09-44 544
09-44 544
| Board of Vet. App. | Oct 31, 2017Background
- Veteran served on active duty Jan 1955–Apr 1978 and appealed VA RO denials for service connection for a right knee disorder (Dec 2010) and obstructive sleep apnea (OSA) (Jun 2008).
- Veteran contends right knee disorder is either directly service-connected or secondary to service-connected bilateral ankle sprains; he also claimed OSA as secondary to service-connected hiatal hernia, duodenal ulcer/GERD, and bronchitis.
- Record includes a 1977 complaint of a twisted right knee, normal separation exam in Feb 1978, largely normal post-service knee records through 2010, and radiographic/diagnostic evidence of knee osteoarthritis not documented until decades after service.
- VA examinations: Sept/Oct 2010 and Oct 2016 opinions found no nexus to in-service injury; July 2017 addendum found it less likely than not that knee DJD was caused/ aggravated by ankle disabilities with a detailed rationale.
- Board found the October 2016 / July 2017 VA medical opinions adequate and more probative than the Veteran’s lay testimony, denied service connection for the right knee (including secondary to ankle disabilities), and remanded the OSA claim for a more responsive addendum regarding aggravation by service-connected bronchitis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for right knee (direct) | Right knee disorder began from service event (twisted knee) | No ongoing knee diagnosis at separation; normal exams post-service; medical opinions find no nexus | Denied — preponderance shows no nexus to service |
| Service connection for right knee (secondary to ankle disabilities) | Right knee caused or aggravated by service-connected bilateral ankle sprains | Medical evidence and VA opinions: DJD is joint-specific; no mechanism showing aggravation by ankle conditions | Denied — expert opinions outweigh lay assertions |
| Presumptive service connection for knee (manifestation within 1 year) | N/A (Veteran did not assert manifestation within 1 year) | Separation and early post-service exams showed no knee disorder; arthritis documented decades later | Denied — no compensable manifestation within one year |
| Service connection for OSA (secondary to bronchitis) | OSA is secondary to service-connected bronchitis (and other GI/respiratory conditions) | Prior examiner opinion said less likely than not but rationale was unresponsive | REMANDED — for a new, fully reasoned VA addendum addressing aggravation by bronchitis and specific treatment note |
Key Cases Cited
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (elements required to establish service connection)
- D'Aries v. Peake, 22 Vet. App. 97 (2008) (standard of substantial compliance with Board remand instructions)
- Stegall v. West, 11 Vet. App. 268 (1998) (remand compliance requirement)
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (adequacy of medical opinions requires reasoned bases considering the record)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (limits of lay evidence for medical diagnosis)
- Colvin v. Derwinski, 1 Vet. App. 171 (1991) (VA adjudicators should not substitute their judgment for a medical examiner)
- Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001) (application of benefit-of-the-doubt rule)
- Grottveit v. Brown, 5 Vet. App. 91 (1993) (examiner qualifications and probative value of examiners)
- Allen v. Brown, 7 Vet. App. 439 (1995) (standard for secondary service connection)