Citation Nr: 21071254 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 11-14 425 DATE: November 30, 2021 ORDER The severance of service connection for hypothyroidism being proper, the appeal is denied. Entitlement to service connection for exophoria is granted. Entitlement to a compensable rating for hypothyroidism for the period from May 26, 2007, through July 31, 2010, is denied. REMANDED Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for right knee arthritis is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. It is clear and unmistakable that the Veteran's hypothyroidism did not manifest during a period of active duty or active duty for training. 2. The Veteran's exophoria is a congenital disease that first manifested in service. 3. An increased rating for hypothyroidism must be denied as a matter of law. CONCLUSIONS OF LAW 1. The severance of service connection for recurrent hypothyroidism with residuals was proper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105 2. The criteria for service connection for exophoria have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. A compensable rating for recurrent hypothyroidism with residuals is denied as a matter of law. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.400 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1975 to June 1986 with subsequent service in the Reserve. The case is on appeal from November 2007 and May 2020 rating decisions. The Veteran testified at a Board hearing in August 2011. The Veterans Law Judge (VLJ) who presided over that hearing remanded this matter in December 2016. In November 2020, the Veteran presented testimony on the same issues at a second Board hearing before a different VLJ. Appeals can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102(a). Thus, when an appellant has had appellate hearings before two VLJs on one or more common issues, a third VLJ must be assigned to form a panel after the second Board hearing has been held and the appeal is ready for appellate review. In Arneson v. Shinseki, 24 Vet. App. 379 (2011), the Court interpreted 38 C.F.R. § 20.707 as requiring that an appellant must also be provided the opportunity for a hearing before all three VLJs involved in a panel decision. Here, in March 2021, the Board sent the Veteran notice that he had the right to request a hearing before a third VLJ. In April 2021, the Veteran responded that he waived his right to a hearing before a third VLJ who would be assigned to decide his appeal. Severance 1. Whether the severance of service connection for hypothyroidism was proper Service connection for hypothyroidism was granted in a November 2007 rating decision. The RO explained that the service treatment records (STRs) "substantiate a diagnosis and recurrent, but limited treatment history up to the time of your discharge, warranting direct service connection." In a February 2020 rating decision, the RO proposed to sever service connection. The RO found that there had been clear and unmistakable error in the grant of service connection because (1) the STRs do not show that a diagnosis until August 1996, which was not during a period of active service; (2) there is no evidence of a line of duty determination to show that this condition was incurred during a period of active duty for training or inactive duty for training; (3) post-service medical records do not show that the condition was incurred during a period of active service; and (4) during a VA examination, he reported suffering from hypothyroidism that began around 1999 due to complaints of fatigue with medication use ever since. The May 2020 rating decision on appeal made the severance final effective from August 1, 2010. The RO reiterated its reasons set forth in the proposed rating decision. The RO also considered a statement from the Veteran indicating that it was impossible to clearly determine that the condition was not aggravated during a period of service. The RO disagreed, finding that the evidence did not show the condition was aggravated during a qualified period of service. The Veteran appealed. He contends that the service department knew about the condition before it was first noted in service. November 2020 Board Hr'g Tr. 3. He maintained that the condition did not get worse during his service to his knowledge, but there was an increase in milligrams of medication at some point, although he did not remember exactly when this occurred. November 2020 Board Hr'g Tr. 3-4. He indicated that he had been ultimately diagnosed after he started getting tired over a period of seventh months, which led him to the doctor, who found the condition. November 2020 Board Hr'g Tr. 5-6. The doctor told him the disease had started before he first felt the symptoms. November 2020 Board Hr'g Tr. 6. He also argued that he had service in multiple countries in Southwest Asia (including Saudi Arabi, Jordan, Turkey, Kuwait), Thailand, Australia, and other locations. He speculated that he might have been exposed to any number of unknown "things." To this end, the asserted that the condition presented four to six months after deployments to Hawaii and Thailand. See 8/3/2015, 11/9/2017 Veteran statements. The Board previously remanded this matter in December 2016 in relevant part to confirm all periods of ACDUTRA and INACDUTRA. The Board directed the AOJ to prepare a list of all periods of service and provide a copy to the Veteran. The Board finds that there was not strict compliance with the Board's remand directives because (1) a complete list of all his service dates was not prepared, and (2) the list was not provided to the Veteran. However, there was substantial compliance. First, upon remand, the RO obtained the Veteran's complete service personnel records (SPRs), which identify all periods of his service. In June 2017, the RO prepared an Information Report with information from the service department showing his periods of service from 2001-2007. Earlier, in January 2017, the Veteran himself prepared a list of all periods of service and submitted it to the RO. Hence, while there was not strict compliance with the remand directives, the Board finds that there was substantial compliance, and any deficiency did not prejudice to the Veteran. Remand for strict compliance is not needed. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). A. Applicable Law Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE) (the burden of proof being on the Government). 38 C.F.R. § 3.105(d). When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d). A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. 38 C.F.R. § 3.105(d). To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth v. Nicholson, 20 Vet. App. 482, 487-88 (2006); cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38 C.F.R. § 20.1403(a). In most respects, the CUE standard for severing service connection under § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a). See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Section 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. See id. However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth, 20 Vet. App. at 488. The Secretary's burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 5109A or 7111. Id. A decision that is reversed or amended on the basis of CUE is revised to conform to the true state of the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62 (internal quotations omitted). B. Discussion In this case, the Board finds that the severance of service connection was proper as there was clear and unmistakable error in the grant of service connection. The evidence shows that the hypothyroidism condition started prior to service and was not aggravated therein. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Active Duty for Training (ACDUTRA) is defined as full-time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C. § 101(22). Service connection may be granted for injury or disease incurred or aggravated in ACDUTRA. 38 U.S.C. § 101(24). Inactive Duty for Training (INACDUTRA), by comparison, is defined as other than full-time training performed by Reserves. 38 U.S.C. § 101(23). Service connection may be granted for injuries incurred or aggravated in INACDUTRA, but not for disease (except from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training). 38 U.S.C. § 101(24). A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The presumption of sound condition under 38 U.S.C. § 1111 may apply for any period of ACDUTRA or INACDUTRA. Initially, the claimant must have had "veteran" status prior to that period of service, which is satisfied if he performed any prior period of active duty service [or, "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in [the] line of duty."]. Smith v. Shinseki, 24 Vet. App. 40, 46 (2010). Even with "veteran" status, the presumption of sound condition does not apply if an entrance examination was not performed contemporaneous to the period of ACDUTRA or INACDUTRA. "In the absence of such an [entrance] examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based." Id. Moreover, a presumption of aggravation is not applicable to a veteran seeking service connection based on a period of active duty for training or inactive duty for training. Service connection will only be warranted if the evidence directly shows both that (1) a worsening of the condition occurred during the period of active duty for training and (2) that the worsening was caused by the period of active duty for training. Id. Service connection on a presumptive basis is not warranted for periods of active duty for training and inactive duty for training. Smith v. Shinseki, 24 Vet. App. 40, 46-47 (2010); see also Bowers v. Shinseki, 26 Vet. App. 201 (2013) (ALS presumption not applicable without veteran status). In this case, the first indication of hypothyroidism appears in the service treatment records (STRs) in December 1996. A treatment note from that time states that the Veteran had "volunteered that he was given Synthroid by his private physician for hypothyroidism." It was noted that the basis of the diagnosis was an abnormal thyroid function test. A waiver was sought. The waiver summary states that the testing had been conducted upon consultation with his personal physician for a check-up. It was noted that he had undergone a complete physical examination in July 1994 at which time no abnormalities were noted, and a more recent physical examination in August 1996 was normal. Included in the STRs are copies of laboratory test results from September 1996, indicating normal results, then in August 1996, indicating high results with a retest in January 1997 confirming the high results. The diagnosing private doctor wrote a letter in January 1997 explaining that the Veteran had been treated for a thyroid disorder since August 1996. This evidence shows that the condition was diagnosed by a private physician in August 1996, which did not coincide with a period of ACDUTRA or INACDUTRA. The service department provided the service personnel records (SPRs), which show orders for duty of eight days in May and June 1996 and two days in October 1996. The type of tour is listed as "Special (ADS)." This type of service is consistent with ACDUTRA. The SPRs show he had no periods of service in August 1996 coinciding with his diagnosis with hypothyroidism. Thus, the diagnosis was made outside a period of qualifying duty. The presumption of soundness does not arise in this situation. Although "veteran" status has since been achieved, "veteran" status is not established for any of the corresponding periods of service in 1996. See Hill v. McDonald, 28 Vet. App. 243, 252 (2016) ("once a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, that status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA"). This is not a presumptive condition under 38 C.F.R. § 3.309(a), and even if it were, service connection on a presumptive basis is not available for periods of ACDUTRA and INADUTRA. See Smith, 24 Vet. App. at 46-47. Overall, this evidence clearly and unmistakably shows that the condition began outside a period of qualifying service. The Veteran maintains that it is not clear and unmistakable that it did not start during a period of qualifying service because he was told the condition had started before he felt the first symptoms. While this is not outside realm of possibility, there is no evidence to support his contention. The clear and unmistakable error burden of proof is high, but there must be some evidentiary basis for a theory to overcome this burden. See, e.g., Stallworth, 20 Vet. App. at 488. His conclusory, speculative statements cannot alone raise a debatable inference as to whether there was an in-service incurrence where the evidence overall provides no support. He did not indicate that his doctor told him there might be a possibility the condition first arose during a period of qualifying service, and there is no dispute that the Veteran, as a lay person, is not competent to address this complex medical question. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Hence, his statements alone are insufficient to indicate an onset during a period of qualifying service. The Veteran continued to serve periods of ACDUTRA until his retirement. There is no indication of aggravation during any period of such service. The Veteran at his November 2020 Board hearing expressly stated that the condition did not get worse to his knowledge. Board Hr'g Tr. 3-4. He referred to an increase in milligrams of medication. Board Hr'g Tr. 3-4. To this end, the December 1996 request for waiver indicates he had been started on 0.2 mg of medication. A September 1998 Aeromedical Summary gives his medication dose as 0.1 mg. In February 2001, it was noted that he was on 0.15 mg, and he was recommended to maintain that dose. In September 2001, it was noted he had been started on 0.2 mg when first diagnosed, but a September 1998 Aeromedical Summary states that the Veteran had always been 0.1 mg, so the notation of 0.2 mg had been a typographical error. In September 2001, an Aeromedical Summary again noted 0.2 mg, which had normalized his labs. A Report of Medical History in July 2001, plus dental treatment summaries in July 2001 and September 2002, indicate his dose was 0.15 mg. In June 2005, it was noted his dose was 0.1 mg. There is no indication that (1) there was an increased dosage that was due to a worsening of the condition, (2) that it occurred during the period of active duty for training, or (3) that the worsening was caused by the period of active duty for training. Hence, a worsening during a period of qualifying service is not established. See Smith, 24 Vet. App. at 46. The Veteran's testimony at the November 2020 Board hearing is speculative, unsupported evidence, which is not sufficient to overcome the otherwise clear and unmistakable evidence. Alternatively, the Veteran maintains that he had service in multiple countries in Southwest Asia, Thailand, Australia, and other locations. He indicated that the onset began within four to six months of service in Hawaii and Thailand. He speculated that he might have been exposed to any number of unknown "things" during such service. The Veteran's service records confirm service in these locations. (Of note, he had service in Thailand in 1998 and 2002, so an Agent Orange theory does not apply. See 38 C.F.R. § 3.307). Again here, the Board finds the Veteran's testimony too remote and speculative to even indicate a possible nexus to service. First, it is not clear that he was exposed to any toxic environmental exposures, assuming this is what he was attempting to suggest. Second, even he had been exposed, there is no evidence indicating what, where, or to what degree those exposures occurred. Hence, it would be impossible to rule in or out a nexus. Apart from his testimony, there is no evidence supporting such a nexus. A VA examination has not been conducted to determine if the condition might have had its onset during a period of qualify service, might have been aggravated during such service, or might be related to exposure to any possible environment exposures. However, a VA examination is not warranted based only on the Veteran's own conclusory, generalized statements, where there is no other supporting evidence in the record. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010); Euzebio v. Wilkie, 31 Vet. App. 394 (2019); cf Colantonio v. Shinseki, 606 F.3d 1378, 1381-82 (Fed. Cir. 2010). Overall, the Board finds that this evidence clearly and unmistakably establishes that the grant of service connection was in error. It is not in dispute that the condition was first diagnosed outside a period of qualifying service. While the Veteran introduced testimony raising the possibility of an in-service onset, aggravation during a later period of service, or a nexus to environment exposures, his testimony is too speculative, conclusory, and circumstantial, to begin to rebut the clear and unmistakable evidence establishing that there is not a nexus. As a final matter, the Board observes that the RO followed the proper due process steps for severing service connection. First, the RO issued a proposed rating in February 2010. The Veteran was notified in February 2010 at his latest address of record of this contemplated action and furnished detailed reasons therefor and was given 60 days for the presentation of additional evidence to show that service connection should be maintained. The February 2010 notice letter also informed the Veteran that he had the opportunity for a predetermination hearing if such a request for a hearing was received by VA within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i). The Veteran filed a notice of disagreement (NOD) in April 2010, and additional records were obtained in April 2010, but he did not request a predetermination hearing. Accordingly, the RO issued the May 2010 rating decision, which severed service connection prospectively effective August 1, 2010. Notice of this rating decision, plus his appeal rights, was sent to the Veteran under a May 2010 cover letter. The August 1, 2010 final severance date was greater than the last day of the month in which a 60-day period from the date of the May 2010 notice expired. Thus, all due process requirements were met in severing service connection. See 38 C.F.R. § 3.105(d). To conclude, the Board finds that the grant of service connection for hypothyroidism was proper. As such, the appeal is denied. Service Connection 2. Entitlement to service connection for exophoria The Veteran contends that service connection is warranted for exophoria because the condition was first discovered during his active duty service in 1977. See August 2011 Board Hr'g Tr. 19-20. He maintains that he did not have it when he entered service. Board Hr'g Tr. 19. A. Applicable Law Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and aggravation by clear and unmistakable evidence. A "claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong," even if clear and unmistakable evidence establishes that a disease preexisted service. In other words, the "burden is not on the claimant to show that his disability increased in severity." To the contrary, the burden is on VA to "establish by clear and unmistakable evidence that [a preexisting disease] did not [increase in severity during service] or that any increase was due to the natural progress of the disease." This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231 (2012). Congenital or developmental defects are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c); Winn v. Brown, 8 Vet. App. 510, 516 (1996). A congenital or developmental condition that is progressive in naturethat can worsen over timeis a disease rather than a defect. A progressive congenital or developmental condition does not become a defect simply because it ceases to progress. O'Bryan v. McDonald, 771 F.3d 1376 (Fed. Cir. 2014). Service connection may be granted for hereditary diseases that either first manifested themselves in service or that preexisted service and progressed at an abnormally high rate during service. VAOPGCPREC 67-90 (July 18,1990). Service connection for congenital (developmental or familial) diseases, but not defects, may be granted when the evidence as a whole establishes that the disease in question was incurred in or aggravated by active service within the meaning of VA law and regulations. VAOPGCPREC 82-90 (July 18, 1990); See Winn, 8 Vet. App. at 516; Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). B. Discussion In this case, the Board finds that service connection is warranted as the condition first manifested in service. There is no material dispute that the Veteran currently has exophoria. A VA examiner in August 2014 confirmed the diagnosis. There is also no material dispute that the condition manifested in service. The service treatment records (STRs) show that the condition was found during an annual flying evaluation in August 1977. The condition was confirmed by the service department upon ophthalmologic evaluation in September 1977. With regard to the nexus question, the August 2014 VA examiner opined that the condition was less likely than not related to service. The examiner found no acquired pathology superimposed on such during service. The examiner explained that exophoria is a form of heterophoria where there is a tendency for the eyes to deviate outward and where, during an eye examination, the eyes can be dissociated with prisms which will result in a divergence of the visual axes. The examiner specified that most of the time there is no known cause for exophoria although it is common in infancy and childhood and will increase with age. The examiner observed that the instant Veteran did not have any history of traumatic brain injury, stroke, or brain tumors, which can cause a lack of eye muscle coordination and lead to exophoria. The examiner noted that the Veteran did have a family history where his father had eye surgery to correct double vision. The examiner pointed out that the Veteran was told by an eye doctor that he had a tendency for double vision prior to his service. Finally, the examiner explained that fatigue can cause the symptoms of exophoria (eye strain, headaches, and reduced depth perception) to worsen and in some cases lead to exotropia and double vision. The examiner observed that the exophoria eye condition did not cause the Veteran to be denied flight status. This VA examiner's opinion raises the question of whether the Veteran's condition preexisted service. The Board finds that the presumption of soundness applies and is not rebutted with clear and unmistakable evidence. The only indication of a preexisting condition is the August 2014 VA examiner's opinion. The examiner classified the condition as "congenital" and explained that it is common in infancy and childhood and will increase with age. The Board does not find this to be clear and unmistakable evidence that the condition existed prior to service. The examiner noted that it is common in infancy and childhood, but did not indicate that the instant Veteran had it since infancy or childhood. To the extent the examiner classified it as "congenital," the Board again finds this to be insufficient to show that the condition clearly and unmistakably preexisted service. The mere fact that the condition is the result of a congenital cause does not necessarily mean that the condition itself manifested before service or that it was not aggravated by service. See Quirin, 22 Vet. App. at 394. Rather, it is important to distinguish between conditions that are diseases and those that may properly be considered defects, so as to properly analyze the claim for compensation for a congenital condition, the condition must be appropriately classified. Id. Here, the examiner did not clarify whether it was a congenital defect or disease. However, the examiner expressly stated it is a condition that will increase with age, which indicates that it is a congenital disease. See O'Bryan v. McDonald, 771 F.3d 1376 (Fed. Cir. 2014); Quirin, 22 Vet. App. at 394. Because the condition is consistent with a congenital disease, the question is whether it preexisted service. His active duty service began in January 1975. The STRs do not contain an entrance examination from that time. It is not clear if one was conducted and is now missing or whether one was never conducted. The latter appears to be the case as the STRs show a complete examination conducted approximated one year prior in January 1974 for purposes of ROTC Reserve Commissioning. He then underwent a complete flight physical in May 1975. In either event, absent an entrance examination, the Veteran is presumed sound at service entrance. See Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012); Smith v. Shinseki, 24 Vet. App. 40, 46 (2010); Crowe v. Brown, 7 Vet. App. 238, 245 (1994). There is not clear and unmistakable evidence of a preexisting condition. The January 1974 examination was negative. His vision was extensively evaluated, but there is no indication that any abnormality was found. Likewise, he denied a history of eye trouble. The May 1975 examination was entirely negative. At the September 1977 ophthalmologic evaluation, the Veteran was "totally asymptomatic," and he denied any past history of significant ocular problems. He reported having been given glasses, but did not wear them due to headaches. On evaluation, he had a slight amount of intermittent exotropia. It was noted that the eyes were straight most of the time, but the potential existed for exotropia to occur during periods of stress or fatigue. A September 1977 Aeromedical Summary states that the Veteran never had any difficulty. Overall, this record does not establish that the condition clearly and unmistakably existed prior to service. Hence, the presumption of soundness cannot be rebutted. See Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Even though the presumption of soundness is not rebutted, the Veteran "must still demonstrate a current disability and a nexus between his current disability and the injury or disease in service. See id. at 236. To this end, there appears to be no dispute that the condition has existed since 1978. The STRs show that the condition remained extant throughout his active duty and Reserve service. He continued to receive waivers for this disqualifying condition. The August 2014 VA examiner noted that the current condition had been first diagnosed in service. As such, a nexus to service is established. In short, the Veteran's current exophoria first manifested during active service. There is not clear and unmistakable evidence that it preexisted such service. Hence, service connection is warranted, and the claim is granted. See VAOPGCPREC 67-90. Increased Rating 3. Entitlement to a compensable rating for hypothyroidism for the period from May 26, 2007, through July 31, 2010. The Board herein above finds that the grant of service connection for hypothyroidism was clear and unmistakable error, so the severance of service connection for the condition was proper. A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection. 38 C.F.R. § 3.400(o)(1). Accordingly here, an increased rating for hypothyroidism for the period during which service connection was in effect must be denied as a matter of law. REASONS FOR REMAND 1. Entitlement to service connection for a low back condition 2. Entitlement to service connection for right knee arthritis 3. Entitlement to service connection for a left knee condition Issues 1-3 are remanded for a new VA opinion. The Veteran was a pilot during service. He had active duty service from January 1975 through June 1986, then Reserve service until 2007. He remained a pilot throughout that time, most recently in F-16s. The Veteran contends that his low back condition began in 1992 during a period of service at Nellis Air Force Base. See 8/4/2015 Veteran testimonial statement. The Veteran maintains that he sought treatment for his back pain, but that treatment was not documented in his STRs in order to allow him to maintain his flying status. See 11/30/2020 Board Hr'g Tr. 10; 8/3/2015 Veteran testimonial statement. The Veteran contends that his knee conditions are due to high-G flights in a cramped F-16 cock-pit with the stress of working the rudder pedals. November 2020 Board Hr'g Tr. 14. The Board previously underwent a VA examination for his back and knees in August 2014. The examiner diagnosed degenerative arthritis of the spine and spinal stenosis. The examiner also diagnosed osteoarthritis of the knees. The examiner opined that the conditions were less likely than not related to service. Regarding the lumbar spine, the VA examiner found significant that there were no entries in the Veteran's STRs over his entire career regarding any back condition. The examiner also noted that he had consultation with a retired Air Force flight surgeon and VA examiner, who could not support any medical opinion affirming degenerative thoracolumbar spine disease in association with the Veteran experiencing chronic high-G load as a causal relationship to claimed back condition. Regarding the knees, the examiner reasoned that there is no evidence discovered at this time in the Veteran's STRs that an ongoing knee problem occurred during active service. The examiner pointed to multiple career flight physicals and the retirement physical affirming this lack of a finding. In March 2015, this examiner gave an addendum opinion. The examiner again opined that the conditions were less likely than not related to service. The examiner explained that the knee and lumbar spine complaints were not documented in the STRs, and the Veteran denied the conditions in ongoing career flight physicals. The examiner felt that this Veteran, as a senior officer, was well aware of the extreme risk to life and property if he were to hide any such medical conditions from a flight medical officer. Since the conditions were denied by this Veteran senior military officer during his flight physicals, the examiner felt the Veteran must be taken at his word that there was not an ongoing back or knee condition at the time of his service flight physical exams. The examiner observed that, if the Veteran had reported such conditions during his serial flight physicals during his pilot career, the conditions would have been documented by X-ray findings as occurring earlier than the usual progression of the disease process and nexus be made. Therefore, the examiner concluded that the present claimed conditions did not exist during service, and there was no nexus as far as examiner (who identified himself as retired army flight surgeon) was concerned. The VA examiner further reasoned that the Veteran's low back and knee signs and symptoms had occurred coincidentally as a result of normal aging since discharge and were not causally related to his service. The examiner identified osteoarthritis as a common finding that occurs with advancing age over 50 and is not specific to service. The examiner also reported that he could find no supporting articles or studies in the medical literature specifically noting lumbar spine and knee arthritis conditions being a direct result of service flying duties. This examiner also noted that he had discussed the Veteran's case in detail with the examiner's department chief, who concurred with the report. The examiner explained that the department chief had been an Air Force colonel flight surgeon with over 20 years of service. The Board currently finds that this examiner's opinion is insufficient for two reasons. The examiner found that the Veteran's diagnoses were the result of normal aging. The examiner found no supporting articles or studies in the medical literature specifically noting lumbar spine and knee arthritis conditions being a direct result of military flying duties. Yet, the Veteran in September 2011 submitted abstracts and studies indicating such a positive relationship. Thus, it appears the examiner's research was incomplete. Overall, the Board finds that a new opinion is needed. 4. Entitlement to service connection for sleep apnea This issue is remanded to obtain missing medical records. Specifically, the available VA medical records contain numerous administrative entries indicating that the Veteran had been seen by a private (non-VA) specialist(s) to diagnosis and evaluate his sleep apnea condition. These administrative entries indicate that the medical records from the private specialists had been received by the VA medical center and scanned into the electronic health record. They are not currently in the claims file. As these private medical records are constructively of record and appear directly pertinent to the sleep apnea issue, remand is needed to obtain the scanned in medical records. The matters are REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records, including records of all treatment obtained through VA's Choice program and all non-VA records scanned into his electronic health record, to include those pertaining to treatment for sleep apnea. 2. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed lumbar spine and bilateral knee conditions. The examiner is asked to address whether the current diagnoses in the lumbar spine and bilateral knees are at least as likely as not related to an in-service injury, event, or disease, including flight duties involving high-G forces. In answering this question, the examiner should assume as true that (1) the Veteran was exposed to high-G forces throughout his career as a pilot; (2) the Veteran had complaints during service, but these were not documented; and (3) the instances in the service treatment records (STRs) are inaccurate where the Veteran denied such complaints or there is silence. As such, in answering these questions, the examiner is asked to consider the statements from the Veteran regarding his history of symptoms during and since service. The Veteran is competent to report symptoms, treatment, and injuries. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.