Citation Nr: 21023005 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-31 301 DATE: April 19, 2021 REMANDED Entitlement to a rating in excess of 10 percent for service-connected degenerative joint disease status post left meniscectomy (left knee disability) is remanded. Entitlement to a rating in excess of 10 percent for service-connected degenerative joint disease status post right knee meniscectomy (right knee disability) is remanded. Entitlement to a compensable rating prior to August 20, 2021, and in excess of 10 percent thereafter for service-connected left knee instability is remanded. Entitlement to a compensable rating prior to August 20, 2021, and in excess of 10 percent thereafter for service-connected right knee instability is remanded. Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1977 to June 1980, and from April 1982 to May 1999. The Veteran testified before the undersigned Veterans Law Judge in August 2019; a transcript of the hearing is of record. 1. Increased Ratings for Bilateral Knee Disabilities In connection with the Board’s December 2019 remand, the Veteran underwent a VA examination in December 2020 to address the current nature and severity of his bilateral knee disabilities; however, as will be explained, the examiner’s findings do not adequately address the Veteran’s longstanding history of reported flare-ups. The December 2020 examiner noted that the Veteran denied experiencing flare-ups of his bilateral knee disabilities, and the section of the examination report pertaining to flare-ups was not completed. However, the examiner noted earlier in the report that the Veteran’s symptoms included symptoms suggestive of flare-ups, to include loss of strength, popping, cracking, instability, limited mobility, reduced range of motion, swelling, and “throbbing pain that gets sharp sometimes and weakness.” The examiner also noted the Veteran’s report that his bilateral knee disabilities interfered with prolonged walking, standing, sitting, daily activities, and using the stairs. Later in the examination report, the examiner indicated that his bilateral knee disabilities interfered with his ability to perform certain work-related activities for longer than thirty minutes. Dating back to the July 2013 VA examination, the Veteran has reported flare-ups of his bilateral knee disabilities. At the time of his July 2013 examination, the Veteran stated that he experienced dramatic flare-ups that manifested after fifteen minutes of standing. He stated that his symptoms included swelling, pain, and noises. In a May 2015 VA examination, the Veteran reported flare-ups that were manifested by pain with prolonged standing, walking, and climbing. The examiners did not estimate what additional loss in range of motion may exist, if any, during flare-ups. During his August 2019 hearing before the undersigned Veterans Law Judge, the Veteran stated that there were times when his knees were so bad that he would have to lay off his knees completely or stop what he was doing, including walking up the stairs or walking for prolonged periods of time. See August 2019 Hearing Transcript, p. 9. Thus, to ensure an adequate record upon which to decide the Veteran’s claims on appeal, and to ensure compliance with the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), the Veteran should be scheduled for a new VA examination. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In performing the examination, the selected examiner should address the nature and severity of the Veteran’s service-connected bilateral disability since March 21, 2011, the date his claims for increased ratings for his bilateral knee disabilities was received. 2. Service Connection for a Left Shoulder Disability. As noted in the December 2019 remand, the Veteran contends that his current left shoulder disability is directly related to injuries sustained during his periods of active duty service. In particular, the Veteran states that he injured his left shoulder while weightlifting in service. He also noted that he had wear and tear on his shoulders in performance of his duties as a firefighter. The Board remanded the Veteran’s claim in December 2019 because a June 2016 VA examination report failed to reflect consideration of the Veteran’s lay statements concerning the onset and continuity of symptoms. Further, the Board also determined that the June 2016 examination was insufficient as it failed to address a September 1991 in-service bone scan that found very slight diffuse increased activity in the region of the acromioclavicular joint on the left. The Veteran underwent an examination in December 2020, and he was diagnosed with shoulder impingement syndrome, rotator cuff tear, acromioclavicular joint osteoarthritis, and glenohumeral joint instability. Ultimately, the examiner opined that the Veteran’s left shoulder disorder was less likely than not related to his military service because his separation examination indicated no problems or complaints related to the left shoulder. The examiner indicated that the Veteran had been out of service since 1980, and the current status could have been incurred since leaving service. The December 2020 opinion is insufficient for two reasons. First, the examiner’s opinion is based on an incorrect understanding that the Veteran’s military service ended in 1980. The record shows that although the Veteran was discharged from his first period of active duty in June 1980, he then served more than seventeen additional years from April 1982 to May 1999. Second, despite the Board’s instruction, the examiner’s opinion appears to be based solely on the absence of any chronic condition noted during service, and it fails to reflect consideration of the Veteran’s lay statements concerning the onset and continuity of his left shoulder symptoms, or the September 1991 in-service bone scan. When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given that the medical evidence of record fails to adequately address the issues raised, a new opinion is necessary. 3. Service Connection for Sleep Apnea As noted in the December 2019 remand, the Veteran contends that his current sleep apnea disability had onset during his period of active duty service. In August 2019, he testified as to longstanding symptoms of snoring and stopped breathing during sleep dating back to his military service. In connection with the Board’s December 2019 remand, the Veteran underwent a VA examination in December 2020, and obstructive sleep apnea was diagnosed. Ultimately, the examiner opined that the Veteran’s obstructive sleep apnea was less likely than not related to his military service because his service treatment records do not support hypersomnia, snoring, and/or trouble sleeping during service, and there was insufficient medical evidence in the service treatment records to support chronicity and continuity of care. Again, the examiner noted that the Veteran had been out of the service since 1980, and continuing factors included obesity and anatomy of the throat/neck. The December 2020 opinion is insufficient for two reasons. As before, the examiner’s opinion is based on an incorrect understanding of the Veteran’s period of service. Second, despite the Board’s instruction, the examiner’s opinion appears to be based solely on the absence of any chronic condition noted during service, and it fails to reflect consideration of the lay statements of record from concerning the onset and continuity of his sleep problems. Given that the medical evidence of record fails to adequately address the issues raised, a new opinion is necessary. On remand, any updated VA treatment records should be associated with the claims file. The matters are REMANDED for the following action: 1. Associate with the file any updated VA treatment records. 2. Schedule the Veteran for an appropriate examination to determine the nature and severity of his service-connected bilateral knee disabilities. The entire record must be made available to and be reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his service-connected bilateral knee disabilities. Any indicated evaluations, studies, and tests should be conducted. The examiner is asked to address the following: a) Based on all pertinent evidence of record, the examiner should describe all symptoms associated with the Veteran’s service-connected bilateral knee disabilities since March 21, 2011. In this regard, the examiner should also ask the Veteran to provide a history as to the nature and severity of his service-connected bilateral knee disabilities during this period, to include a history of flare-ups. b) The examiner should then ask the Veteran to report any range of motion loss during flare-ups or following repeated use for the period since March 21, 2011. The Veteran should be asked to identify: (1) the frequency of flare-ups; (2) the duration of flare-ups; (3) any precipitating factors; and (4) any alleviating factors. Even if the evidence of record fails to including objective findings documenting the nature and severity of the Veteran’s service-connected bilateral knee disabilities during flare-ups or following repetitive use, the examiner must elicit from the Veteran relevant information as to his flare-ups and ask him to describe the additional functional loss, if any, he suffers during flare-ups or following repeated use. c) For both knees, if the examination does not occur during a flare-up or following repetitive use, based upon the evidence of record, and the information elicited on examination, please address whether it is at least as likely as not (50 percent probability or greater) that, during a flare-up or following repetitive use, limitation of flexion has been limited to 30 degrees, and/or extension is limited to 10 degrees at any point since March 21, 2011. If limitation of flexion has been limited to less than 30 degrees, or limitation of extension has been limited to more than 10 degrees, please estimate the additional degree of motion loss. If examination findings conflict with the prior VA examination reports or the Veteran’s lay statements, the examiner should attempt to reconcile these discrepancies to the extent possible. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 3. Obtain a medical opinion addressing the etiology of the Veteran’s left shoulder disability. The record must be made available to, and reviewed by the opinion provider. Following a review of the entire record, the reviewing clinician should address the following questions: Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s left shoulder disability or disabilities had its onset during, or are otherwise related to, his active duty service, to include an in-service weight lifting injury and/or the wear and tear on his shoulders in performance of his duties as a firefighter? In providing a response, the clinician is asked to consider and comment upon the Veteran’s service treatment records, including the September 1991 bone scan results, the September 1998 service treatment record documenting Veteran’s in-service weight lifting injury; the September 1999 VA examination wherein the Veteran reported having shoulder dislocations since the 1980s; as well as the Veteran’s current assertion that he has experienced recurrent shoulder dislocations since service to the present day. All opinions should be supported by a medical explanation or rationale. If, in the reviewing clinician’s opinion, the above questions cannot be answered without an in-person or virtual examination or interview, such should be scheduled. 4. Obtain a medical opinion addressing the etiology of the Veteran’s sleep apnea disability. The record must be made available to, and reviewed by the opinion provider. Following a review of the entire record, the reviewing clinician should address the following questions: Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s sleep apnea had its onset during, or is otherwise related to, his active duty service? In providing a response, the clinician is asked to consider and comment upon the lay statements from the Veteran concerning his in-service snoring, the complaints from his fellow servicemembers at the time, and the instance when he had to gasp during sleep. All opinions should be supported by a medical explanation or rationale. If, in the reviewing clinician’s opinion, the above questions cannot be answered without an in-person or virtual examination or interview, such should be scheduled. 5. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.