Citation Nr: 21075466 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-22 791 DATE: December 20, 2021 REMANDED Entitlement to service connection for a right knee disability, to include as due to a service-connected disability, is remanded. Entitlement to service connection for sleep apnea, to include as due to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served in the United States Marine Corps from July 8, 1980 to July 6, 1984 and the United States Army from September 6, 2005 to March 18, 2007 and from February 10, 2009 to June 1, 2010. The Veteran also had additional periods of service. The matters arise before the Board of Veterans' Appeals (Board) from an October 2015 rating decision. The Veteran testified at a September 2021 Board Hearing before the undersigned Veterans' Law Judge. 1. & 2. The claims for entitlement to service connection for a right knee disability and for sleep apnea, to include as due to service-connected disabilities, are remanded. As an initial matter, the Veteran contends he served in the military until April 2017. See September 2021 Board Hearing Transcript, pp. 2, 6. However, it does not appear that any attempt has been made to verify such periods of service, as the only period of service of record is the Veteran's periods of Marine Corps service from July 1980 to July 1984, and Army service from September 2005 to March 2007 and from February 2009 to June 2010. There are also National Guard records to 2013. See National Guard records. Thus, on remand, the AOJ should verify any additional period of service, particularly to 2017, and obtain any available service personnel and service treatment records pertaining to such service, especially when, as here, the Veteran was diagnosed with sleep apnea in 2014, which is pertinent to his claim. Next, at the Board Hearing, the Veteran's representative stated that he had new records to submit that pertain to the Veteran's sleep apnea and right knee disability claims; however, it appears that these records have not yet been associated with the record. Moreover, at the Board Hearing, the Veteran stated that he received treatment for his knees at Sanford Medical, and at VA; however, these records are not associated with the claims file. Therefore, upon remand, any outstanding relevant records must be associated with the claims file. New examinations are necessary, particularly to address secondary service connection. The matters are REMANDED for the following action: 1. With any assistance necessary from the Veteran, contact any appropriate source to obtain any outstanding active duty, ACDUTRA and INACDUTRA records and verify the precise dates of any active duty, ACDUTRA and INACDUTRA, to include any Reserve and/or National Guard service, specifically to include his service to April 2017. 2. With the assistance of the Veteran and his representative, obtain any outstanding records relevant to the Veteran's sleep apnea and his knee claims, including records the Veteran's representative indicated at the Board Hearing, and knee-related records from Sanford Medical and VA medical records. All steps taken must be documented and associated with the record. 3. After steps 1 and 2 are completed, obtain a new etiology opinion from a new examiner (if possible) to assess the nature and etiology of the Veteran's sleep apnea. It is left to the examiner's discretion whether to perform an in-person examination. After reviewing the claims folder and examining the Veteran, for the Veteran's sleep apnea, the examiner is specifically instructed to provide the following information: (a) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's sleep apnea BEGAN IN or is related to his time in the service, yes or no? (b) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's sleep apnea was: (i) CAUSED BY HIS SERVICE-CONNECTED asthma, or (ii) any other service-connected disability, yes or no? (c) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's sleep apnea underwent any incremental increase in disability, regardless of its permanence, due to: (i) the service-connected asthma, or (ii) any other service-connected disability, yes or no? Moreover, in answering these questions, the examiner must specifically address and discuss: i. the Veteran's contention that the weight gain incurred due to his multiple service-connected disabilities is related to his current sleep apnea diagnosis, ii. the Veteran's contention that he really started noticing trouble sleeping, heavy breathing, or wheezing at night after his first deployment to Iraq. See Board Hearing Transcript, p. 7. 4. After steps 1 and 2 are completed, schedule the Veteran for a VA examination with a new examiner to determine the nature and etiology of his right knee disability. The claims file must be made available to the examiner for review of the case. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. All tests and studies deemed necessary should be conducted. The examiner is specifically instructed to consider the prior medical records and specifically address if the Veteran has any diagnosis of a right knee disability, to include patellofemoral syndrome. After reviewing the claims folder and examining the Veteran, for any current diagnosis of a right knee disability, the examiner is specifically instructed to provide the following information: (a) Is it "at least as likely as not (50 percent probability or greater)" that any right knee disability BEGAN IN or is related to his time in the service, yes or no? (b) Is it "at least as likely as not (50 percent probability or greater)" that any right knee disability was CAUSED BY HIS SERVICE-CONNECTED left knee disability, yes or no? (c) Is it "at least as likely as not (50 percent probability or greater)" that any right knee disability underwent any incremental increase in disability, regardless of its permanence, due to the service-connected left knee disability, yes or no? H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Cho, 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.