Citation Nr: 21006458 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-56 834 DATE: February 4, 2021 ORDER Service connection for right knee disorder as secondary to service-connected left knee strain is granted. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected left knee strain and/or psychiatric disability, is remanded. Entitlement to an initial rating in excess of 30 percent for left knee strain is remanded. FINDING OF FACT The Veteran’s right knee disorder, diagnosed as osteoarthritis, is as likely as not caused by his service-connected left knee strain. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for right knee disorder as secondary to service-connected left knee strain have been satisfied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1971 to October 1973. In December 2018, the Board remanded, in part, the issue of entitlement to service connection for depressive disorder for additional evidentiary development. This issue was characterized as an acquired mental disability, depressive disorder, and granted in a May 2020 VA rating decision, which represents a full grant of the benefits sought so it is no longer on appeal before the Board. In December 2018, the Board also remanded the issues of entitlement to an initial rating in excess of 30 percent for left knee strain, service connection for obstructive sleep apnea, and service connection for a right knee disability for additional evidentiary development. These issues have been returned to the Board for appellate review. After the appeal was returned to the Board, the attorney is this case sought withdrawal from this appeal. As he did not provide a reason for the post-certification withdrawal, this does not meet the criteria and he remains the representative as this time; good cause was not provided. Entitlement to service connection for right knee disorder (strain and/or instability), to include as secondary to service-connected left knee strain Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). 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) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In the November 2014 VA rating decision, service connection for left knee strain was granted because the pre-existing disability permanently worsened as a result of service. Review of the record since separation from active service in October 1973 shows the onset and diagnosis of a right knee disability, to include diagnoses of strain and arthritis, in 2013 which is multiple years later. Pursuant to the December 2018 Board remand, the Veteran was afforded a VA Disability Benefits Questionnaire (DBQ) examination for knee and lower leg conditions in September 2019. Following the clinical evaluation, the examiner explained why the Veteran’s right knee condition was not at least as likely aggravated beyond its natural progression by service-connected condition. Specifically, it was explained, in part, that “[o]ther risk facts such as advance age and extreme obesity better explain development of osteoarthritis of the right knee than left knee osteoarthritis [and] [a]rthritis of one extremity does not cause arthritis of the second extremity.” On the other hand, the Veteran was provided another VA DBQ examination for knee and lower leg conditions in November 2020. Following the clinical evaluation, the examiner concluded that the “Veteran’s left knee strain and subsequent development of osteoarthritis of the left knee which in turn has led to a meniscus tear and generative osteoarthritis of the right knee.” The Board finds that these September 2019 and November 2020 medical opinions are competent and probative medical evidence as it appears that both physicians relied on accurate facts and medical history and gave fully articulated opinions supported by sound reasoning. As such, there is both favorable and unfavorable evidence of record that bears on the question of a nexus between the Veteran’s right knee disorder and service-connected left knee strain. Resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for right knee disorder as secondary to service-connected left knee strain is warranted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected left knee strain and/or psychiatric disability During the course of the appeal, the Veteran contends that service connection is warranted for obstructive sleep apnea secondary to his depressive disorder. Review of the record also contains some indication that his obstructive sleep apnea is related to medication for his service-connected left knee strain. Pursuant to the December 2018 Board remand, the Veteran was afforded a VA DBQ examination for sleep apnea in September 2019. Following the clinical evaluation, the examiner rendered opinions regarding service connection for the Veteran’s obstructive sleep apnea on a direct basis and on a secondary basis for causation by the service-connected left knee strain or medications used to treat the service-connected left knee strain. In light of the Veteran’s contentions regarding this claim during the appeal period, the Board finds that additional development is needed to properly adjudicate this claim. Specifically, review of the record does not show that a VA medical opinion has been provided addressing the etiology of the Veteran’s obstructive sleep apnea on a secondary basis for aggravation by the service-connected left knee strain or medications used to treat the service-connected left knee strain. Additionally, since the grant of service connection for an acquired mental disability, depressive disorder, in the May 2020 VA rating decision, a VA medical opinion addressing the etiology of the Veteran’s obstructive sleep apnea on a secondary basis also needs to be obtained. See 38 C.F.R. § 3.310; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to an initial rating in excess of 30 percent for left knee strain In a November 2020 letter, the Veteran was notified of additional evidence obtained and associated with the record since the May 2020 Supplemental Statement of the Case (SSOC). Such evidence consists of the November 2020 VA DBQ examination report for knee and lower leg conditions. The Veteran was requested to specify whether he waives the right to have such evidence initially reviewed by the Agency of Original Jurisdiction (AOJ) or to have the case sent back to the AOJ for initial review, and informed that if no response was received within 45 days from the date of the letter that the Board will assume the Veteran does not wish to have the Board decide the appeal at this time and will remand the case to the AOJ for review. Review of the record shows that no response was received by the Veteran within 45 days of the November 2020 letter. The matters are REMANDED for the following actions: 1. Return the Veteran’s claims file to the examiner who conducted the September 2019 VA DBQ examination and provided September 2019 VA DBQ medical opinions for sleep apnea so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. The examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea was caused or aggravated beyond its natural progression by his service-connected left knee strain or medications used to treat the service-connected left knee strain. (b.) Whether it is at least as likely as not that the Veteran’s obstructive sleep apnea was caused or aggravated beyond its natural progression by his service-connected acquired mental disability, depressive disorder. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion.   2. Then, readjudicate the claims, to include initial review of the November 2020 VA DBQ examination relevant to the service-connected left knee disability. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Carter, 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.