Citation Nr: 21041228 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-37 757 DATE: July 8, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a right knee disorder, to include as due to a service-connected disability, is remanded. Entitlement to service connection for a left hip disorder, to include as due to a service-connected disability, is remanded. Entitlement to service connection for a right hip disorder, to include as due to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran service on active duty in the U.S. Air Force from February 1979 to September 1995. The Veteran testified before the undersigned Veterans' Law Judge at a Board video conference hearing in July 2019. A transcript of the hearing has been associated with the claims file. Previously, the claims were before the Board in March 2020. A March 2021 order of the United States Court of Appeals for Veterans Claims (Court) implemented a March 2021 Joint Motion for Partial Remand (JMPR), vacating and remanding, in part, the March 2020 Board decision that denied service connection for a sleep disorder, service connection for a right knee disorder, to include as secondary to a service connected disability, and service connection for a left and right hip disorder to include as secondary to a service-connected disability which are again before the Board. 1. Entitlement to service connection for sleep apnea 2. Entitlement to service connection for a right knee disorder, to include as due to a service-connected disability 3. Entitlement to service connection for a left hip disorder, to include as due to a service-connected disability 4. Entitlement to service connection for a right hip disorder, to include as due to a service-connected disability The Veteran contends that service connection is warranted for sleep apnea, a right knee disorder and right and left hip disorders to include as due to a service-connected disability. Considering the points raised by the parties to the JMPR and a Board review of the claims file, the Board finds a remand is warranted for additional development. First, as to the claim for entitlement to service connection for sleep apnea a remand is warranted for a supplemental VA opinion. The parties to the JMPR in March 2021 raised the issue that the Board failed to provide adequate reasons and bases and fully address the Veteran's claim that he did not know that he had sleep apnea and therefore could not have previously reported symptoms of such in-service. In addition, a private treatment record from October 19, 2015 noted that the Veteran's obstructive sleep apnea was more likely than not exacerbated by his frequent swing shifts with irregular break times in-service. The Board finds that a remand is warranted for a supplemental opinion to address this private opinion of record and well as fully address the Veteran's and associated lay contentions. Next, as to the claims for entitlement to service connection for a right knee disability, service connection for a right hip disability and service connection for a left hip disability a remand is warranted for a supplemental VA examination. The Veteran contends that his right knee and right and left hip disabilities are due to his service and in the alterative are caused or aggravated by his service-connected disabilities. The parties to the JMPR in March 2021 raised the issue that the Board and the prior October 2016 and December 2016 VA examinations failed to fully address direct service connection and secondary service connection. The VA examination in October 2016 noted that it was less likely than not that the Veteran's right and left hip condition was proximately due to or the result of his service-connected left knee chondromalacia patella. A VA opinion in December 2016 found that the Veteran's right knee intermittent patellofemoral syndrome was less likely than not proximately due to or the result of his service connected left knee. A June 2017 private opinion from Dr. R. noted that it is more likely than not that the Veteran's painful bilateral hip and knee conditions are directly related to in-service injuries. An August 2019 private opinion from the Veteran's podiatrist noted that his plantar fascitis pain along with contracted Achilles tendon and gait abnormality could easily cause some of his more proximal symptoms of the hip and knee. The private opinion noted that it is more likely than not that his bilateral hip, foot and knee issues are derived from his right foot plantar fascitis and subsequent gait abnormality. Additionally, his left knee condition could easily lead to more proximal symptoms on the left side including hip issues. The Board finds that this private opinion does not provide a through and reasoned rationale for the conclusions reached and fails to rise to the threshold for granting service connection. In particular during the course of the appeal service connection was granted for bilateral plantar fasciitis, and supplemental opinions should full address direct service connection as well as secondary service connection as due to the Veteran's service-connected left knee disability and bilateral plantar fasciitis. The parties to the JMPR found that a remand was warranted for an adequate examination that fully address direct service connection as well as secondary service connection as to the Veteran's bilateral feet disability. As such a remand is warranted for a supplemental VA examination and opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's obstructive sleep apnea and whether: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's sleep apnea is caused by an in-service injury event or disease? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the Veteran's and associated lay statements and July 2019 testimony noting that he was not aware of the symptoms associated with sleep apnea in-service and that he did not seek medical treatment due to his duties as a security police officer and not wanting to interfere with his in-service duties. The Veteran and associated lay statements from fellow service members, and his current and prior spouse report symptoms of loud snoring, interrupted sleep and gasping for air, irritability and difficulty sleeping in-service. Further, attention is invited to the Veteran's contentions that he did not report any sleep or nighttime breathing problems in-service as he did not know that he had sleep apnea, and that these were symptoms of sleep apnea. Attention is also invited to the October 2015 private opinion noting that the frequent swing shifts and night shifts with irregular break times more likely than not exacerbated the symptoms of sleep apnea. As well as a March 2007 private opinion noting that the Veteran probably had sleep apnea for many years even predating his service. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of his right knee and right and left hip disabilities. The examiner should opine as to whether: (a.) Identify all current right knee disabilities. (b.) Identify all current right and left hip disabilities. (c.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's current right knee disability is caused by an in-service injury, event or disease? (d.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's current right and left hip disabilities are caused by an in-service injury event or disease? (e.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's right knee disability was caused by his service-connected left knee chondromalacia patella and/or bilateral plantar fasciitis? (f.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's right knee disability was aggravated (worsened beyond its natural progression) by his service-connected left knee chondromalacia patella and/or bilateral plantar fasciitis? (g.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's right and left hip disabilities were caused by his service-connected left knee chondromalacia patella and/or bilateral plantar fasciitis? (h.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's right and left hip disabilities were aggravated (worsened beyond its natural progression) by his service- connected left knee chondromalacia patella and/or bilateral plantar fasciitis? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to a June 2017 private opinion from Dr. R. noted that it is more likely than not that the Veteran's painful bilateral hip and knee conditions are directly related to in-service injuries. An August 2019 private opinion from the Veteran's podiatrist noted that his plantar fascitis pain along with contracted Achilles tendon and gait abnormality could easily cause some of his more proximal symptoms of the hip and knee. The private opinion noted that it is more likely than not that his bilateral hip, foot and knee issues are derived from his right foot plantar fascitis and subsequent gait abnormality. Further attention is invited to the VA examination in October 2016 noting that it was less likely than not that the Veteran's right and left hip condition was proximately due to or the result of his service-connected left knee chondromalacia patella. As well as the VA opinion in December 2016 noting that the Veteran's right knee intermittent patellofemoral syndrome was less likely than not proximately due to or the result of his service-connected left knee. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.R. Kardian, 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.