Citation Nr: 21023623 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-00 562 DATE: April 21, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a right eye disability is remanded. Entitlement to service connection for a left knee disability, to include as secondary to service-connected lumbar spine disability, is remanded. Entitlement to service connection for a right knee disability, to include as secondary to left knee disability and/or service-connected lumbar spine disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from March 1985 to September 2006, including service in Southwest Asia. His awards and commendations include the Kuwait Liberation Medal and the Southwest Asia Service Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2015 and June 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a November 2017 correspondence, the Veteran withdrew his prior request for a Board hearing. 38 C.F.R. § 20.704(e). In a November 2018 decision, the Board reopened the claims for entitlement to service connection for obstructive sleep apnea and a right eye disorder, and remanded those claims along with the claims for service connection right and left knee disabilities for additional development, particularly addendum nexus opinions. 1. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran asserts his sleep issues developed during service and that he was advised to seek treatment for his condition. See November 2012 VA 21-4138. Additionally, there is a May 2008 sleep study noting severe obstructive sleep apnea and a September 2015 Disabilities Benefits Questionnaire (DBQ) submitted by a private medical examiner that stated the Veteran has had sleep apnea since 2007, indicating a close temporal proximity to the Veteran’s active service. More recently, an addendum opinion was obtained in October 2020; however, the Board finds this opinion inadequate as the examiner again, akin to the previous examiner, relied on the lack of in-service treatment records and did not adequately address the Veteran’s lay statements regarding the onset of obstructive sleep apnea during service, instead dismissing them due to lack of documented treatment. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (an examination is deemed to be inadequate where the examiner relies on the absence of evidence of disability in the service treatment records, and does not account for competent lay testimony as to onset and continuity of symptoms, to provide a negative opinion). Accordingly, an addendum opinion should be obtained on remand. Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). Any outstanding records should also be secured. 2. Entitlement to service connection for a right eye disorder is remanded. In February 2020, a VA examiner opined against a relationship between the Veteran’s current eye condition and service. The Board finds this opinion inadequate, as the examiner did not address the in-service corneal abrasion to the right eye with removal of a foreign body in 1992 and/or removal of a pterygium in September 1995, as specifically directed by the Board. Instead, the examiner focused on the eye disorder as related to dermatitis. On remand, an addendum opinion is needed to address the aforementioned 1992 and 1995 in-service incidents as related to the Veteran’s current right eye disorder. See Barr, supra. 3. Entitlement to service connection for left knee disability, to include as secondary to service-connected lumbar spine disability, is remanded. 4. Entitlement to service connection for right knee disability, to include as due to left knee disability and/or secondary to service-connected lumbar spine disability, is remanded. Concerning the Veteran’s left knee and right knee disabilities, a November 2015 VA examiner diagnosed the Veteran with left knee patellofemoral pain syndrome, while a January 2016 VA examination diagnosed the Veteran with the same condition, bilaterally. As the Board found the accompanying nexus opinions to be inadequate, it remanded the claims. In January 2020 a VA addendum opinion was submitted that the Veteran’s current right knee disability is not related to service and that the Veteran does not have a current left knee disability, despite the diagnoses made during the appeal period. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim). The Board finds these opinions inadequate, as the examiner stated that there is absolutely no documentation of knee problems during service when there clearly was. See, e.g., April 1988 service treatment record (STR)(noting a bilateral knee injury and right knee giving out). Moreover, the examiner did not address secondary service connection based on aggravation in relation to the left knee. On remand, an addendum opinion should be secured addressing the in-service knee treatment, conceding current left knee and right knee disabilities. See Barr, supra. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records, to include from Carolina Orthopedics. As the Board is remanding the claim again, it will afford the Veteran another opportunity to complete and return the appropriate release forms. 3. Then obtain an addendum opinion from a VA examiner other than the November 2015 and October 2020 VA examiners as to the etiology of the Veteran’s sleep apnea. The claims file should be made available to and should be reviewed by the examiner. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. For diagnosed obstructive sleep apnea, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder had its onset during active service or is otherwise related to the Veteran’s service. In addressing this question, the examiner must discuss and accept as true the following and determine whether a nexus to service is medically plausible based on the same: (a) the Veteran’s statement as to an onset of his sleep disorder during service and his reports of continuous sleep problems since that time, and the fact that his May 2008 sleep study demonstrated severe obstructive sleep apnea as potentially reflective of an earlier onset of the condition. See November 2012 VA Form 21-4138; March 2016 Notice of Disagreement (NOD); December 2016 VA Form 9; (b) the Veteran’s wife’s September 2015 statement that she noticed his apnea symptoms starting around June 2000 when he would complain of not sleeping well and feeling exhausted during the day, and how during the night he would snore and stop breathing. 4. Obtain an addendum opinion from a VA examiner other than the April 2007, May 2016, and February 2020 VA examiners, as to the etiology of the Veteran’s right eye disorder. The claims file should be made available to and should be reviewed by the examiner. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current right eye disorder began during active service or is related to an incident of service, to include: (a) a corneal abrasion to the right eye with removal of a foreign body in 1992 and/or (b) removal of a pterygium in September 1995. In addressing this question, the examiner must discuss and accept as true the Veteran’s statement that he has constant dry eyes as a continuation of his in-service eye injury, with continuous itching and irritation since he separated from service, and determine whether a relationship between his current diagnoses and procedures in service is “medically plausible”. See July 2016 NOD; December 2016 VA Form 9. 5. Obtain an addendum opinion from a VA examiner other than the April 2007, November 2015, January 2016, and January 2020 VA examiners to determine the etiology of any left knee disability diagnosed during the appeal period. For each left knee disability diagnosed since June 2015, even if resolved, to include but not limited to patellofemoral pain syndrome, please opine whether it is at least as likely as not (50 percent probability or more) that such disability: (a) began during active service or is related to an incident of service; In answering this question please address: i. the April 1988 in-service notation of a bilateral knee injury; ii. the March 1994 in-service notation of shin splints; iii. the September 2005 in-service report of chronic pain in the left knee; iv. a notation of knee trouble in May 2006 at his separation examination; and v. the Veteran’s statement that his left knee symptoms began in service in 1994 as a result of carrying heavy objects, which you are to concede as consistent with his military occupational specialty (MOS) as a mechanic, and determine whether a nexus to service is “medically plausible” based on the same. (b) has been aggravated (worsened) by his service-connected lumbar spine disability. 6. Then secure an addendum opinion from a VA examiner other than the April 2007, November 2015, January 2016, and January 2020 VA examiners to determine the etiology of any right knee disability diagnosed during the appeal period. For each knee disability diagnosed since June 2015, even if resolved, to include but not limited to patellofemoral pain syndrome, please opine whether it is at least as likely as not (50 percent probability or more) that such disability: (a.) began during active service or is related to an incident of service. In answering this question please address: i. the April 1988 notation of bilateral knee injury and the Veteran’s complaint of his right knee giving out when it swells; ii. the March 1994 notation of shin splints; iii. a notation of knee trouble in May 2006 at his separation examination; and iv. the Veteran’s statement that his right knee symptoms began in service in 1994 as a result of carrying heavy objects, which you are to concede as consistent with his MOS as a mechanic, and determine whether a nexus to service is “medically plausible” based on the same. If and only if the Veteran’s left knee disability is service-connected and the right knee disability is not service-connected, please also opine as to whether it is at least as likely as not (50 percent probability or more) that such disability: (b.) is proximately due to the Veteran’s service-connected left knee disability; or (c.) is aggravated (worsened) by his service-connected left knee disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, 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.