Citation Nr: 21023661 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-02 619 DATE: April 21, 2021 ORDER Entitlement to service connection for left leg condition, claimed as left tibia and/or fibula fracture, is denied. REMANDED Entitlement to service connection for bilateral knee arthritis is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s left leg condition began during active service, or, is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a left leg condition, claimed as tibia or fibula fracture, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force from November 1989 to November 1993 with service in Desert Shield/Desert Storm. The Veteran testified in a March 2019 Videoconference Hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been prepared and is associated with the file. This appeal was last before the Board in May 2020 when it was remanded for additional development, to include a directive to obtain the Veteran’s service treatment records (STR), and if unavailable, to so note. As that action has been completed, this appeal is ready for appellate review. Stegall v. West. 11 Vet. App. 268 (1998). SERVICE CONNECTION Entitlement to service connection for left leg condition, claimed as left tibia and/or fibula fracture At the Veteran’s hearing, the Veteran asked for the record to be held open for sixty days in order to submit evidence regarding his left leg condition claim. No evidence has been submitted. In addition he was unable to articulate any diagnosis for his left leg at his hearing and testified that he did not receive current treatment for it, but had pain, which he described as a shin splint, when he would play basketball. He then stated, “But it only happened rarely when I played basketball and do a quick cut.” When the VLJ questioned him about his left leg condition, to ascertain what he was actually claiming, the Veteran said, “I don’t think I put that down correctly…” and also testified that perhaps the claim for a left leg condition, “was supposed to be any left knee condition…” Nonetheless, the Veteran was afforded a VA examination in regard to his claim for a left leg condition. He was diagnosed with status post fracture of his left tibia/fibula. The Veteran reported that he was involved in a motorcycle accident in 2000 and his left leg was injured as a result of that accident. The examiner provided a negative nexus opinion, noting that per the Veteran’s report, the injury did not happen while he was on active duty, as he left active duty service in 1993, and the injury to his left leg occurred seven years later in 2000. As shown above, an in-service injury is a critical element in a successful claim for service connection. Here, as outlined above, there is no evidence of record showing that the Veteran’s left leg condition is related to an in-service injury, event or disease. Indeed, the evidence shows that the Veteran’s left leg was injured as a result of a motorcycle accident several years after the Veteran left active duty service. Accordingly, the claim for service connection for a left leg condition must be denied. 38 C.F.R. § 3.303. REASONS FOR REMAND Entitlement to service connection for bilateral knee arthritis is remanded. The Veteran asserts that service connection is warranted for his bilateral knee arthritis, diagnosed as degenerative joint disease. He competently testified before the undersigned Veterans Law Judge that he injured his knees when he fell off scaffolding while installing ceiling tiles and further, when he installed carpet on his knees without wearing knee pads, while in the service, and that his knees have hurt ever since then. The Board observes that the Veteran was afforded a VA Knee examination in response to a Board remand. The December 2020 examiner provided a negative nexus opinion regarding the Veteran’s bilateral knee osteoarthritis and his military service. For her rationale, she wrote, “There is no service record of treatment of knees during service.” Indeed, there are no service records at all, which the examiner did not address. She continued to opine that the Veteran’s osteoarthritis was mild and “with no service records indicating knee trauma, the veteran’s bilateral knee osteoarthritis is less likely than not caused by or incurred during service.” The Board observes that the Veteran’s testimony was not addressed, nor was the fact the STRs are deemed unavailable and cannot show either way if the Veteran sought treatment for his knees in service. For all these reasons, the Board finds the VA examiner’s opinion is insufficient for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); Nieves-Rodriguez, 22 Vet. App. at 301 (explaining that a medical report without “a reasoned medical explanation” lacks probative value).     Accordingly, a remand is required to obtain a medical opinion that properly addresses the lay evidence of record, including the Veteran’s testimony and his parents’ statement, as well as the Veteran’s motorcycle accident in 2000, and which does not rely on the absence of STRs as the basis for showing no in-service injury. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. The Veteran testified that prior to going into the Air Force, he had no sleep apnea symptoms, nor did his brother with whom he shared a bedroom, relate anything to him. He stated that when he came home, his father told him he was “sleeping funny,” and also that when he got married, his wife saw the same thing, and told him that he needed to sleep on his side. VA provided a medical opinion regarding the Veteran’s sleep apnea claim in December 2020. The examiner provided a negative nexus opinion. For her rationale, she noted that, “The veteran has no evidence of sleep disordered breathing or apnea during service. There are no treatment records that indicate sleep disordered breathing or apnea until 2006…The apnea was not noted or reported during service.” As noted above, the Veteran’s STRs are not available and it is therefore impossible for the examiner to conclude that the records contain no notes of disordered breathing or apnea in service. In addition, the examiner did not address the Veteran’s credible testimony; it appears to the Board that the examiner determined that the Veteran’s lay evidence lacked credibility merely because it is unaccompanied by contemporaneous medical evidence, in contravention of the holding in Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As such, the Board finds this negative nexus opinion is insufficient for adjudication purposes. Accordingly, a remand is required to obtain a medical opinion that properly addresses the lay evidence of record, including the Veteran’s testimony and his parents’ statement, as well as the Veteran’s motorcycle accident in 2000 and which does not rely on the absence of STRs as the basis for showing no in-service injury. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s bilateral knee arthritis is at least as likely as not related to his in-service fall off scaffolding and prolonged kneeling while installing carpet. The clinician is also asked to opine whether it is at least as likely as not that the Veteran’s bilateral knee arthritis (1) began during active service, or (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner is asked to address the Veteran’s testimony, the parents’ lay evidence, and the Veteran’s motorcycle accident in 2000. The Board notes the unavailability of the Veteran’s STRs; however, the clinician is reminded that the unavailability of STRs alone is not a basis for a negative nexus opinion regarding the in-service element. Provide a rationale to support the opinion. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s obstructive sleep apnea (OSA) is at least as likely as not related to his service. The examiner is asked to address the Veteran’s testimony, the parents’ lay evidence, and the Veteran’s motorcycle accident in 2000. The Board notes the unavailability of the Veteran’s STRs; however, the clinician is reminded that the unavailability of STRs alone is not a basis for a negative nexus opinion regarding the in-service element. Provide a rationale to support the opinion. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Nelson 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.