from 2014 to present also does not reflect that he experiences instability or recurrent subluxation. Although the Veteran's VA treatment records and March 2014 VA examination indicates that he uses a knee brace, it is noted that he uses the brace for swelling and mitigating pain. He is also not entitled to a separate rating under Diagnostic Code 5258. The Board acknowledge that his medical treatment record reflects that he experiences intra-articular effusion of his right knee requiring aspiration on several occasions. However, the evidence does not reflect that he has a dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion of into the joint. Moreover, as the Veteran is currently assigned a separate rating under Diagnostic Code 5259, a separate rating under 5258 would result in pyramiding. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for limitation of flexion and extension for his right knee disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Service Connection 4. Obstructive sleep apnea disability: The Veteran also seeks service connection for his obstructive sleep apnea disability. Specifically, he asserts that his obstructive sleep apnea disability is related to being exposed to diesel fuel and environmental contaminents. He also asserts that his obstructive sleep apnea disability is a chronic multi-symptom illness related to his service in Southwest Asia. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Certain chronic diseases are subject to presumptive service connection if it manifests to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). VA will pay compensation to a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that (1) became manifest during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (2) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1). A "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. 38 C.F.R. § 3.317 (a)(2)(i). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran was diagnosed with an obstructive sleep apnea disability in a November 2012 sleep study. As such, he has a current obstructive sleep apnea disability. In addressing the Veteran's assertion that his obstructive sleep apnea disability is related to his Southwest Asia service, the Board concludes that he served in Southwest Asia as his DD-214 reflects service in Southwest Asia from December 1990 to April 1991. However, the Board finds that the Veteran's obstructive sleep apnea disability has been medical identified with a known clinical diagnosis as established by a sleep study performed in November 2012. Moreover, in a July 2021 VA examination, the VA examiner stated that his obstructive sleep apnea is a diagnosable chronic multi-symptom illness with a partially explained etiology which is likely from a narrowing of an upper airway leading to a decreased airflow when in a supine position. The VA examiner further cited to a medical research article from the National Center for Biotechnology Information (NCBI) that discuss the etiology of obstructive sleep apnea. Specifically, the research article discuss that the pathogenesis of sleep disordered breathing involves an interaction between unfavorable pharyngeal anatomy and ventilatory control instability. Researchers further explained that obstructive sleep apnea is due to anatomic factors that promote pharyngeal narrowing including large neck circumference, cervical soft tissue, vessels, and bone structures. These factors promote pharyngeal collapsibility by decreasing the caliber of the upper airway or by increasing upper airway surrounding pressure. The research article further states that risk factors leading to obstructive sleep apnea includes obesity, being a chronic heart failure or a cervical spinal cord injury patient, and stroke. Based on the July 2021 VA examination and referenced medical research article, the Board finds that the Veteran's obstructive sleep apnea is not a MUCMI, a medically unexplained chronic multisymptom illness, or a chronic multisymptom illness with an unexplained etiology and pathophysiology. Thus, the Board finds that he is not entitled to the Gulf War Syndrome presumption because he does not have a qualifying chronic disability. The Board further finds obstructive sleep apnea is not a "chronic disease" listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Notwithstanding the foregoing presumptive provision, the Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, F.3d 1039, 1042 (Fed. Cir. 1994). Upon review of the evidence, the Veteran's service treatment record indicate that he endorsed having frequent trouble sleeping in a September 2003 medical assessment. He further explained that he had difficulty sleeping since Desert Storm and that he averaged 4.5 hours of sleep per night. The Veteran has consistently stated throughout the record and in his VA examination that he began to experience sleeping difficulty since his time in Desert Storm and that it has progressively worsened. During a November 2018 Board hearing, he testified that his ex-wife, who he was married to throughout his military service, told him that he snored and had difficulty breathing after his deployment. The Board notes that symptoms of sleep apnea are capable of lay observation, and the Veteran has been consistent with his statements, which are corroborated by his ex-wife's supporting competent statements. Consequently, the Board finds these lay statements to be credible and of significant probative value. A review of his claims file also reflects that he filed a claim for service connection for sleeping difficulties in October 2003 prior to separating from service in January 2004. Based on the foregoing evidence, the Board finds an in-service occurrence of a sleeping condition has been established. As to whether a medical nexus has been established, the Veteran was provided with VA examinations in February 2014, July 2019, and February 2020. However, the Board finds that VA medical opinions rendered by the VA examiners are all inadequate as it is based solely on no treatment or diagnosis in service. Moreover, these VA examiners did not address the Veteran's lay assertions that he began to experience sleeping difficulties following Desert Storm. Following the Board's March 2020 remand, he was provided with another VA examination in July 2021 and the VA examiner opined that his obstructive sleep apnea was less likely than not due to environmental chemicals or hazardous exposure in service. However, the March 2020 VA examiner does not provide a detailed rationale and also failed to consider the Veteran's lay report regarding the onset of his symptoms. Under these circumstances, the Board finds that no useful purpose would be served by delaying appellate review of the claims and putting the Veteran through another VA examination. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (observing circumstances when a remand would not have any useful or meaningful purpose or result in any significant benefit to the claimant). In this regard, the Board finds that while he was provided with multiple VA examinations for his obstructive sleep apnea disability, they are not probative. Nonetheless, as provided above, symptoms of sleep apnea are capable of lay observation. In this regard, the Board finds the Veteran and his ex-wife's statements regarding the onset of his obstructive sleep apnea disability to be competent and credible. Specifically, the Veteran has consistently maintained that he experienced sleeping difficulties after his deployment during Desert Storm. Notably, the Veteran filed a claim for service connection for sleeping difficulties prior to separation from service. The Veteran further testified under oath that his ex-wife who he was married to during service told him that he snored and had difficulty breathing after his deployment. In corroborating the Veteran's statements of in-service sleep problems, such statements establish that his sleeping difficulties began during service and has continued since separation from service. In the absence of evidence to the contrary, the Board finds that the Veteran and his ex-wife's lay statements may serve as strong circumstantial evidence of a continuity of symptoms since service and the necessary nexus between his obstructive sleep apnea disability and his military service. As such, the Board affords more probative weight to the Veteran and his ex-wife's lay statements. Thus, in light of the Veteran and his ex-wife's lay statements that he had sleep difficulties during service, the Board finds that the competent evidence of record is at least in equipoise as to whether his obstructive sleep apnea disability had its onset in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that direct service connection for an obstructive sleep apnea disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Xiong, 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.