Citation Nr: 21005744 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-48 262A DATE: February 2, 2021 ORDER 1. Entitlement to service-connection for chronic obstructive sleep apnea (OSA) is dismissed. 2. Entitlement to service-connection for a left knee condition, including as secondary to the Veteran's service connected back disability, is denied. REMANDED 1. Entitlement to an increased rating for surgical scar(s), anterior trunk, is remanded. 2, Entitlement to an increased rating for surgical scars, posterior, is remanded. FINDINGS OF FACT 1. The VA Regional Office (RO) granted the Veteran’s claim of service connection for OSA in an April 2019 rating decision, after which the Veteran voluntarily withdrew his appeal. 2. The Veteran’s left knee condition is not shown to be causally or etiologically related to his military service and is not shown to have manifested within one year from the date of his separation from active service. CONCLUSIONS OF LAW 1. The claim for service connection for OSA has already been granted; therefore the Board no longer has jurisdiction concerning the claim. 38 U.S.C. § 7104, 38 C.F.R. § 20.104. 2. The criteria for service connection for the Veteran’s left knee condition, including as secondary to his service connected back disability, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to September 1986. A period of active duty from September 1986 to June 1987 was dishonorable for VA purposes. See October 2002 Administrative Decision. This matter returns to the Board of Veterans’ Appeals (Board) after its July 2015 remand to the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ). The Board remanded the matter in July 2015 as the RO had not prepared the required Statement of the Case (SOC) in this appeal. The AOJ subsequently issued an SOC in July 2017. The Veteran filed a September 2017 statement that was accepted by the RO as a substantive appeal. The SOC concerned the four issues listed above and entitlement to service connection for hypertension. The Veteran’s September 2017 statement did not indicate that he wished to appeal the hypertension issue. The RO did not certify that issue to the Board. See May 2020 Deferred rating decision; May 2020 VA Form 8. The hypertension issue will not be discussed further. Service Connection 1. Entitlement to service-connection for chronic obstructive sleep apnea (OSA) In an April 2019 rating decision, the RO granted the Veteran entitlement to service connection for his OSA. As a general matter, the grant of a claim of service connection constitutes an award of full benefits sought on an appeal of the denial of a service connection claim. See Seri v. Nicholson, 21 Vet. App. 441, 447 (2007). Where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of “downstream” issues such as the compensation level assigned for the disability or the effective date of service connection. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Without an issue on appeal, the Board does not have jurisdiction. 38 U.S.C. § 7104; 38 C.F.R. § 20.104; see Barrera v. Gober, 122 F.3d 1030, 1032 (Fed. Cir. 1997). The issue of entitlement to service connection for OSA is no longer before the Board and therefore the appeal is dismissed. 2. Entitlement to service-connection for a left knee condition, including as secondary to the Veteran’s service connected back disability, Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (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-the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. For certain delineated chronic disorders service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. When a disease listed in 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to the regulations for establishing service connection cited above, in order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence, generally medical, establishing a nexus, or link, between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). However, a lay witness is not competent to establish facts or opinions which require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record, including lay testimony, and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. At various times related to his different claims, the Veteran states that various VA medical examiners and other officials did not reference certain pieces of evidence. The Board has reviewed all of the evidence in the record in making its own decision, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the issues in the claim and this appeal. The Veteran contends that his left knee condition is related to his military service. The Veteran’s STR’s do show several references to complaints of knee pain or injury. There are two entries in March 1978 for the Veteran’s complaints of left knee abrasion and tenderness from playing baseball. On June 28, 1983 the Veteran sought treatment for complaints of his left knee popping out and locking with clicking for the previous two days with no history of trauma related by the Veteran. On July 12, 1983 the Veteran had two X-rays of his left knee, for potential residual of a torn medial meniscus also stated as Baker’s cyst, and for follow-up to left knee locking and clicking. The double contrast arthrogram revealed normal meniscus structures with no evidence of tear or other abnormality summarized as within normal limits. The left knee x-ray showed no evidence of fracture, dislocation, or bony abnormality. An August 16, 1983 orthopedic clinic consult noted the Veteran’s left knee chondromalacia patella for which he was given pain medication and told to complete an exercise program, after which he was released to his ship to follow-up with ship’s medical personnel as needed. There is also an April 27, 1979 treatment record from the Naval Air Station Cubi Point, Philippines, medical facility following a motorcycle accident. The injuries listed were laceration of the left elbow and possible hematuria with a final diagnosis of left elbow laceration and renal contusion, but there were no notes related to any knee injury. Thereafter, in a March 1980 re-enlistment report of medical history, the Veteran did list a motor cycle accident in 1979, however, he checked the “No” box which asked if he has “trick” or locked knees, and there was no other entry on the physical forms indicating he had any knee problems, though other injuries were noted. In the records for his May 8, 1984 initial flight examination there were no boxes checked which indicated any knee problems, and no listing of any knee problems in the notes section. The Veteran did list the motorcycle accident in the notes section, but only indicated the left elbow laceration related to that incident, there was no mention of a knee injury. During his July 24, 1986 re-enlistment physical examination, the examining physician stated that the Veteran voiced no problems at the time of the examination and that there were no chronic medical problems noted in his medical records. In his August 13, 1986 re-enlistment physical records, the Veteran did not indicate any checked boxes or notes which identify any problems with his knee. In his May 13, 1987 separation physical the Veteran also did not check any boxes nor were there any written notes which indicated any knee problems, and while the Veteran did list the 1979 motorcycle accident, he only stated that he suffered an arm injury, not any knee related problems. There are no records which show that the Veteran sought treatment for any knee problems, or that any applicable chronic knee condition, i.e., arthritis, manifested to a compensable degree within one year after his discharge. 38 C.F.R. § 3.309(a). The Veteran’s VA treatment records indicate notes of left knee pain as early as 2005. A September 28, 2006 X-ray of the Veteran’s Left Knee, utilizing 2 views demonstrated no evidence of fracture, dislocation or joint effusion with no radiographic evidence of arthritis or chondrocalcinosis, which was interpreted to show a “Normal left knee.” A December 4, 2013 VA X-ray of the Veteran’s left knee utilizing 4 views showed mild medial compartment joint space narrowing with the lateral and patellofemoral compartments maintained, no joint effusion, fractures, or erosions seen, and the soft tissue structures noted to be unremarkable. The overall impression was mild medial compartment joint space narrowing. In was not until April 30, 2014 when an MRI of the Veteran’s left knee indicated a structural problem. This MRI showed a small joint effusion; mild medial compartment osteoarthritis; horizontal delaminated type tear of the posterior horn of the medial meniscus; and fluid at the muscular tendinous junction of the popliteus which could represent bursitis or strain. The findings were that there was a moderate signal abnormality involving the posterior horn of the medial meniscus and a horizontal configuration compatible with delaminated type tear. A July 2014 orthopedic consult indicated left knee medial meniscus tear and degenerative joint disease (DJD), for which X-rays showed mild DJD greatest in the medial compartment and MRI of the left knee demonstrated a tear in the posterior horn of the medial meniscus and mild DJD. The Veteran was provided a surgical procedure of left knee intra-articular corticosteroid injection. A later November 2014 VA orthopedic consult stated that at that time that - indications for left knee surgery were not met. This was based at least in part on the fact that the Veteran’s previous injection was working, and he was able to work, his pain improved and that x-rays of left knee reveal minimal DJD with good preservation of medial and lateral joint spaces. The Veteran first consulted with a private medical provider, Dr. S.C. with J. O. I. specifically for his left knee condition, on May 11, 2007. The Veteran stated that he has had left knee pain since his 1979 motorcycle accident and that he was given an arthrogram which did not show any significant damage, and he did not have surgery while in the service. Nonetheless, he stated that he has had chronic knee pain since that incident, and it has become worse with age, though he denied knee catching or locking, and told his doctor that his knee does not give way. Dr. S. C. provided the Veteran with a physical examination which revealed no knee effusions, symmetric and full range of motion (ROM), some left knee crepitus in the patellofemoral joint to the mid flexion. He saw no posterior joint line tenderness medial or lateral; laxity with varus stress at full extension and 30 degrees flexion; anterior laxity with a negative Lachman anterior drawer and no posterior laxity; and no popliteal masses or tenderness. He stated that the Veteran had a normal sensorimotor exam. X-rays reviewed did not demonstrate any significant degenerative changes with normal bone density. Review of an April 11, 2007 left knee MRI report indicated no evidence of medial or lateral meniscus tears, collateral or cruciate ligament disruption or artticular cartilage defects, though some prepatellar edema and a small joint effusion were seen. Dr. S. C.’s overall impression of the Veteran’s left knee condition was chronic left knee pain with predominant elements of patellofemoral arthrosis. He was given an injection for pain that day. The Veteran was provided a VA examination for his knee claim in July 2014. The VA examiner noted left knee diagnoses of mild osteoarthritis and a tear of the posterior horn of the medial meniscus, both diagnosed in April 2014. The VA examiner recorded the Veteran’s stated history that he injured his left knee in a motorcycle accident in July 1978 (records indicate this was actually 1979) and that a year later he was told that he had a bakers cyst and tear, also stated as chondromalacia patella. He stated that he was given pain pills and a knee brace along with physical therapy which caused this condition to improve; but he still had some off and on pain. The Veteran further stated that after he was discharged from the military, he did not have insurance and it was not until 2005 that he sought additional medical treatment for his knee pain with a private medical provider. The Veteran claim that his private medical provider performed tests on his left knee, including x-rays, which were abnormal, he received an injection in 2005, and that his right knee was bad requiring surgery, which he acknowledges is not the knee for which he seeks compensation. It was not until 2013 during an annual VA physical that the Veteran mentioned he had left knee problems and he was then given an MRI which revealed a torn meniscus. Finally, the Veteran stated that he did not remember any other left knee injury except for the military injury but he had knee pain for years. The VA examiner noted a lack of evidence for and that the Veteran did not have a history of recurrent patellar subluxation/ dislocation. The examiner recorded the Veteran’s history of meniscus conditions, noted to be a meniscus tear, frequent episodes of joint locking, pain, and joint effusion in the left knee. However, there were negative entries whether the Veteran ever had a meniscectomy, or arthroscopic or other knee surgery, or residuals thereto. The VA examiner opined that the Veteran’s left knee condition was not incurred in or caused by his military service based on the stated rationale that the his mild osteoarthritis first seen on the April 2014 MRI is a natural aging process for a person of his age and that the onset of the tear of the posterior horn of the medial meniscus, also first shown on imaging from April 2014. In July 2019 the Veteran was afforded another VA examination related to whether his left knee condition was brought about as a secondary condition to his service connected back disability. The VA examiner performed both an in-person examination of the Veteran as well as reviewed his fie. This VA examination showed 2013 diagnoses of osteoarthritis of the left knee and a 2007 diagnosis of Patellofemoral pain syndrome, but also noted his VA medical history recorded a 2014 MRI report which the radiologist believed indicated a tear of the medial meniscus posterior horn. Based on his examination of the Veteran and review of his record, the VA examiner opined that it was less likely than so (less than 50 percent) that the Veteran’s left knee DJD was due to or aggravated by his service connected back disability. This opinion was based on the stated rationale that for the lumbar spine disability to affect his knees there would need to be evidence of an abnormal gait, which was not shown, as well as a lack of showing of major muscle or nerve damage due to the back disability. The Veteran made numerous statements related to his left knee injury and submitted several written statements as well. VA also received several written lay “buddy” statements from individuals. As stated above, the Board acknowledges that the Veteran is competent to provide testimony/evidence about those matters for which he has personal knowledge. See Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159 (a). However, the evidence does not show that the Veteran has the requisite medical training to offer a competent opinion that his current knee condition is related to his military service, including as on a secondary basis. Layno, 6 Vet. App. at 470. Similarly, the evidence set forth in the various “buddy” statements do not address the Veteran’s actual claimed knee injury while he was in service, instead, the describe details of his post-service knee problems, in particular an incident which occurred in 2007, and do not describe the Veteran’s knee condition prior to that incident. Thus, they are of no probative value for the issue before the Board which is whether the Veteran’s knee condition was incurred in or caused by his military service. The record does not contain a competent medical opinion which opines that the Veteran’s current knee conditions were incurred in or caused by his military service or within a year after he separated from service, or which states that his left knee condition is a secondary condition caused by or aggravated by his other service connected disabilities. After review of the relevant evidence, the Board finds that the Veteran’s entitlement to service connection for his left knee condition, including as due to his service connected back disability, is not warranted. The Veteran’s STRs do record treatment after his motorcycle accident in 1979, however, there is no indication in those treatment records, or any medical treatment records thereafter, that he injured his knee or was treated for knee injuries due to that accident. The Veteran’s STRs do record a single knee abrasion injury prior to the motorcycle accident, and treatment for knee popping in 1983, for which he did not attribute the condition to have resulted from the accident or any other trauma. Imaging taken at that time revealed normal meniscus structures with no evidence of tear or other abnormality, summarized as within normal limits, and no evidence of fracture, dislocation, or bony abnormality. The Veteran had several in-service physicals in the years following, but in none of them did he indicate any chronic knee problems, and when he did list the motorcycle accident, he only listed elbow an injury. The first post service imaging of his left knee was an x-ray in September 2006 through the VA which showed no evidence of fracture, dislocation, or joint effusion with no radiographic evidence of arthritis or chondrocalcinosis, which was interpreted to show a “Normal left knee.” The next imaging performed through VA was a December 2013 X-ray which showed mild medial compartment joint space narrowing with the lateral and patellofemoral compartments maintained, no joint effusion, fractures, or erosions seen, and the soft tissue structures noted to be unremarkable. The overall impression was mild medial compartment joint space narrowing. It was not until 2014 that VA imaging revealed a tear in his left knee meniscus. This was several decades after the Veteran was discharged from service. The earliest private medical records related to treatment for the Veteran’s left knee condition was May 2007. The imaging reviewed by the physician did not show any significant degenerative changes, normal bone density, no evidence of medial or lateral meniscus tears, collateral or cruciate ligament disruption or artticular cartilage defects, only some prepatellar edema and a small joint effusion. Dr. S. C.’s overall impression of the Veteran’s left knee condition was chronic left knee pain with predominant elements of patellofemoral arthrosis. The Board finds the Veteran’s STRs, which were taken contemporaneously with his medical treatment, to be of higher probative value than the Veteran’s statements that he suffered a knee injury during his motorcycle accident which caused him chronic knee pain thereafter, particularly in light of the several opportunities the Veteran had to record this injury on his later physical evaluations records. Both VA examiners opined that the Veteran’s current left knee condition was not incurred in or caused by his military service, or that it is due to or aggravated by his service connected back disability. The Board finds the VA examiners’ opinions to be well supported by evidence and comprehensive analysis. There was no competent medical opinion that his current left knee condition was related to his service or caused by his back injury. The preponderance of the credible evidence goes to the determination that the Veteran’s left knee condition is not related to or caused by his military service. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b). As such, the Board finds that there is no nexus between the Veteran’s left knee condition and his military service. Holton, 557 F.3d at 1366. The Veteran’s claim for entitlement to service connection for his left knee condition is denied. REASONS FOR REMAND 1. Entitlement to an increased rating for surgical scar(s), anterior trunk. 2. Entitlement to an increased rating for surgical scars, posterior. The Veteran claims that both his posterior (back) and anterior (front) trunk surgical scars from his service connected back condition and appendectomy, cause him pain and other discomforts. He claims that he is entitled to a higher disability evaluation for these surgical scars. In the July 2015 Board Remand the claims were characterized as entitlement to a compensable rating for a surgical scar of the back, and entitlement to a compensable rating for a surgical scar of the anterior trunk. The Veteran is currently granted service connection for the following scars (excluding his left elbow scar): 1. Anterior and posterior scar (painful) status post spinal fusion, associated with DDD of the lumbar spine, lumbar fusion (previously rated as DDD, lumbar spine with minimal left S1 radiculopathy), for which the Veteran was awarded a 10 percent disability rating, pursuant to VA diagnostic code (DC) 7804, beginning October 1, 2007. See August 29, 2017 rating decision. 2. Anterior trunk scar, status post appendectomy, continued at 0 percent disabling, DC 7805, effective March 3, 2000. It should be noted that in a September 2014 rating decision, the RO “recharacterized” this scar to also include a scar as due to back surgery, for which the disability rating level was continued at a non-compensable 0 percent rating. The posterior scar from the back surgery maintained its own rating, for which a 0 percent evaluation was awarded. 3. Anterior and posterior trunk scar, status post spinal fusion, continued at 0 percent disabling, DC 7805, effective 10/01/2007. See VA Rating Decision Codesheet, December 4, 2020. These separate listed ratings appear to include the same scars attached to several different ratings. In the July 11, 2019 brief filed by the Veteran’s representative, reference is made to a December 21, 2018 private medical opinion prepared by G.U. in which the Veteran is stated to be entitled to a 20 percent rating for his anterior and posterior status post spinal fusion scarring and anterior trunk status post appendectomy scarring. The Board is unable to find this opinion in the record before it. The VA has a duty to assist the Veteran by making “reasonable efforts to help [him] obtain evidence necessary to substantiate the claim.” 38 C.F.R. § 3.159(c). As the Board is obligated to review all of the evidence in the record and any additional evidence reasonably raised in the record, particularly if that evidence may be favorable to the Veteran’s claims, remand is necessary to obtain a copy of this cited private medical opinion. An addendum opinion is required which considers this new evidence. As part of the remand, the RO is asked to specifically delineate the disabilities for which the Veteran is being evaluated and to clarify the record as to how each relevant service-connected scar is being evaluated/rated. In doing so, the RO is reminded that pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. A Veteran may have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The matters are REMANDED for the following action: 1. Request from the Veteran a copy of the December 21, 2018 private medical opinion prepared by G.U. in which the Veteran is stated to be entitled to a 20 percent rating for his anterior and posterior status post spinal fusion scarring and anterior trunk status post appendectomy scarring, and attach this document to the Veteran’s file. 2. Obtain an addendum opinion from an appropriate clinician. No additional VA examination of the Veteran is requested unless indicated by the examiner. The examiner is directed to review the Veteran’s entire file, including this ENTIRE REMAND in conjunction with authoring the opinions requested herein. After review of the Veteran’s file the examiner should address the following: (a) The examiner should issue an opinion as to the current severity of each of the Veteran’s scars related to surgeries performed for service connected disabilities/injuries, i.e. the Veteran’s back surgeries and his appendectomy, such scars to include his (1) posterior and (2) anterior trunk scars. The examiner is asked to specifically delineate and describe each scar and explain the reasons behind any opinions expressed and conclusions reached. A complete opinion for each of the issues identified above must include rationale that is based on a full history of the Veteran’s condition, including, but not limited to, his lay statements and testimony, as well as evidence contained within his medical records. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, 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.