Citation Nr: 1037520	
Decision Date: 10/04/10    Archive Date: 10/12/10

DOCKET NO.  09-06 067	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an initial compensable rating prior to 
November 6, 2008, and to an initial rating greater than 
50 percent thereafter, for sleep apnea with disordered breathing, 
status post uvulectomy.

2.  Entitlement to an initial compensable rating for allergic 
rhinitis.

3.  Entitlement to service connection for bilateral upper 
extremity disorders.

4.  Entitlement to service connection for a bilateral knee 
disorder.

5.  Entitlement to service connection for a right foot and ankle 
disorder.

6.  Entitlement to service connection for tinnitus.

7.  Entitlement to service connection for a skin disorder 
(claimed as atopic dermatitis and hives).


8.  Entitlement to service connection for bronchitis.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

J. Schulman, Associate Counsel


INTRODUCTION

The Veteran had active service from December 1982 until January 
2005.

This matter comes before the Board of Veterans' Appeals (BVA or 
Board) from an August 2008 rating decision of the Department of 
Veterans Affairs (VA), Regional Office (RO) in Waco, Texas.

The issues of entitlement to service connection for bronchitis 
and for a skin disorder are addressed in the REMAND portion of 
the decision below and are REMANDED to the RO via the Appeals 
Management Center (AMC), in Washington, DC.  VA will notify the 
Veteran if further action is required on his part.


FINDINGS OF FACT

1.  Sleep apnea with disordered breathing requires the use of a 
breathing assistance device and has not been productive of 
chronic respiratory failure.

2.  Allergic rhinitis has not been productive of nasal passage 
obstruction.

3.  Bilateral cubital tunnel syndrome was manifest in service.

4.  In-service complaints of knee pain were acute, transitory and 
resolved without residuals.

5.  An in-service right foot and ankle soft tissue injury was 
resolved without residuals.

6.  Tinnitus was manifest during service.


CONCLUSIONS OF LAW

1.  The criteria for an initial rating of 50 percent prior to 
November 6, 2008, for sleep apnea with disordered breathing have 
been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 
2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.97, Diagnostic 
Code (DC) 6847 (2009).

2.  The criteria for an initial rating greater than 50 percent 
effective November 6, 2008, for sleep apnea with disordered 
breathing have not been met.  38 U.S.C.A. §§ 1155, 5103(a), 
5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 
4.45, 4.97, DC 6847 (2009).

3.  The criteria for an initial compensable rating for allergic 
rhinitis have not been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 
5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.97, 
DC 6522 (2009).

4.  Bilateral cubital tunnel syndrome was incurred in service.  
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009).

5.  A bilateral knee disability was not incurred in service.  38 
U.S.C.A §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009).

6.  A right foot and ankle disability was not incurred in 
service.  38 U.S.C.A §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 
(2009).

7.  Tinnitus was incurred in service.  38 U.S.C.A. § 1110 (West 
2002); 38 C.F.R. § 3.303 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), VA has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 
3.156(a), 3.159 and 3.326(a) (2009).  

Proper notice from VA must inform the claimant of any information 
and medical or lay evidence not of record (1) that is necessary 
to substantiate the claim; (2) that VA will seek to provide; and 
(3) that the claimant is expected to provide.  38 C.F.R. 
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all 
elements of a service-connection claim, including: (1) Veteran 
status; (2) existence of a disability; (3) a connection between 
the Veteran's service and the disability; (4) degree of 
disability; and (5) effective date of the disability.  See, 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, 
this notice must include information that a disability rating and 
an effective date for the award of benefits will be assigned if 
service connection is awarded.  Id. at 486.  

The Veteran's claims for evaluations of sleep apnea and allergic 
rhinitis arise from the appeal of initial evaluations following 
grants of service connection.  Courts have held that once service 
connection is granted the claim is substantiated, additional 
notice is not required and any defect in the notice is not 
prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 
2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Rango v. 
Shinseki, No. 06-2723 (Vet. App. January 26, 2009).  Therefore, 
no further notice is needed under VCAA with respect to these 
issues.

Here, the VCAA duty to notify was satisfied by way of a letter 
sent to the Veteran in February 2008 that fully addressed all 
notice elements and was sent prior to the initial RO decision in 
this matter.  The letter provided information as to what evidence 
was required to substantiate the claims and of the division of 
responsibilities between VA and a claimant in developing an 
appeal.  The letter also informed the Veteran of what type of 
information and evidence was needed to establish a disability 
rating and effective date.  

Based on the foregoing, adequate notice was provided to the 
Veteran prior to the transfer and certification of his case to 
the Board and complied with the requirements of 38 U.S.C. § 
5103(a) and 38 C.F.R. § 3.159(b).  

Next, VA has a duty to assist the Veteran in the development of 
the claim.  To that end, VA must make reasonable efforts to 
assist the claimant in obtaining evidence necessary to 
substantiate the claim for the benefit sought, unless no 
reasonable possibility exists that such assistance would aid in 
substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 
(2009).  Service treatment records have been obtained, as have 
records of private and VA treatment.  Furthermore, the Veteran 
was afforded a VA examination in November 2009 relating to his 
sleep apnea and allergic rhinitis, during which the examiner took 
down the Veteran's history, conducted a physical examination, and 
reached conclusions based on the examination that are consistent 
with the record.  The Veteran's examination is found to be 
adequate for rating purposes.

The Federal Circuit has rejected the proposition that "medical 
examinations are to be routinely and virtually automatically 
provided to all Veterans in disability cases involving nexus 
issues."  Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  
In determining whether the duty to assist requires that a VA 
medical examination be provided or medical opinion obtained with 
respect to a Veteran's claim for benefits, there are four factors 
for consideration:  (1) whether there is competent evidence of a 
current disability or persistent or recurrent symptoms of a 
disability; (2) whether there is evidence establishing that an 
event, injury, or disease occurred in service, or evidence 
establishing certain diseases manifesting during an applicable 
presumption period; (3) whether there is an indication that the 
disability or symptoms may be associated with the Veteran's 
service or with another service-connected disability; and (4) 
whether there otherwise is sufficient competent medical evidence 
of record to make a decision on the claim.  38 U.S.C.A. 
§ 5103A(d); 38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the Court of Appeals for 
Veterans Claims has stated that this element establishes a low 
threshold and requires only that the evidence "indicates" that 
there "may" be a nexus between the current disability or 
symptoms and the Veteran's service.  The types of evidence that 
"indicate" that a current disability "may be associated" with 
military service include, but are not limited to, medical 
evidence that suggests a nexus but is too equivocal or lacking in 
specificity to support a decision on the merits, or credible 
evidence of continuity of symptomatology such as pain or other 
symptoms capable of lay observation.  McLendon v. Nicholson, 20 
Vet. App. 79 (2006).  

In this case, although service treatment records show an in-
service soft tissue injury of the right foot and ankle, there are 
14 years of silent service treatment records following such 
injury.  Moreover, the post-service evidence does not indicate 
any current complaints or treatment referable to the right foot 
or ankle.  Furthermore, the weight of the competent evidence does 
not identify any current pathology of the right foot and ankle.

With regard to the Veteran's claim of service connection relating 
to his knees, the Veteran was diagnosed with tendinitis of the 
right knee in 1983.  Following that singe diagnosis, service 
treatment records are free of knee complaints for the next 22 
years.  Furthermore, on examinations in September 1988 and 
February 1994, his lower extremities were normal. Finally, here 
too the Board notes that the weight of the competent evidence 
does not indicate any current pathology of either knee.

 For all of these reasons, the evidence does not indicate that 
the above-claimed disabilities may be related to active service 
such as to require an examination, even under the low threshold 
of McLendon.

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed without 
prejudice to the appellant.  See, Bernard v. Brown, 4 Vet. 
App. 384 (1993).  In addition to the evidence discussed above, 
the Veteran's statements in support of the claim are also of 
record.  The Board has carefully considered such statements and 
concludes that no available outstanding evidence has been 
identified.  Additionally, the Board has reviewed the medical 
records for references to additional treatment reports not of 
record, but has found nothing to suggest that there is any 
outstanding evidence with respect to the Veteran's claim.  

For the above reasons, no further notice or assistance to the 
appellant is required to fulfill VA's duty to assist the 
appellant in the development of the claim.  Smith v. Gober, 
14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); 
Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Higher Initial Ratings

In general, disability evaluations are assigned by applying a 
schedule of ratings that represent, as far as can be determined, 
the average impairment of earning capacity. 38 U.S.C.A. § 1155; 
38 C.F.R. § 4.1 (2009).  Separate diagnostic codes identify the 
various disabilities and the criteria that must be met for 
specific ratings.  The regulations require that, in evaluating a 
given disability, the disability be viewed in relation to its 
whole recorded history.  38 C.F.R. § 4.2 (2009); see Schafrath v. 
Derwinski, 1 Vet. App. 589 (1991).

Where, as in the instant case, the appeal arises from the 
original assignment of a disability evaluation following an award 
of service connection, the severity of the disability at issue is 
to be considered during the entire period from the initial 
assignment of the disability rating to the present time.  
Separate ratings can be assigned for separate periods of time 
based on the facts found, a practice known as "staged" ratings.  
See Fenderson v. West, 12 Vet. App. 119 (1999).

Before addressing the individual ratings on appeal, the Board 
notes that we have considered whether the Veteran's disabilities 
warrant referral for extraschedular rating.  Such consideration 
requires a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 
111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 
(Fed. Cir. 2009).  The first question is whether the schedular 
rating adequately contemplates the Veteran's disability picture. 
 Thun, 22 Vet. App. at 115.  If the criteria reasonably describe 
the claimant's disability level and symptomatology, then the 
claimant's disability picture is contemplated by the rating 
schedule, the assigned schedular evaluation is, therefore, 
adequate, and no referral is required.  If the schedular 
evaluation does not contemplate the claimant's level of 
disability and symptomatology and is found inadequate, then the 
second inquiry is whether the claimant's exceptional disability 
picture exhibits other related factors such as those provided by 
the regulation as governing norms.  If the Veteran's disability 
picture meets the second inquiry, then the third step is to refer 
the case to the Under Secretary for Benefits or the Director of 
the Compensation and Pension Service to determine whether an 
extraschedular rating is warranted.  Having reviewed the 
evidence, the Board finds that referral to Under Secretary for 
Benefits or the Director of the Compensation and Pension Service 
for determination and assignment of extraschedular ratings is not 
warranted.

Sleep Apnea Prior to November 6, 2008

The Board notes initially that the Veteran's claim of entitlement 
to higher rating for sleep apnea with disordered breathing, 
status post uvulectomy is an appeal from the initial assignment 
of a disability rating in August 2009.  At that time the 
Veteran's sleep apnea with disordered breathing was rated as 
noncompensable.  In a rating decision of July 2009, the RO rated 
the Veteran's sleep apnea with disordered breathing as 50 percent 
disabling effective November 6, 2008.  The Board has reviewed the 
record and finds nothing to reflect that there has been a 
significant change in the disability; thus, a uniform rating is 
warranted.  With regard to the effective date of November 6, 
2008, the RO appears to have chosen this date as it was the date 
of a sleep study showing that Dr. D.H.J. prescribed the Veteran's 
use a continuous airway pressure (CPAP) machine.  There is no 
reason to believe, however, that the Veteran's sleep apnea with 
disordered breathing became substantially worse on this date.  
Rather, because the Veteran had complained of problems sleeping 
and snoring prior to this date, it appears that his sleep apnea 
was the same throughout the time period prior to November 6, 
2008.  For the foregoing reasons, the Board grants a 50 percent 
rating for sleep apnea with disordered breathing prior to 
November 6, 2008.

Having made the above determination, the Board notes that under 
Hart v. Mansfield, the Court extended entitlement to staged 
ratings to claims for increased disability ratings where "the 
factual findings show distinct time periods where the service-
connected disability exhibits symptoms that would warrant 
different ratings."  Hart v. Mansfield, 21 Vet. App. 505, 511 
(2007).  Here, evidence relating to sleep apnea with disordered 
breathing does not indicate a significantly change to the 
Veteran's level of symptomatology during the pendency of his 
appeal and a uniform evaluation is warranted.

Sleep Apnea with Disordered Breathing Effective November 6, 2008

The Veteran has been granted an evaluation of 50 percent 
effective December 31, 2007.  The Veteran's sleep apnea with 
disordered breathing is rated under 38 C.F.R. § 4.97, Diagnostic 
Code (DC or Code) 6847 (2009).  Under this Code, a 50 percent 
rating contemplates the required use of breathing assistance 
device such as a CPAP machine.  38 C.F.R. § 4.97, DC 6847 (2009).  
A 100 percent evaluation is granted on evidence of chronic 
respiratory failure with carbon dioxide retention or cor 
pulmonale, or; a required tracheostomy.  Id.

In May 2006 the Veteran was seen for a physical prior to being 
employed as a flight instructor.  He stated that he had no acute 
issues and was under no acute distress.  His lungs were clear to 
auscultation bilaterally, and he was free of rhonchi and 
wheezing.  On an evaluation in December 2006, the Veteran had no 
chest pain or discomfort, and no dyspnea coughing or wheezing.

On VA examination in May 2008, the Veteran reported a history of 
loud snoring and waking with shortness of breath in the middle of 
the night.  He underwent an uvulectomy during service to relieve 
these symptoms.  The impression was of sleep-disordered 
breathing, status post uvulectomy.

On polysomnogram study in November 2008, the Veteran complained 
of loud, disruptive snoring and witnessed apneic spells with 
excessive daytime sleepiness.  Laboratory diagnostics were 
interpreted to indicate moderate to moderately severe obstructive 
sleep apnea with desideration to 80 percent.  It was recommended 
that the Veteran begin use of a CPAP machine.

A February 2009 nursing note indicated that the Veteran had chest 
pain, dyspnea on exertion, palpitations, orthopnea or peripheral 
edema, and pleuritic chest pain.  Respirations were clear to 
auscultation, without crackles or wheezes, non-labored, and 
without retractions or stridor.

In March 2009, a review of symptomatology revealed dyspnea, cough 
and coughing up sputum, but no wheezing.  X-ray imaging revealed 
mild to moderate atherosclerotic disease and a nodular density in 
the right superior hilum, possibly representing superimposed soft 
tissues.  The impression indicated no acute cardiopulmonary 
disease.

VA examination in November 2009 revealed that the Veteran 
continued to require the use of a CPAP machine and that as a 
result of his in-service uvulectomy, he experienced 
nasopharyngeal regurgitation.  Following a review of his 
symptoms, the impression was of obstructive sleep apnea and 
nasopharyngeal regurgitation secondary to 
uvulopharyngopalatoplasty.

After a careful review of the record, the Board finds the 
Veteran's sleep apnea with disordered breathing to be 50 percent 
disabling effective for the time period after November 6, 2008.  
The current 50 percent rating contemplates the required use of 
breathing assistance device such as a CPAP machine.  38 C.F.R. § 
4.97, DC 6847 (2009).  In order to warrant a higher evaluation, 
there must be evidence of chronic respiratory failure with carbon 
dioxide retention or cor pulmonale, or; a required tracheostomy.  
Id.  Here, the evidence reveals the Veteran's use of a CPAP 
machine, however there is no evidence that the Veteran has been 
diagnosed with chronic respiratory failure.  Rather, his 
respirations has been clear to auscultation, without crackles or 
wheezes, is non-labored, and without retractions or stridor.  The 
Veteran has asserted that he is entitled to a 100 percent rating.  
The evidence prepared by skilled medical professionals, however, 
is more probative in establishing that current symptoms to not 
meet the criteria of a 100 percent rating than is his own 
credible testimony.  Based on the foregoing, the Board concludes 
that the Veteran's sleep apnea with disordered breathing has been 
50 percent disabling throughout the period on appeal.  

Allergic Rhinitis

The Board notes that the Veteran's claim of entitlement to higher 
rating for allergic rhinitis is an appeal from the initial 
assignment of a disability rating in August 2008.  When a 
claimant is awarded service connection and assigned an initial 
disability rating, separate disability ratings may be assigned 
for separate periods of time in accordance with the facts found.  
Such separate disability ratings are known as staged ratings.  
See Fenderson, 12 Vet. App. at 126 (noting that staged ratings 
are assigned at the time an initial disability rating is 
assigned).  In Hart, the Court extended entitlement to staged 
ratings to claims for increased disability ratings where "the 
factual findings show distinct time periods where the service-
connected disability exhibits symptoms that would warrant 
different ratings."  Hart, 21 Vet. App. at 511.  Here, the 
disability has not significantly changed and a uniform evaluation 
is warranted.

In the rating decision on appeal, the Veteran was awarded service 
connection for allergic rhinitis and granted a noncompensable 
evaluation effective December 31, 2007.  The Veteran's allergic 
rhinitis is rated under 38 C.F.R. § 4.97, DC 6522.  Under this 
Code, allergic or vasomotor rhinitis without polyps, but greater 
than 50 percent obstruction of nasal passage on both sides or 
complete obstruction on one side warrants a 10 percent 
evaluation.  38 C.F.R. § 4.97, DC 6522 (2009).  On evidence of 
allergic or vasomotor rhinitis with polyps, a 50 percent rating 
is warranted.  Id.

In December 2006 the Veteran reported had complaints of 
allergies.  He had watering and itching of the eyes, nasal 
passage blockage, and sneezing.  The Veteran also indicated a 
history of hay fever.  On evaluation, no nasal discharge or sinus 
tenderness was seen, however the Veteran's nasal mucosa was 
hypertrophied, pale, swollen and edematous.

On VA examination in May 2008 the Veteran reported a long history 
of allergies, including intermittent nasal congestion and 
obstruction with the right side equal to the left side.  The 
Veteran's nasal dorsum was without obvious deformity and his 
nasal septum was deviated slightly.  He had no masses, polyps, or 
purulence.  X-ray imaging revealed hypo-plastic right frontal 
sinus with no mass lesions, mucosal thickening or evidence of 
prior trauma.  Edema in the nasal turbinates was also 
demonstrated.

During a private evaluation in February 2009, the Veteran had no 
nasal congestion, discharge, or post-nasal drip.

During VA examination in November 2009, the Veteran reported 
seasonal running of the nose in the spring and fall, and that 
during this time he needs to blow his nose frequently.  
Examination of the nose revealed excellent nasal airways 
bilaterally with normal-appearing turbinates, no polyp formation 
and no abnormal mucous.

The Board finds the Veteran's allergic rhinitis to be 
noncompensably disabling.  A 10 percent evaluation requires 
evidence of, at a minimum, greater than 50 percent obstruction of 
nasal passage on both sides or complete obstruction on one side.  
38 C.F.R. § 4.97, DC 6522 (2009).  Here, however, the evidence 
does not show any such nasal passage obstruction.  While the 
Veteran has claimed that his symptoms are worse in the spring and 
fall, he has not endorsed a level of symptomatology which would 
render him 10 percent disabled under the Code.  The Veteran's 
testimony is credible, but even when accepted as true, it does 
not provide a basis for a higher evaluation.  Based on the 
foregoing, the Board concludes that the Veteran's allergic 
rhinitis has been zero percent disabling throughout the period on 
appeal.  



Service Connection Claims

Veterans are entitled to compensation from VA if they develop a 
disability "resulting from personal injury suffered or disease 
contracted in line of duty, or for aggravation of a preexisting 
injury suffered or disease contracted in line of duty." 38 
U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To 
establish a right to compensation for a present disability, a 
Veteran must show: "(1) the existence of a present disability; 
(2) in-service incurrence or aggravation of a disease or injury; 
and (3) a causal relationship between the present disability and 
the disease or injury incurred or aggravated during service"-
the so-called "nexus" requirement. Shedden v. Principi, 381 
F.3d 1163, 1167 (Fed. Cir. 2004).  Holton v. Shinseki, 557 F.3d 
1362 (C.A. Fed. 2009) (March 5, 2009).  The absence of any one 
element will result in the denial of service connection.  Coburn 
v. Nicholson, 19 Vet. App. 427, 431 (2006).

Where a chronic disease is shown in service, or within the 
presumptive period under 38 C.F.R. § 3.307 so as to permit a 
finding of service connection, subsequent manifestations of the 
same chronic disease at any later date, however remote, are 
service-connected, unless clearly attributable to intercurrent 
causes.  38 C.F.R. § 3.303(b) (2009).  This rule does not mean, 
however, that any manifestation in service will necessarily 
permit service connection.  Showing chronic disease in service 
requires a combination of manifestations sufficient to identify 
the disease entity, and sufficient observation to establish 
chronicity at the time, as distinguished from merely isolated 
findings or a diagnosis including the word "chronic."  When the 
disease identity is established, there is no requirement of 
evidentiary showing of continuity.  When the fact of chronicity 
in service is not adequately supported, then a showing of 
continuity after discharge is required to support the claim.  Id.

The Board notes that the Veteran has not alleged that any of the 
claimed disabilities were incurred in combat.  Therefore, the 
provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for 
application.



Bilateral Elbow Disability

In-service examinations in September 1988 and February 1994 
indicated that the Veteran's upper extremities were normal as was 
his neurologic system.  In August 2000, the Veteran reported a 
one year history of pain in the left elbow when lifting weights.  
His symptoms subsided, however, when activity was stopped.  Range 
of motion and strength were within normal limits and the 
assessment was of ulnar groove irritation in the left elbow.  On 
report of symptomatology in September 2000, range of motion and 
strength were still good, and it was recommended that the Veteran 
be referred for possible orthopedic evaluation.

In May 2004, the Veteran complained of right elbow pain, and he 
described a three year history of snapping with pain in the 
joint.  The pain was aggravated with lifting, push-ups and full 
extension of the arm.  The diagnosis listed in the physician's 
notes is not legible, but for the fact that it involves the 
ulnar.

In August 2004 the Veteran complained of a one year history of 
right elbow pain and numbness radiating down his arm on the 
medial side.  Additionally, the left ulnar was positive for Tinel 
sign.

Following separation from service in January 2005, the Veteran 
reported bilateral elbow pain in May 2009.  He described his 
symptoms as including a 10 year history of mild pain and numbness 
to his bilateral upper extremities.  Electromyograph revealed 
bilateral median neuropathy and ulnar neuropathy on the left.  
The assessment was of cubital tunnel syndrome and the Veteran was 
advised that he may be a candidate for surgical intervention.

In February 2009, the Veteran clarified that the elbow disorder 
he was claiming service connection for was neurologic in nature.  
In the present case, sensation in the Veteran's bilateral upper 
extremities is capable of lay observation and thus the Veteran's 
statements constitute competent evidence.  The Board must now 
consider the credibility of such evidence.  Given the Veteran's 
history, the Board finds his statements of continuous 
symptomatology credible.  Specifically, the Board notes that 
while the Veteran's complaints relating to each elbow have 
materialized at different times, his current bilateral median 
neuropathy and diagnosis of cubital tunnel syndrome are 
consistent with in-service evidence of neurologic involvement and 
radiation down both arms.  Furthermore, the record shows 
continuous symptomatology since separation.  In conclusion, the 
Board finds that the preponderance of the evidence supports 
granting service connection for bilateral upper extremity 
disorder.

Bilateral Knee Disorder

Service treatment records show that in March 1983, the Veteran 
complained of pain in his right knee which was moderate to severe 
on any motion.  In August 1983, this was assessed as tendinitis 
of the right knee.  With regard to the left knee, service 
treatment records do not reflect any treatment or complaints 
during service.  In-service examinations in September 1988 and 
February 1994 indicate that the Veteran's lower extremities were 
normal. 

Following separation from service in January 2005, the Veteran 
underwent a physical examination in May 2006 as part of a pre-
employment evaluation as a flight instructor.  At that time his 
pulses were 2+ bilaterally in the lower extremities, and strength 
was five out of five.  The Veteran was described as capable of 
occupational duties, including being able to stand for greater 
than four hours.

On assessment in February 2009 following a motor vehicle 
accident, the Veteran's musculoskeletal system was normal and his 
range of motion was intact.  Furthermore, he was able to move his 
extremities and there was no evidence of edema and no complaints 
relating to the knees were noted.

In considering the lay and medical history as detailed above, the 
Board notes that the amount of time that elapsed between military 
service and first post-service evidence of complaint or treatment 
can be considered as evidence against the claim.  Maxson v. 
Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  The Board notes 
that the Veteran is competent to give evidence about what he has 
experienced.  See Layno v. Brown, 6 Vet. App. 465 (1994).  
Moreover, the U.S. Court of Appeals for the Federal Circuit 
(Federal Circuit) has held that in certain situations, lay 
evidence can even be sufficient with respect to establishing 
medical matters such as a diagnosis.  Specifically, in Jandreau 
v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit 
commented that competence to establish a diagnosis of a condition 
can exist when (1) a layperson is competent to identify the 
medical condition, (2) the layperson is reporting a 
contemporaneous medical diagnosis, or (3) lay testimony 
describing symptoms at the time supports a later diagnosis by a 
medical professional.  Similarly, the U.S. Court of Appeals for 
Veterans Claims has held that when a condition may be diagnosed 
by its unique and readily identifiable features, the presence of 
the disorder is not a determination "medical in nature" and is 
capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 
(2007).

In the present case, pain in the Veteran's knees is capable of 
lay observation and thus the Veteran's statements constitute 
competent evidence.  The Board now considers the credibility of 
such evidence.  Again, the only service treatment records 
referencing the Veteran's knees, refer to a single diagnosis in 
1983.  The subsequent 22 years of service treatment records are 
silent to any other knee-related complaints.  Furthermore, there 
is no post-service evidence of diagnosed pathology of the knees, 
with only the Veteran's statements to indicate any disorder.  The 
Board finds, however, that the Veteran's testimony is not 
credible in this regard and specifically, we note the lack of 
post-service complaints, including in May 2006 and February 2009.  
Given inconsistencies in the record, the Veteran's credibility is 
reduced and his statements are of limited probative value in 
establishing chronicity and continuity of symptomatology.  
Accordingly the Board finds the lack of any treatment during 
service of the left knee and the single, transitory, in-service 
treatment of the right knee, combined with the lack of any 
complaint since separation to be more probative than the 
Veteran's statements alleging continuity.  In conclusion, the 
Board finds that the preponderance of the evidence is against the 
claim of service connection for bilateral knee disorder.

Right Foot and Ankle Disorder

The Veteran's service treatment records reflect that in February 
1991 he injured the ankle and heal of his right foot.  Prior to 
the injury, the Veteran reported that he had no history of right 
foot pain.  Examination revealed mild swelling and tenderness, 
but the Achilles tendon appeared intact.  X-ray imaging of the 
right ankle and right foot were negative for any pathology.  The 
assessment was of a soft tissue injury and treatment with aspirin 
or Tylenol was recommended along with a warm soak.  The remaining 
service treatment records do not show complaints or treatment 
referable to the either foot or ankle and the Board notes that 
in-service examinations in September 1988 and February 1994 
indicate that the Veteran's lower extremities and feet were 
normal.

Following separation the Veteran was seen in May 2006, as 
described in the prior section above, and reported no acute 
issues.  Pulses were 2+ bilaterally in the lower extremities, and 
strength was five out of five.  The Veteran was described as 
capable of occupational duties, including being able to stand for 
greater than four hours.

On assessment in February 2009, the Veteran's musculoskeletal 
system was normal, his range of motion was intact and he was able 
to move his extremities with no evidence of edema and no 
complaints relating to the either foot or ankle.

Although the Veteran has claimed entitlement to service 
connection, he has not indicated in any statements submitted to 
the Board what disability he believes he has as a result of 
service.  Furthermore, the Board notes that the objective medical 
evidence does not indicate any current pathology of right foot or 
ankle, and thus service connection cannot be granted for such a 
disability.  

To the extent that the Veteran claims to have experienced 
continuous right foot and ankle symptomatology, such assertions 
are found to be not credible.  While the Board notes that the 
Veteran did have a soft tissue injury in 1983.  There is no 
objective evidence of any ongoing problems associated with such 
injury.  Nor has the Veteran claimed any ongoing problems 
associated with his in-service soft tissue injury.  Furthermore, 
the Board finds especially probative of the lack of current 
disability the fact during physical examinations in 2006 and 2009 
his musculoskeletal system was normal, pulses was 2+ in the lower 
extremities, and strength was five out of five.  The Veteran was 
given an opportunity to report any symptomatology, and his 
silence, when otherwise affirmatively speaking, constitutes 
negative evidence.  The Veteran's assertions of continuity are 
not credible.  Savage v. Gober, 10 Vet. App. 488, 495-98 (1997); 
McCormick v. Gober, 14 Vet. App. 39 (2000).  In conclusion, the 
preponderance of the evidence is against the claim of service 
connection for a right foot and ankle disorder.

Tinnitus

The Veteran underwent numerous audiological evaluations while in 
active service.  In April 1998 the he indicated that he had no 
difficulty hearing bells, sirens, phones, normal speech, or 
additional difficulty hearing in noisy rooms.  He did, however, 
endorse ringing in the ears.  In January 2000, however, the 
Veteran denied ringing in the ears.  The Board notes that 
beginning in 2000, several audiological evaluations indicated 
that the Veteran was "routinely noise exposed."  

In November 2003, the Veteran indicated a three year history of 
tinnitus.  He had no history of acute noise trauma, but did 
report exposure to noise while working on a flight line.  The 
assessment was of tinnitus.  In January 2004 the Veteran 
indicated exposure to jet engine noise and reported a one year 
history of "ear noises" and hearing loss.

Following separation from service in January 2005, the Veteran 
submitted a statement in February 2009 indicating that tinnitus 
occurred more now than it did in service. 

The Veteran is competent to report evidence about what he has 
experienced, including tinnitus.  See Layno, 6 Vet. App. at 465.  
To the extent that he reports continuous symptoms since the 
initial onset of tinnitus in service, the Board also finds the 
Veteran to be credible.  While the Board recognizes some post-
service audiometric testing where tinnitus is not noted, silence 
in this case does not represent negative evidence as these were 
merely audiometric tests and not full audiological evaluations.  
As the Veteran is found to be credible, his current statements to 
the effect that he has experienced continuous symptomatology 
since active service are highly probative of chronicity and 
continuity of symptomatology.  In conclusion, the preponderance 
of the evidence supports granting the claim of service connection 
for tinnitus.
 

ORDER

Entitlement to an initial 50 percent rating prior to November 6, 
2008, for sleep apnea with disordered breathing is granted, 
subject to the laws and regulations governing the payment of 
monetary benefits.

Entitlement to an initial rating greater than 50 percent 
effective November 6, 2008, for sleep apnea with disordered 
breathing disability is denied.

Entitlement to an initial compensable rating for allergic 
rhinitis is denied.

Entitlement to service connection for a bilateral cubital tunnel 
syndrome is granted, subject to the laws and regulations 
governing the payment of monetary benefits.

Entitlement to service connection for a bilateral knee disorder 
is denied.

Entitlement to service connection for a right foot and ankle 
disorder is denied.

Entitlement to service connection for tinnitus is granted, 
subject to the laws and regulations governing the payment of 
monetary benefits.


REMAND

The Federal Circuit has rejected the proposition that "medical 
examinations are to be routinely and virtually automatically 
provided to all Veterans in disability cases involving nexus 
issues."  See Waters, 601 F.3d at 1274.  In determining whether 
the duty to assist requires that a VA medical examination be 
provided or medical opinion obtained with respect to a Veteran's 
claim for benefits, there are four factors for consideration:  
(1) whether there is competent evidence of a current disability 
or persistent or recurrent symptoms of a disability; (2) whether 
there is evidence establishing that an event, injury, or disease 
occurred in service, or evidence establishing certain diseases 
manifesting during an applicable presumption period; (3) whether 
there is an indication that the disability or symptoms may be 
associated with the Veteran's service or with another service-
connected disability; and (4) whether there otherwise is 
sufficient competent medical evidence of record to make a 
decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. 
§ 3.159(c)(4).  

With respect to the third factor above, the Court of Appeals for 
Veterans Claims has stated that this element establishes a low 
threshold and requires only that the evidence "indicates" that 
there "may" be a nexus between the current disability or 
symptoms and the Veteran's service.  The types of evidence that 
"indicate" that a current disability "may be associated" with 
military service include, but are not limited to, medical 
evidence that suggests a nexus but is too equivocal or lacking in 
specificity to support a decision on the merits, or credible 
evidence of continuity of symptomatology such as pain or other 
symptoms capable of lay observation.  See McLendon, 20 Vet. App. 
at 79.  

Bronchitis

The Veteran has claimed that he has continuous bronchitis 
infections beginning in service.  Service treatment records 
indicate that in January 1985 the Veteran endorsed a history that 
included contracting colds resulting from changes in weather.  In 
November 1985 he had a sore throat with congestion, and the 
impression was of an upper respiratory viral infection.

In April 1987 he had a persistent cough and watery eyes.  The 
Veteran's chest was clear and he was assessed as having seasonal 
allergies.  In November 1987 he was diagnosed with strep throat 
and placed on medication for a period of 10 days.

In August 1988, the Veteran was seen on complaints of a sore 
throat and assessed with possible bronchitis.  In November 1988, 
he reported with a two week history of cold symptoms.

On examination in February 1994, the Veteran's nose, sinuses and 
lungs were normal.

In January 1997, the Veteran complained of nasal congestion, 
rhinorrhea, scratchy throat, cough and myalgias for two days.  
His lungs were clear to auscultation and he was assessed as 
having either a viral upper respiratory infection or the flu.

The Veteran reported a cough in September 1997 and was assessed 
with probable upper respiratory infection/reactive airway 
disease.

The Veteran was assessed as having an upper respiratory infection 
in February 1998 and in March 1998 he was diagnosed with a mild 
cough and bronchitis.

In March 2001 a follow-up appointment regarding a one month 
history of cough indicated that an acute case of bronchitis was 
resolving.

In August 2003, the Veteran reported a one month history of 
coughing which he indicated was similar to symptoms he had 
experienced five years prior when he was diagnosed with 
bronchitis.  The assessment was of acute bronchitis.

In August 2003, the Veteran was diagnosed with acute bronchitis 
and a "persistent cough."  

The Veteran was seen in September 2004 with complaints of chronic 
congestion and trouble breathing at times which was associated 
with his allergic rhinitis.

Given the evidence above, VA is obligated to provide the Veteran 
with an examination in order to determine whether it is at least 
as likely as not that his history of in-service cough and 
bronchitis is a chronic disorder related to his current 
complaints of reoccurring bronchitis.  Additionally, it must be 
determined whether reoccurring in-service episodes of bronchitis 
were in fact manifestations of his service-connected allergic 
rhinitis or whether re-occurring bronchitis is a separate 
disability secondary to service-connected allergic rhinitis.

Skin Rash 

According to service treatment record, the Veteran had a lesion, 
described as a wart, on the middle finger of his right hand in 
April 2000.  This was treated with the use of nitrospray.  In 
January 2005, prior to separation, the Veteran reported a two 
year history of skin rashes on his legs and stomach which 
occurred during "times of stress."  A diffuse rash with scaling 
was noted on the Veteran's stomach, the both arms below the 
elbow, and both legs. The assessment was of atrophic dermatitis.

Following separation in January 2005, the Veteran reported a two 
week history of rash development on the dorsum of both hands.  
The rash was itchy and red but was not spreading anywhere else on 
his body.   His skin showed macules and papules with erythema on 
both hands, no vesicles, no target lesions and no hives.  It was 
noted that his symptomatology may have been a reaction to 
medication he was taking for a pinkeye infection.

On VA examination in May 2008, the Veteran reported a history of 
intermittent generalized skin lesions accompanied by intense to 
severe pruritus along with frequent episodes of sneezing and 
itchy runny eyes.  The Veteran took a medication called Zyrtec 
for his skin lesions.  

In February 2009 the Veteran's skin was without rash, itching, 
erythema, abrasions or edema.  In March 2009, however, the 
Veteran was noted to once again have a rash.

In a February 2009 statement submitted to VA, the Veteran 
indicated that he had atopic dermatitis or hives "every single 
day," and that it had been that way since 2002.  He described 
red bumps over his neck, stomach, legs, arms, hands, and head.  
The Veteran indicated that he had been prescribed treatment 
through the use of Triamcinolone Acetonide cream, which he said 
worked to control his red bumps and itching.  In light of the 
Veteran's in-service history of a skin disorder, along with his 
current complaints of such a disorder, a VA examination must 
afforded to the Veteran in order to properly adjudicate his 
claim.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for appropriate VA 
examination to determine the nature and 
etiology of his bronchitis.  The claims file 
should be provided to the examiner for review.  
Based on a review of the claims file and the 
results of the Veteran's physical examination, 
the examiner is to opine whether it is at 
least as likely as not (i.e., a 50 percent or 
greater probability) that the Veteran's in-
service cough and bronchitis were earlier 
manifestations relating to his current 
complaints of reoccurring bronchitis.  
Additionally, the examiner is asked to 
determine whether reoccurring bronchitis is in 
fact a manifestation of the Veteran's service-
connected allergic rhinitis or whether 
reoccurring bronchitis is a separate 
disability secondary to service-connected 
allergic rhinitis.  A complete rationale must 
be provided for any opinion expressed.

2.  Schedule the Veteran for appropriate VA 
examination to determine the nature and 
etiology of the Veteran's skin rash.  The 
claims file should be provided to the 
examiner for review.  Based on a review of 
the claims file and the results of the 
Veteran's physical examination, the examiner 
is asked to identify all skin disabilities, 
to include a skin rash, currently experienced 
by the Veteran, if possible.  If a skin 
disability is diagnosed, then the examiner is 
asked to opine whether it is at least as 
likely as not (i.e., a 50 percent or greater 
probability) that such disability is related 
to active service, including as due to any 
currently service-connected disabilities.  
The examiner also is asked to opine whether 
the Veteran's in-service skin problems were 
earlier manifestations of the Veteran's 
current skin disability, if diagnosed.  A 
complete rationale should be provided for any 
opinion expressed.

3.  Thereafter, readjudicate the Veteran's 
claims of service connection for a skin 
disorder (claimed as atopic dermatitis and 
hives) and for bronchitis.  If the benefits 
sought on appeal remains denied, the Veteran 
and his service representative should be 
provided a supplemental statement of the 
case.  An appropriate period of time should 
be allowed for response.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals for 
Veterans Claims for additional development or other appropriate 
action must be handled in an expeditious manner.  See 38 U.S.C.A. 
§§ 5109B, 7112 (West Supp. 2009).



______________________________________________
MICHAEL T. OSBORNE
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs