Citation Nr: 21075743 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 14-30 336 DATE: December 21, 2021 ORDER Entitlement to service connection for a lumbar spine disability, to include degenerative joint disease (DJD), is granted. Entitlement to service connection for a right hip disability, to include osteoarthritis, is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a left knee disability, to include left knee arthritis, as secondary to the right hip disability is remanded. FINDINGS OF FACT 1. There is an equipoise of the evidence that the Veteran's lumbar spine disability, to include DJD began in service, with continuity of symptomatology, to include pain, since service. 2. There is an equipoise to the evidence that the Veteran's right hip disability to include osteoarthritis began in service, with continuity of symptomatology, to include pain, since service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar spine disability, to include DJD are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right hip disability, to include osteoarthritis are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Air Forces from March 1977 to March 1997. See DD Form 214. She testified before the undersigned Veterans Law Judge (VLJ) at a hearing in June 2017, and a transcript of the hearing is of record. See June 2017 Hearing Transcript. The issues of entitlement to service connection for a psychiatric disorder and gynecological disorder were previously before the Board. However, by a December 2019 rating decision, the Veteran was granted service connection for these disabilities. See December 2019 Rating Decision Narrative. She has not indicated that she disagrees with the ratings or effective dates assigned. As such, these issues are no longer before the Board. In March 2020 the Board issued a decision in this appeal, denying all issues. See March 2020 BVA Decision. However, in February 2021 the United States Court of Appeals for Veterans Claims (Court) adopted a Joint Motion for Remand (JMR) vacating and remanding the appeal to the Board for actions consistent with the JMR. Subsequently, the Veteran's representative requested an additional 90-day extension most recently in September 2021, which was granted by the Board, with time expired December 1, 2021. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for a disease first 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). With chronic diseases shown as such in service (or within the presumptive period under § 3.307), to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). It has been established that 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). 38 U.S.C. § 1110; Walker v. Shinseki,708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). In this case, arthritis is a chronic disease listed under 38 C.F.R. § 3.309(a) therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) will be considered as they pertain to arthritis. Walker, 708 F.3d 1131. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2021); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Service connection for a lumbar spine disability, to include DJD The Veteran claims entitlement to service connection for a lumbar spine disability, to include DJD. See March 2011 VA 21-526 Veterans Application for Compensation or Pension. Here, a September 2019 VA examination documents lumbosacral strain with DJD. As such, there is a current disability, and the first prong of service connection is met. Next, there is an in-service injury, event, or disease. Specifically, the Veteran has competently and credibly reported onset of symptoms such as pain in the exact location she continues to experience such pain since service. See June 2017 Hearing Transcript. Indeed, there is a May 1994 dental record from service that indicated that Veteran took Motrin to alleviate her back pain. See STR-Dental. Here, where there is a chronic condition such as arthritis, the Board must consider whether there is continuity of symptomatology. The Board affords great probative value to the Veteran's reported symptomatology, to include the timeframe that she references symptomatology as beginning. DJD of the lumbar spine was diagnosed in 2015, and the Veteran has reported that she experienced back pain that began in and continued since service. Specifically, she reported that her back pain began after lifting boxes of paper from a computer such that she believed it was due to improper lifting, yet it persisted. As such, there is an equipoise of the evidence regarding continuous symptomatology of the lumbar spine disability, to include DJD. As noted, there is an equipoise of the evidence regarding continuity of a chronic condition, DJD of the lumbar spine, where the Veteran has a current diagnosis and reported low back pain began during service, and as such the Board resolves all reasonable doubt in the Veteran's favor and grants service connection for a disability characterized by low back pain, diagnosed as DJD. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, Gilbert, 1 Vet. App. at 49. 2. Service connection for a right hip disability to include osteoarthritis The Veteran claims entitlement to service connection for a right hip disability to include osteoarthritis. Here, a September 2019 VA examination includes a diagnosis of right hip osteoarthritis. See September 2019 Hip and Thigh Conditions Disability Benefits Questionnaire. As such, there is a current disability, and the first prong of service connection is met. Next, there is an in-service injury, event, or disease. Specifically, the Veteran has competently and credibly reported onset of symptoms since service. She described being on a profile during basic training due to hip pain, so that she could walk rather than run. Here, where there is a chronic condition such as arthritis, the Board must consider whether there is continuity of symptomatology. The Board affords great probative value to the Veteran's reported symptomatology, to include the timeframe that she references symptomatology as beginning. Specifically, the Veteran testified at her hearing that she experienced right hip symptoms in service. Additionally, her sister provided a July 2014 statement that she observed the Veteran's problems with her hips since onset in service. Here, osteoarthritis of the right hip was diagnosed in 2009, and the Veteran has reported that she experienced pain of the right hip that began in and continued since service. As such, there is an equipoise of the evidence regarding continuous symptomatology of right hip osteoarthritis. As noted, there is an equipoise of the evidence regarding continuity of a chronic condition, arthritis of the right hip, where the Veteran has a current diagnosis and reported pain began during service, and as such the Board resolves all reasonable doubt in the Veteran's favor and grants service connection for a disability characterized by right hip pain, diagnosed as osteoarthritis. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND As noted in the JMR, there are outstanding records which must be requested pursuant to the VA's duty to assist. See 38 C.F.R. § 3.159(c)(2). Specifically, in her July 2014 Substantive Appeal the Veteran identified seeking treatment from the McDonald Army Medical Center in Fort Eustis, Virginia in the year and a half following her separation from service. See July 2014 Form 9. As such, remand to obtain these records is necessary. 1. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran contends that she is entitled to service connection for obstructive sleep apnea. The Veteran was diagnosed as having obstructive sleep apnea in May 2011. See May 2011 Polysomnogram Report. The VA examiner in September 2019 indicated that the likely cause of the Veteran's sleep apnea was her age and body mass index (BMI)/being overweight. Here, as the JMR emphasized, the Veteran's weight in service ranged from 195 to 199 with a height measured at approximately 5'6, and she was in a weight management and fitness program. Accordingly, remand is necessary to obtain a VA opinion as to whether the Veteran's BMI in service caused her current sleep apnea. Additionally, the Veteran has suggested that her sleep apnea was caused by exposure to environmental hazards in the Gulf War, such that an attempt to verify such exposure should be made, and if appropriate, a VA examiner should discuss the effects of such exposure when opining as to the etiology of her sleep apnea. 2. Entitlement to service connection for a left knee disability, to include left knee arthritis, as secondary to the right hip disability is remanded. The Veteran contends that she is entitled to service connection for a left knee disability, as secondary to right hip disability. At her Board hearing, the Veteran reported that she was told by her doctors that her left knee disorder was caused by her hip disorder. Indeed, a VA examiner has diagnosed knee joint osteoarthritis since 2012, and patellofemoral pain syndrome since 2008. In light of the decision herein granting service connection for the right hip disability, the Board finds that a VA examination is necessary to determine whether the Veteran's left knee disability was caused or worsened by her now service-connected right hip disability. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records to the present. 2. Obtain the Veteran's records from McDonald Army Medical Center in Ft. Eustis, Virginia, from 1997 to 1999. Document all requests for information as well as all responses in the claims file. 3. Conduct the appropriate development in an attempt to verify the Veteran's allegation that she was exposed to environmental hazards in the Gulf War. 4. Schedule the Veteran for VA examination(s) by an appropriate clinician (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of (I) any obstructive sleep apnea disability and (II) left knee disability. I. (a) The examiner must opine whether sleep apnea is at least as likely as not related to an in-service injury, event, or disease, to include Gulf War environmental hazard exposure as appropriate. The examiner must discuss the Veteran's reports of snoring and gasping for air while sleeping, and being constantly tired while in service. The examiner must discuss whether the Veteran was obese, or had a BMI above 30, in service, and if so whether this at least as likely as not caused her to develop sleep apnea. II. The examiner must consider whether it is at least as likely as not that any left knee disability: (1) is proximately due to service-connected right hip disability, or (2) underwent any incremental increase in disability, regardless of its permanence by service-connected right hip disability. For ALL Decisions (I)-(II): *The examiner should provide a rationale for all opinions reached, and should discuss the Veteran's statements in the formulation of such opinions. (Continued on the next page) ** The term "incremental increase" in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. ***The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barner, 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.