Citation Nr: 21024326 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-10 814 DATE: April 22, 2021 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s right knee disability began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran’s sleep apnea began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran served on active duty from February 1986 to April 1986 and from February 1995 to September 1997. The Veteran testified at a travel board hearing in March 2018. In June 2018, the Board reopened the right knee claim and remanded these matters to obtain new VA medical examinations and to make efforts to confirm the Veteran’s service in Southwest Asia. Regarding the Veteran’s claims of service connection for a right knee disability and sleep apnea, there has been substantial compliance with the remand directives and the matters are again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Regarding the claim of service connection for bilateral hearing loss, while the Board regrets further delay, remand is again warranted to ensure the Veteran all due process. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). In some cases, a grant of service connection is available on a presumptive basis. Service connection may be presumed for certain chronic conditions, such as arthritis, if a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and the condition manifested to a compensable degree within one year of the date of discharge from service. 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for a right knee disability The Veteran contends that he suffers from a right knee disability related to service. At the March 2018 hearing, the Veteran testified that his current right knee disability is related to an injury incurred in service during physical training, while running on concrete. The Veteran’s service treatment records are silent for complaints or treatment of a right knee disability. At an August 1997 separation examination, the Veteran did not report any history of knee problems, and a physical examination made normal findings for the lower extremities. VA treatment records show that the Veteran has a current diagnosis of right knee arthralgia. In a March 2018 statement, the Veteran’s spouse indicated that he drags his knee when he tries to run. The spouse indicated that he did not have this problem before service. Pursuant to the June 2018 remand, the Veteran was provided with a VA knee examination in August 2019. The examiner conducted an in-person examination of the Veteran and reviewed the medical history contained in the Veteran’s VA e-folder. The examiner noted a 1998 diagnosis of right knee strain. Reviewing the Veteran’s medical history, a July 2011 x-ray of the knee was normal. An x-ray taken as part of the August 2019 VA knee examination was also normal. After examining the Veteran and reviewing his medical history, the examiner opined that the current right knee disability was less likely than not incurred in or caused by the claimed in-service injury. The examiner noted that the Veteran currently is diagnosed with subjective pain of the right knee. The examiner found that the right knee pain was of unknown etiology and was not caused by any in-service right knee condition. The examiner concluded that the Veteran does not demonstrate a knee condition which may or may not be attributable to any in-service knee condition. The Board acknowledges the lay statements made by the Veteran and his spouse indicating that his knee condition is related to service. The Veteran and his spouse are competent to provide testimony concerning factual matters of which they have first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, a layperson without the appropriate medical training and expertise is simply not competent to provide a probative opinion on a complex medical matter, such as an etiological relationship between any current disability and military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The August 2019 VA examiner reviewed the record, interviewed the Veteran, and examined the Veteran. The examiner’s opinion was based on the specific facts of this case as presented in the record and by the Veteran at an in-person examination. The examiner reviewed the record and provided appropriate rationales that are factually accurate, fully articulated, and soundly reasoned. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Accordingly, the Board accepts the VA examiner’s opinion as the most probative evidence as whether it is less likely than not that the Veteran’s right knee disability is related to service. The Board has also considered whether a grant of service connection is available on a presumptive basis. Here, the Veteran is competent to report knee pain symptoms since service. However, there is no medical evidence that the Veteran was treated for any right knee arthritis within a year of his discharge from service. Although grateful for the Veteran’s honorable service, the Board concludes that the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to service connection for sleep apnea The Veteran contends that he suffers from sleep apnea related to service. At the March 2018 hearing, the Veteran testified that he experienced snoring during service, and believes his current sleep apnea is related to the rigors of being in the field with artillery during service. The Veteran’s service treatment records are silent for complaints or treatment of a sleep condition. At an August 1997 separation examination, the Veteran did not report any history of sleep problems, and a physical examination made normal findings for the upper respiratory system. VA treatment records from November 2009 show a possible diagnosis of Obstructive Sleep Apnea (OSA) and recommend a sleep study consultation. In a March 2018 statement, the Veteran’s spouse indicated that the Veteran snores and stops breathing at night, consistent with OSA. The spouse further noted that no such condition existed prior to the Veteran’s active duty service. Pursuant to the June 2018 Board remand, the Veteran was provided with a VA sleep apnea examination in August 2019. The examiner conducted an in-person examination of the Veteran and reviewed the medical history contained in the Veteran’s VA e-folder. A sleep study conducted as part of the examination found a diagnosis of obstructive sleep apnea. Based on the Veteran’s statements, the VA examiner found that the condition had its onset 10 years ago, in 2009. The examination report noted that the Veteran stated that he was told by his wife about 10 years ago that he snores loudly and he states that he has become sleepy during the daytime and needs a nap. She has also noted that the Veteran sometimes stops breathing for a few minutes at a time at night. Based upon the examination and review the Veteran’s medical history, the examiner concluded that the Veteran’s sleep apnea condition was less likely than not incurred in or caused by active duty service. The examiner noted that the Veteran has no record of sleep apnea while in service. Therefore, the Veteran’s current sleep apnea cannot be associated or caused by a condition that did not exist during service. The Board acknowledges the lay statements made by the Veteran and his spouse indicating that his sleep apnea is related to service. The Veteran and his spouse are competent to provide testimony concerning factual matters of which they have first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, a layperson without the appropriate medical training and expertise is simply not competent to provide a probative opinion on a complex medical matter, such as an etiological relationship between any current disability and military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The August 2019 VA examiner reviewed the record, interviewed the Veteran, and examined the Veteran. The examiner’s opinion was based on the specific facts of this case as presented in the record and by the Veteran at an in-person examination. The examiner reviewed the record and provided appropriate rationales are factually accurate, fully articulated, and soundly reasoned. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Accordingly, the Board accepts the VA examiner’s opinion as the most probative evidence as whether it is less likely than not that the Veteran’s sleep apnea is related to service. Although grateful for the Veteran’s honorable service, the Board concludes that the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. For purposes of a hearing loss claim, impaired hearing will be considered a disability by VA when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In March 2014, the Veteran was afforded a VA audiology examination to determine the nature and etiology of any hearing loss disability. The results of the March 2014 audiology examination meet the criteria for a diagnosis of bilateral mixed hearing loss for VA disability purposes described above. In June 2018, this matter was remanded by the Board to obtain a new audiology examination and opinion regarding the etiology of the Veteran’s hearing loss. The results of the August 2019 VA audiology examination did not meet the criteria for a diagnosis of hearing loss for VA disability purposes, and the examiner did not provide any opinion regarding etiology. The Board notes that a current disability for the purposes of establishing service connection includes any diagnosis during the period on appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that current disability requirement is satisfied when a claimant “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.”). As the March 2014 VA audiology examination found a diagnosis of bilateral hearing loss, there is evidence to establish a current hearing loss disability under McClain. As such, an addendum opinion should be obtained to determine the etiology of any hearing loss during the period on appeal. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s bilateral hearing loss is at least as likely as not related to service, to include the Veteran’s in-service exposure to hazardous noise. (a.) If the examiner determines that there was no diagnosis of bilateral hearing loss at any point during the period on appeal, the examiner must provide a detailed rationale to support this conclusion along with a discussion of the March 2014 VA audiology examination findings. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Casey, 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.