KNEE IMPAIRMENT OF

Summary

The veteran, who served in the Army from July 1976 to February 1986, appeals the denial of service connection for bilateral knee disability and obstructive sleep apnea. The Board previously remanded the case in August 2019, and the RO subsequently granted service connection for PTSD, rendering that issue moot. For the bilateral knee disability, the veteran claimed in-service complaints of bilateral knee pain due to strenuous military activities like rappelling and marching. While the veteran has current diagnoses of bilateral knee degenerative joint disease, service treatment records only noted right knee pain in service and were silent regarding the left knee. The earliest treatment for bilateral knee pain was in 2005, over 19 years post-service. VA examinations in March 2013 and June 2015 were unable to establish a nexus to service, with the latter only addressing the right knee. A November 2019 addendum opinion found the bilateral knee disability less likely than not related to service, citing negative separation and reserve examinations, lack of in-service treatment or diagnosis, and the significant time lapse before diagnosis. The Board found this opinion adequate and more probative than the veteran's lay statements, denying service connection for bilateral knee disability. For obstructive sleep apnea, the veteran claimed tiredness and snoring in service. While diagnosed with severe sleep apnea in 2012, service records were silent regarding sleep apnea symptoms. A June 2015 VA exam found the condition less likely than not related to service, noting the lack of objective evidence in service and the long gap before diagnosis. An addendum opinion in November 2019 reiterated this, finding the veteran's lay reports of sleep apnea symptoms and headaches not supported by records, and noting that natural aging and weight gain could contribute to the condition. The Board found this opinion adequate and denied service connection for obstructive sleep apnea.

Rationale

Preponderance of evidence against service connection; No evidence of chronic disability in service or within one year of separation; Continuity of symptomatology not established; November 2019 VA addendum opinion found less likely than not related to service; Veteran's lay statements regarding etiology not competent

Full Decision Text

Citation Nr: 20062464
Decision Date: 09/23/20	Archive Date: 09/23/20

DOCKET NO. 15-23 855
DATE: September 23, 2020

ORDER

Entitlement to service connection for bilateral knee disability is denied.

Entitlement to service connection for obstructive sleep apnea is denied.

FINDINGS OF FACT

1. The preponderance of the evidence is against finding that bilateral knee disability began during active service or is otherwise related to an in-service injury, event, or disease.

2. The preponderance of the evidence is against finding that obstructive sleep apnea began during active service or is otherwise related to an in-service injury, event, or disease.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for bilateral knee disability have not been met.  38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309.

2. The criteria for entitlement to service connection for obstructive sleep apnea have not been met.  38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303,.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1976 to February 1986.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 

The case was previously remanded by the Board in August 2019.  A review of the claims file shows that there has been substantial compliance with the Board’s remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).  The case has been returned to the Board for review. 

The Board notes that its previous August 2019 Remand also reopened claims for entitlement to service connection for posttraumatic stress disorder (PTSD) and bilateral knee disability.  In a July 2020 rating decision, the RO granted the Veteran’s claim for entitlement to service connection for PTSD.  As such award is considered a full grant of the benefit sought on appeal for the issue of entitlement to service connection for PTSD, the issue is no longer on appeal.   

The Veteran testified before the undersigned Veterans Law Judge at a video conference hearing in February 2019.  A transcript of the hearing is of record.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  To establish service connection on a direct-incurrence basis for a disability, there must be (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Entitlement to service connection for bilateral knee disability.

The Veteran seeks service connection for bilateral knee disability.  The Veteran asserts that he began experiencing bilateral knee pain while in service, and that he engaged in rappelling, running, and completing a 100-mile march on mountainous terrain with heavy gear and equipment.  See February 2019 Hearing Transcript.  The Veteran contends that his knee problems never resolved and that he self-treated after service with over-the-counter medication.  Id. 

Service connection for chronic diseases listed in 38 C.F.R. § 3.309(a) may also be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period after separation from service; or was noted in service with continuity of symptomatology since service.  38 U.S.C. §§ 1112, 1113, 1133, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir
-treated after service with over-the-counter medication.  Id. 

Service connection for chronic diseases listed in 38 C.F.R. § 3.309(a) may also be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period after separation from service; or was noted in service with continuity of symptomatology since service.  38 U.S.C. §§ 1112, 1113, 1133, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Arthritis is a chronic disease under Section 3.309(a); thus, it is subject to the chronic diseases presumption.  

The Veteran was treated for bilateral knee pain in September 2005.  See September 2005 VA treatment records.  The Veteran was diagnosed with degenerative joint disease of the right knee in February 2012 and VA treatment records demonstrate degenerative joint disease of both knees.  See February 2014 VA treatment records.  Therefore, the first element of service connection has been met.  See Shedden, 381 F.3d at 1166-67. 

As to the second Shedden element, event or injury in service, the Board notes that the Veteran’s service treatment records (STRs) demonstrate the Veteran reported right knee pain while in service.  See November 1979 STRs.  The Veteran’s STRs are silent for complaint, treatment, or diagnosis for any left knee condition.  As noted, the Veteran contends that he began experiencing bilateral knee pain while in service due to his infantry duties.  See February 2019 Hearing Transcript.  Therefore, the second element of service connection has been met.  See Shedden, 381 F.3d at 1166-67. The question before the Board is whether the Veteran’s bilateral knee disability began during service or is at least as likely as not related to an in-service injury, event, or disease. 

The Board finds that the preponderance of the evidence is against finding that the Veteran’s bilateral knee disability began during service, or is otherwise related to an in-service injury, event, or disease.  As an initial matter, the evidence of record does not show the Veteran’s current degenerative joint disease of his bilateral knees was chronic in service or manifest to a compensable degree in service or within one year of separation from service, nor has continuity of symptomatology been established.  See 38 U.S.C. § 1101; 38 C.F.R. §§ 3.303, 3.309(a).  VA treatment records are silent for any diagnosis of a chronic disability of the bilateral knees.  The Veteran’s February 1987 Army Reserves enlistment examination does not note any bilateral knee condition and the Veteran did not report any bilateral knee problem.  See February 1987 STRs.  Additionally, an Army Reserves medical examination in January 1991 is silent for any complaints, treatment, or diagnosis of any bilateral knee condition.  The earliest record of complaints of bilateral knee pain is demonstrated in September 2005 VA treatment records, more than 19 years after separation from service.  September 2005 X-rays show no significant abnormalities of the right knee and suspected degenerative joint disease of the left knee with no significant abnormality.  Id.  The Veteran was diagnosed with degenerative joint disease of the right knee based on X-ray dated in February 2012, and VA treatment records confirm a diagnosis of bilateral knee degenerative disease in February 2014.  See February 2014 VA treatment records.  As such, service connection cannot be established on a presumptive basis.  See 38 U.S.C. § 1101; 38 C.F.R. §§ 3.303, 3.309(a).  

In regard to non-presumptive service connection, the Veteran was provided a VA examination in March 2013.  The VA examiner noted the Veteran’s report that his knees have hurt for many years but was unable to recall any details at that time.  See March 2013 VA examination.  The VA examiner noted the Veteran’s complaint of right knee pain on one occasion in service in November 1979 and that the Veteran has had no surgery or therapy for his knees.  Id.  The VA examiner opined that it was less likely than not that the Veteran’s bilateral knee disability was incurred in or caused by an in-service injury, event, or illness.  Id.  However, the examiner did not provide a rationale.  

In June 2015, the Veteran was afforded a second VA examination.  The VA
 2013.  The VA examiner noted the Veteran’s report that his knees have hurt for many years but was unable to recall any details at that time.  See March 2013 VA examination.  The VA examiner noted the Veteran’s complaint of right knee pain on one occasion in service in November 1979 and that the Veteran has had no surgery or therapy for his knees.  Id.  The VA examiner opined that it was less likely than not that the Veteran’s bilateral knee disability was incurred in or caused by an in-service injury, event, or illness.  Id.  However, the examiner did not provide a rationale.  

In June 2015, the Veteran was afforded a second VA examination.  The VA examiner only addressed the Veteran’s right knee.  See June 2015 VA examination.  The VA examiner noted the Veteran’s September 2005 X-rays showed normal results for the right knee and that right knee arthritis occurred after September 2005.  Id. The VA examiner stated that although the Veteran complained of right knee pain in service, it is not the same condition and is not evidence of right knee arthritis in service.  Id.  As noted, the Board, in August 2019, remanded the Veteran’s case for an addendum medical opinion to consider the Veteran’s lay statements and left knee disability. 

In November 2019, the Veteran was afforded a VA addendum medical opinion.  The VA examiner noted the Veteran’s complaints of bilateral knee pain in service, and complaint of right knee pain in November 1979 while in service.  See November 2019 addendum medical opinion.  The VA examiner opined that the Veteran’s bilateral knee disability was less likely than not incurred in or caused by an in-service injury, event, or illness.  Id.  As rationale, the VA examiner noted the Veteran’s separation examination from service was negative for any right or left knee complaints or symptoms; medical examinations in February 1987 and January 1981 did not note any bilateral knee problems due to service; and the Veteran was first treated for bilateral knee pain in 2005.  Id.  The VA examiner also noted that medical records after service do not support a history of chronic right knee pain due to the initial complaint in service in 1979.  Id.  The VA examiner stated that the medical records do not support a bilateral knee disability was present due to the complaints and activities during service.  Id.  

The Board recognizes the Veteran is competent to identify readily observable symptomology and to describe experiencing such symptomology since service.  See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  However, to the extent that the Veteran asserts that his current bilateral knee disability is related to his active service, the Board notes that he has not been shown to have the medical training necessary to be deemed competent to provide an opinion as to the etiology of his bilateral knee disability that was diagnosed.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  This is because the etiology of his bilateral knee arthritis is a complex medical matter requiring specialized medical training.  Id.  

The Board finds the November 2019 VA addendum medical opinion to be adequate, and supported by sufficient rationale and review of the record.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).  Consequently, the Board gives more probative weight to the opinion of the November 2019 VA examiner than the Veteran’s statements.  Additionally, neither the Veteran, nor his representative, have provided any other evidence that the Veteran’s bilateral knee disability began in, or is otherwise related to an in-service injury, event, or disease.  The Veteran’s VA treatment records generally note the Veteran’s complaints of bilateral knee pain and assessment for bilateral knee degenerative joint disease.  However, none of the Veteran’s VA treatment records provide a medical opinion as to the etiology of the Veteran’s bilateral knee disability.  There is no competent evidence to the contrary.  Therefore, the most competent and probative evidence of record does not demonstrate that the Veteran’s bilateral knee disability was caused by, or otherwise etiologically related to the Veteran’s active service. 

In sum, while there is a current diagnosis of bilateral knee disability, the preponderance of the evidence is against the claim for service connection, and the benefit-of-the-doubt rule is not applicable.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 53 (1990).
 provide a medical opinion as to the etiology of the Veteran’s bilateral knee disability.  There is no competent evidence to the contrary.  Therefore, the most competent and probative evidence of record does not demonstrate that the Veteran’s bilateral knee disability was caused by, or otherwise etiologically related to the Veteran’s active service. 

In sum, while there is a current diagnosis of bilateral knee disability, the preponderance of the evidence is against the claim for service connection, and the benefit-of-the-doubt rule is not applicable.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 53 (1990).  Accordingly, entitlement to service connection for bilateral knee disability is denied.  

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 

Entitlement to service connection for obstructive sleep apnea.

The Veteran seeks service connection for obstructive sleep apnea.  Neither the Veteran nor his representative have contended, nor does the evidence suggest, that his sleep apnea is secondary to any service-connected disability.  The Veteran asserts that he was constantly tired during service, his sleep was not restful in service, and other service members told him that he snored.  See February 2019 Hearing Transcript.  The Veteran provided a lay statement from his ex-wife who stated that the Veteran had a snoring problem while in service during their marriage, often woke up due to snoring, and had breaks in breathing.  See October 2013 buddy statement. 

The Veteran was diagnosed with obstructive sleep apnea in June 2012.  See June 2012 private treatment records.  Therefore, the first element of service connection has been met.  See Shedden, 381 F.3d at 1166-67.

In regard to the second element of service connection, the Veteran’s STRs are silent for any treatment or findings suggestive of signs or symptoms of sleep apnea.  The Veteran’s January 1986 separation examination does not contain any sleep related diagnosis or notation of problems while in service.  The Veteran’s January 1986 report of medical history notes the Veteran’s report of frequent or severe headaches; however, the examiner noted the Veteran’s report of headaches was related to stress.  Additionally, the Veteran’s February 1987 Army Reserves enlistment examination and January 1991 report of medical examination do not contain any reports of any sleep problems while in service.  

The earliest relevant medical evidence shows that a June 2012 sleep study diagnosed the Veteran with severe obstructive sleep apnea, approximately 26 years after separation from active service.  While not dispositive, the passage of so many years between discharge from active service and objective documentation of a disability is a factor that weighs against a finding of service incurrence and continuity.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  In June 2015, the Veteran was afforded a VA examination.  The VA examiner opined that the Veteran’s obstructive sleep apnea was less likely than not incurred in or caused by an in-service injury, event or illness.  See June 2015 VA examination.  As rationale, the VA examiner noted that there was no objective evidence of obstructive sleep apnea in the Veteran’s STRs.  Id.  The VA examiner noted that, although the Veteran reported snoring and apnea during service, this is not diagnostic of obstructive sleep apnea.  Id.  The VA examiner noted that a person can snore and stop breathing 4 times an hour and this would be considered normal, therefore, the complaint of snoring, apnea and other symptoms that may be associated with obstructive sleep apnea in service is not sufficient and not diagnostic of obstructive sleep apnea in service.  Id.  However, the VA examiner did not address the Veteran’s report of frequent or severe headaches in his January 1986 separation examination or more recent testimony that he was tired in service.  

As noted, the Board, in August 2019, remanded the Veteran’s case for an addendum VA medical opinion.  The Veteran was afforded a VA medical opinion in November 2019.  The VA examiner opined that the Veteran’s sleep apnea was less likely than not incurred in, or caused
 would be considered normal, therefore, the complaint of snoring, apnea and other symptoms that may be associated with obstructive sleep apnea in service is not sufficient and not diagnostic of obstructive sleep apnea in service.  Id.  However, the VA examiner did not address the Veteran’s report of frequent or severe headaches in his January 1986 separation examination or more recent testimony that he was tired in service.  

As noted, the Board, in August 2019, remanded the Veteran’s case for an addendum VA medical opinion.  The Veteran was afforded a VA medical opinion in November 2019.  The VA examiner opined that the Veteran’s sleep apnea was less likely than not incurred in, or caused by an in-service injury, event, or illness.  See November 2019 VA examination.  As rationale, the VA examiner stated that although the Veteran reported experiencing obstructive sleep apnea related symptoms since service, a review of the available medical records does not support the Veteran’s lay testimony.  Id.  The VA examiner noted that the headaches the Veteran mentioned at separation were noted as related to stress, versus related to possible underlying obstructive sleep apnea.  Id.  The VA examiner noted that there was no mention of headaches in the morning which would be more typical of headaches related to obstructive sleep apnea.  Id.  Rather, the Veteran’s STRs demonstrate complaints of headaches associated with flu symptoms and assessment for a URI.  See August 1976, September 1978, November 1978, and July 1980 STRs.  The VA examiner also noted the subsequent medical examinations when the Veteran was in the Reserves denied any ongoing chronic headaches, no report of any morning fatigue, and no restorative sleep during this period.  See November 2019 VA examination.  Finally, the VA examiner noted the Veteran was diagnosed with obstructive sleep apnea more than 26 years after leaving active service, and natural aging and weight gain over the years increases the likelihood of developing obstructive sleep apnea.  Id.  

To the extent that the Veteran asserts that he has sleep apnea related to his active duty service, the Board acknowledges that the Veteran is competent and credible to describe symptoms that he can perceive and describe.  See Jandreau, 492 F.3d at 1377.  However, he has not been shown to have the medical training necessary to be deemed competent to provide an opinion as to the etiology of his sleep apnea.  See Kahana, 24 Vet. App. at 435.  This is because the etiology of sleep apnea is a complex medical matter requiring specialized medical training.  Id. 

The Board finds that the November 2019 VA addendum medical opinion to be adequate, and supported by sufficient rationale and review of the record.  See Nieves-Rodriguez, 22 Vet. App. at 302.  The Veteran’s VA treatment records generally note the Veteran’s assessment for sleep apnea.  However, none of the Veteran’s private nor VA treatment records provide a medical opinion as to the etiology of the Veteran’s sleep apnea.  There is no competent evidence to the contrary.  Therefore, the most competent and probative evidence of record does not demonstrate that the Veteran’s sleep apnea was incurred in or otherwise etiologically related to his active duty service.  Since the preponderance of the evidence against the claim for service connection, the benefit-of-the-doubt rule is not applicable.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53.  Accordingly, entitlement to service connection for obstructive sleep apnea is denied.  

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70.

 

 

U. R. POWELL

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	C. P. Moore, 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.