Citation Nr: 21021133 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 12-23 087 DATE: April 9, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. Entitlement to an increased rating in excess of 20 percent prior to March 1, 2017, for left knee residuals, status post repair of the medial collateral ligament and anterior cruciate ligament (ACL) reconstruction; status post arthroscopy to repair graft impingement is remanded. REASONS FOR REMAND The Veteran had active military service from November 1983 to November 2003. This matter comes to the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In January 2012, the AOJ, in pertinent part, denied an increased rating higher than 20 percent for the left knee disability. The AOJ denied service connection for sleep apnea in July 2014. In December 2012, the Veteran and his spouse testified before the undersigned Veterans Law Judge at a Board hearing at the AOJ regarding the increased rating claim for the left knee. The Veteran initially elected to have another hearing concerning his service connection claim for sleep apnea but withdrew this request in June 2016. The Board remanded the appeal for additional development in December 2015 and September 2016. In June 2017, the Board, in pertinent part, denied service connection for sleep apnea and denied an increased rating higher than 20 percent for limitation of the left knee prior to March 1, 2017. The Veteran appealed the Board’s June 2017 decision to the U.S. Court of Appeals for Veterans Claims (Court), and pursuant to an April 2018 Joint Motion for Partial Remand (JMPR), the Board’s decision as to the denials of an increased rating higher than 20 percent for the service-connected left knee disability and service connection for sleep apnea were vacated and remanded back to the Board. In November 2018, the Board remanded the case in compliance with the JMPR. Then in April 2020, the Board denied the claim. The Veteran again appealed the Board’s decision to the Court, which, pursuant to a November 2020 JMR, vacated the Board’s April 2020 decision. The case is now returned for appellate review. 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities is remanded. The November 2020 JMR found that the Board erred by relying on a March 2019 VA medical opinion, which only addressed whether the Veteran’s service-connected disabilities caused the Veteran to become obese and not whether they aggravated the Veteran’s obesity, which, in turn, caused or aggravated his sleep apnea. The JMR also found that the March 2019 VA examiner did not address the Veteran’s service-connected PTSD in terms of whether it caused or aggravated his obesity, which, in turn, caused or aggravated his sleep apnea. Thus, it was found that a supplemental medical opinion addressing these issues was warranted. 2. Entitlement to an increased rating in excess of 20 percent prior to March 1, 2017, for left knee residuals, status post repair of the medial collateral ligament and ACL reconstruction; status post arthroscopy to repair graft impingement is remanded. The JMR found that the March 2019 VA medical opinion addressing the Veteran’s left knee disability did not specify which information was missing from the record and what information was needed to answer the question when finding that it was not possible to provide more specific information on functional impairment without speculation due to a deficiency in the record. Thus, it was found that remand was warranted to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The JMR also noted that the March 2019 VA examiner used language that was similar to language found in the 2017 opinion that the parties agreed was deficient. The March 2019 examiner stated that the Veteran’s “limitations are variable depending on the time period.” In 2017, the examiner had stated that he could not estimate the Veteran’s range of motion on repetitive motion or during flare-ups because it “[v[aries with pain level.” Thus, it was found that remand was warranted for a Sharp-compliant opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely that any service-connected disability (including disabilities of the left and right knees, left wrist, carpal tunnel syndrome, lumbar strain, GERD, right thumb fracture, migraine headaches, right shoulder, and/ or PTSD) caused or aggravated the Veteran’s obesity, which in turn, caused or aggravated the Veteran’s obstructive sleep apnea. A rationale for all expressed opinions should be provided. 2. Obtain a retrospective opinion regarding the left knee impairment prior to March 1, 2017. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, to include based on medical evidence prior to March 1, 2017. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left knee disability alone and discuss the effect of the Veteran’s left knee disability on any occupational functioning and activities of daily living, to include based on medical evidence prior to March 1, 2017. The examiner is asked to express a retrospective opinion concerning functional loss including during flare-ups for the period prior to March 1, 2017. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.