Citation Nr: 21077212 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-42 192 DATE: December 29, 2021 ORDER Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a low back disorder is remanded. FINDING OF FACT The most probative evidence shows that the Veteran's sleep apnea began during service. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1973 to September 1976. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ). In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. 1. Entitlement to service connection for sleep apnea 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 be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In making its decision, the Board must consider all the evidence of record, including medical evidence and lay evidence, and make appropriate determinations of competence, credibility, and weight. Washington v. Nicholson, 19 Vet. App. 362 (2005). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran's symptoms were diagnosed as sleep apnea pursuant to a sleep study in August 2013 and he was prescribed a CPAP machine which he regularly uses. In October 2016, the Veteran's private physician submitted a letter stating that he is the primary care provider for the Veteran. He stated that he is familiar with the Veteran's medical history and has examined, reviewed reports, ordered tests and treated the Veteran's sleep apnea. He stated that the Veteran has "severe sleep disordered breathing," which has been diagnosed as sleep apnea, and uses a CPAP machine every night. He stated that it is his opinion that the Veteran's sleep apnea more likely than not is due to his active military service. At the July 2021 hearing, the Veteran testified he did not have sleep apnea or symptoms before military service. During active duty he stated he did not have get a regular sleep schedule, describing that some nights he would have guard duty or certain exercises. He stated that other servicemen who were his roommates told him that he snored loudly. He also stated that one of his sergeants told him that as soon as he sits down, he dozes off. He stated he didn't feel tired but he couldn't get too relaxed or sit down or he'd fall asleep. In addition, a friend told him that she couldn't sleep because he snored too loud. In August 2021, the Veteran submitted buddy statements from friends pertaining to his sleep symptoms. One friend stated that she observed the Veteran's sleeping habits. He appears restless, tossing and turning in his sleep. He awakens looking tired as if he had not slept at all. She described that he snores loudly and has dyspnea. She stated that his "breathing is not normal in that at times he quickly wakes up as if he is having a bad dream, gasping for air and trying to catch his breath until he starts to breath normally." She stated that in the daytime, he occasionally nods off. Another friend stated that the Veteran told him about his restless nights, with tossing and turning in his sleep, and how he would lay awake many nights because he couldn't sleep. He would awaken in the morning feeling tired, slow and sluggish, not wanting to do anything. The Veteran told him about his symptoms. The Board finds that the competent, credible evidence of record indicates that the Veteran began experiencing symptoms of sleep apnea during active service and that those symptoms continued thereafter and were diagnosed by a medical professional. The Board finds that the private physician's opinion is entitled to high probative weight as it is based on review of the Veteran's medical records and examination. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran competently and credibly testified and stated that his symptoms of sleep apnea began during service. The Veteran competently and credibly reported continuity of symptoms since service. His buddy statements support a finding that his sleep apnea began during service. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Accordingly, upon reviewing the medical evidence, testimony, and lay statements, the Board finds that the evidence is at least in equipoise and resolving reasonable doubt in the Veteran's favor, entitlement to service connection for obstructive sleep apnea is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a left knee disorder is remanded. 2. Entitlement to service connection for a right knee disorder is remanded. 3. Entitlement to service connection for a low back disorder is remanded. As the analysis is the same for these claims, the Board will address them together. The first element required to establish service connection is a diagnosis, without which service connection is not possible. "In the absence of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There is no diagnosis of record for a left knee disorder, right knee disorder, or low back disorder. Nonetheless, the Veteran has testified as to his symptoms of these disorders including events during service that he believes caused them, including loading heavy ammunition and artillery rounds, and climbing and jumping off of five-ton trucks. He also testified that he fell in a hole while running during basic training and that as a result, his right knee swelled and as time went on he began to compensate by putting more weight on his left knee. He stated that his symptoms worsened with time. He first sought treatment for his knees after discharge from active duty while in the reserves in 1977 or 1978 at VA then started going to private doctor. His private physician submitted a statement linking his knee symptoms and back symptoms to service. In addition, the Veteran has submitted buddy statements pertaining to these disorders. The Board finds that a remand is required pursuant to McLendon v. Nicholson, 20 Vet. App. 79, 8186 (2006). Specifically, there is competent evidence of recurrent symptoms of a disability, evidence establishing that an event, injury, or disease occurred in service, and an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service, but insufficient competent medical evidence on file for the Secretary to make a decision on the claim. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of his left knee symptoms. The examiner should provide a diagnosis for the Veteran's left knee symptoms or explain his or her rationale for a finding of no diagnosis. If the examiner diagnoses a left knee disability, he or she should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disability is related to service. 2. Schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of his right knee condition. The examiner should provide a diagnosis for the Veteran's right knee symptoms or explain his or her rationale for a finding of no diagnosis. If the examiner diagnoses a left knee disability, he or she should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disability is related to service. 3. Schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of his low back condition. The examiner should provide a diagnosis for the Veteran's low back symptoms or explain the rationale for a finding of no diagnosis. If the examiner diagnoses a low back disability, he or she should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disability is related to service. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.