Citation Nr: 18132312
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-03 619
DATE:	September 6, 2018
Entitlement to a rating higher than 10 percent for left knee strain is remanded.
Entitlement to a rating higher than 10 percent for right knee strain is remanded.
Entitlement to service connection for obstructive sleep apnea is remanded.
The Veteran had active military service from February 1996 to December 2003.
The United States Court of Appeals for Veterans Claims (Court) has held that “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  38 C.F.R. § 4.59 states that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.”  As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions and, where possible, on the opposite joint if not damaged.
The Veteran underwent a sleep study in July 2014.  The impression was severe obstructive sleep apnea.  A “Note” attached to a May 2016 VA respiratory conditions (other than tuberculosis and sleep apnea) disability benefits questionnaire provides “If diagnosed with Sleep Apnea and/or Narcolepsy complete the Sleep apnea and/or Narcolepsy Questionnaire(s), in lieu of this one.”  The Veteran has not been scheduled to undergo a VA examination for sleep apnea.  On remand, a VA examination and opinion should be obtained to assess the likelihood that the Veteran’s sleep apnea began during his active duty service.
Updated VA treatment records should be obtained.
These matters are REMANDED for the following action:
1. Obtain and associate with the record all outstanding VA treatment records.
2. Schedule the Veteran for a VA orthopedic examination for his knees.  The claims file must be reviewed by the examiner.  All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail, using the current Disability Benefits Questionnaire. 
Request that the examiner provide an assessment of the severity of the knees that includes examination and range of motion testing in weight-bearing and nonweight-bearing, in passive and active ranges of motion testing of the knees and the opposite joint.  The examiner should be asked to note any additional functional loss, including in terms of additional degrees of limitation of motion (to the extent feasible) due to any weakened movement, excess fatigability, incoordination, or pain on use of the knees. 
If flare-ups are reported or noted, the examiner should likewise note any additional functional limitation.  If flare-ups are not present at the time of the examination, the examiner is requested to elicit relevant information as to the Veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran’s functional loss due to flares based on all the evidence of record or explain why such cannot be done.  If the examiner is unable to conduct the required testing, the examiner should clearly explain why that is so.
3. Schedule the Veteran for a VA respiratory examination to determine the nature and etiology of sleep apnea.  The claims file must be made available to the examiner and pertinent documents should be reviewed.  All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail.  The examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current obstructive sleep apnea disorder manifested in, or is otherwise related to his military service.  A detailed rationale is requested for all opinions.

Veterans Law Judge
Board of Veterans’ Appeals

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