Citation Nr: 21008792 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-34 887 DATE: February 18, 2021 ORDER Service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for a right knee condition is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the competent evidence of record reasonably supports a finding that her obstructive sleep apnea had its onset in service or is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2003 to February 2006. In February 2019, the Board of Veterans’ Appeals (Board) issued a decision that, in pertinent part, reopened the claim of entitlement to service connection for a right knee disability and then remanded the underlying service connection claim as well as the claim for service connection for obstructive sleep apnea, for further development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the veteran. Gilbert, 1 Vet. App. at 53. Entitlement to service connection for obstructive sleep apnea The Veteran contends that although her obstructive sleep apnea was diagnosed after her separation from military service, it had its onset during service. In support of that claim, she notes that in 2005, her spouse took her to the emergency room (ER) at the William Beaumont Army Medical Center because she had stopped breathing while sleeping. See November 2013 Decision Review Officer (DRO) Informal Conference Report. Although records of treatment from the William Beaumont Army Medical Center are not available, the Veteran’s service treatment records (STRs) document that January 2006, it was noted by her primary care physician (PCP) that her spouse had taken her to the ER for an episode; sleep disorders organic sleep apnea, rule out was assessed. The Veteran’s postservice treatment records and the report from the October 2019 VA examination confirm that she now has a diagnosis of obstructive sleep apnea. After reviewing the record, including the medical and lay evidence, the Board concludes that it is reasonably shown that her symptoms of sleep apnea began during active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In so finding, Board acknowledges that in October 2019, a VA examiner provided an opinion that the Veteran’s obstructive sleep apnea was less likely than not incurred in or caused by the claimed in-service sleep apnea syndrome. The examiner stated that a review of the Veteran’s STRs showed they were silent for objective evidence supportive of an official diagnosis of sleep apnea in service. The examiner acknowledged that the Veteran’s spouse had reported taking her to the ER because she stopped breathing in service, but noted her follow-up with her PCP resulted in a diagnosis of sleep apnea, rule out. It was further noted that the Veteran’s sleep apnea was diagnosed officially after service when a sleep study was performed five years after the suggested assessment of rule out sleep apnea. The examiner then stated it was her belief that the Veteran’s sleep apnea was the result of her increased weight. The examiner noted that at the time of diagnosis the Veteran’s body mass index (BMI) was 32 and that her current BMI was 34. The examiner also stated, with citations to medical literature, that it was well known in the medical community that the main causation factor for obstructive sleep apnea was obesity. The examiner again noted that although there were lay statements from the Veteran’s spouse in 2006 with reports of witnessing the Veteran’s symptoms of sleep apnea, there was also a 5-year gap with no objective medical evidence of treatment or chronicity of care for sleep apnea. The examiner then reiterated her opinion that because obesity was the underlying factor for obstructive sleep apnea and because the Veteran’s current BMI was indicative of obesity, a nexus to service could not be established. See October 2019 VA medical opinion. Despite the October 2019 VA examiner’s medical opinion, and the explanations provided therein, the Board finds that it still does not adequately address whether the lay evidence presented by the Veteran and her spouse shows that her obstructive sleep apnea may have existed prior to its diagnosis by formal testing. In this regard, the Veteran’s spouse provided a statement in November 2013, detailing the difficulties he had had sleeping in the same room with the Veteran while she was in service because of her loud snoring. He also reported that on one occasion she stopped breathing for such a long period of time that he woke her up and took her to the hospital. The examiner’s opinion does not address the significance, if any, for the fact that formal testing was not completed until five years after the Veteran’s ER visit and the assessment of rule out sleep apnea in January 2006, and while the examiner has opined that the main causative factor for the Veteran’s obstructive sleep apnea is obesity, the Board does not find that this precludes a finding that the signs and symptoms of her claimed disability may have had its onset in service. The Veteran and her spouse have provided competent and credible symptoms of continuous symptoms since service. Therefore, the Board finds the evidence is at least in equipoise as to whether the Veteran’s sleep apnea had its onset during her active service. Accordingly, and resolving any reasonable doubt in favor of the Veteran’s claim, service connection is warranted for sleep apnea. REASONS FOR REMAND Entitlement to service connection for a right knee condition The Veteran contends she has developed a right knee condition through her basic training in 2003. She states that during a ruck march she developed sharp pain with swelling in the right knee. The Veteran’s STRs show she was diagnosed with bilateral knee osteochondromatosis in June 2003. She reported to the October 2019 VA examiner that for the rest of her time in service she had weakness and sharp pain in her right knee, which had progressively worsened. During the October 2019 VA examination, the examiner found it was less likely than not that the Veteran’s right knee condition was caused by her military service. The examiner explained that at the time of the June 2003 in-service treatment for right knee pain, an x-ray had been performed revealing mild periostitis with an incidental finding of hereditary multiple exostoses/osteochondromatosis. The examiner then stated that the periostitis had since resolved and that the STRs were silent for any objective evidence to support a finding that the Veteran had a chronic right knee condition at the time of her separation from service. Although a postservice MRI had revealed degenerative changes in the right knee, the examiner stated this was the result of the Veteran’s right knee osteochondromatosis with subsequent surgical removal. The examiner then observed that according to medical literature, multiple osteochondromatosis was a hereditary condition resulting from the development of multiple, cartilage-covered tumors on the external surfaces of bones. Although this condition was found during service, it was the examiner’s belief that it was a pre-existing knee condition due to the hereditary etiology. In support of that conclusion, the examiner noted that radiologic evidence revealed this pre-existing condition less than 6 months of the Veteran being in service and that the Veteran’s STRs were silent for degenerative changes of the right knee while in service. The examiner concluded that the right knee osteochondromatosis status post removal of osteochondromatosis and right knee degenerative changes were less likely than not caused by her service, and a nexus was not established. See October 2019 VA Medical Opinion. In all cases, a Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111; 38 C.F.R. § § 3.304(b). In other words, “[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the presumption of soundness applies, the burden then shifts to “the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service.” Wagner, 370 F.3d at 1096. Accordingly, once the presumption of soundness applies, the burden of proof remains with the government on both the preexistence and the aggravation prong; it never shifts back to the claimant. This burden must be met by “affirmative evidence” demonstrating that there was no aggravation. Id. Review of the Veteran’s STRs shows that on service entrance examination, no pertinent abnormality of the right knee was demonstrated. Thus, the Veteran is presumed to have been in sound condition and the presumption of soundness attaches in this case and can only be rebutted by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. 38 U.S.C. § 1111; Wagner, 370 F.3d at 1096. Although the October 2019 VA examiner found that the Veteran had a right knee condition that preexisted her military service, she did not address this issue using the clear and unmistakable standard. Further, as noted above, rebutting the presumption of soundness is a two-part analysis and it is the government’s burden to show also that the condition was not clearly and unmistakably aggravated during service. The examiner does not provide a medical opinion as to whether there is clear and unmistakable evidence that the Veteran’s right knee condition was not aggravated by her active service. Without such evidence, the Board cannot make a decision at this time and a remand is required for a medical addendum opinion. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s right knee condition. The examiner is asked to provide a response to the following: Did the Veteran’s right knee condition clearly and unmistakably (undebatable) preexist the Veteran’s service? If the examiner finds it did clearly and unmistakably preexist service, was it clearly and unmistakably unmistakably (undebatable) not aggravated by service? If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to service, including in-service notations of right knee treatment. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.