Citation Nr: 21028504 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-14 310 DATE: May 11, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from October 1987 to October 1990. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in December 2020, which granted a joint motion for partial remand (JMPR) vacating a December 2019 Board decision and remanding the issues on appeal for additional development. The matter initially arose from a May 2016 rating decision by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). 1. Entitlement to service connection for sleep apnea 2. Entitlement to service connection for a left knee disability In the December 2020 JMPR, the parties agreed that the December 2019 Board decision erred by finding there was no medical evidence of sleep apnea or a left knee disability. It was noted that private treatment records dated in February 2017 included a diagnosis of sleep apnea and that the Veteran's reports of left knee pain should be addressed as to whether such pain results in a functional impairment if earning capacity. The Board notes that the term "disability" for VA compensation purposes refers to the functional impairment of earning capacity rather than the underlying cause of the impairment and pain alone may be a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). Therefore, additional development is required for adequate determinations. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination for his claimed sleep apnea disability. The examiner must review the claims file. The examiner is asked to provide a response as to whether the Veteran's diagnosis of a sleep apnea disability (noted in February 2017 private treatment records, even if since resolved) is at least as likely as not related to service? 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. 2. Schedule the Veteran for a VA examination for his claimed left knee disability. The examiner must review the claims file. The examiner is asked to provide a response as to whether a left knee disability is at least as likely as not related to service, to include as a result of his left knee injury in November 1988? If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is advised that pain plus functional impairment is considered a disability for VA purposes, even if no diagnosable condition is present. 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. 3. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. (Continued on the next page) 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. T. Blake Carter Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.