Citation Nr: 21040736 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 18-18 954 DATE: July 6, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. REMANDED Issue of entitlement to a compensable rating for right knee degenerative joint disease based on limited extension is remanded. Issue of entitlement to a compensable rating for left knee degenerative joint disease based on limited extension is remanded. Issue of entitlement to a rating higher than 10 percent for left knee degenerative joint disease is remanded. Issue of entitlement to a rating higher than 10 percent for right knee instability associated with right knee degenerative joint disease is remanded. Issue of entitlement to a rating higher than 10 percent for right knee degenerative joint disease based on limited flexion is remanded. FINDING OF FACT The evidence is in at least relative equipoise as to whether the Veteran's OSA was incurred in service. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1976 to July 2002. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2015 rating decision issued by the Department of Veterans Affairs (VA). See September 2015 Notice of Disagreement (NOD); February 2018 Statement of the Case (SOC); April 2018 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in a January 2020 hearing. See January 2020 Hearing transcript. The Board notes the Veteran's claims of entitlement to increased ratings for his left and right knee degenerative joint disease was broadened to also encompass his service-connected right knee instability associated with right knee degenerative joint disease (currently rated as 10 percent disabling) and right knee degenerative joint disease based on limited flexion (currently rated as 10 percent disabling). Entitlement to service connection for OSA. The Veteran asserts entitlement to service connection for OSA as having its onset during service. April 2013 VA Form 21-526. The Veteran testified that he was told by family and fellow service members that he snores and stops breathing while sleeping starting in the 1990s. January 2020 Hearing Transcript. The Veteran also testified he had felt tired during the day. Id. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, the Veteran has a diagnosis for severe OSA. June 2011 Private treatment evidence. The lay evidence support that the Veteran snored in the 1990s and would stop breathing while sleeping. In addition to the Veteran's January 2020 testimony about having daytime sleepiness, he submitted lay statements in support his claim. An August 2015 lay statement from E V F indicates that he served with the Veteran while deployed overseas, slept in the same tent, and observed the Veteran to snore very loudly and stop breathing. Mr. E V F also noted that the Veteran had daytime sleepiness and would even doze off mid-sentence. Id. The Veteran's spouse, Y H P, reported that she also noticed in the late 1980s or 1990s that the Veteran would stop breathing while sleeping or wake up gasping for air. July 2015 Lay Statement. She also noted his daytime sleepiness. Id. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay evidence is also competent to describe symptoms that supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the Veteran is able to describe feeling sleepy during service. His fellow service member E V F and his spouse Y H P had the opportunity to observe the Veteran sleeping and witness him gasping for air. Their lay statements are probative in showing that the Veteran snored during service, with occasional gasping for air, and having daytime sleepiness. Private treatment provider J H K, M.D., opined that the Veteran's OSA more likely than not had its onset during service based on his reported symptoms. August 2015 Private treatment evidence. Dr. J H K is a medical professional qualified to opine on the onset the Veteran's OSA and also administer the Veteran's 2011 sleep study that diagnosed his OSA. The Board finds his opinion to be probative. There is also a January 2020 correspondence from T P, DNP, who opined that the Veteran's OSA at least as likely as not had its onset during service based on a review of the medical and lay evidence. The Board finds that this evidence supporting finding the Veteran's current OSA was incurred during service. The Board recognizes that the January 2018 VA examiner opined that it is less likely than not the Veteran's OSA was incurred in or otherwise due to service. January 2020 VA examination medical opinion. However, the VA examiner only considered whether there was "objective evidence" and did not discuss the lay evidence about the Veteran's snoring and breathing during sleep. The Board finds the opinion to be less probative for this reason. Based on the more probative lay and medical evidence, the Board finds that the evidence is in at least relative equipoise as to whether the Veteran's current OSA was incurred during service. Accordingly, entitlement to service connection for OSA is warranted. REASONS FOR REMAND 1. Issue of entitlement to a compensable rating for right knee degenerative joint disease based on limited extension is remanded. 2. Issue of entitlement to a compensable rating for left knee degenerative joint disease based on limited extension is remanded. 3. Issue of entitlement to a rating higher than 10 percent for left knee degenerative joint disease is remanded. 4. Issue of entitlement to a rating higher than 10 percent for right knee instability associated with right knee degenerative joint disease is remanded. 5. Issue of entitlement to a rating higher than 10 percent for right knee degenerative joint disease based on limited flexion is remanded. During the January 2020 Board hearing, the Veteran asserted that his left and right knee conditions have increased in severity since the Veteran was last examined by VA. The Veteran testified that his knees have worsening pain, instability, and locking. January 2020 Hearing Transcript. The Veteran also testified to hearing popping sounds in his knees, using a cane to walk, and having trouble climbing stairs. Id. The last VA examination for his knees was in 2015, about five years prior to his hearing testimony. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his left and right knee disabilities. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right and left knee disabilities. 2. Readjudicate the claims. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lin 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.