Citation Nr: 1323524 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 10-03 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for a left foot disorder, claimed as nerve damage, to include as secondary to service-connected left ankle tendonitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from February 1972 to September 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for sleep apnea and a left foot disorder. The Veteran appealed the denials of service connection in this decision, and the matter is now before the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal that are not already of record. FINDINGS OF FACT 1. The Veteran did not sustain a disease, injury, or event related to sleep apnea in service. 2. The Veteran does not have a current left foot disability. CONCLUSIONS OF LAW 1. Sleep apnea was not incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The criteria for service connection for a left foot disorder, to include as secondary to service-connected left ankle tendonitis, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties 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) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided a VCAA notice letter to the Veteran in September 2007, prior to the initial adjudication of the service connection claims currently on appeal. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claims for service connection both on direct and secondary bases, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). 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. In this case in the September 2007 letter, the Veteran was provided with such notice, including for secondary service connection for the left foot disorder (secondary to left ankle disability), including the type of evidence necessary to establish a disability rating and effective dates. Based on the foregoing, timely and adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a 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 (2012); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). In this case, service records have been obtained, as have records of private and VA treatment. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. In disability compensation claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the factor of relationship of current disability to service (or, by analogy, to a service-connected disability), the U.S. Court of Appeals for Veterans Claims (the Court) has indicated 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 a 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, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). The Veteran was afforded a VA examination of his feet in December 2007, during which the examiner conducted a physical examination of the Veteran, considered the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. While the VA examiner was not provided the Veteran's claims file for review, he did elicit an accurate history from the Veteran regarding his left foot and left ankle tendonitis. See VAOPGCPREC 20-95 (interpreting that in some cases an accurate history by a veteran may be a valid basis for an examination report rather than claims file review); see also Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). Furthermore, given that the December 2007 examination was essentially normal, and there is no currently diagnosed disability of the left foot, the lack of opportunity to review the claims file does not render the December 2007 examination insufficient with regard to the immediate claim. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). The Veteran has not undergone a VA examination with respect to the claimed sleep apnea; however, as discussed below, the weight of the evidence demonstrates that no in-service injury, disease, or event was incurred relevant to sleep apnea. The service treatment records are silent as to any complaints or treatment related to sleep apnea. Furthermore, the Veteran himself has not endorsed in-service symptoms of sleep apnea, namely any actual apneas, but rather has stated his belief that an in-service diagnosis of asthma was a misdiagnosis of sleep apnea. As the Board below finds that there was no in-service injury, disease, or event referable to sleep apnea, VA's duty to assist does not require a VA examination, even under the low threshold of McLendon. See also Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claims 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 claims. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of these claims have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. 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). Legal Criteria for 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.A. §§ 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). Among the disease listed under 38 C.F.R. § 3.309(a) as "chronic diseases" to which certain presumptions apply, are organic disease of the nervous system. With regard to the claimed left foot nerve damage, the evidence discussed below shows that the Veteran does not have a diagnosed left foot disability of any kind, to include nerve damage; thus, the presumptions applicable through 38 C.F.R. § 3.303(b) are not for application. Likewise, sleep apnea is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); and therefore, 38 C.F.R. § 3.303(b) again does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Except as provided in 38 C.F.R. § 3.300(c), a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2012). This includes any increase in disability (aggravation) that is proximately due to or the result of a service connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by service. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra. Thus in order to warrant service connection for a left foot disorder on a secondary basis, the evidence must show that it was caused or aggravated by a service-connected disease or injury. In this case the Veteran contends, specifically, that a left foot disorder is related to his service-connected left ankle tendonitis. Effective October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury." Paragraph (b) of 38 C.F.R. § 3.310 was redesignated as paragraph (c), and a new paragraph (b) was added, which states: (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). The left foot symptoms the Veteran has endorsed (soreness, weakness, and pain) are symptoms which are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). However, while sleep disturbances may result in symptoms which are capable of the Veteran's observation (such as day-time tiredness), events which may occur while the Veteran is unconscious (such as a cessation in breathing) are necessarily not observable by the Veteran. Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran contends that sleep apnea began during service while he was stationed in Hawaii, and that a left foot disorder did not begin until after service. Accordingly, the Veteran has not alleged, and the evidence does not suggest, that the claimed disorders were incurred as a result of combat against enemy forces; and thus, the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for application. Service Connection for Sleep Apnea The Board finds that the weight of the evidence demonstrates that the Veteran did not sustain a disease, injury, or event related to sleep apnea in service. Service treatment records show that in May 1987 pulmonary function testing was interpreted as indicating a mild obstructive ventilator defect. In May 1997, the Veteran reported to a pulmonary clinic and "asthma" was listed among the Veteran's problems. Two months later, in July 1997, testing was conducted at the Pulmonary Function Laboratory at Tripler Army Medical Center for evaluation of possible asthma or reactive airway disease. Results of testing were interpreted as indicating a mild obstructive defect on baseline spirometry. The findings were consistent with a diagnosis of asthma. On retirement examination in April 1999, the Veteran's lungs, chest and sinuses were normal and the Veteran affirmatively denied any history or current asthma, shortness of breath, chronic cough, or frequent trouble sleeping. Asthma is a "recurrent attack of paroxysmal dyspnea, with airway inflammation and wheezing due to spasmodic contraction of the bronchi." Dorland's Illustrated Medical Dictionary, 170 (31st ed. 2007). The Veteran was not diagnosed with sleep apnea until a September 2002 sleep study conducted three years after service separation at a clinic at Fort Hood. Apnea means the "cessation of breathing," while sleep apnea refers to a "transient period of cessation of breathing during sleep. It may result in hypoxemia and vasoconstriction of pulmonary arterioles, producing pulmonary arterial hypertension." Id at 118. The Veteran has stated that in 1997, at the time of evaluation of possible asthma, he was experiencing tiredness, and he contends that this suggests that the diagnosis of asthma was incorrect. The Veteran's endorsement of being tired is competent. See Jandreau, 492 F.3d 1372; Layno v. Brown, 6 Vet. App. 465 (1994). However, his assertion that tiredness combined with a potentially false diagnosis of asthma indicates evidence of sleep apnea in-service is not competent. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. However, to assert that in-service tiredness combined with diagnosed asthma necessarily indicates the onset of sleep apnea is well beyond the threshold of lay competency. Woehlaert, 21 Vet. App. at 462. Consistent with the definitions of asthma versus sleep apnea, the two are not related. While they both concern an effect on one's breathing, the telltale indicia of sleep apnea is apnea - the cessation of breathing. Without a finding of apnea, based either on sleep studies or on lay observation, there necessarily is no sleep apnea. In contrast, asthma relates to airway inflammation and dyspnea (shortness of breath). Shortness of breath and the complete cessation of breathing are mutually exclusive as shortness of breath requires one to be breathing. The Board also notes that in endorsing in-service symptoms, the Veteran has not alleged that he had difficulty sleeping, interrupted sleep, or was aware of any episodes of apnea while sleeping. He only asserts that he was tired and that he was diagnosed with asthma, and that the diagnosis of asthma may have been incorrect. The entirely separate nature of asthma from sleep apnea, with no overlapping or interrelated impairment, is further enforced in VA's own regulations. Specifically, the Diagnostic Codes (Codes or DCs) on which VA assigns evaluations for asthma and sleep apnea rely on wholly dissimilar symptoms and findings. Where 38 C.F.R. § 4.97, DC 6602 rates asthma based on forced expiratory volume and forced vital capacity testing, 38 C.F.R. § 4.97, DC 6847 rates sleep apnea based largely on daytime sleepiness and the need for breathing assistance using a device such as a continuous airway pressure machine. With regard to the Veteran's potential entitlement to service connection for asthma, the Board notes that the Veteran has made no such claim - expressed or implied. Rather, the Veteran has gone to some lengths to argue that his in-service diagnosis of asthma was inaccurate, and not demonstrative of an in-service onset of asthma. Accordingly the Board is left with no competent evidence of in-service injury or event related to sleep apnea as the evidence shows the Veteran had no apneas during service. Without evidence of an in-service injury or disease, the claim of service connection cannot be granted. See Bardwell, 24 Vet. App. 36. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for a Left Foot Disorder The Veteran is currently service connected for left ankle tendonitis, and he contends that a left foot nerve disorder is related to the service-connected left ankle tendonitis. As a threshold matter, the Board must determine whether the Veteran has a left foot disorder for which service connection may be awarded on either a direct or secondary basis. The Board finds that the Veteran does not have a diagnosed left foot disability. Service treatment records reveal that in March 1999 the Veteran had a puncture wound to his left heal from a nail. The heel was swollen and sore, but the Veteran was able to put pressure on it. The assessment was a puncture wound of the left foot. On separating examination in April 1999, the Veteran affirmatively denied any history or current foot problems and his feet were clinically normal. Following separation from active service in September 1999, the Veteran underwent a VA examination in December 2007. At that time, he told the examiner that he began having pain in his left foot in June 2007, after service. Pain was reported to be intermittent, lasting two to three hours, and happened when walking and standing. The Veteran had not noted any numbness or tingling of the foot. Objective findings included that the left foot was normal in appearance, and there was no objective evidence of painful motion, edema, instability, weakness, or tenderness. The examiner concluded that there was no left foot nerve damage, and the Veteran's foot was normal. In June 2009 the Veteran was treated at Fort Hood for foot pain. The foot was tender on palpation over the dorsal aspect. There was no hallux valgus, and motion was not limited. The treating physician assessed left foot pain (soft tissue) at the dorsal aspect of the foot. In statements submitted to VA, the Veteran has indicated that his left foot is sore and painful, and that the symptoms feel similar to the symptoms he experiences in his service-connected ankle. Soreness and pain are capable of lay observation, and thus the Veteran's statements of such symptoms in the left foot are competent. Jandreau; Layno, 6 Vet. App. 465. Nonetheless, the Veteran himself has not indicated an underlying pathology associated with his left foot pain, and evidence from competent medical professionals indicates that none exists. The Board finds that the opinion of the December 2007 VA examiner that the Veteran's foot is normal combined with the June 2009 opinion that the Veteran has left foot pain without an associated diagnosis to be highly probative. With regard to the December 2007 VA opinion, the Board notes that during the examination the Veteran denied any history of injury to the left foot, which conflicts with service treatment records showing a left foot puncture wound. Generally medical opinions based on incomplete or inaccurate factual premise are not probative. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). However, in this case, when determining whether the Veteran has a current left foot diagnosis, the VA examiner relied on his physical examination of the Veteran's foot and the Veteran's report of current symptomatology and complaints. That the Veteran denied the occurrence of a left foot injury 12 years prior, which service treatment records show was treated during service but was nonsymptomatic at service separation, does not affect the examiner's assessment of the current condition of the Veteran's left foot. In total, the weight of the competent evidence of record, including the Veteran's endorsements of symptomatology, demonstrates that the Veteran does not have a current diagnosed left foot disability. Pain, without underlying pathology, is not a disability. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); see also Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011) (holding that pain alone does not constitute function loss under VA regulations which evaluate disabilities based upon limitation of motion). Without a current left foot disability, service connection cannot be established on either a direct or secondary basis. Based on the foregoing, the preponderance of the evidence is against the claim, and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for sleep apnea is denied. Service connection for a left foot disorder, to include a secondary to service-connected left ankle tendonitis, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs