Citation Nr: 21067127 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-64 946 DATE: November 3, 2021 REMANDED Service connection for sleep apnea is remanded. A rating in excess of 10 percent for a right knee disability based on a limitation of extension is remanded. A compensable rating for a right knee disability based on a limitation of flexion is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1980 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision of the Agency of Original Jurisdiction (AOJ) that denied service connection for sleep apnea and granted service connection for a right knee disability, with a 10 percent rating based on a limitation of extension and a noncompensable rating based on a limitation of flexion. In July 2021, the Veteran participated in a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the record. Service Connection for Sleep Apnea The Veteran has been diagnosed with sleep apnea, which he contends is either the direct result of his service or the secondary result of his service connected disabilities. With respect to a direct connection between sleep apnea and the Veteran's service, during his July 2021 hearing, the Veteran alleged that his sleep apnea was the result of in-service exposure to asbestos. He further stated that fellow service members witnessed him snoring. In March 2017, a private clinician opined, without further explanation, that the in-service removal of the Veteran's wisdom teeth and the subsequent "difficulty that he has had in his jaw . . . contributed to" the Veteran's sleep apnea. With respect to a secondary connection between sleep apnea and the Veteran's service connected disabilities, during his July 2021 hearing, the Veteran alleged that his sleep apnea was caused or aggravated by chronic pain associated with his service connected disabilities (including, in pertinent part, a bilateral knee disability and residuals of the removal of a dentigerous cyst) . He also related his sleep apnea to his service connected mental health disability. The record thus shows a current sleep apnea disability and a possible connection between such disability and either the Veteran's in-service experiences or his service connected disabilities. The Veteran has not been afforded with a VA examination addressing the nature and etiology of his sleep apnea, and on remand, the AOJ should schedule the Veteran to undergo such an examination. Increased Rating for a Right Knee Disability The Veteran last underwent a VA examination addressing the severity of his right knee disability in May 2017. During his July 2021 hearing, the Veteran described experiencing a greater limitation of both flexion and extension of his right knee. As a result of his worsening symptoms, the Veteran stated that over the past two years, he stopped attempting to engage in activities such as exercise. With the Veteran's right knee symptoms apparently increasing in severity, the Veteran should be provided with an additional examination to address the current severity of his right knee disability. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his sleep apnea. After a physical examination of the Veteran, a review of the Veteran's claims file, and consideration of the Veteran's lay statements, the examiner should address the following: (a.) Is it at least as likely as not (that is, a 50 percent likelihood or greater) that the Veteran's sleep apnea had its initial onset during his active service. When rendering this opinion, the examiner should discuss the Veteran's allegations that that fellow service members witnessed his snoring. (b.) Is it at least as likely as not (that is, a 50 percent likelihood or greater) that the Veteran's sleep apnea is related to any incident of his active duty service? When rendering this opinion, the examiner should discuss the Veteran's allegations that he was exposed to asbestos during service. The examiner should additionally discuss the March 2017 opinion linking the Veteran's sleep apnea to his in-service wisdom tooth removal. (c.) Is it at least as likely as not (that is, a 50 percent likelihood or greater) that the Veteran's sleep apnea is proximately due to any of the Veteran's service connected disabilities, to include a bilateral knee disability, residuals of the removal of a dentigerous cyst, and an acquired psychiatric disability, or the medications used to treat those disabilities? (d.) Is it at least as likely as not (that is, a 50 percent likelihood or greater) that the Veteran's sleep apnea underwent an incremental increase in disability, regardless of its permanence, due to the Veteran's service-connected disabilities, to include a bilateral knee disability, residuals of the removal of a dentigerous cyst, and an acquired psychiatric disability or the medications used to treat those disabilities? The term "incremental increase in disability" means an additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his right knee disability. The claims folder and a copy of this Remand must be provided to the examiner in conjunction with the examination. The examiner should test all ranges of motion of the right knee, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's disability, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. The examiner should opine as to whether any pain associated with the Veteran's right knee disability could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. The examiner should describe whether pain, weakness, fatigue or incoordination significantly limits functional ability during flare-ups or repetitive use over time, and if so, the examiner must estimate range of motion during flare-ups or repetitive use over time based upon relevant information elicited from the Veteran, review of the claims file, and the current examination results pertaining to the frequency, duration, characteristics, severity, and functional loss during flare-ups and repetitive use over time. The examiner must test and record the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing for both knees. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.