Citation Nr: 21015268 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-34 312 DATE: March 17, 2021 REMANDED The claim of an increased rating, in excess of 10 percent, for right knee degenerative joint disease (DJD), limitation of flexion, is remanded. The claim of an increased rating, in excess of 10 percent, for right knee DJD, limitation of extension, is remanded. The claim of an increased rating, in excess of 10 percent, for symptomatic removal of the right knee semilunar cartilage is remanded. The service connection for obstructive sleep apnea, to include as due to exposure to chemicals, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1982 to May 1986; and from July 1986 to January 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In November 2018, the Veteran testified at a VA Central Office hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In March 2019, the Board denied the increased rating claims for right knee DJD limitation of flexion, right knee DJD limitation of extension, and right knee symptomatic removal of semilunar cartilage. Thereafter, the Veteran appealed the March 2019 Board decision with the United States Court of Appeals for Veterans Claims (CAVC). In a June 2020 joint motion for partial remand (JMPR), the parties stipulated that a vacateur and remand is required for the portion of the March 2019 Board decision that denied the increased rating claims for the right knee disabilities because a new medical examination is required, under VA’s duty to assist; and additionally, the Board failed to provide adequate reasons or bases as to whether the duty to assist required efforts to obtain VA medical records. In a July 2020 order, CAVC vacated and remanded the part of the March 2019 Board decision that denied entitlement to an increased rating, in excess of 10 percent, for right knee DJD limitation of flexion; a separate rating, in excess of 10 percent, for right knee DJD limitation of extension; and a separate rating, in excess of 10 percent, for the symptomatic removal of semilunar cartilage of the right knee. In this regard, the Board regrets further delay, as additional developments are necessary before a decision may be rendered on the issues on appeal. 1. Increased Rating Claims for Right Knee Disabilities At his November 2018 hearing, the Veteran reported having a progression in symptoms of his right knee, including and not limited to, a lot of burning pain; limitations in his ability to sit and stand, with the need to have the right knee extended, which causes problems and getting around, overall; and as well as increases in the frequency and duration of flare ups. As the Veteran has not been afforded a VA examination for the right knee since October 2017, a remand is required for a new VA examination to determine the current severity of the Veteran’s right knee disabilities. Additionally, he Veteran reported that the last time he received his cortisone shot for his knee, prior to his November 2018 hearing, was in June 2018. See November 2018 Hearing Transcript. However, it appears that this treatment record has not been associated with the claims file, even though the most updated treatment records that have been associated with the claims file are as recent as November 2020, and include some treatment records from 2018. Therefore, on remand, the RO must obtain and/or ensure that all of the Veteran’s VA treatment records for the right knee has been associated with the claims file prior to scheduling the Veteran for a contemporaneous VA examination on the severity of his right knee disabilities. 2. Obstructive Sleep Apnea The Veteran asserts that his obstructive sleep apnea may be related to his service as a Persian Gulf Veteran, including and not limited to, exposure to chemical and/or hazardous materials. See e.g. November 2018 Hearing Transcript. In the most recent remand, in December 2019, the Board found that a July 2019 VA examiner did not address the Veteran’s contentions that his disability may be related to his status as a Persian Gulf Veteran and exposure to various chemicals in service, and thus, remanded the issue for a VA examiner to address these contentions. Accordingly, the Veteran was afforded a VA examination for obstructive sleep apnea in February 2020. After this examination, a VA examiner opined that the Veteran’s obstructive sleep apnea was at least as likely as not (50 percent or greater probability), incurred in or caused by an in-service injury, event, or illness. As the rationale for this opinion, the VA examiner explained that the Veteran was diagnosed with obstructive sleep apnea, requiring a CPAP machine, and that under VA law, sleep disturbances are noted as signs or symptoms of an undiagnosed illness and medically unexplained chronic multi-symptom illnesses. Further, the VA examiner explained that the Veteran meets the criteria for a “Persian Gulf Veteran”, who served on active military, naval, or air service in the Southwest Asia theatre of operations during the Persian Gulf War. However, this opinion does not clearly and sufficiently explain how or why the Veteran’s obstructive sleep apnea was incurred in or caused by service. Rather, the VA examiner described what may be a symptom of obstructive sleep apnea as an undiagnosed illness, whereas an “undiagnosed illness is a condition that cannot be attributed to a known clinical diagnosis, physical examination, and laboratory tests. See 38 C.F.R. § 3.317. Given the inadequacy of this VA examination, the RO obtained another medical opinion on the etiology of the Veteran’s obstructive sleep apnea. In this December 2020 opinion, a VA examiner opined that the Veteran’s “sleep apnea disability is not undiagnosed illness or a medically unexplained chronic multi system illness.” However, the Board finds that the rationale for this opinion is also inadequate, as it does not clearly opine or explain why the Veteran’s obstructive sleep apnea is not a multi symptom illness, but rather, expressly noted that the Veteran’s sleep apnea disability is not a “multi system illness.” Additionally, the VA examiner also did not address the Veteran’s contentions that his obstructive sleep apnea may be the result of his exposure to various chemicals in service. As a matter of fact, in response to this VA examination report, the Veteran reasserted that he served “in the Gulf war and was exposed to environmental hazards during service.” Additionally, he appears to suggest that the obstructive sleep apnea is part of a chronic multi-symptom illness, as he also asserts that during service, one the Veteran’s examination, in 1986 “documented that he was borderline hypertensive . . . (STR, dated June 23, 2015); the Veteran also suffers from seasonal allergies, for which he takes medication daily; he was never a smoker; and that he appears to have some memory problems.” Further, he also asserted that as “repeatedly stated in the SSOC, the VA believes that this [Veteran’s] weight is the only reason for … OSA”, and that he was “somewhat overweight, however not overweight” during his time in active service. See February 2021 Appellate Brief. Therefore, a remand is required for an addendum opinion to address the Veteran’s contentions about his obstructive sleep apnea. The matters are REMANDED for the following action: 1. Ensure that VA treatment records for the right knee disabilities, especially from June 2018 to current, have been associated with the claims file. 2. Thereafter, schedule the Veteran for a new VA examination to determine the current severity of his right knee disabilities. The appropriate disability benefits questionnaire (DBQ) form should be utilized. The VA examiner must undertake the following: a. Conduct range of motion testing for the right knee, specifically noting the motion in degrees, in both active motion and passive motion, and in both weight-bearing and non-weightbearing. See Correia v. McDonald, 28 Vet. App. 158, 169 – 170 (2016). b. If the Veteran has reported any periods of flare ups, but range of motion testing could not be conducted during a flare up, state the severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, according to the Veteran, to what extent, if any, they affect functional impairment. See Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). 3. Obtain an addendum opinion for a clarification of the etiology of the Veteran’s obstructive sleep apnea. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must undertake the following: a. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s obstructive sleep apnea is part of a medically unexplained, chronic multi-symptom illness of an unknown etiology. A medically unexplained chronic multisymptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. A medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2). Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). b. If the Veteran’s obstructive sleep apnea is not part of a medically unexplained chronic multi-symptom illness, opine whether it is at least as likely as not (more than 50 percent probability) the Veteran’s obstructive sleep apnea is the result of his exposure to environmental chemicals or hazards during his period of active service in the Persian Gulf. c. In rendering an opinion, the VA examiner should also consider all lay statements from the Veteran about onset, symptoms, and continuity of symptoms. d. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.