Citation Nr: 21071164 Decision Date: 11/30/21 Archive Date: 11/29/21 DOCKET NO. 17-50 085 DATE: November 30, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition is remanded VETERAN'S CONTENTIONS At the Veteran's January 2018 Board hearing, he explained that he believed that his obstructive sleep apnea (OSA) condition was related to his in-service asbestos exposure along with other environmental hazards during service. However, the Veteran's son stated that neither he nor his father had reason to suspect that the Veteran suffers from OSA. See July 2021 Correspondence. The Veteran's son also stated that he was not requesting a follow-up sleep study for his father, as they did not believe that he had the condition. Id. FINDING OF FACT The probative evidence of record does not establish that the Veteran has been diagnosed with OSA or any sleep disorder either during service or during the appeal period. CONCLUSION OF LAW The criteria for service connection for OSA are not met. 38 U.S.C. §§ 1110, 1101, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1961 to August 1962. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference in January 2018. A transcript of the hearing is of record. These matters were previously before the Board in March 2018, February 2020, and July 2020, at which time they were remanded for additional development. 1. Entitlement to service connection for sleep apnea is denied. Generally, in order to prove service connection, there must be 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, Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Initially, the Veteran asserted that his OSA disability was related to his exposure to asbestos and other environmental hazards during service. See January 2018 Statement in Support of Claim and January 2018 Board Hearing Trans. pg. 1. However, the findings of the VA examinations and VA treatment records reflect that there has been no diagnosis of an OSA disability, any sleep disorder, or any treatment for a sleep disorder, even according to the Veteran's own report. See VA Treatment Records dated November 2018 and June 2019. Additionally, although the October 2019 and April 2020 VA examinations were found inadequate on other grounds, both examiners found that the Veteran's medical records were silent for an OSA diagnosis. See October 2019 and April 2020 VA Examinations. Relatedly, the November 2020 VA examination is also inadequate on other grounds, but the examiner stated that a sleep study was required to properly determine whether the Veteran has OSA or any other sleep disorder. Following the November 2020 VA opinion, the RO attempted to schedule the Veteran for a sleep study, but was informed by the Veteran's son that he nor his father had any reason to believe he was suffering from sleep apnea, so they did not want any follow up regarding a sleep study. See July 2021 Correspondence. As record does not contain an OSA diagnosis, the Board finds that there is no current OSA disability. Accordingly, service connection for OSA is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a left knee condition is remanded. After reviewing the record, the Board finds that an additional remand is warranted regarding the service connection issue identified above because there has not been substantial compliance with the Board's prior remand directives from July 2020. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Here, the Veteran has continuously contended that his left knee condition is related to an in-service incident in which he fell off a tank. See February 2015 VA Examination, January 2018 Statement in Support of Claim, and January 2018 Bored Hearing Trans. pg. 3. Alternately, the Veteran contended that his left knee condition was a result of wear and tear related to getting in and out of a tank repeatedly. Id. Following the Board's July 2020 remand, the RO secured an additional medical opinion addressing whether the Veteran's left knee condition is related to service. The November 2020 VA examiner opined that the Veteran's left knee condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Although this examiner acknowledged the Veteran's in-service knee injury and the Veteran's in-service myositis diagnosis, the examiner stated that he "would have to default to conjecture that this one time injury would lead to knee issues that would then force him to seek care in approximately 2008." However, the September 2020 VA examiner's statement that he initially sought treatment in 2008 squarely contradicts the Veteran's statements that he sought treatment in the late 1960s for his knee problems. See February 2015 VA Examination. Therefore, the Board finds that this examination is inadequate because it is based on an inaccurate factual premise. Further, the examiner did not address the Veteran's lay statements regarding the continuity of symptoms since service or his in-service diagnosis of a left knee sprain, per the July 2020 Board remand directives. Additionally, the examiner failed to address whether the Veteran's currently diagnosed knee conditions could be related to his in-service duties, including climbing in and out of a tank. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with remand requests. Stegall v. West, 11 Vet. App. 268 (1998). As the July 2020 remand directives were not followed, an addendum opinion is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, 11 Vet. App. at 268. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his left knee condition. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). 2. Entitlement to service connection for a right knee condition is remanded. The Veteran contends that his right knee condition was caused or aggravated by his left knee condition. See January 2018 Board Hearing Trans. pg. 3. Specifically, the Veteran contends that he overcompensates due to severe left knee pain. In this regard, an October 2019 VA examiner opined that the Veteran's right knee condition was at least as likely as not aggravated beyond its natural progression by his left knee condition. In the July 2020 Board remand, the Board relied on the October 2019 VA examiner's finding, when it directed the VA examiner to attempt to quantify the degree of aggravation of the right knee beyond the baseline level that is attributed to the left knee condition. However, instead of quantifying the degree of aggravation of the right knee condition, the September 2020 VA examiner instead opined that because the left knee was not service connected, it could not have aggravated the right knee. See September 2020 VA Medical Opinion. However, the Board finds that this opinion contradicts the October 2019 VA examiner's finding that the Veteran's left knee condition aggravated his right knee condition, without providing adequate rationale. Further, it fails to address the question regarding quantifying the degree of aggravation of the right knee, per the Board's directives. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Moreover, since as the Veteran's claim for service connection for a right knee condition is inextricably intertwined with his claim for service connection for a left knee condition and the Veteran's claim for service connection for a left knee condition is remanded in the decision herein, the Board finds that this issue must be remanded as well. See Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on another issue). In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of right knee condition. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Send the file to a different VA examiner than the September 2020 VA examiner for an addendum opinion. If a clinical evaluation is deemed necessary to answer the questions presented, one should be scheduled. The claims file, and a copy of the remand, must be reviewed by the examiner. Following review of the file, and the remand, the examiner is to address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the diagnosed left knee conditions had their onset during active service, or within one year of the Veteran's separation from active service, or is otherwise related to service? The examiner is asked to specifically address the following contentions: a. The Veteran's left knee condition is related to an in-service incident in which he fell off a tank and as a result of wear and tear related to getting in and out of a tank repeatedly. b. The Veteran first experienced knee problems in service, which continued thereafter. c. The Veteran sought treatment for his knee problems in the late 1960s and sought treatment in Mexico for his knee pain after service. See January 2018 Board Hearing Transcript. (b.) If the examiner determines that the Veteran has a left knee condition unrelated to his active service, he or she should provide an opinion as to the most likely etiology. (c.) The October 2019 VA examiner opined that the Veteran's right knee condition was at least as likely as not aggravated beyond its natural progression by his left knee condition. If the Veteran's left knee condition is related to his active service, please attempt to quantify the degree of aggravation of the right knee beyond the baseline level that is attributed to the left knee condition. All findings and conclusions should be supported with a complete rationale which reflects the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED