Citation Nr: 21011574 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-10 781 DATE: March 2, 2021 ORDER Service connection for residuals of a left knee injury is granted. Service connection for residuals of a right shoulder injury is granted. Service connection for a low back disability is granted. REMANDED Service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The weight of the evidence is in favor of finding that the Veteran’s residuals of a left knee injury are related to an in-service injury. 2. The weight of the evidence is in favor of finding that the Veteran’s residuals of a right shoulder injury are related to an in-service injury. 3. The weight of the evidence is in favor of finding that the Veteran’s low back disability is related to disease or injury in service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a left knee injury have been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for residuals of a right shoulder injury have been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for Service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from May 1995 to September 1995; from May 2004 to March 2005; from June 2008 to July 2009, including deployment to Iraq from September 5, 2008 to May 25, 2009; and, he served on active duty from January 2019 to January 2020, including service in Qatar from March 3, 2019 to November 25, 2019. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for (i) chronic mild residual left knee sprain; (ii) chronic mild residual shoulder sprain, right; (iii) sleep apnea; and (iv) lumbosacral strain. The Veteran’s notice of disagreement (NOD) was received in June 2014. The RO issued the statement of the case (SOC) in February 2017, and the Veteran’s VA Form 9, substantive appeal was received in February 2017. In February 2020, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. To better encompass the nature of the disabilities, the claims are recharacterized as set forth on the cover page of this decision. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence “shall be accepted as sufficient proof of service connection” for certain diseases or injuries, even if “there is no official record of such incurrence or aggravation in such service.” 38 U.S.C. § 1154 (b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) (“Section 1154(b) does not create a statutory presumption that a combat veteran’s alleged disease or injury is service-connected”). In this case, the Veteran served in Iraq and was in receipt of the Bronze Star medal; thus, he is considered a combat veteran. 1. Service connection for residuals of a left knee injury 2. Service connection for residuals of a right shoulder injury 3. Service connection for a low back disability The Veteran contends that he has left knee injury residuals, right shoulder injury residuals, and a low back disability; each of which is related to service. Specifically, he reports that he injured his right shoulder during service while handling a heavy machine gun, and that he injured his left knee and low back when he slipped while descending from an armored vehicle during a mission. See, e.g. February 2020 Board hearing transcript, pp. 4,5. Service Treatment Records (STRs), including an August 2008 pre-deployment assessment report, are silent to any complaint, treatment, or diagnosis of a left knee injury or disability, right shoulder injury or disability, or low back injury or disability. November 2011 imaging of the left knee revealed minimal degenerative change of the medial compartment. The Veteran was assessed with degenerative joint disease (DJD) of the left knee. In March 2012, a left knee MRI revealed focal subarticular defect within the anterior and lateral femoral condyle. Remainder of the osseous structures were normal. There were some mild degenerative changes of the posterior horn of the medial meniscus without a discrete tear. No effusions were found. March 2012 imaging of the right shoulder revealed a normal right shoulder impression, although mild degenerative disease at the acromioclavicular (AC) joint was also indicated. A progress note shows that the Veteran reported injuring the shoulder when lifting a .50 Caliber machine gun in service. In April 2012, a private physician, Dr. D.B., M.D., noted the Veteran’s report of a 2008 right shoulder injury that occurred while the Veteran lifted a heavy machine gun over his head. Dr. D.B. suspected a labral problem and possible instability, and noted that the right shoulder pain was of “undetermined etiology.” A May 2012 private chiropractic note shows that the Veteran complained of low back pain radiating to the left knee which began two years prior, when wearing heavy body armor in the military. He also complained of shoulder pain. An August 2012 MRI of the lumbar spine revealed a large herniation causing stenosis at L4-L5 which demonstrated moderate degenerative disc disease, and a smaller herniation at L5-S1 with an indication of moderate to advanced degenerative disc disease. Additionally, the Veteran reported developing knee pain “perhaps a year or so ago. [The Veteran] did not have a single injury but it came on when carrying a heavy pack up a hill.” The Veteran reported persistent anterior pain with any stressful type activity. The examiner noted arthritis of the left knee. The Veteran had VA back, shoulder, and knee examinations in March 2014. The examiner indicated that the Veteran had current disabilities of lumbosacral strain, chronic mild residual left knee sprain, and chronic mild residual shoulder sprain. The examiner opined that the Veteran’s back, knee, and shoulder disabilities were less likely than not caused by or as a result of injury during service. Concerning the back, the VA examiner diagnosed lumbosacral strain. The examiner cited the Veteran’s report of a back injury when jumping from a vehicle while stationed in Iraq. The examiner reviewed the Veteran’s claims file, including STRs. The examiner cited a normal December 1994 National Guard examination, and a normal pre-deployment examination in August 2008. The examiner stated that “the present physical examination, C-file/VBMS, medical history, separation exam and evidence of injury in the file along with xray reports confirms my rationale.” Concerning the left knee, the examiner diagnosed chronic mild residual left knee sprain, and noted a date of diagnosis of “2000.” The examiner noted the Veteran’s report of a left knee injury from jumping out of a vehicle while stationed in Iraq. Again, the examiner cited “normal” examinations from December 1994 and August 2008; and, stated that “the present physical examination, C-file/VBMS, medical history, separation exam and evidence of injury in the file along with xray reports confirms my rationale.” Concerning the right shoulder, the examiner diagnosed chronic mild residual shoulder sprain, with a date of diagnosis of “2000.” The examiner cited the Veteran’s report of a right shoulder injury from lifting a machine gun while stationed in Iraq, which caused a popping sensation in the shoulder. Yet again, the examiner cited “normal” examinations from December 1994 and August 2008; and, stated that “the present physical examination, C-file/VBMS, medical history, separation exam and evidence of injury in the file along with xray reports confirms my rationale.” A July 2014 buddy statement was received from M.S. M.S. witnessed the Veteran injure himself while lifting a .50 Cal machine gun. Specifically, M.S. reported that he saw the Veteran lift the machine gun over his head; he paused to take a picture; and when he brought it down, he grabbed his shoulder in pain. The Veteran told M.S. that he could not complain about the injury or he would be sent home. M.S. also reported witnessing the Veteran injure his back and knee during a mission in which the Veteran was responsible for safely transporting officers of higher ranking. Specifically, he fell awkwardly and limped back to the vehicle. Later, the Veteran told M.S. that he could not complain about the injuries or he would be sent home. A J.B. submitted a buddy statement in August 2014. J.B. was stationed in Iraq with the Veteran from 2008-2009, and witnessed the Veteran injure himself when he lifted a 50 Cal. machine gun. After the injury, the Veteran told J.B. that if I complained about the shoulder injury, he would be sent home. J.B. also saw the Veteran jump from an armored vehicle, and land in such a way that he injured his knee and back. Again, the Veteran told J.B. that he believed that if he complained about the injuries, he would be sent home. The Veteran further told J.B. on several occasions, while stationed abroad, that he was in pain; nonetheless, the Veteran continued to complete missions. In February 2015, the Veteran was seen by Dr. D.B. for pain in the knee, shoulder and back. The Veteran reported a severe pain in his right shoulder, in August 2008, when he lifted a heavy gun above his head. He experienced severe pain immediately, and the pain has gradually progressed since then. Also, he reported that in approximately November 2009, he fell down ladder-like equipment and landed on his legs and buttocks, injuring his back and left knee. He reported back pain ever since, at times severe and radiating down the left leg. Dr. D.B. noted right shoulder pain in the acromioclavicular joint; buttock pain radiating to side of leg; and knee joint pain, worse with running, in the left patellofemoral region. He assessed osteoarthritis of the right shoulder AC joint, and rotator cuff tendonitis and impingement syndrome with partial tear. He noted a 2012 right shoulder tear diagnosis and tingling at night, and very mild tenderness. A right shoulder MRI revealed AC joint space narrow with a torn glenoid labrum, and Dr. D.B. assessed the right shoulder as a combination problem based on degenerative AC joint with impingement and the labral tear. Dr. D.B. noted low back pain radiating to the left side and down the left leg, causing weakness. While there was “no deformity” in the low back, there was mild tenderness in the midline and left lumbar musculature. MRI of the low back revealed herniation at L4-5 and, to a lesser degree, at L5-S1 with stenosis. He diagnosed lumbar canal stenosis and lumbar radiculopathy. While there was “no deformity” noted in the left knee, there was crepitation beneath the patella and pain with patellofemoral compression. An MRI of the left knee revealed arthritic changes of the patella. Dr. D.B. diagnosed osteoarthritis of the knee. Dr. D.B. opined “I feel that his current symptoms in all 3 areas [right shoulder, back, and left knee] are as a direct result of the injuries he sustained while in the service in Iraq.” Dr. D.B. specifically cited that the Veteran directly relates the onset of symptoms to that time, and stated that “these problems can progress over time, so I think [they] are directly related to his service and Iraq.” At his February 2020 Board hearing, the Veteran described in great detail the specifics and history of each of his in-service injuries. He testified that he reported his right shoulder, knee, and back problems at a post-deployment examination, but that his responses were not recorded. See Board hearing transcript, p. 8. Regarding the right shoulder, he described that while preparing for a mission, he raised a .50 Caliber machine gun above his head to place into a vehicle. When the gun was above his head, he felt a tear in the right shoulder, and was in pain for the rest of the day. He estimated that the machine gun weighed 70 pounds. He stated that he never reported the injury because at the time, he was focused on the task at hand—safely transporting a two-star general. Regarding the left knee and back injuries, the Veteran described that while transporting a number of higher-ranking officers, he was descending from an armored vehicle when he slipped and fell. He felt blinding pain that caused him to see white for several moments, believing he had been shot by an enemy sniper. He felt excruciating pain in the back and knee. Afterwards, he was told by medics that his options were to ice and use Ibuprofen or Motrin; if he wanted the knee to be treated, he would have to be taken to Baghdad. If he went to Baghdad, he would then be sent home. He bravely decided that he was “not leaving [his] soldiers in a warzone. We have too important of a mission [. . . , and] I’ll just deal with the pain.” Turning to whether the elements of each service connection claim are met, the Veteran has current left knee, right shoulder, and low back disabilities. See, e.g. March 2014 VA Shoulder, Knee, and Back Conditions Disability Benefits Questionnaires (DBQs). The Veteran’s DD 214 reflects a military occupational specialty (MOS) of motor transport and infantryman while he stationed in Iraq. As noted above, he is a combat veteran. Thus, the burden of demonstrating in-service incurrence of the right shoulder, left knee, and low back disabilities is met based on his credible lay testimony concerning in-service right shoulder, left knee, and low back injuries. 38 U.S.C. § 1154(b). Accordingly, the dispositive issue is whether the right shoulder, left knee, and low back injuries are related to service, to include the in-service injuries to those areas. On that issue, the record contains (i) the March 2014 VA examiner’s opinions, each of which is against a nexus between his current disabilities and service; (ii) numerous lay statements made by the Veteran, fellow service members, and the Veteran’s wife; and (iii) Dr. D.B.’s opinions in favor of a nexus linking the current disabilities to the in-service injuries. Each of the March 2014 examiner’s opinions is based on normal examinations in 1994 and in August 2008. Clearly, a 1994 examination is irrelevant to whether a 2008 injury caused a disability that now manifests, and which the Veteran never asserted was present prior to 2008. Moreover, the August 2008 examination was pre-deployment to Iraq, and the Veteran reported that (i) the right shoulder injury occurred in August 2008 in Iraq, and the left knee and back injuries occurred in approximately November 2009. Moreover, none of the VA opinions—which appear to have been copied-and-pasted from one section to another—address why the Veteran’s competent statements as to the onset of each disability would carry less probative value than the lack of medical evidence demonstrating an in-service onset. Moreover, the March 2014 examiner described the Veteran’s current back, left knee, and right shoulder disabilities as “strains,” which is not accurate. As noted above, the private records from 2011 and 2012 clearly establish that the Veteran has degenerative disc disease of the lumbar spine, as well as degenerative changes in both the left knee and the right shoulder. For those reasons, the March 2014 examiner’s opinions concerning the right shoulder injury residuals, the left knee injury residuals, and the low back injury residuals, are not probative. On the other hand, Dr. D.B. provided opinions which considered the Veteran’s competent and credible statements of in-service right shoulder, left knee, and low back injuries. Dr. D.B. conducted MRI imaging, and provided a detailed overview of the unique disability picture for each disability. Then, Dr. D.B. provided a clearly worded opinion in which he, based on (i) the Veteran’s lay reports concerning the history of each disability as well as (ii) the progressive nature of each condition, directly connected each disability to the in-service injuries. For those reasons, Dr. D.B.’s opinions concerning the right shoulder, left knee, and low back injuries carry significant probative value. Moreover, the Veteran has reported on numerous occasions that each injury occurred during service, and that the pain has continued ever since the injuries. He provided reasonable explanations for why his injuries do not appear in the STRs, and his explanations are supported by lay statements prepared by fellow servicemembers. Additionally, the record does not show any other occurrence or injury to which the conditions might be attributed. Based on the foregoing, the probative evidence weighs in favor of finding that a nexus exists which connects the (i) left knee injury residuals, (ii) the right shoulder injury residuals, and (iii) the low back disability to service. When the evidence weighs in the Veteran’s favor, the claims must be granted. Therefore, service connection for left knee injury residuals is granted; service connection for left knee right shoulder injury residuals is granted; and service connection for a low back disability is granted. REASONS FOR REMAND 4. Entitlement to service connection for OSA The Veteran contends that he has OSA that is related to service. Specifically, he asserts that the sleep apnea is related to in-service exposure to dust in the air containing titanium, and burn pits, while stationed at Camp Victory in Iraq. See, e.g. June 2014 NOD. A May 2013 private pulmonary treatment note shows that the Veteran was seen for sleep apnea symptoms including snoring, excessive sleepiness, witnessed apnea, and occasional nocturia. The Veteran’s wife told the treating physician that the Veteran had the symptoms for “quite a few years.” A June 2013 private pulmonary treatment note reveals a diagnosis of moderate OSA syndrome. A letter from the Veteran’s wife received in October 2014 reflects that he was physically well before his 2008-2009 deployment to Iraq. He never snored before his deployment, but when he returned, he would often stop breathing during sleep and now uses a C-PAP machine. The Veteran’s wife believes he was exposed to contaminated air, which caused the sleep apnea. A February 2015 private pulmonary note shows states “patient developed sleep disorder while in Iraq – poor sleep associated with PTSD. We tested him for sleep apnea in [June 2013] and confirmed sleep apnea as well. He has symptoms of poor sleep, apneic episodes. This may be in part due to exposure in Iraq.” In February 2017, a VA examiner was asked to opine as to whether the Veteran’s sleep apnea was at least as likely as not related to service. The examiner conducted a review of the Veteran’s e-folder, including STRs which were noted as silent for complaints, findings, or treatment for sleep apnea. The examiner noted a June 2013 diagnosis of sleep apnea—four years after the Veteran left service—and the Veteran’s contention of a link to service. The examiner opined that there was “no evidence of a diagnosis nor treatment” for sleep apnea during service or within one year of separation from service, and that the medical literature does not support a link between the sleep apnea and service. Thus, the examiner found the sleep apnea was less likely than not incurred in or caused by in-service dust and burn pit exposure. The examiner also delineated numerous risk factors, including excess weight, neck circumference, a narrowed airway, being male, being older, family history, use of alcohol, sedative or tranquilizers, smoking, and nasal congestion. At his February 2020 Board hearing, the Veteran testified that he slept well before his deployment to Iraq, but that when he came back, he was irritable, could not eat well, and was sleeping poorly. The Veteran has a service-connected disability of PTSD; by setting out those symptoms which he believes have affected his ability to sleep, he effectively asserted that he believes (i) he has sleep apnea, and (ii) his sleep apnea is affected by his service-connected PTSD. Turning to whether the service connection elements are met: unfortunately, the May 2013 and February 2015 medical notes do not provide the type of rationale-based opinions upon which a nexus finding may be based. Specifically, (i) the May 2013 note does not directly connect the sleep apnea to service; and (ii) the February 2015 note, while suggesting that the sleep apnea is in some way linked to PTSD, does not provide any support for that conclusion nor is there any indication of the evidence upon which the finding is based. However, the February 2017 VA examiner’s opinion did not consider important evidence—that is, the Veteran’s competent testimony that he was able to sleep well before he was deployed, but that when he returned, he had trouble sleeping and his troubles were exacerbated by symptoms such as poor eating and irritability. Moreover, the Veteran’s wife’s statement concurs with the Veteran’s report of a change in sleeping patterns. Simply put, a medical opinion concerning the Veteran’s sleep apnea must address not only medical evidence, but lay evidence, too. For those reasons, a remand is necessary to obtain an opinion which addresses the lay evidence concerning when the sleep apnea began. Additionally, in light of the Veteran’ assertion that certain symptoms—which he presumably believes are caused by the PTSD—affect his sleep apnea, an opinion on that issue is also necessary prior to adjudication. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of any sleep disorder, to include OSA. The examiner should identify all current sleep disorders that have existed since Veteran entered service. Then, the examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that any sleep disorder is related to, or had its onset during, the Veteran’s active service, to include as the result of the Veteran’s reported in-service exposure to titanium-laden dust and burn pits. Additionally, the examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that any sleep disorder was caused by or aggravated (made worse) by the Veteran’s service-connected PTSD. The claims folder must be made available to and reviewed by the examiner prior to completion of the opinion, and the opinion must reflect that the claims folder was reviewed. The examiner must provide a complete rationale for each opinion expressed and conclusion reached. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.