Citation Nr: 21026251 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-10 520 DATE: April 30, 2021 REMANDED Entitlement to an initial compensable rating for allergic rhinitis is remanded. Entitlement to an initial compensable rating for obstructive sleep apnea, status post tonsillectomy and uvulopalatopharyngoplasty (UPPP) with history of external valve collapse and deformity of the nose prior to February 3, 2016, and in excess of 30 percent thereafter, is remanded. Entitlement to service connection for a left knee disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from February 1999 to July 2014. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The RO, in pertinent part, denied service connection for a left knee disorder and granted service connection and 0 (zero) percent (noncompensable) ratings for allergic rhinitis and obstructive sleep apnea, effective August 1, 2014. In April 2016, while the current appeal was pending, the RO amended the characterization of the Veteran’s sleep apnea disability to include “[status post] tonsillectomy and UPPP and history of external valve collapse with deformity of the nose” and increased the rating therefor to 30 percent, effective February 3, 2016. This case was previously before the Board in November 2019. At that time, the Board denied service connection for the left knee and denied higher ratings for allergic rhinitis and obstructive sleep apnea. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted a Joint Motion for Remand (JMR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board’s decision and remanding the issues for readjudication. 1. Entitlement to an initial compensable rating for allergic rhinitis is remanded. 2. Entitlement to an initial compensable rating for obstructive sleep apnea, status post tonsillectomy and UPPP with history of external valve collapse and deformity of the nose prior to February 3, 2016, and in excess of 30 percent thereafter, is remanded. 3. Entitlement to service connection for a left knee disorder is remanded. With respect to all three issues on appeal, the Court vacated the Board’s November 2019 decision, in part, for failing to discuss whether VA’s duty to assist had been met in light of the Veteran’s February 2016 statement that he had received VA treatment at facilities located in Las Vegas, Nevada, and Columbia, South Carolina. Significantly, the JMR noted that, “While the record contains some medical records from both facilities, these appear to be limited in scope and the record does not appear to contain any general request for medical records from either facility.” In order for VA to fulfill its statutory duty to assist, additional efforts must be undertaken to obtain any outstanding VA treatment records. Furthermore, it is imperative that all efforts taken to obtain these records be well documented in the electronic claims file so that the Board may make a factual finding concerning the adequacy of the development conducted in the event that such records either do not exist or cannot be obtained. Additionally, with respect to the left knee, the Board notes that a December 2014 VA examiner noted that “there is no objective evidence of left knee patellofemoral pain syndrome on today’s examination.” In the history section of the examination report, the examiner noted that the Veteran had been diagnosed with a broken knee, per X-rays taken in 2013, as a result of a fall. Although service treatment records document a May 2013 fall and injury to the left knee, the contemporaneous records indicate that X-rays were negative for fracture. However, service treatment records show that the Veteran was assessed with left knee patellofemoral syndrome in May 2013 and with likely left knee patellofemoral syndrome in June 2013. Unfortunately, the in-service assessments of patellofemoral syndrome were not expressly addressed by the VA examiner. Under the circumstances, the Board finds that a new examination is warranted to ascertain whether the Veteran has any current residuals that are related to his documented in-service complaints. These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records, to include those identified by the Veteran from Las Vegas, Nevada, and Columbia, South Carolina. The efforts made to obtain VA treatment records should be clearly documented in the electronic claims file. If such documents do not exist or cannot be obtained, this fact must also be documented so that the Board may make a factual finding concerning the adequacy of the development conducted. 2. After completing the development noted in the preceding paragraph, arrange to have the Veteran afforded a new VA examination to ascertain whether he has any current residuals related to his documented in-service left knee complaints. The VA examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has had a functional impairment of his left knee at any time since his separation from service and, if so, whether it had its onset during, or is otherwise related to, service, including the documented in-service left knee injury in May 2013 and associated assessments of patellofemoral syndrome (see May 2013 and June 2013 service treatment reports). A complete rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Gielow, 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.