Citation Nr: A21020601 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 190128-106715 DATE: December 28, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected cervical spine strain with spurring and/or lumbosacral spine strain with spurring (also claimed as related to 38 U.S.C. § 1151) is denied. REMANDED Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome and degenerative arthritis is remanded. Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome and degenerative arthritis, is remanded. FINDING OF FACT The Veteran's sleep apnea was not caused by or onset in service, and was not due to or aggravated by his service-connected cervical spine strain with spurring and/or lumbosacral spine strain with spurring. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1988 to August 2008. A rating decision was issued under the legacy system in May 2017. In May 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The agency of original jurisdiction (AOJ) issued a RAMP HLR decision in July 2018, which is the decision on appeal and which considered the evidence of record as of the date VA received the RAMP election form. In the January 2019 VA Form 21-4138, Statement in Support of Claim, RAMP Selection, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the RAMP opt-in in May 2018, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. §§ 3.2601; 20.302(a). The Veteran and a witness testified at a hearing before the undersigned in June 2021. A transcript of the hearing has been associated with the claims file. 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected cervical spine strain with spurring and/or lumbosacral spine strain with spurring The Veteran filed a claim for service connection for sleep apnea in October 2016. At that time, he claimed sleep apnea related to 38 U.S.C. § 1151. In a May 2017 rating decision, the RO found that the claim for compensation under 38 U.S.C. § 1151 for sleep apnea was not well grounded. In his March 2018 notice of disagreement, the Veteran indicated he disagreed that his sleep apnea disorder was evaluated under 38 U.S.C. § 1151. He claimed the disability should have been evaluated as secondary to his service-connected disabilities of cervical spine strain with spurring and lumbosacral spine strain with spurring. At the time of the June 2021 Board hearing and in his June 2021 statement, the Veteran testified that when he was on active duty, he would from time to time suddenly wake up gasping for air. He would feel sleepy and tired when working or driving. The Veteran's wife also testified the Veteran's symptoms started while on active duty. The Veteran stated that he had done some research and some researchers said sleep apnea could happen from a neck injury or a back injury and therefore he believed his sleep apnea may have been caused by his service-connected disabilities. 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). Additionally, a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 The questions for the Board are whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease and whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated by service-connected cervical spine strain with spurring and/or lumbosacral spine strain with spurring. The Board concludes that, while the Veteran has a current diagnosis of sleep apnea, and the Veteran testified he experienced symptoms of sleep apnea while in service, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of sleep apnea began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, the Board concludes that, while the Veteran has a current disability of sleep apnea, the preponderance of the evidence is against finding that the Veteran's sleep apnea is proximately due to or the result of, or aggravated by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Service treatment records show no complaints, diagnosis, or treatment related to a sleep disorder. VA treatment records show the Veteran was not diagnosed with sleep apnea until October 2016, years after his separation from service. At the time of the June 2021 hearing, the Veteran confirmed that he did not seek treatment for sleep apnea while in service or prior to 2016 because he did not think it was serious. The Veteran believes his sleep apnea began in service and is related to the instances during service when he would wake up from time to time gasping for air. Alternatively, the Veteran contends that his sleep apnea is secondary to his service-connected cervical spine strain with spurring and/or his lumbosacral spine strain with spurring. While the Veteran is competent to report having experienced symptoms of waking up in the middle of the night and gasping for air intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of sleep apnea. Nor is he competent to determine that his sleep apnea is related to his service-connected cervical spine strain with spurring and/or his lumbosacral spine strain with spurring. The issues are medically complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran in this case is not competent to provide a nexus opinion regarding these issues. Therefore, they are outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such determinations. Id; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives no weight to the Veteran's lay statements pertaining to causation or his conclusion that his symptoms in service were manifestations of sleep apnea. The Board notes that the Veteran's contention that his symptoms started while in service was not made until after the rating decision on appeal. Specifically, this information was not added to the record until the time of the June 2021 hearing and submission of a lay statement at the same time. Based on the evidence of record at the time of the rating decision on appeal, there was no basis to obtain a VA examination. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes the Veteran may submit a supplemental claim at any time. Similarly, with respect to the Veteran's claim for secondary service connection, his contention that his research revealed a potential connection between his service-connected disabilities and his sleep apnea was not alleged until the time of the June 2021 hearing, after the rating decision on appeal. Based on the evidence of record at the time of the rating decision on appeal, there was no basis to obtain a VA examination. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes the Veteran may submit a supplemental claim at any time and may submit evidence, such as print outs of the research suggesting a relationship between his service-connected conditions and his sleep apnea. Currently, the claim for service connection for sleep apnea, to include as secondary to service-connected cervical spine strain with spurring and/or lumbosacral spine strain with spurring must be denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome and degenerative arthritis is remanded. 2. Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome and degenerative arthritis, is remanded. The issues of entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome and degenerative arthritis and entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome and degenerative arthritis are remanded to correct duty to assist errors that occurred prior to the July 2018 rating decision on appeal. The Agency of Original Jurisdiction (AOJ) obtained a December 2016 examination report prior to the July 2018 rating decision on appeal. However, this examination report did not adequately consider all of the Veteran's symptomology associated with his right and left knee patellofemoral syndrome and degenerative arthritis. Specifically, while the examiner stated that an opinion as to whether pain weakness, fatigability, or incoordination significanly limit functional ability with repeated use over a period of time or with flare ups, could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. Rather he indicated the Veteran was not currently flared and the current siutation was not repeated use over a period of time. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee patellofemoral syndrome and degenerative arthritis and his left knee patellofemoral syndrome and degenerative arthritis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (Continued on the next page) In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and repeated use over time based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli, 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.