Citation Nr: 21068188 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-02 532 DATE: November 9, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a right knee disability is denied. REMANDED Issue of entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's current cervical spine conditions manifested as a chronic disease within one year from discharge from active duty, that there is a continuity of symptomology since service, or that they were incurred in or otherwise related to service. 2. The evidence supports that the Veteran was in sound condition when he was examined, accepted, and enrolled for service. 3. The preponderance of the evidence is against finding that the Veteran's current right knee disability manifested as a chronic disease within one year from discharge from active duty, that there is a continuity of symptomology since service, or that it was incurred in or otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 2. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1979 to November 1982. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2015 rating decision issued by the Department of Veterans Affairs (VA). See February 2015 Notice of Disagreement (NOD); November 2016 Statement of the Case (SOC); January 2017 Substantive Appeal (VA Form 9). The Veteran testified before a Decision Review Officer in a July 2016 hearing. July 2016 Hearing Testimony. The Veteran testified before the undersigned Veterans Law Judge in a November 2019 hearing. See November 2019 Hearing transcript. The Veteran's spouse also testified during the hearing. See id. In January 2020, the Board remanded the claims for further development of the evidence. January 2020 Board Decision. In February 2021, the Board remanded the claims again for further development. February 2021 Board Decision. The agency of original jurisdiction (AOJ) developed the evidence and continued the denial of the Veteran's claim. See May 2021 Supplemental Statement of the Case (SSOC). As explained below, the Board finds that there has been substantial compliance with its prior remand directives on the issues of entitlement to service connection for a cervical spine disability and a right knee disability, but not for the Veteran's claim of entitlement to service connection for OSA. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Certain chronic diseases, such as osteoarthritis, which are manifested to a compensable degree within one year of discharge from active duty, shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such diseases during the period of service. See 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, if a chronic disease listed at 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) is noted during service or the presumptive period, but not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 1. Entitlement to service connection for a cervical spine disability. The Veteran asserts entitlement to service connection for a cervical spine disability based on an in-service neck injury. See July 2016 Hearing Testimony; November 2019 Hearing Transcript. The Veteran testified that he was thrown toward an elevator which came down on the back of his neck when his ship moved. July 2016 Hearing Testimony. He testified to waking up in sick bay and having had a cervical x-ray showing a crush injury. Id. The evidence supports that the Veteran has a current cervical spine disability. Current imaging evidence showing that the Veteran has degenerative changes in his cervical spine. October 2015 VA treatment evidence. The evidence also shows that the Veteran had in-service treatment for a right superior lateral neck injury involving an elevator. April 1981 Service Treatment Record. Treatment records show he had a decrease range of motion in his neck and was thought to have a right neck crush injury. April 1981 Service Treatment Record. However, the clinical evidence at the time showed only a contusion and abrasions and a cervical x-ray showing no evidence of a fracture. Id. The Veteran also showed normal clinical findings during his medical examination at separation and, other than a notation about scars/marks and his audiology testing, no defects were noted. September 1982 Report of Medical Examination. The earliest medical evidence of a neck problem after separation is in 2001, almost 20 years after separation. March 2001 VA treatment evidence. While the medical treatment evidence supports that the Veteran had an in-service cervical spine injury, it is against finding that he has a current cervical spine disability that manifested as a chronic disease, including osteoarthritis, within one year of discharge from active duty. The Veteran was also afforded a January 2015 VA examination for Neck Conditions. The examiner opined that the Veteran's cervical spondylosis is less likely than not incurred in or caused by his in-service neck injury. Id. The examiner's rationale is that the service treatment records showed only a contusion and abrasion, no neurological abnormalities, and normal x-ray imagining. Id. The Veteran returned to full duty after his injury and no abnormality was noted on his separation medical examination. Id. The VA examiner also considered that the Veteran did not mention a neck condition in his October 1985 job application for the United States Postal Service. Id. The VA examiner also explained that cervical intervertebral disc degenerative changes are exceedingly common and typically advances slowly with age. Id. The Board finds that not reporting a neck problem on a job application is not probative in this case, but the VA examiner's rationale is otherwise very thorough and persuasive. The VA examiner is also a medical professional qualified to opine on the cause of the Veteran's cervical spine condition. The opinion is highly probative for these reasons, and against finding that the Veteran's cervical spine osteoarthritis manifested as a chronic disease within one year of discharge from active duty. The Board considered the lay evidence, including the Veteran's testimony during the July 2016 and November 2019 hearings. The Board finds that the lay statements do not support that the Veteran's current cervical spine disability manifested within a year of discharge service active duty nor do they show a continuity of symptoms since separation. While the Veteran is competent to report having experienced neck pain symptoms, the causation falls outside the realm of knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, supra. For example, at one point the Veteran also suggested to his treatment providers that his neck pain may be due to his post separation work as a forklift operator. March 2001 VA treatment evidence. Moreover, he testified his neck symptoms cleared up two weeks after his injury, that his current neck problems started and worsened over time as he aged, and his first treatment for neck problems after separation is in the 1990s, which is at least seven years after separation. See November 2019 Hearing transcript. The Board finds that these lay statements are against finding his cervical spine disability manifested as a chronic disease within a year of discharge from active duty, or that there has been a continuity of symptomatology since. Finally, the Board considered the Veteran's statement that a VA treatment provider told him that his current cervical condition is due to his in service injury based on the location of the injury and x-ray evidence. July 2016 Hearing Testimony. A thorough review of the medical treatment evidence shows no recorded statement by a VA treatment provider about an in-service cause of the Veteran's current cervical spine disability. The Veteran did not provide further detail as to what about the location of his in-service injury or x-ray evidence support finding his current cervical spine disability as due to service. For this reason, the Board finds the Veteran's statement about what his doctor told him to be less probative than the medical treatment and VA examination evidence. The Board also considered whether the evidence supports finding the Veteran's current cervical spine disability as otherwise incurred in or related to service. As discussed above, the Veteran's lay statements that he believes his cervical spine disability is due to his in service injury are not probative as the Veteran is not competent to report the cause of his cervical spine symptoms. See Kahana, 24 Vet. App. at 435; Jandreau, 492 F.3d at 1377. Rather, the Board gives probative weight to the September 1982 Report of Medical Examination showing normal clinical findings and the January 2015 VA examiner's opinion that the Veteran's current cervical spine disability is less likely than not incurred in or caused by service. This evidence is strongly against finding that the Veteran's current cervical spine disability is related to service. Accordingly, based on the more probative medical and lay evidence, the Board finds that the preponderance of the evidence is against finding that the Veteran's current cervical spine disability manifested as a chronic disease within a year of discharge from active duty, that there has been a continuity of symptomatology since, or that it was otherwise incurred in or related to service. Entitlement to service connection for a cervical spine disability is, thus, not warranted. 2. Entitlement to service connection for a right knee disability. The Veteran asserts entitlement to service connection for a right knee disability based on evidence of knee pain treatment during service. July 2016 Hearing Testimony; November 2019 Hearing Transcript. The Veteran testified that his in service duties involved being on his knees and going up and down on planes. July 2019 Hearing Testimony. He testified that he complained about knee problems during service and was treated with medication, exercise, and bedrest. July 2016 Hearing Testimony; November 2019 Hearing Transcript. The Veteran also testified about having a right knee injury prior to service and referenced a possible aggravation of a preexisting injury as a theory of entitlement to service connection. See November 2019 Hearing Transcript. The evidence supports that the Veteran currently has a right knee disability diagnosed as knee joint osteoarthritis and degenerative arthritis. January 2015 VA Examination for Knee and Lower Leg Condition. The evidence also shows that the Veteran was treated for right knee pain during service. August 1979 Service Treatment Record; January 1980 Service Treatment Record. As an initial matter, the Board finds that the Veteran did not have a preexisting right knee disability at the time of his entrance into service. A veteran is presumed to be in sound condition, except for defects, infirmities, or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. The burden is on the Government to rebut the presumption of sound condition upon induction by clear and unmistakable evidence showing that the disorder existed prior to service and was not aggravated by service. See VAOPGCPREC 3-2003. In other words, if a condition is not noted upon entrance into service, VA must show by clear and unmistakable evidence that (1) there was a preexisting condition, and (2) that the condition was not aggravated during or by service to rebut the presumption of sound condition at service entrance. In this case, the Veteran reported during enlistment that he had a history of hospital care for a "ligament" and treatment in 1978 for right knee strain. April 1979 Report of Medical Examination. Medical treatment records after separation also reference a history of a right tendon knee surgery at age 17. March 2001 VA treatment evidence. However, the Veteran is presumed to have entered into service in sound condition as no defects were noted during the Veteran's medical examination for enlistment. April 1979 Report of Medical History. His medical treatment records also do not suggest that his knee injury prior to service resulted in a condition that continued into service. Moreover, the Veteran testified that his knee injury completely healed by the time he enlisted. See November 2019 Hearing Transcript. This evidence is against finding that the presumption of soundness has been rebutted. The Board recognizes that the January 2015 VA examiner referred to the Veteran's right knee condition as having "clearly and unmistakably existed prior to service." January 2015 VA Examination Medical Opinion. But the VA examiner's explanation is only that the Veteran had a knee surgery prior to service based on his report to treatment providers and a knee scar noted during his entrance examination. Id. The examiner did not explain how his knee injury prior to service resulted in a knee condition that existed at the time of his entrance into service and continued as a current disability. See id. Therefore, the January 2015 VA examiner's opinion is not clear and unmistakable that the Veteran had a preexisting right knee disability at the time he entered into service. Since the evidence supports that the Veteran entered into service in sound condition, a theory of entitlement to service connection for a right knee disability based on aggravation of a preexisting condition has no merit. As for whether the evidence supports entitlement to a presumptive service connection for a right knee disability as a chronic disease, the September 1982 Report of Medical History at separation has notations about his scars/marks and audiology testing, but normal clinical examination findings and no right knee defect. The earliest medical treatment evidence for the Veteran's right knee after separation was not until 2013, about 30 years after separation. August 2013 VA treatment evidence. The Veteran reported to his treatment provider of having knee pain for only the past 6 months. Id. The Board finds that this evidence is against finding that the Veteran's current right knee disability manifested as a chronic disease within a year of discharge from active duty or that there has been a continuity of symptomatology. In addition, a March 2020 VA examiner opined that the Veteran's current right knee disability is less likely than not incurred in or caused by service. March 2020 VA Examination Medical Opinion. The examiner explained that the Veteran's service treatment records show treatment for right knee chondromalacia patella in 1979 and 1980, but no evidence of continuing treatment during the remainder of his service period nor was a right knee defect noted on separation. Id. The examiner opined that the Veteran's chondromalacia resolved in 1980 and also noted that the Veteran's current right knee disability is osteoarthritis and not chondromalacia. The VA examiner found the Veteran's osteoarthritis to more likely be due to age. See id. The March 2020 VA examiner is a medical professional qualified to evaluate and opine on the cause of the Veteran's right knee disability, who provided a detailed opinion with detailed rationale and citation to evidence of record. The VA examiner's opinion is highly probative for these reasons and against finding that the Veteran's current right knee disability manifested as a chronic disease with a year of discharge from active duty or that there has been a continuity of symptomatology. The Board considered the Veteran's lay statements about his right knee condition. The Veteran is competent to report having experienced right knee symptoms, but the causation falls outside the realm of knowledge of a lay person. Kahana, 24 Vet. App. at 435; Jandreau, 492 F.3d at 1377. His statements that his current right knee disability was incurred in or caused by service are not probative as this is a medically complex issue that requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, supra. The Veteran's lay statements do not indicate that he has had continuing right knee symptoms since service. Rather, the Veteran testified that he first sought treatment for his right knee in the 1990s, which is at least seven years after separation. November 2019 Hearing Transcript. The Board finds that the Veteran's lay statements do not support that the Veteran's current right knee disability was incurred in service or that there has been a continuity of symptomology. The Board also consider whether the evidence supports that the Veteran's current right knee disability was otherwise incurred in or caused by service. However, as discussed above, the medical treatment evidence suggests that the Veteran's right knee pain resolved during service and knee pain had not been an issue for at least 7 years after separation. September 1982 Report of Medical Examination; August 2013 VA treatment evidence; November 2019 Hearing Transcript. The March 2020 VA examiner opined that the Veteran's current right knee disability is less likely than not incurred in or caused by service. March 2020 VA Examination Medical Opinion. The Board considered the representative's contention that, despite the lack of right knee complaint for 30 years since separation, the Veteran had in-service treatment for knee pain during service. November 2020 Appellate Brief. However, as noted by the March 2020 VA examiner, the Veteran's current right knee disability is osteoarthritis and his in-service right knee treatment was for chondromalacia patella, which is not a current disability. March 2020 VA Examination Medical Opinion. The Board thus, finds that the preponderance of the lay and medical evidence is against finding that the Veteran's current right knee disability had manifested as a chronic disease within a year of discharge from active duty, that there is a continuity of symptomatology since separation, or that it was otherwise incurred in or caused by service. Accordingly, entitlement to service connection for a right knee disability is not warranted. REASONS FOR REMAND 1. Issue of entitlement to service connection for OSA is remanded. Unfortunately, another remand is required because there has not been substantial compliance with the prior Board remand directives and another opinion from VA examiner is needed. The January 2020 Board decision remanded the Veteran's claim to obtain a VA examination to determine the cause of his OSA. A January 2020 VA examination for sleep apnea was obtained, but the Board found the medical nexus opinion to be inadequate because it does not consider the Veteran's reported history of symptoms he believes are related to OSA. February 2021 Board Decision. A May 2021 opinion was then obtained from a VA examiner. The May 2021 VA examiner considered and dismissed the Veteran's reported symptoms merely because they are not documented reports in his service records. See May 2021 VA Examination Medical Opinion. The VA examiner also found the Veteran's reported sleep-related symptoms to be generalized complaints that are not necessarily due to OSA without a sleep study for diagnosis. Id. As noted in the February 2021 Board decision, the lay statements may not be rejected as not credible merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board also finds that the VA examiner's rationale is inadequate to explain why the Veteran's reported symptoms during service, albeit generalized complaints without a sleep study, are less likely than not evidence that is current OSA condition, which has been diagnosed, was incurred during service. A remand for another VA examiner's opinion is needed. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the provider(s) of any evaluations and/or treatment received for OSA, and provide authorizations for VA to obtain records of any such private treatment and attempt to obtain any identified records. 2. Obtain an addendum opinion from an appropriate clinician. (a) The medical professional is asked to opine on whether the Veteran's OSA is at least as likely as not related to service. The medical professional is informed that the Board finds the Veteran's statements regarding in-service symptoms to be credible, and the examiner should accept them as true when rendering an opinon. A detailed rationale with citation to evidence, if possible, is requested. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lin 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.