Citation Nr: 21015396 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-15 407 DATE: March 17, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. Entitlement to service connection for a right knee disorder, including manifested by pain, is denied. Entitlement to service connection for a left knee disorder, also including manifested by pain, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s OSA began during his service or is otherwise related or attributable to his service. 2. The preponderance of the evidence also is against finding that his current bilateral (right and left) knee disability began during his service, or that he had arthritis in either knee within a year of his discharge from service, or that any current knee disability is otherwise related or attributable to his service.   CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for OSA. 38 U.S.C. §§ 1110,1131; 38 C.F.R. § 3.303. 2. The criteria also are not met for entitlement to service connection for a right or left knee disability. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to April 1988 and from April to May 2012, with additional service in the reserves. This appeal to the Board of Veterans’ Appeals (Board) is from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2016, in support of these claims, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board; a transcript of the proceeding is of record. The Board remanded these claims back to the RO in January 2019 for further development – including to obtain all outstanding treatment records relevant to these claims, whether from VA and/or private providers, and then to have the Veteran undergo VA compensation examinations for medical nexus opinions regarding the origins of his claimed disabilities, especially insofar as their purported relationship with his military service. There since has been the required compliance – certainly the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran's representative submitted arguments in a brief to try and establish entitlement to service connection not only for OSA and bilateral (right and left) knee pain, but also for bilateral pes planus (flat feet). But the issue of entitlement to service connection for bilateral pes planus is not before the Board. In his April 2015 Substantive Appeal to the Board (on VA Form 9), the Veteran did not address this other claim, only instead the claims for OSA and bilateral knee pain. Thus, only these claims are before the Board. 38 C.F.R. §§ 20.200, 20.201 (2020). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic disabilities (including arthritis) may be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a specified time after service (which is one year for arthritis). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). A disease diagnosed after discharge may still be service connected if the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In certain instances, lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is needed where the determinative question is one requiring medical knowledge. Compare 38 C.F.R. §3.159(a)(1) versus (a)(2). 1. Entitlement to service connection for OSA The Veteran contends that his OSA started during his service or is attributable to his service. As support for this claim, he has submitted lay statements from fellow servicemen relating that he snored while deployed in Japan and often woke up gasping for air. See April 2015 Statement. But the Board concludes that, while the Veteran has a current diagnosis of OSA, the preponderance of the evidence weighs against finding that his OSA began during his service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not initially diagnosed with OSA until 2001, so not until some 13 years after separating from his initial period of service on active duty that had concluded in 1988. See November 2015 private physician’s statement. The Veteran's service treatment records (STRs) are unremarkable for complaints, treatment, or diagnosis of OSA. Also, on his separation examination no pertinent abnormalities were noted either in the way of relevant subjective complaint or objective clinical finding. Aside from undergoing a VA examination for an opinion concerning the origins of his OSA, the Veteran also submitted an opinion from his primary care physician suggesting a potential link between the Veteran's OSA and his service. Namely, the Veteran submitted a November 2015 private physician’s letter as evidence of the required correlation (“nexus”) between his OSA and his service. In this November 2015 letter, this private physician states that it had come to his attention that the Veteran’s OSA may have begun when he was on active duty.   This physician stated that he had received a letter documenting the Veteran’s symptoms as early as 1986. This private physician concluded that, given our current knowledge of this particular medical problem, it “would be entirely possible” that the Veteran’s OSA was related to his service. Precedent cases, however, repeatedly have explained that an opinion couched in equivocal language (such as saying it is “possible” there is a relationship between the condition being claimed and the Veteran’s service) is insufficient basis to grant service connection because this is just as well akin to saying this posited correlation also possibly is not true. See Bostain v. West, 11 Vet. App. 124 (1998); Winsett v. West, 11 Vet. App. 420 (1998); Obert v. Brown, 5 Vet. App. 30 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). That said, an etiological opinion must be viewed in its entire context and not characterized solely by the medical professional’s choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997). And, partly for this reason, the Board remanded this claim back to the RO (Agency of Original Jurisdiction (AOJ)) in January 2019 for further, i.e., more definitive medical comment concerning this determinative issue. To this end, the Veteran had a VA examination in December 2019 on remand. The VA examiner determined the Veteran’s OSA is less likely than not due to his service. This VA examiner reasoned that the Veteran left service when he was 21 years old and worked as a police officer for many years post service. During that time, he weighed over 200 pounds. The VA examiner explained that it is very common among obesity patients to suffer from OSA. Resultantly, this VA examiner linked the Veteran’s OSA to his obesity, not instead to his military service. This VA examiner acknowledged the lay statement indicating the Veteran snored while in service, but this VA examiner explained that snoring does not indicate the Veteran had OSA. Further concerning this, the examiner pointed out the Veteran had an uvulopalatopharyngoplasty in 1999 that did not occur during any period of active duty.   Medical evidence is considered probative when it is factually accurate, fully articulated, and provides sound reasoning for the conclusion. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The December 2019 examiner’s opinion is probative because it is based on an accurate medical history, is well-reasoned and articulated, and is provided by someone having the training and expertise to comment on this subject matter area. In a more recent February 2021 Brief, the Veteran’s representative argues that the December 2019 VA examination is inadequate since the VA examiner opined that the Veteran’s OSA is more likely due to weight gain when compared to his time on active duty in the military. The representative asserts that the Veteran had signs and symptoms of sleep apnea during his military service that were observed by his fellow soldiers. The representative further stated that there is a plethora of medical treatises indicating OSA is 2.14 times more likely to occur in deployed soldiers versus non-deployed soldiers. The medical treatises reportedly further show that Body Mass Index (BMI) and obesity are not the only risk factors for OSA and, particularly, military soldiers tend to have increased risk of OSA – regardless of BMI or obesity. In support of their argument, the Veteran’s representative cites to several medical journals showing that approximately one-fifth of loudly snoring Army conscripts suffer from OSA and that loud snoring occurs in 95 percent of patients with OSA syndrome. The articles further suggested that many cases are not related to obesity, poor health, or aging, instead, they are related to neurological or physical damage suffered during service. Medical articles or treatises can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. See Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). However, medical articles tend to be general in nature and do not relate to the specific facts of a given claim. The medical articles cited by the Veteran’s representative provide general information with some connection to the details of his complaints and symptoms. The article cites to a cause of OSA as neurological or physical damage during service; however, the Veteran did not engage in combat and there are no confirmed stressors or other activity during his service suggestive of neurological or physical damage. Furthermore, the articles are not combined with supporting opinion of a medical professional inasmuch as the opinion earlier provided in November 2015 was too equivocal. The Veteran’s lay statements and testimony and that of his fellow servicemen, absent this required supporting medical opinion corroborating what is indicated in the medical treatise articles submitted and applying what is suggested in these articles to this Veteran, specifically, are insufficient basis to grant service connection. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, for the reasons and bases discussed, the most persuasive evidence does not establish the required correlation ("nexus") between the Veteran’s reported symptoms in service and eventual diagnosis of OSA after service to, in turn, link his OSA to his service. Thus, the Board must deny this claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to service connection for right knee pain 3. Entitlement to service connection for left knee pain The Veteran contends that his right and left knee pain incepted during his active service or is attributable to his service. Specifically, he contends that his military occupational specialty (MOS) as an assault man required him to March 10-20 miles on a weekly basis while carrying 120 pounds of equipment. See April 2015 Correspondence. He also asserts that his bilateral knee pain worsened after joining the reserves in April 2009. There is a clear distinction between individuals who seek VA benefits based on service during active duty versus service during active duty for training (ACDUTRA) or inactive duty training (INACDUTRA). To establish status as a "veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 U.S.C. § 101(24); 38 C.F.R. § 3.1(a), (d); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). In Donnellan v. Shinseki, 24 Vet. App. 167, 171-75 (2010), the Court stated that the placement of the burden of proof on the Veteran was consistent with the distinction made in § 101(24) between an ACDUTRA claimant and an active duty claimant. Further, service connection is only permissible for injury – not also disease, incurred in or aggravated during INACDUTRA, and the presumptions of soundness and aggravation are not applicable to periods of ACDUTRA and INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 45-48 (2010). With respect to a claim for aggravation of a preexisting disorder during ACDUTRA, service connection may only be established by direct evidence showing both (1) a worsening of the disorder occurred during the period of ACDUTRA and (2) that the worsening was caused by the service during the period of ACDUTRA. Smith at 48. Additionally, any increase in severity must also be permanent. Recurrence or temporary flare-ups of symptoms do not constitute an increase in severity. Davis v. Principi, 273 F.3d 1341, 1345 (Fed. Cir. 2002). STR’s from the Veteran’s active duty, including periods of qualifying active military service on ACDUTRA, are unremarkable from complaints, treatment, or diagnosis of any disability referable to either knee, so right or left. On the report of his separation examination and accompanying report of medical history, no pertinent right or left knee abnormalities were noted either in the way of a relevant subjective complaint (e.g., pertinent symptom) or objective clinical finding (e.g., diagnosis). It is not in dispute that the Veteran has current right and left knee disabilities since he received diagnoses of patella femoral pain syndrome and arthritis in his knees in November 2009. But, to reiterate, there must be attribution of these diagnoses to his service and, more specifically, to a qualifying period of service – meaning active duty (AD) or ACDUTRA for disability due to disease or injury or to INACDUTRA for disability due to injury (since disease is not also included). The post-service treatment records note a complaint of bilateral knee pain in October 2009, which was not during a period of qualifying service. When the Veteran reenlisted in April 2012, he indicated on his examination that he had knee pain in both knees and sleep apnea. But that was prior to his reenlistment. The Veteran filed claims for service connection for these conditions, and they were pending before the RO when he reenlisted. In February 2016, the Veteran’s treating physician submitted a letter on the Veteran’s behalf. This commenting physician stated that he could not accurately determine whether the Veteran’s knee disability was related to his service as his only point of reference was the Veteran’s lay statement. He further stated that, although he has no reason to disbelieve the Veteran, the decision of service connection should be made by a military physician after having access to his complete military records. Because there resultantly was need for more medical comment on this determinative issue, the Board remanded these claims in January 2019. The VA examiner who resultantly provided this requested additional medical comment on remand opined in December 2019 that the Veteran’s knee pain less likely than not was incurred during his service. This VA examiner reasoned that the Veteran’s occupation as a police officer, in addition to his weight gain and advancing age, more likely than not caused his bilateral knee pain. This VA examiner explained that the Veteran’s occupation required him to wear a flak jacket and gun belt. This examiner further noted that this additional weight, compounded by the Veteran’s obesity, put a huge strain on his knees. This VA examiner also addressed the Veteran’s contention that his ACDUTRA had aggravated his bilateral knee disability (pain). But this VA examiner concluded that it is highly unlikely that the Veteran’s knee disability is due to his time in the Reserves. This examiner observed the Veteran had served two days a week for two weeks a year and reiterated that the Veteran’s bilateral knee disability, instead, is more likely due to the additional weight he had to carry as a police officer, his obesity, and age. Consequently, the Board finds that the only probative (competent and credible) evidence of record addressing whether there is a correlation between the Veteran's current bilateral knee disability (causing pain) and his service is the December 2019 VA examiner's opinion obtained on remand that is against this notion. And this again is a situation where the Veteran cannot establish this required correlation (“nexus”), himself. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Rather, the medical findings and opinion of the trained medical professional warrant greater probative weight than his unsubstantiated lay contentions because the condition at issue is complex, not instead merely simple. See Kahana v. Shinseki, 24 Vet. App. 428 (2011) (explaining that the determination of whether medical versus lay evidence is needed to support a claim is fact specific (i.e., a case-by-case judgment), based on the specific type of condition being claimed, including in terms of whether it is simple or instead complex); King v. Shinseki,700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Knee pain was not first “noted” during the Veteran’s service – again, meaning during any qualifying period of service. And, in this circumstance, it is not possible to show continuity of symptomatology since his service because the condition, including to the extent accounting for his pain, was not first noted during his service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Moreover, arthritis – which must be objectively confirmed by X-ray or other radiographic finding (see 38 C.F.R. § 4.71a, Diagnostic Code 5003), was not first noted within a year of discharge from his earlier AD service, so it cannot be presumed to have been incurred during his service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).   Accordingly, the Board finds that the elements of service connection have not been met, so service connection is not warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, Associate 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.