Citation Nr: 22014273 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 16-23 036 DATE: March 12, 2022 REMANDED Entitlement to service connection for bilateral knee condition is remanded. Entitlement to service connection for blood clot in bilateral legs, to include peripheral arterial disease, is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from August 1982 to May 1992 with additional reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. These claims were last before the Board in September 2021 where they were remanded for additional development. It appears the Veteran's service treatment records (STRs) are incomplete. When STRs are lost or missing, the United States Court of Appeals for Veterans Claims has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). 1. Entitlement to service connection for bilateral knee condition is remanded. 2. Entitlement to service connection for blood clot in bilateral legs, to include peripheral arterial disease is remanded. The Veteran is seeking entitlement to service connection for a bilateral knee condition and blood clots in the legs, which he contends began during service and/or is related to an alleged fall from a personnel carrier during service. While further delay is regrettable, the Board finds that additional development is needed prior to adjudication of this claim. Although addendum medical opinions were obtained in September 2021, the examiner seemed to rely in part on the absence of service records, noting that, "there are STR's in the VBMS but these did not mention any report of blood clot, or injury to his legs, or bilateral leg cramps or [PAD]." The Board finds that an additional opinion is needed in light of the unavailability of STRs from August 1982 to May 1992. 3. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran is seeking entitlement to service connection for obstructive sleep apnea, which he contends had its onset during service. While further delay is regrettable, the Board finds that additional development is needed prior to adjudication of this claim. In accordance with prior remand instructions, an addendum opinion was obtained in September 2021. The VA examiner was instructed to determine whether it is at least as likely as not that the current obstructive sleep apnea disability arose during service or is otherwise related to service. See September 2021 Board Remand. The VA examiner was further instructed to consider the Veteran's contention that he had loud snoring during service and his ex-wife's statement that he snored heavily and erratically and thrashed his arms and legs while sleeping when they were a couple from May 1991 to January 2006. Id. The VA examiner was notified that the Veteran's STRs from August 1982 to May 1992 are unavailable. Id. The September 2021 VA examiner opined that the obstructive sleep apnea condition claimed was less likely than not (less than 50% probability) arose during service, incurred in or caused by the claimed in-service injury, event or illness. The provided rationale once again noted that the VA examiner reviewed all available medical records, that the STRs of record did not mention any report of sleep issues, and that the lay statements of record were "reviewed and considered" by the VA examiner. The rationale concluded, "The symptoms [the Veteran and other buddy statements] presented were not diagnosis of sleep apnea," and "Obstructive & Central sleep apnea can only be diagnosed by a sleep study." However, the rationale, again, relies on the lack of in-service medical documentation of a sleep apnea diagnosis or symptoms and does not adequately consider the reports regarding the onset and continuity of symptoms. As such, additional opinion is warranted. Further, the VA examiner noted a "discrepancy" from the two buddy statements who reported that they witnessed the Veteran's snoring. The VA examiner stated, "The buddy statement [on] January 8, 2015 noted she was married to the Veteran from May 1991 to Jan 1996 while the buddy statement on July 12, 2019, noted that she was married to the Veteran from 1988 to 1992. *** The overlapping year of being married to the veteran are 1991 and 1992." However, the Veteran's representative clarified, "It should be pointed out that the second wife's lay statement stated that they were a 'couple' from May 1991 to January 2006. This does not state that they were married in 1991, only that they were a couple. Both spouses, however, indicated that [the Veteran] snored heavily, thrashed around, slept restlessly and stopped breathing. No, they are not doctors, however, they are witness to this veteran's symptoms which date back to his time on active duty." See December 2021 Appellate Brief. The matters are REMANDED for the following action: 1. Obtain an addendum opinion with respect to the Veteran's claims for service connection for bilateral knee disability and blood clots of bilateral leg. The claims file must be reviewed by the examiner. If a new examination is deemed necessary to respond to the request, one should be scheduled. After review of the claims file, the examiner should respond to the following questions. The examiner may accept for the sake of argument that the Veteran fell off an armored personnel carrier and that he experienced leg pain and muscle cramping treated with ice during service. a. Is at least as likely as not (approximate balance) that the Veteran's right and/or left knee condition is related to the claimed fall from a personnel carrier, to include whether a current knee disability is a delayed post-traumatic residual? The examiner should explain why or why not. b. Is it at least as likely as not that his claimed muscle cramping during service was symptomatic of undiagnosed peripheral arterial disease? The examiner should explain why or why not. c. If not, is it at least as likely as not that the currently claimed blood clots are etiologically related to the claimed fall from a personnel carrier during service? The examiner should explain why or why not. d. If the examiner cannot provide an opinion without resort to speculation, it is essential that he or she explain why an opinion cannot be provided (i.e. lack of records, limits of medical knowledge, etc.). 2. Obtain an addendum opinion with respect to the Veteran's obstructive sleep apnea claim. The claims file must be reviewed by the examiner. If a new examination is deemed necessary to respond to the request, one should be scheduled. After review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (approximate balance) that the current sleep apnea disability arose during service or is otherwise related to service. In rendering the opinion, the examiner should consider the Veteran's contention that he had loud snoring during service and his ex-wife's statement that he snored heavily and erratically and thrashed his arms and legs while sleeping when they were a couple from May 1991 to January 2006. The examiner should explain why or why not. If the clinician cannot provide an opinion without resort to speculation, it is essential that he or she explain why an opinion cannot be provided (i.e. lack of records, limits of medical knowledge, etc.). 3. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. N. Wilson, 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.