Citation Nr: 22019345 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 17-58 830 DATE: April 1, 2022 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. Entitlement to service connection for a chronic disability of the right shoulder is denied. REMANDED Entitlement to service connection for a chronic disability of the right elbow is remanded. Entitlement to a rating in excess of 50 percent for service-connected unspecified trauma and stressor-related disorder is remanded. Entitlement to a rating in excess of 30 percent from August 1, 2016, for service-connected left knee osteoarthritis, status post total knee replacement is remanded. Entitlement to a rating in excess of 10 percent from October 23, 2015, to December 11, 2017, for service-connected right knee osteoarthritis is remanded. Entitlement to a rating in excess of 30 percent from February 1, 2019, for service-connected right knee osteoarthritis status post total right knee replacement is remanded. Entitlement to a rating in excess of 0 percent for service-connected scarring, postoperative left knee and scalp laceration is remanded. Entitlement to a rating in excess of 0 percent for post-traumatic headaches is remanded. FINDINGS OF FACT 1. The evidence is in approximate balance as to whether the Veteran's obstructive sleep apnea is related to his military service. 2. The Veteran does not have a current chronic right shoulder disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea (OSA) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303. 2. The criteria for entitlement to service connection for a chronic disability of the right shoulder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 2001 to December 2010, to include service in Afghanistan from September 2009 to August 2010. The Veteran also had service in the United States Army National Guard from March 1988 to June 1988. For his meritorious service, the Veteran was awarded, among other decorations, the Afghanistan Campaign Medal and the Defense Meritorious Service Medal. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a virtual hearing held before the undersigned Veterans Law Judge (VLJ). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include arthritis, may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation. 38 U.S.C. §§ 1112, 1113, 1137; 38 U.S.C. §§ 3.307, 3.309(a). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 1. Entitlement to service connection for obstructive sleep apnea (OSA). The Veteran claims that he had problems sleeping while in service and it continued ever since service. See October 2021 Hearing Transcript. Service treatment records show that the Veteran had problems with sleeping during his time in the military. For example, in a November 2010 health treatment record, the physician reported that the Veteran had insomnia and had difficulty staying asleep. In September 2017, the Veteran was afforded a VA examination for sleep apnea. The Veteran was diagnosed with obstructive sleep apnea. The VA examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by the Veteran's in-service injury, event, or illness. A review of the records indicated that the Veteran was seen per outside doctor, Dr. J.W., in November 2010 for evaluation of GERD and sleep problems. The provider indicated that the Veteran's symptoms were consistent with sleep apnea with recommendation for seep study and follow-up afterwards; however, there was no medical evidence that a sleep study was performed to confirm a diagnosis. Subsequently, no diagnosis was established at that time. Service treatment records indicated that the Veteran was seen in the TBI clinic in November 2010 with complaints of insomnia, which was not the same as sleep apnea, and the Veteran reported symptoms of difficulty staying asleep, waking up in 2 to 3 hours with difficulty falling back to sleep, and waking up with security concerns. The Veteran was diagnosed with insomnia, and the provider clearly indicated that the Veteran's insomnia issues were significantly related to his post-combat stress issues. Service treatment records indicated that in October 2010, the Veteran reported snoring and was diagnosed with snoring. An August 1989 (non-active duty service period) examination clearly indicated mild to moderate nasal congestion with respiratory allergy. Medical literature suggested that chronic nasal congestion was a known risk factor for snoring. There was a medical assessment dated August 2010, which was completed at the time of separation examination without any indication of sleep apnea or any other sleep disturbances, which did not suggest a re-occurring or chronic condition. The Veteran apparently re-enlisted into active duty from March 2011 to May 2011, and there was no documented evidenced of sleep apnea or sleep disturbances during that time. As stated in the above medical opinion, sleep studies were recommended for definitive assessment/treatment of any sleep apnea; however, no sleep studies were ever completed as evidence indicated that the Veteran failed to have a testing done when ordered. Active treatment records indicated that a sleep study was ordered at Atlanta VA Medical Center (VAMC) on February 22, 2012 and May 9, 2012; however, the Veteran failed to have testing performed and failed to follow-up with prescribing providers which was not suggestive of a condition that was chronic or re-occurring in nature. Subsequently, there was no medical evidence of a confirmed or established diagnosis of sleep apnea during the Veteran's active duty service period or within 1 year after his military discharge. The condition was confirmed based on a sleep study performed on September 23, 2017. This was six years after separation from service. According to medical literature, excess weight and obesity were the strongest risk factors associated with obstructive sleep apnea in adults as it caused obstruction of the airway during sleep. Research suggested that in comparison to normal-weight adults, those who were obese had a sevenfold increased risk of developing obstructive sleep apnea. The Veteran's obesity was more likely attributed to his development of sleep apnea. There was no evidence that the condition existed during his active duty service. Based on these findings, it was less likely than not that the Veteran had an onset of sleep apnea during his active military service when he was first evaluated for symptoms in November of 2010. In November 2018, the Veteran submitted a private medical opinion from Dr. S.J.R. The private physician stated that the Veteran had been in his clinic since 2013. Back in 2010, the Veteran was told by his medical provider that he had a high likelihood of a sleep disorder like obstructive sleep apnea. The Veteran related a story from 2009 when he was "egged by his roommates at Fort Benning to get another room" because his snoring was so bad. Then, while on active duty in Afghanistan while serving as the Commander of Counter Improvised Explosive Device efforts, his sleep cycle was interrupted by 24/7 operations and frequent night response calls. The Veteran was also noted to fall asleep at his desk. Thus, when back in the United States, the Veteran was sent for testing and was felt to have borderline sleep apnea but fell short of an official diagnosis, and was instead, noted to have upper airway resistance syndrome and periodic limb movement disorder. The Veteran was advised to follow-up in the sleep clinic after some conservative measures were taken. If these conservative measures were unhelpful, he was advised to follow-up for a trial of CPAP. Unfortunately, the clinic he was going to at the time closed shortly thereafter, and he was unable to follow-up. Soon after that time, he went off active duty and did not follow-up with the issue again until 2017 when he was then found to have moderate sleep apnea. The Veteran had been using a CPAP, and he noted that it helped. He felt like he had sleep apnea back in 2010, but his inability to follow-up hindered his diagnosis and treatment. It was very likely that he had untreated sleep apnea prior to his diagnosis in 2017, and it might have been present while he was on active duty. Based on the foregoing, the Board finds that the evidence is at least in approximate balance as to whether the Veteran's sleep apnea is related to his military service. Both the September 2017 negative VA medical opinion and the November 2018 private positive medical opinion are adequate and of probative value; thus, they evenly weigh both for and against the claim. Thus, the evidence of record is in approximate balance, and the benefit of the doubt rule is applicable. Thus, the Board finds that service connection for obstructive sleep apnea is granted. 2. Entitlement to service connection for a chronic disability of the right shoulder. The Veteran contends that he hurt his right shoulder during military service. Service treatment records are silent for any signs, symptoms, or treatment for a right shoulder disability. In May 2016, the Veteran was afforded a VA examination for his shoulder. The Veteran was not diagnosed with a right shoulder condition. The Veteran had a shoulder contusion which had since resolved. The Veteran reported that the right shoulder pain started in 2009 after a 9 foot tall fall onto the shoulder. He was given pain medications, and the abrasions were dressed. At this time, he did not have full range of motion. He had pain located in the front and back. A range of motion testing of the right shoulder revealed that the Veteran's right was normal. The VA examiner remarked that shoulder pain was a disease with a clear and specific etiology and diagnosis. It was less likely than not that the condition was related to a specific exposure event experienced by the Veteran during service in Southwest Asia. This conclusion was reached because there was no evidence in the literature that a connection was likely. The VA examiner further opined that it was less likely than not that the Veteran's right shoulder condition was related to service. He explained that there was no information in the Veteran's service treatment records of a right shoulder condition. The examination was normal except for pain on terminal elevation. X-rays of the GH joint were normal. The Veteran gave a history of a direct injury to the right shoulder with abrasions. Such an injury had a high probability of resolving. The Board notes that there is evidence of record showing the Veteran complaining of right shoulder pain. However, the record does not indicate that the Veteran has ever been diagnosed with any right shoulder disability, nor does the evidence suggest pain resulting in functional loss. The Board notes that pain is a symptom and is not considered an actual disabling condition. For purposes of service connection, pain alone, without a diagnosed or identifiable underlying malady or condition, or a showing of functional loss due to the pain, does not in and of itself constitute a disability for which service connection may be granted. There is no evidence showing chronic disability manifested by right shoulder pain resulting in functional limitation that began in or was caused by service. Importantly, the evidence does not suggest that any right shoulder pain results in functional loss. After a careful review of the evidence of record, the Board finds the weight of the evidence is against the claim of entitlement to service connection for a right shoulder disability. None of the Veteran's medical treatment providers have given any indication that the Veteran had been diagnosed with a chronic right shoulder disability or had a right shoulder disability resulting in functional impairment, and the Veteran has not submitted any competent medical evidence which supports the claim of a current right shoulder disability or shows a relationship between any diagnosed right shoulder disability and service. In the absence of competent medical evidence providing a current, recurrent chronic right shoulder diagnosis or disability, of a showing of functional loss constituting a disability, the threshold requirement for substantiating the claims for service connection is not met. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board is appreciative of the Veteran's faithful and honorable service to our country. The Board acknowledges that VA is statutorily required to resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, the Board finds that the weight of the evidence is against a finding of any diagnosis of a chronic right shoulder disability, or functional loss resulting in disability, or that any right shoulder disability is related to active service. Therefore, the claim for service connection for a right shoulder disability must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a chronic disability of the right elbow is remanded. The Veteran contends that his right elbow disability stems from his fall during service in November 2009 and carrying his gear in the right arm. The Veteran was diagnosed with lateral epicondylitis of the right elbow. The Veteran was afforded VA examinations; however, none of the VA examinations provide an adequate medical opinion as to whether the Veteran's current right elbow condition is related to his military service with regard to the Veteran's contentions. Thus, a remand is warranted for a new medical opinion to address this matter. 2. Entitlement to a rating in excess of 50 percent for service-connected unspecified trauma and stressor-related disorder is remanded. 3. Entitlement to a rating in excess of 30 percent from August 1, 2016, for service-connected left knee osteoarthritis, status post total knee replacement is remanded. 4. Entitlement to a rating in excess of 30 percent from February 1, 2019, for service-connected right knee osteoarthritis status post total right knee replacement is remanded. 5. Entitlement to a rating in excess of 10 percent from October 23, 2015, to December 11, 2017, for service-connected right knee osteoarthritis is remanded. 6. Entitlement to a rating in excess of 0 percent for service-connected scarring, postoperative left knee and scalp laceration is remanded. 7. Entitlement to a rating in excess of 0 percent for post-traumatic headaches is remanded. The issues of increased ratings for a right knee disability, left knee disability, post-traumatic headaches, left knee scar, and unspecified trauma and stressor-related disorder are remanded for new VA examinations to determine the current severity of the Veteran's disabilities. The Veteran was last afforded VA examinations in February 2018 and September 2017 for his disabilities. In his October 2021 hearing, the Veteran indicated that his disabilities had worsened. Thus, new VA examinations must be obtained. The matters are REMANDED for the following action: 1. Obtain a new VA addendum medical opinion to determine the nature and etiology of the Veteran's right elbow disability. If a medical opinion cannot be rendered without performing a VA examination, then a VA examination should be scheduled and conducted. A copy of this remand and claims file must be reviewed. The VA examiner must consider the following: (a.) Is it at least as likely as not that the Veteran's right elbow disability, to include lateral epicondylitis, is related to his military service, to include November 2009 fall or from carrying his gear in his right arm? See October 2021 Hearing Transcript. All opinions must be supported by a sufficient rationale. A negative opinion cannot be solely based on the absence of medical evidence. 2. Schedule VA examinations to determine the current severity of the Veteran's service-connected bilateral knee disabilities, post-traumatic headaches, left knee scar, and unspecified trauma and stressor-related disorder with the appropriate VA clinicians to determine the nature and severity of the disabilities. All necessary tests must be performed. A copy of this remand and claims file must be reviewed. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.