Citation Nr: 21023675 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-08 151 DATE: April 21, 2021 ORDER Entitlement to service connection for a right knee disability is denied. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a tonsillectomy is remanded. FINDING OF FACT The preponderance of the evidence is against finding that a right knee disability began during active service, or is otherwise related to an in-service injury or disease. Nor was arthritis diagnosed within one year of separation. CONCLUSION OF LAW The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the U.S. Army from February 1979 to March 2002. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in a July 2019 decision, the Board denied entitlement to service connection for a bilateral shoulder numbness and tingling, a cervical spine disability, a right ankle disability, and bilateral foot bursitis. The Board also remanded the claims for entitlement to service connection for a bilateral knee disability, sleep apnea, and tonsillectomy. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In July 2020, the Court vacated the Board decision with regard to the claims for a bilateral shoulder disability and a cervical spine disability and remanded the Veteran’s claim for action consistent with the directives of a joint motion for partial remand (JMPR). In the June 2020 rating decision, the Veteran was granted entitlement to service connection for left knee osteoarthritis and left knee osteoarthritis with recurrent patellar dislocation and assigned 10 percent ratings, effective February 17, 2015, respectively, representing full grants of the matter previously on appeal. Accordingly, the matter of entitlement to service connection for a left knee disability is no longer before the Board. Entitlement to service connection for a right knee disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The disease need not be diagnosed within the presumption period, but it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Right Knee The Veteran has claimed that he has a right knee disability that was caused by running and extended periods of walking on training exercises during service. The associated pain and limitation of motion have continued since service. The Board notes that he is already service connected for his left knee. In his February 2015 VA Form 21-526EZ (Application for Disability Compensation), the Veteran indicated that he was applying for VA benefits related to a bilateral knee disability. The application did not contain any additional detail with regard to his claimed right knee disability. The Veteran has not asserted that he experienced a continuity of symptoms since his active service and has not otherwise indicated that a relevant chronic disease manifested or was diagnosed within one year of separation from service. The Veteran has provided no evidence supporting a link between his active service and his right knee disability beyond his assertion that it is related to service. He has provided no competent evidence suggesting a link between his claimed right knee disability and service. Conversely, the Veteran’s service treatment records are unremarkable for any complaints of, treatment for, or diagnosis of a right knee disability during active service. Rather, review of his service treatment records shows the Veteran was diagnosed with a left knee strain in 1982 following complaints of pain from a fall. There were no complaints or diagnoses related to his right knee. An examination conducted in January 2001 was normal with the exception of pes planus and an abnormal indication for “mouth and throat.” On the accompanying report of medical history, he did not indicate any knee trouble. An examination conducted in September 2001 indicated his lower extremities were normal. Further, although he endorsed other problems and conditions, on the self-evaluation portion, he specifically denied any knee problems. Post-service medical records offer no information or insight regarding the Veteran’s claim right knee disability. The Veteran was afforded a VA examination in January 2020 and reported bilateral knee pain that was intermittent over his 20-year period of service. He was seen in 1982 but did not complain of further knee pain afterwards because he decided to suck it up and deal with it. He was diagnosed with right knee recurrent subluxation and patellar dislocation. An x-ray conducted as part of the exam showed mild tricompartmental osteoarthritic changes. The examiner opined that since there was no documentation of right knee degenerative joint disease until the exam conducted nearly 20 years since separation, it is less likely than not that the right knee has a direct link to service. Based on the foregoing, the Board finds that service connection for the Veteran’s right knee is not warranted, as there is no medical nexus. The Veteran is competent to report that his right knee pain began during service but his contentions are inconsistent with other evidence in the record. As noted above, the Veteran only reported and was treated for left knee pain following an injury in 1982, and not right knee pain. Nearing separation, there was no indication of any knee problem. His January and September 2001 evaluations were silent for any lower extremity abnormalities. The Board notes that the Veteran had extensive service treatment records and none of them show any complaints, treatment or diagnosis as to his right knee. Moreover, as noted by the January 2020 VA examiner, the Veteran was not diagnosed with arthritis in the right knee until nearly 20 years post separation. To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s clinical evaluation around the time of his separation from service where no lower extremity abnormalities were found. The Board finds separation clinical evaluation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. There is no probative medical evidence of record supportive of the Veteran’s claims. Rather, the VA examiner found that the claimed right knee disability did not develop due to service. The opinion proffered considered all the pertinent evidence of record, to include the statements of the Veteran, and provided complete rationales, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). In this case, the Board finds the most probative evidence weighs against the claim. The first complaints and objective evidence of a right knee disability did occur until more than several years after service. The probative evidence shows that the Veteran’s diagnosed right knee disability had its onset several years after service, and there is no competent evidence to link the Veteran’s right knee disability with an incident of service. Further, the January 2020 VA examiner opined against the claim and provided sufficient rationale. Accordingly, the Board finds that a preponderance of the evidence is against the claim and entitlement to service connection for a right knee disability is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a left shoulder disability, right shoulder disability, and cervical spine disability As noted above, the above claims were remanded in the JMPR due to inadequate examinations. Specifically, the evidence does not show examination of the cervical spine was actually conducted because a lumbar spine disability benefits questionnaire was used. Similarly, for the shoulders, the DBQ was for musculoskeletal disabilities, when the Veteran’s shoulder conditions were described as neurological concerns. As such, a remand is necessary to schedule the Veteran for appropriate VA examinations to determine the etiology of his claimed conditions. Entitlement to service connection for sleep apnea The January 2020 examiner provided a negative opinion on the basis that the Veteran did not have a current diagnosis because following the tonsillectomy another sleep study was conducted and showed he no longer suffered from sleep apnea. However, the regulations only require a diagnosis during the appeal period, which the Veteran had. The examiner failed to the address the remand instructions requesting an opinion on whether the Veteran’s current diagnosis is related to his complaints during service. As such a remand is necessary. Entitlement to service connection for a tonsillectomy A decision on the remanded issue of sleep apnea could significantly impact a decision on the issue of tonsillectomy, the issues are inextricably intertwined. A remand is required. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s claimed right and left shoulder disabilities. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present right and left shoulder disability, to include, if present, radiculopathy, had its onset during his active service, or is otherwise etiologically related to such service. The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms, to specifically include the Veteran’s reports of chronic pain, numbness, weakness and tingling during service. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 3. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s claimed cervical spine disability. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present cervical spine disability, to include a cervical strain, had its onset during his active service, or is otherwise etiologically related to such service. The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 4. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s claimed cervical spine disability. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present cervical spine disability, to include a cervical strain, had its onset during his active service, or is otherwise etiologically related to such service. The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms, to specifically include the complaints of sleep problems and a sore throat during service and his diagnosis of this condition approximately 13 months after discharge from service. If the Veteran’s sleep apnea is found to be related to an in-service injury, event or disease; the examiner should also opine whether the Veteran’s tonsillectomy is at least as likely as not (1) proximately due to his sleep apnea disability , or (2) aggravated beyond its natural progression by his sleep apnea disability. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 5. Following the completion of the above, the Agency of Original Jurisdiction should consider whether additional development is warranted as a result of the above (e.g., development for tonsillectomy). CHRISTOPHER J. O’DONNELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Price, 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.