Citation Nr: 1333650 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-47 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a compensable disability evaluation for varicocele. 2. Entitlement to service connection for sleep apnea, claimed as secondary to hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from January 1987 to July 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In May 2013, the Board remanded this case for further evidentiary development. The development is complete and the case has been returned to the Board for disposition. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran has left varicocele that is manifested by intermittent pain, but not atrophy of both testicles or other abnormal genitourinary findings. 2. Sleep apnea is not shown in service and is not etiologically caused by or aggravated by service-connected hypertension. CONCLUSIONS OF LAW 1. The schedular criteria for a compensable rating for a varicocele have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Codes 7599-7523 (2013). 2. The criteria for service connection for sleep apnea are not met to include as secondary to hypertension. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA met its duty to notify. The record reflects that VA sent to the Veteran all required notice in an October 2008 letter, prior to the rating decision on appeal. Furthermore, the RO supplemented this notice with a letter dated in June 2013 and then readjudicated the claims, providing the Veteran due process of law. Also, VA met its duty to assist the Veteran. VA obtained the Veteran's service treatment records (STRs) along with all other relevant medical treatment records identified by the Veteran. These records have been associated with the claims files. VA further afforded the Veteran an appropriate VA medical examination. The Board previously remanded the claim to ensure that VA met its duty to assist the Veteran. The requested actions were completed. The Board has reviewed the post remand VA examination reports and finds that they are adequate and responsive to the Board's remand questions. D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The examination report contains findings that are adequate to make an informed decision on the merits of the claims. The examination report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate examination, and rendered an appropriate diagnosis consistent with the remainder of the evidence of record. The Board therefore concludes that the evidence of record is sufficient to render rate the Veteran's disability under the appropriate rating criteria and make a decision on the claim for service connection for sleep apnea. See 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. Therefore, the Board concludes that there has been substantial compliance with the directives contained in the Board's prior remand decision. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the Veteran's claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. I. General Legal Considerations Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, 1 Vet. App. at 54. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). II. Evaluation of Varicocele The Veteran seeks a compensable evaluation for varicocele. During VA examination in in November 2008, he reported symptoms of urinary frequency associated with varicocele. He reported in January 2009 that his service-connected varicocele was manifested by daily pain that required frequent use of anti-inflammatory medications. Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Veteran is service connected for varicocele under Diagnostic Code 7599-7523 at the noncompensable disability level. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Using Diagnostic Code "7599" signifies the RO's application of a closely analogous Code due to the lack of a Code specific to the disability. 38 C.F.R. § 4.27. The Veteran's genitourinary disability has been analogously rated under the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7523, for "Testes, atrophy, complete." Under that Code, a compensable evaluation is warranted where there is complete atrophy of both testicles. Analysis Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a compensable evaluation for varicocele. The evidence of record does not more nearly reflect complete atrophy of both testicles and other symptomatology, to include urinary frequency, has not been etiologically related to varicocele. 38 C.F.R. § 4.7. Report of VA examination dated in November 2008 reflects history of varicocele for past 12 years. The Veteran complained of urinary frequency. He denied urinary incontinence, impotence, and any other functional impairment from this condition. Objectively, there was left varicocele on examination of the testicles. The diagnosis was left varicocele manifested by intermittent pain. Report of VA examination dated in July 2013 reflects left varicocele manifested by intermittent sharp aching pain to the left testicle, treated with Motrin. The examiner noted that varicocele "is an abnormal enlargement of the pampiniform venous plexus in the scrotum," which "drains the testicles," and that symptoms typically included "aching pain within the scrotum, feeling of heaviness to the testicles, atrophy of shrinkage of the testicle, low testosterone or [sic] a visible or palpable enlarged vein." The examiner concluded that the Veteran's report of urinary frequency was "less likely than not" related to or aggravated by varicocele because urinary frequency is not a symptom associated with varicocele. The examiner noted that the Veteran's varicocele had "no impact in social or occupational functioning." Neither the lay nor the medical evidence of record more nearly reflects complete atrophy of both testicles as required for a compensable evaluation under Diagnostic Code 7523. 38 C.F.R. § 4.7. The medical evidence shows left varicocele manifested by intermittent pain and treated with Motrin. There are no complaints or findings for testicular atrophy of both testicles. Other genitourinary symptomatology associated with varicocele is not shown. To the extent that the Veteran repots symptoms of urinary frequency, the Board finds that the Veteran is competent to report his symptoms. Layno, supra. See also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Lay evidence can be competent and sufficient to establish a diagnosis of a condition 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.). However, the Veteran is not competent to attribute his urinary frequency to service-connected varicocele. Although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. The facts of this case do not render the Veteran's non-expert opinion competent evidence because an etiological relationship between varicocele and urinary frequency is not susceptible to lay observation, unlike a broken leg, and the Veteran has no particular medical training or expertise. Therefore, the Veteran's opinion has no probative value. Whether a disability has meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Here, although the Veteran believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the requirements for higher rating than currently assigned. The Board assigns greater probative value to the medical evidence of record which shows no atrophy of both testicles. The medical findings are highly probative as these were prepared by skilled, neutral medical professionals after interview of the Veteran and physical examination. The Board finds that a higher evaluation is furthermore not available under any other potentially applicable provision. No other disorder or dysfunction has been etiologically related to service-connected varicocele. Accordingly, the claim is denied and there is no basis for a staged rating. See Hart, supra. The Veteran met the criteria for a higher evaluation at no time during the appeal period. As the evidence of record is not in equipoise, there is no doubt to resolve. Gilbert, supra. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the record reflects that the manifestations of the disability are specifically contemplated by the schedular criteria. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. Thun v. Peake, 22 Vet. App. 111, 115 (2008). II. Service Connection for Sleep Apnea The Veteran seeks service connection for sleep apnea. The Veteran reported to VA in an October 2008 letter that he had been diagnosed by Dr. R.S. with sleep apnea based on a sleep study conducted in March 2008. In a December 2008 statement, the Veteran's wife wrote that she married the Veteran in October 1996 and that: Towards the end of that year, I became award of his extremely loud snoring. I also began to notice that he would stop breathing for several seconds during the course of he might. The amount of times [he] would stop breathing during the night began to increase. Also, as time progressed the amount of time he actually stopped breathing increased. I often had to shake him in order for him to start breathing again. We were unaware of the diagnosis of apnea at the time, but it became very apparent over time. He continually had problems staying awake for day to day activities. In a June 2009 letter, the Veteran argued that his sleep apnea was related to hypertension in service. He provided no basis for this theory or medical evidence in support thereof. It is noted that service-connection for hypertension was established in August 2010, effective from November 2008. Legal Criteria Initially, the Board notes the Veteran does not assert that his sleep apnea is a result of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not for application in this matter. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). However, the Federal Circuit decision in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), recently held the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Sleep apnea is not a disability explicitly recognized under that regulation. Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Analysis Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for sleep apnea. Sleep apnea in not shown in service and has not been etiologically related to service, to include service-connected hypertension. Service treatment records show no complaints or findings for sleep apnea. Report of Medical History dated in May 2001 reflects that the Veteran had improved health since his last exam, no illnesses or injuries, and no concerns about his health. The Veteran noted that he intended to seek VA disability for residuals of left knee surgery in January 1997. Private treatment records reflect that the Veteran underwent a sleep study in 2008 and sleep apnea was diagnosed. US Air Force Reserves medical records dated in June 2008 note that the Veteran was diagnosed with sleep apnea in February 2008. The evidence of record shows no complaints or findings for sleep apnea in service or for many years after service. Sleep apnea is first diagnosed roughly 7 years after service separation in 2008. The Board accepts that the Veteran and his spouse are competent to report their observations, to include the Veteran symptoms of snoring and cessation of breathing. See Layno, supra. However, to the extent the Veteran and his spouse report symptoms compatible with sleep apnea during the Veteran's active duty, the Board finds that they are not credible. Notably, the Veteran has not specifically asserted symptoms compatible with sleep apnea in service. Notwithstanding, any suggestion of such is not credible in view of his medical assessment near in time to service discharge and other service treatment records which show no complaints typically associated with sleep apnea during his active duty. This coupled with his original claim for VA compensation dated in October 2001, which is silent for a sleep apnea type condition, weighs against his credibility. As for the Veteran's spouse, the Board finds that she is not credible because she is an inconsistent historian. Although she reported in a letter to VA dated in December 2008 that she observed the Veteran with symptoms compatible with sleep apnea as early as 1996 when they were first married, a private medical assessment dated in March 2008 show that the Veteran's wife had never observed episode of apnea during sleep that the Veteran knew of. By history, the wife had complained of the Veteran having loud snoring of 2 years duration-since 2006. It was noted that the Veteran had gained weight in recent years and had increased neck size due to weight lifting. Therefore, the Veteran's and his spouse's suggestion that sleep apnea symptoms date to service are not credible and have diminished probative value. Also, the Veteran is not competent to attribute any current sleep apnea diagnosis to service-connected hypertension. An etiological relationship between sleep apnea and hypertension is not susceptible to lay observation, unlike a broken leg, and is a complex medical question. Moreover, the Veteran has no particular medical training or expertise that would render his medical opinion competent. Given the facts of this case, the Board finds that a non-expert opinion is not suitable here. See Davidson at 1316 (Fed. Cir. 2009). Therefore, the Veteran's opinion has no probative value in this regard. The Board assigns greater probative value to the medical evidence of record which shows no signs or symptoms of sleep apnea in service; no diagnosis for sleep apnea in service; and no nexus (causation or aggravation) between sleep apnea and hypertension. The Board observes that report of VA examination dated in July 2013 reflects that sleep apnea was "less likely than not" incurred in or caused by hypertension because there were no complaints of symptoms compatible with sleep apnea in service, "the fact that the claimant was diagnosed with sleep apnea over 6 year [sic] after leaving service, the fact that he has gotten older and had gained weight both of which increases the risk for development of sleep apnea..." The examiner noted that "Although sleep apnea may be associated with aggravation of hypertension, the reverse is not true-i.e., high blood pressure is not documented to cause or aggravate obstructive sleep apnea. The examiner explained that there an "absence [of] a pathophysiological relationship between hypertension actually causing sleep apnea" and, therefore, it was unlikely that the Veteran's hypertension "has effected (caused or aggravated) the veteran's sleep disorder." The medical findings are highly probative as these were prepared by skilled, neutral medical professionals. The Board finds that the July 2013 VA medical opinion is highly probative as this was prepared after interview of the Veteran and physical examination. Additionally, the report of examination reflects a thorough review of the Veteran's medical history and referenced medical literature pertaining to sleep apnea. The Board observes that the record contains no favorable medical opinion to weigh against the negative medical opinion here. Accordingly, the weight of the evidence is against the claim and it is denied. As the evidence of record is not in equipoise, there is no doubt to resolve. Gilbert, supra. ORDER A compensable evaluation for varicocele is denied. Service connection for sleep apnea is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs