Citation Nr: 21015785 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-40 241 DATE: March 18, 2021 ORDER Entitlement to service connection for right knee disability, to include replacement, is granted. Entitlement to service connection for left knee disability, to include replacement, is granted. Entitlement to service connection for obstructive sleep apnea is granted. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran’s right knee disability, to include total knee replacement, was incurred in or caused by his active duty service. 2. The evidence is in equipoise as to whether the Veteran’s left knee disability, to include total knee replacement, was incurred in or caused by his active duty service. 3. The evidence is in equipoise as to whether the Veteran’s obstructive sleep apnea was incurred in or caused by his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee disability, to include replacement, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left knee disability, to include replacement, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in from January 1973 to August 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2016 and January 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. These issues were previously addressed and remanded by the Board in a September 2019 decision. The requested development has been completed and the issues are again before the Board for additional appellate consideration. Service Connection In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the present of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are considered competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). 1. Entitlement to service connection for right knee disability, to include replacement. 2. Entitlement to service connection for left knee disability, to include replacement. To promote efficiency, the issues of entitlement to service connection for a right and left knee disability to include replacement will be addressed together. In this post-remand case, the Veteran contends he is entitled to service connection for a right and left knee disability, to include replacement, as the result of an injury he sustained while in service and continuity of pain. First, the Board notes the Veteran’s medical records contain complaints of right and left knee pain dating to 2003. His “active problems” included arthralgia of the knees. Complaints of knee pain continued through 2014. The Veteran was diagnosed with osteoarthritis of the right knee. It was noted that his right knee is resistant to conservative treatment. He underwent total right knee arthroplasty in December 2015 followed by left knee surgery in October 2016. Medical records indicate the Veteran underwent physical therapy to increase range of motion, strength, and gait. The Veteran was afforded a VA examination in December 2016. The examiner noted his diagnosis to be status-post bilateral knee replacement. The Veteran stated he still experiences pain in both knees (6/10 in severity) and treats them conservatively with ice and physical therapy. His range of motion (ROM) for his right knee flexion was noted to be 0 to 130 degrees (normal 0 to 140). As for extension, his ROM was measured to be 130 to 0 (normal 140 to 0). As for his left knee, his ROM for flexion was measured to be 10 to 120 degrees and his extension was measured to be 120 to 10. After examination, the examiner stated the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided the rationale that the condition was acute only and there is no evidence of chronicity of care. However, in the Board’s previous remand, the Board found this opinion to be of little probative value. The Veteran was afforded a hearing in May 2019 and testified that while running in service he fell and hit his knee. He claims he visited the medical clinic and was provided pain relief pills; however, during his testimony, the Veteran contended that he was forced to compensate for the left knee pain with his right knee. Over the years, he maintained that his condition has continued and worsened since separating from the Army. There is evidence of this complaint from April 1973 in the Veteran’s service treatment records (STRs). In April 1973, the Veteran visited the clinic and complained of pain in his left knee. Additionally, the Veteran noted that he experienced a “trick” or locked knee during service. Given his credible testimony of an in-service injury and corroborating evidence in his STRs, the Board found the December 2016 opinion to be of little probative value and determined that a remand was necessary in order to provide an additional examination and etiological opinion. An additional VA examination and etiological opinion was provided in December 2019. The examiner noted the Veteran is status-post bilateral knee replacement to include flare-ups, functional loss, and reduction in ROM. His right knee ROM for flexion was measured to be 0 to 120 degrees and extension was 120 to o degrees. His left knee ROM for flexion was measured to be 0 to 120 degrees and for extension 120 to 0 degrees. There is no evidence of any arthritis, ankylosis, recurrent subluxation, lateral instability, or shin splints; however, there is evidence of scars on both knees and the Veteran regularly uses a cane. The examiner stated the Veteran’s claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury or event. The examiner provided inadequate rationale for their opinion. The examiner failed to note the etiology of his bilateral knee disabilities instead noted his long history of knee problems. The examiner only mentioned there is no record of chronic right or left knee condition during service. The Board finds this opinion to be of little or no probative value. The examiner did not provide an etiological opinion as to the nature of his bilateral knee disabilities nor substantially complied with the remand directives. On the other hand, the Veteran’s pre-knee replacement diagnosis was osteoarthritis of the knees, which, as a chronic condition, can be linked to service based on credible testimony and statements of continuity of symptomatology. Accordingly, given the Veteran’s credible testimony regarding continuity of symptoms of his pre-surgical osteoarthritis, his corroborating treatment of knee pain while in-service, and his knee surgery, the Board finds the evidence to be at least in equipoise as to whether his right and left knee disabilities were incurred in or caused by his active duty service. Therefore, the Board finds that entitlement to service connection for the Veteran’s right and left knee disabilities is warranted. 3. Entitlement to service connection for obstructive sleep apnea. The Veteran contends he is entitled to service connection for obstructive sleep apnea. In the Board’s previous decision, this issue was remanded given the four elements necessary under McLendon were met. See McLendon v. Nicholson, 20 Vet. App. 79, 81-85 (2006) (evidence of a current disability, in-service event, injury, or disease, indication the claimed disability may be associated with the established event, and insufficient medical evidence on file for the VA to make a decision). With regard to the first element necessary for service connection, a current disability, the Veteran’s recent medical records contain numerous complaints about issues with sleeping and the Veteran’s medical records contain an active diagnosis of sleep apnea. He regularly uses his continuous positive airway pressure (CPAP) machine and takes medication to help him sleep. Furthermore, the Veteran was afforded a VA examination in December 2019. The examiner confirmed his diagnosis of obstructive sleep apnea and use of a CPAP. Therefore, the Board finds adequate evidence of a current disability. As it pertains to an in-service event or injury, the Veteran during his testimony before the undersigned Veterans Law Judge, testified that while on active duty he would regularly struggle with getting proper sleep. He said he would awaken tired, irritable, and would only sleep three to four hours each evening. He also testified that his wife regularly complained about his sleeping habits and was awakened at least three times a week due to respiratory disruption. Lastly, the Veteran noted he has been married for 45 years and his sleep apnea symptoms began after his separation from the Army and has thereafter continued. The Board finds the Veteran competent and credible to discuss his sleep apnea symptoms to include his habits. Therefore, the Board finds adequate evidence of an in-service event or injury for purposes of service connection. As for the final element necessary for service connection, a nexus, the Board finds the evidence to be in equipoise as to whether the Veteran’s sleep apnea was incurred in or caused by his active duty service. The examiner stated the Veteran’s claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury or event. As for the rationale, the examiner only noted that, based on an indexed record review, there is no evidence of a diagnosis or treatment for his sleep apnea in service. However, the Board finds the opinion to be of no probative value. The examiner did not take into consideration the Veteran’s lay statements, continuity of sleep symptoms, or provide an etiological explanation. The Veteran also credibly related that his wife of 45 years has noted the Veteran’s sleep issue all throughout their marriage and has more recently found it necessary to sleep in another bedroom to avoid the Veteran’s sleeping problems. Given the evidence of a current disability to include obstructive sleep apnea, his credibly testimony regarding his in-service and post-service sleeping issues, and the continuity of symptoms concerning those issues, the Board finds the evidence to also be in equipoise as to whether his obstructive sleep apnea was incurred in or caused by his active duty service. Therefore, the Board finds that entitlement to service connection for this disorder is also warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. DeBoer, 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.