Citation Nr: 21029621 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 17-58 407 DATE: May 14, 2021 ORDER Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a back disability is granted. Entitlement to service connection for obstructive sleep apnea is granted. FINDINGS OF FACT 1. The Veteran's left knee disability is related to service. 2. The Veteran's right knee disability is related to service. 3. The Veteran's back disability is related to service. 4. The Veteran's sleep apnea began during service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a left knee disability are met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for establishing entitlement to service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for establishing entitlement to service connection for a back disability are met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for establishing entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Army from August 2002 to September 2007, to include service in Afghanistan. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated December 2007 and February 2015 of a Department of Veterans Affairs (VA) Regional Office (RO). As regards to the claims of entitlement to service connection for disabilities of the left knee, right knee, and back, the issues were presented to the Board as whether new and material evidence has been received to reopen the claims. However, the Board finds that the original claims for service connection are still pending and therefore new and material evidence is not required to adjudicate the issues on the merits. By way of history, the Board notes that in July 2007, the Veteran filed claims of entitlement to service connection for disabilities of the bilateral knees and the back. In a December 2007 rating decision, the RO, in pertinent part, denied service connection for the bilateral knees and the back. In August 2008, the Veteran filed a notice of disagreement (NOD), appealing the denial of service connection for these claimed disabilities. Thus, the December 2007 decision did not become final. The RO did not, however, address the Veteran's disagreement with the December 2007 decision. In a February 2015 rating decision, the RO confirmed and continued the previous denials. In April 2015, the Veteran submitted a timely NOD. Based on the above procedural history, the Board finds that the original July 2007 claims of entitlement to service connection for disabilities of the bilateral knees and the back are still pending. Accordingly, the claims of service connection for disabilities of the bilateral knees and the back must be considered as being on appeal from the December 2007 rating decision. In September 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. The Board notes that, during the September 2020 Board hearing, the Veteran stated that her back interferes with her employability, as she must pick jobs that allow her to sit. The Board recognizes the Veteran's testimony regarding her employment as implicitly expressing interest in filing a claim for entitlement to total disability based on individual unemployability (TDIU). The Agency of Original Jurisdiction (AOJ) should invite the Veteran to file a TDIU claim and provide her with VA Form 21-8940. As the present appeal arises from service connection claims as opposed to an increased rating claim, Rice v. Shinseki, 22 Vet. App. 447 (2009) does not apply. The Veteran is advised that her statements do not meet the standards of an intent to file (3.155(b)) or those of a complete claim under 38 C.F.R. § 3.160(a). The AOJ should notify the Veteran as to the procedures required under 38 C.F.R. § 3.155 for filing a claim for VA compensation benefits. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Also, 38 U.S.C. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, '[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.' Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Finally, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for a left knee disability is granted. See Argument Below 2. Entitlement to service connection for a right knee disability is granted. See Argument Below 3. Entitlement to service connection for a back disability is granted. In this case, the Veteran seeks entitlement to service connection for disabilities of the left knee, right knee, and back. Throughout the appeal period, the Veteran has consistently stated that she injured her knees and back in service and that she has experienced bilateral knee and back pain since service. See August 2008 NOD; April 2015 NOD; September 2020 Hearing Transcript. After a review of the evidence of record, the Board finds that service connection for each disability is warranted. Initially, the Board notes that the Veteran's service treatment records do not reflect that the Veteran had any problems related to the bilateral knees or back upon entry into active service. A service treatment record dated December 2003 notes a history of chronic knee laxity. A subsequent service treatment record in December 2003 shows that the Veteran was diagnosed with bilateral chronic knee pain. Another service treatment record dated December 2003 shows that the Veteran was assessed with bilateral retropatellar knee pain. Service treatment records dated January 2004, February 2004, September 2004, October 2004, and November 2004 show that the Veteran continued to complain of bilateral knee pain. The February 2004 service treatment record notes that, at that time, the Veteran's knee pain had not improved over time. She had undergone two rounds of physical therapy and she had been on a temporary profile for approximately one year. A March 2004 physical profile shows that the Veteran had bilateral anterior knee pain. A service treatment record dated October 2004 shows that magnetic resonance imaging (MRI) of the Veteran's knees revealed patellar chondromalacia without cruciate of the left knee. As for the right knee, the MRI showed some minimal quadricep tendinopathy with minimal chondromalacia patella but no fracture, loose body, osteochondral defect or tears of the cruciate ligaments, menisci or collateral ligaments. A service treatment record dated October 2004 shows that the Veteran complained of back pain for seven days. A subsequent service treatment record in October 2004 shows that the Veteran was assessed with lumbar strain. The Veteran's service treatment records show that she sought treatment for her back pain with a civilian chiropractor from 2004 through 2005. A March 2005 treatment record with the treating chiropractor notes that the Veteran's back pain began on March 7, 2005. Post-service medical records show that the Veteran continued to complain of bilateral knee pain and back pain following separation from service. In August 2007, the Veteran underwent a VA general medical examination. She reported that her knees started to hurt in 2003. She also reported that her back pain started around June 2003. A November 2012 private treatment record shows that the Veteran reported that she has had knee pain since 2003. A subsequent November 2012 private treatment record notes a history of bilateral patellofemoral syndrome. In February 2015, the Veteran underwent separate VA examinations for her knees and back. The examiner provided diagnoses of bilateral patellofemoral pain syndrome and low back strain. For each diagnosed condition, the examiner provided a negative nexus opinion. Based on the foregoing, the Veteran has current disabilities of the bilateral knees and back. As such, the first element of service connection for each claim is met. As the above evidence shows, the Veteran suffered bilateral knee pain and back pain in service. Therefore, the in-service disease or injury requirement has been met with regard to each claim. The remaining question is whether there is a nexus between the Veteran's disabilities of the bilateral knees and back with her active service. While the February 2015 VA examiner provided a negative nexus opinion for each claim, the Board finds that the unvarying statements of the Veteran regarding the onset of her symptoms and her symptoms since service to be competent and credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Furthermore, the record reflects that the Veteran's left knee, right knee, and back disabilities did not exist prior to service. Moreover, the record shows that the Veteran consistently complained of pain in the bilateral knees and back during service and post-service. As noted in the preceding paragraph, the Veteran is certainly competent to testify to symptomatology such as chronic pain. Thus, in light of the foregoing and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for disabilities of the left knee, right knee, and back is warranted. 4. Entitlement to service connection for obstructive sleep apnea is granted. The Veteran seeks entitlement to service connection for obstructive sleep apnea. The Veteran's service treatment records do not reflect that she had any sleep disorders upon entry into active service, nor do they reflect that she was treated or diagnosed with a sleep disorder during active service. Post-service medical records show that the Veteran was diagnosed with sleep apnea in 2011. See May 2011 VA treatment record. Throughout the appeal period, the Veteran has stated that she first began experiencing symptoms of this condition in service. The evidence of record includes competent and credible statements from the Veteran and fellow servicemembers. In a July 2012 statement, a fellow servicemember indicated that she served with the Veteran in Afghanistan. Along with the other females, she housed with the Veteran for one year and three months. She stated that the Veteran "had a condition where just after she fell asleep, she would snore extremely loud and at times she would cough and choke herself awake during the night." The fellow servicemember further indicated that everyone in the living quarters were bothered by the Veteran's loud snoring, as it caused everyone to suffer sleep deprivation. In a September 2013 statement, another fellow servicemember indicated that she served with the Veteran from 2004 to 2007. She was the Veteran's roommate for a year. She indicated that she would always keep an eye out on the Veteran because she would snore extremely loud and wake up several times throughout the night choking. She further indicated that "her snoring was so loud that it made it hard for me to sleep most of the time." She described an incident where the Veteran began to choke so badly in her sleep that it caused her to vomit. In her April 2015 NOD, the Veteran stated that she started snoring and choking in her sleep during service. The Board notes that, while the record does not include a nexus opinion, the Board finds that the statements of the Veteran and the fellow servicemembers regarding the onset of her symptoms and her symptoms since service to be competent and credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Moreover, the record reflects that the Veteran's sleep disorder did not exist prior to service. In addition, the competent and credible statements, as discussed above, show that the Veteran's sleep disorder began during service and continued post-service. As noted in the preceding paragraph, the Veteran and roommates in service are certainly competent to testify to symptomatology such as snoring and choking. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for sleep apnea is warranted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.