Citation Nr: 21012504 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-53 394 DATE: March 4, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for patellofemoral pain syndrome of the left knee is remanded. Entitlement to a disability rating in excess of 10 percent for patellofemoral pain syndrome of the right knee is remanded. Entitlement to service connection for sleep apnea, to include as due to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran had active duty in the United States Army from July 2000 to January 2005. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran, his spouse, and his daughter testified at a Board hearing. The transcript of that proceeding has been associated with the Veteran’s claims file. Discussion Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159. Left knee disorder Right knee disorder To date, the RO has not sent a SSOC, addressing additional VA-developed medical evidence including the April 2018 VA knee conditions, newly received VA progress notes and treatment records, and government facility records received since the issuance of the September 2017 statement of the case (SOC). The Veteran did not waive review of this evidence by the agency of original jurisdiction. Therefore, a remand of the left knee and right knee issues is necessary for the issuance of an SSOC, which addresses all VA-developed evidence pertinent to these two identified issues on appeal. Thereby, the Veteran and his representative will be provided with an opportunity to respond to this medical evidence. See 38 C.F.R. § 19.37(b). Sleep apnea The Veteran contends that sleep apnea was incurred in, aggravated by, or otherwise attributable to, active duty service. Alternatively, the Veteran contends that sleep apnea was proximately caused by, or aggravated by, service-connected disabilities. The Board finds that the testimony of the Veteran’s spouse at the Board hearing concerning the Veteran’s sleep difficulties and snoring during service and thereinafter is facially plausible and internally consistent with notations in the Veteran’s service treatment records (STRs) addressing the Veteran’s body habitus and psychological status. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). As such, the Board assigns some probative weight to this lay evidence. A lay person, such as the Veteran’s spouse, is competent to report what she sees and what she hears. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. Id. As the spouse has presented competent lay evidence concerning the onset and continuity of the Veteran’s sleep disturbances and possible apneic symptoms, the Board finds that the requirements of the third prong have been met. The matters are REMANDED for the following action: 1. Provide the Veteran and his representative an SSOC on the claims of entitlement to a disability rating in excess of 10 percent for left knee disorder and right knee disorder. The Board herein intimates no opinion as to the outcome of this case. 2. Contact the Veteran and his representative to ascertain whether there are private treatment records addressing sleep apnea, left knee disorder, and/or right knee disorder that are not associated with the claims file. If identified, prepare appropriate releases and obtain these treatment records. Should these records be identified, the RO must follow all procedures laid out in 38 U.S.C. § 5103A(b)(2)(B). 3. Request outstanding records of VA outpatient treatment, if any, for the Veteran and associate them with the claims file. All records/responses received must be associated with the claims file. 4. Schedule the Veteran for sleep apnea examination with an appropriate clinician. The clinician must review the claims file and indicate such in the body of the examination report. The clinician should perform all necessary interviewing and evaluation. The Board brings attention to notations in STRs concerning the Veteran’s body habitus and psychological status as well as the spouse’s competent testimony at the February 2020 Board hearing. Upon completion of the above-directed tasks, the clinician is asked to respond to the following inquiries: a. Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s sleep apnea, was incurred in, aggravated by, or otherwise attributable to, any incidence of service? AND b. Whether it is at least as likely as not that the Veteran’s sleep apnea was proximately caused by, or aggravated by, the Veteran’s service-connected disabilities? The clinician must provide a rationale for each conclusion reached. The Board notes that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology and functional limitations, must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, she/he must provide an explanation for such rejection. 6. Upon completion of all of the above-directed development and any other development deemed necessary, the RO should readjudicate the Veteran’s sleep apnea claim. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.