Citation Nr: 21028798 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 19-36 111 DATE: May 12, 2021 ORDER Entitlement to service connection for a left knee disorder, to include left knee tendonitis and patellofemoral pain syndrome (PFS), is granted. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, is remanded. FINDING OF FACT The Veteran's left knee disorder, to include left knee tendonitis and patellofemoral pain syndrome (PFS), began during his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee disorder, to include left knee tendonitis and patellofemoral pain syndrome (PFS), are met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1984 to June 1992. He is a Veteran of the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal of May 2018 and June 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The May 2018 rating decision granted service connection for right ear hearing loss, with a noncompensable evaluation effective from April 16, 2018, denied service connection for left ear hearing loss; denied service connection for tinnitus; and denied service connection for left knee tendonitis. The June 2018 decision denied service connection for obstructive sleep apnea. This matter was previously before the Board in March 2020 at which time service connection for left knee tendonitis was denied. Service connection for left ear hearing loss and tinnitus was granted so these claims are no longer subject for current appellate review. Entitlement to a compensable evaluation for right ear hearing loss was denied. Service connection for a lumbar disorder and obstructive sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD), were remanded. However, because service connection for lumbosacral strain was granted by an October 2020 rating decision, this issue is also no longer a matter for current appellate consideration. Thereafter, the Veteran timely appealed the Board's March 2020 decision that denied entitlement to service connection for left knee tendonitis to the United States Court of Appeals for Veterans Claims (Court). The parties filed a Joint Motion for Partial Remand (JMR) relating. On January 13, 2021, the Court issued a decision that vacated and remanded only the denial of entitlement to service connection for left knee tendonitis to the Board for readjudication and issuance of a new decision. In view of the recent issuance of a supplemental statement of the case with respect to the issue of entitlement to service connection for sleep apnea, this issue has now been reunited with the issue of entitlement to service connection for a left knee disorder in the instant appeal. Service Connection Generally, service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38U.S.C. §1110; 38C.F.R. §3.303(a). Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. at 448 (1995). 1. Entitlement to service connection for a left knee disorder, to include left knee tendonitis and patellofemoral pain syndrome (PFS) The Veteran contends that his left knee disorder is related to left knee tendonitis while on active duty. As noted in the introduction, in January 2021, the Court of Appeals for Veteran's claim granted the parties' JMR and remanded the issue of entitlement to service connection for left knee tendonitis to the Board for readjudication and issuance of a new decision. The Court found the May 2018 examiner's rationale was unclear and therefore inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 301 (2008). The Court stated that the examiner noted the date of onset of the Veteran's knee disorder as 1990, due to a motor vehicle accident during service resulting in traumatic injury to the left knee. The examiner also noted that the Veteran's condition since onset "has progressed with pain when walking and standing." The examiner opined that the Veteran's left knee tendonitis with patellar femoral syndrome (PFS) is less likely than not incurred in or caused by the left knee condition during service. The examiner's rationale noted that the Veteran was released from active duty in 1992, and that records indicate an incident involving the left knee in 1988; however no followup treatment was ever documented suggesting his acute left knee event resolved. This indicates that left knee current conditions must be unrelated to service and thus a negative opinion will be rendered. The Court stated that the examiner noted in the medical history section of the examination that Veteran has had knee pain since 1990 following a motor vehicle accident resulting in traumatic injury to his left knee, but then he mentioned an incident involving the left knee in 1988 and noted "that no follow up treatment was ever documented suggesting that his acute left knee event resolved." The examiner noted that the Veteran took Motrin, Tylenol, and used a knee brace to treat his left knee pain but did not reconcile this with his rationale that the left knee issue must have resolved since no follow-up treatment was ever documented. The Court found that the examiner's failure to address the medical history favorable to Veteran's claim in the rationale deprived the Board of the information necessary to accurately assess whether the Veteran had continuing symptoms following the in-service injury to his left knee and whether his left knee condition is related to service. Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). Here, the Board notes that the first two elements required to establish service connection have been established. That is, in the May 2018 VA examination, the Veteran was diagnosed with left knee tendonitis/tendinosis and patellofemoral pain syndrome (PFS). Further, service treatment records confirm left knee pain in April 1988 that was diagnosed as tendonitis. The records also note "patellar tendon, tender." As to the final element required to establish service connection, a nexus between the current diagnosis and the in-service event, injury, or illness, as indicated, the May 2018 examiner noted a 1990 date of onset for the diagnosed disorders of left knee tendonitis/tendinosis and patellofemoral pain syndrome (PFS). The examiner noted that during deployment, the Veteran was involved in a motor vehicle accident resulting in traumatic injury to his left knee. The Veteran reported continuing left knee pain. The examiner noted that the left knee disorder has progressed with pain when walking and standing. The examiner noted that the Veteran took over the counter medication and used a knee brace. On examination, pain was noted "infra patella," "mild," "directly related to tendonitis and PFS." Evidence of pain with weight-bearing was noted. The examiner noted that the Veteran experiences difficulty with kneeling down and weight-bearing. Objective evidence of pain on nonweight-bearing was observed. Pain on weight-bearing was documented. Range of motion was limited to 70 degrees in flexion and extension, with difficulty kneeing down, on weight-bearing and evidence of localized tenderness and crepitus. Pain and fatigue significantly limit functional ability with repeated use over a period of time. The examiner opined that the Veteran's current knee disorder to include tendonitis and patellar femoral syndrome was less likely than not (less than 50 percent probability) incurred in or caused by Veteran's knee condition during service. However, his rationale was found to be inadequate by the Court as noted above. In an April 2019 statement, the Veteran reported severe daily knee pain rated at 5 to 7 on a scale of 1-10. He states he has trouble getting out of bed in the morning, and "will fall down if he does not get up slowly to get the strength in his knee that he needs in order to walk." He stated that he cannot put weight on the joint, and that he walks with a limp 80 percent of the time. He reports that he was issued a knee brace and used it until it wore out. He stated that he is a mechanic and his boss is retired military and understands that there are days that he cannot do things that involve his left knee, and has to do light duty on those days. He also reports that the pain level fluctuates and becomes "unbearable" on flare-ups. The Board finds that the Veteran's statements relating to his current left knee disorder are considered competent and credible as to the continuity of his symptoms, and are consistent with the circumstances of his service, and service treatment records. Layno v. Brown, 6 Vet. App. 465 (1994). As noted by the Veteran's representative in the April 2019 Notice of Disagreement, the Veteran's service would necessarily include repeated stress on the Veteran's injured knee and patellar tendonitis is a common overuse injury. Further, at no point in the record did the examiner offer any other explanation or intercurrent cause to support a conclusion that the Veteran's left knee disorder is not related to his documented in-service injury. The Board notes that the Veteran's service treatment records in 1988 indicate a diagnosis of tendonitis and patellar tendonitis, and note that the patellar tendon is tender, and with the current diagnoses, chronicity of these condition is clearly implicated. In addition, the Board notes that the examiner indicated the onset of symptoms as 1990, not 1988 as documented in the service treatment records, indicating that symptoms were still present two years after the documented in-service diagnosis and treatment. The evidence includes service treatment records indicating an in-service injury diagnosed as tendonitis and patellar tendonitis, and subsequent medical records with notations of pain caused by tendonitis and patellofemoral pain syndrome. The Board finds the 2018 VA examiner's finding that the Veteran's left knee disorder progressed from his in-service injury to its current level of disability is highly probative evidence of a continuity of symptomatology in light of the lack of any intercurrent cause in the record and with additional evidence of chronicity, the Board will give the Veteran the benefit of the doubt, and find that service connection for a left knee disorder, to include left knee tendonitis and patellofemoral pain syndrome, is warranted. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, is remanded. The Veteran asserts that his obstructive sleep apnea is directly related to his service or alternatively, is caused by his service-connected posttraumatic stress disorder (PTSD). An April 2015 rating decision granted service connection for PTSD with a 70 percent evaluation effective July 16, 2014. The Veteran was afforded a VA examination in June 2018. He was diagnosed with obstructive sleep apnea as of January 2017 pursuant to a sleep study. He stated that his symptoms of sleep apnea began in the 1990s during service. He stated that he had difficulty going to sleep and staying asleep but did not seek medical attention at that time. After separating from the military, due to being chronically fatigued, he presented to his primary care provider at the Veterans Administration Medical Center and a sleep study was ordered. He was diagnosed with obstructive sleep apnea and was issued a CPAP. The Veteran reported that his quality of sleep has improved; but he continues to awaken at night and feel fatigued in the morning. He reported that at work "I can't concentrate and I get short-tempered." The examiner found that a review of the Veteran's service treatment records reflects that they are silent for a diagnosis of sleep apnea or complaints of snoring, hypersomnolence, gasping, or periods of respiratory cessation during sleep. The examiner discussed the articles, studies, and reviews submitted by the Veteran relating to sleep apneal and also the relationship between sleep apnea and service and sleep apnea and PTSD. The UpToDate review "Overview of Obstructive Sleep Apnea in Adults" notes that obesity is a risk factor for sleep apnea. The examiner noted that the strongest risk factor for sleep apnea is obesity and that the Veteran weighs considerably more now than he did in service and at retirement. The examiner opined that the Veteran has a significant risk factor for the development of sleep apnea (obesity). The examiner opined that the Veteran's obesity "is clearly unrelated to service." Therefore, he opined that it is less likely than not (less than 50 percent probability) that the Veteran's sleep apnea is due to or the result of his service-connected PTSD. Regarding the examiner's opinion that the Veteran's obesity is "clearly unrelated to service, the Board notes that VA's Office of General Counsel (OGC) has held that a claim for secondary service connection may be based on obesity as an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). VAOPGCPREC 1-2017. That is, obesity can be a "stepping stone" if it is related to a service-connected disability. Under 38 C.F.R. § 3.310(a), a disability which is proximately due to or the result of a service-connected disease or injury is service connected. A determination of proximate cause is one of fact, for determination by adjudication personnel. Therefore, it must be determined whether the Veteran's obesity can qualify as an "intermediate step" between the Veteran's service-connected disabilities and other claimed disabilities. Applying the factors described by OCG, adjudicators must resolve the following issues: (1) whether the service-connected disability caused the veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the disability for which secondary service connection is being sought; and (3) whether the Veteran's sleep apnea would not have occurred but for obesity caused by the service-connected disability. If these questions are answered in the affirmative, the Veteran's sleep apnea may be service connected on a secondary basis. Here, the Board notes that the Veteran enlistment examination records his weight as 168 pounds in October 1984 and 183 pounds in February 1990. He weighed 196 pounds in June 1992. In December 2015, the Veteran's weight was recorded as 281 pounds. In April 2017, the Veteran's weight was recorded as 284 pounds. Also, the evidence includes a December 2014 examination for PTSD noted diagnoses of PTSD, Disruptive Mood Dysregulation Disorder, and Alcohol Use. The Veteran's PTSD symptoms were noted as intrusive thoughts, nightmares, flashbacks, suspiciousness, hypervigilance, and social isolation and sleep disorder. Depressive symptoms were noted as rage attack and chronic irritability. Alcohol use was noted as consumption of beer to self-medicate symptoms. The examiner found that there is a strong co-morbidity between symptoms. The examiner noted that the Veteran's depression tends to intensify his PTSD symptoms and that he tends to drink to control the symptoms. The Veteran reported drinking 8 to 12 beers every day. He stated, "That is the only way I can sleep." Also, an April 2017 psychiatry outpatient note indicates that the Veteran reported he has been anxious for year and that he has been self-medicating with alcohol, drinking 6-10 beers daily. As the issue of obesity as a "stepping stone" to service connection, if related to service-connected PTSD, has not been addressed by the adjudicator, the Board finds a remand is necessary for an addendum opinion addressing whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that the Veteran's service-connected PTSD and/or its prescribed medications and/or resulting obesity caused or aggravated the Veteran's sleep apnea. The matters are REMANDED for the following action: The AOJ must transfer the Veteran's VA file to an appropriate VA clinician for the purpose of obtaining medical opinions concerning the etiology of his chronic obstructive sleep apnea. After a review of the file, the examiner must address the following: (a) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea is related to active service. (b). Provide an opinion concerning whether it is at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea is caused or aggravated by his service-connected PTSD. (c). Provide an opinion concerning whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected PTSD caused or resulted in the Veteran's obesity; and if so: (d). Provide an opinion whether it is at least as likely as not (50 percent probability or greater) that obesity caused by the Veteran's service-connected PTSD was a substantial factor in causing the Veteran's chronic obstructive sleep apnea. * The AOJ should only arrange for further examination of the Veteran, by an appropriate physician, if one is deemed necessary in the judgment of the physician designated to provide the addendum opinion. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.