Citation Nr: 1630783 Decision Date: 08/03/16 Archive Date: 08/11/16 DOCKET NO. 10-15 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a bilateral eye disability. 2. Entitlement to service connection for obstructive sleep apnea. 3. Entitlement to service connection for right knee disability. 4. Entitlement to service connection benign prostate hypertrophy. 5. Entitlement to service connection for left groin disability. 6. Entitlement to service connection for epididymitis. 7. Entitlement to service connection for a heart disability, to include left ventricular hypertrophy. 8. Entitlement to service connection for a disability manifested by clogged ears. 9. Entitlement to service connection lower back disability. 10. Entitlement to service connection for colon polyps. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1975 to May 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The RO in Roanoke has jurisdiction. The Veteran testified before the undersigned in a March 2016 hearing. A hearing transcript was associated with the file and reviewed. The issues of service connection for back, heart, colon and ear disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. At the March 2016 Board hearing, before promulgation of a decision on the appeal, the Veteran withdrew his appeal of the denial of service connection for an eye disability. 2. Resolving all doubt in the Veteran's favor, the evidence shows current obstructive sleep apnea and a nexus to active service. 3. The evidence shows current benign prostate hypertrophy had its onset with complaints of pain and voiding problems in service. 4. The evidence shows current right knee arthritis is related to service-connected left knee disability. 5. The evidence does not show a current diagnosis of epididymitis. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal on the issue of service connection for an eye disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 2. The criteria for an award of service connection for obstructive sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131, 5103 (West 2014); 38 C.F.R. § 3.303 (2015). 3. The criteria for an award of service connection for benign prostate hypertrophy have been met. 38 U.S.C.A. §§ 1110, 1131, 5103 (West 2014); 38 C.F.R. § 3.303 (2015). 4. The criteria for an award of service connection for right knee arthritis have been met. 38 U.S.C.A. §§ 1110, 1131, 5103 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). 5. The criteria for an award of service connection for epididymitis have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(5); 38 C.F.R. § 20.202. At any time before the Board promulgates a decision, an appellant or his or her authorized representative may withdraw a substantive appeal as to any or all issues either on the record at a hearing or in writing. 38 C.F.R. § 20.204. At the March 2016 hearing, the Veteran and his representative stated that he wished to withdraw his appeal of the claim of service connection for an eye disability. This statement withdrew the appeal in accordance with 38 C.F.R. § 20.204 and was received by the Board prior to the promulgation of a decision on the appeal. As such, there remain no allegations of error of fact or law for appellate consideration as to this issue. The Board has no jurisdiction to review the appeal of the denial of service connection for an eye disability and the appeal is dismissed. See 38 C.F.R. § 20.202. II. Procedural duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). In April 2008, the RO sent the Veteran a letter, providing notice that satisfied the requirements of the VCAA. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). No additional notice is required. Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered. VA provided examinations for the heart, colon, epididymitis, left groin, and sleep apnea claims in July 2008 and January 2015. There is no indication or assertion that these examinations were inadequate. To the contrary, the provided detail on the subjective symptoms and objective findings. The medical opinions discuss the relevant evidence and provided rationale for the conclusions. Thus, the Board finds the examinations adequate and no additional development is needed for the claims. As VA has satisfied its duties to notify and assist the Veteran, no further notice or assistance is required. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. III. Service connection Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Alternatively, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or permanently worsened beyond its natural progression (aggravated) by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc); 38 C.F.R. § 3.310. The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Veteran, his wife, and his friends are competent to describe symptoms observable by their senses, however, they are not competent to diagnose disabilities of complex systems such as the cardiovascular and musculoskeletal without specialized training and education. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2003). The Board finds them credible, as their statements have been detailed and consistent. First, based on the evidence, the Board finds that the criteria for service connection for obstructive sleep apnea have been met. See 38 C.F.R. § 3.303. The evidence shows a current disability and reports of in-service symptoms. Current VA treatment records show diagnosis and treatment for sleep apnea. The Veteran was first diagnosed with a sleep study in August 2004. The Veteran's friends, JAG and LCS, reported that he complained of sleep problems for years, including during the time of his service. See January and February 2008 statements. In April 2008, the Veteran's wife wrote that he had experienced a sleep disorder for 20 years, had snoring and hard breathing since the mid-1980s, and the symptoms increasingly worsened. During the Board hearing, the Veteran reported his wife telling him that he stopped breathing in his sleep. The medical evidence is in relative equipoise that the Veteran's sleep apnea began in service. The January 2015 examiner concluded that the sleep apnea condition was less likely than not incurred in or caused by service. The examiner explained that the Veteran was diagnosed after service, and addressing the lay reports, he wrote that sleep apnea is a condition with specific established diagnostic criteria and is not diagnosed by the simple complaint of fatigue, tiredness, sleepiness, or other nonspecific complaints. Snoring is not sleep apnea; sleep apnea is caused by the blockage of upper airway by the tongue and soft palate by relaxation of muscles of those structures. See VA examination. The examiner found that no event or exposure in military service causes sleep apnea. However, Dr. JWB wrote that sleep apnea was as likely as not related to service because there was a nexus between the Veteran's service and the development of sleep apnea. Moreover, the January 2015 examiner considered reported symptoms such as fatigue, tiredness, and snoring but did not consider the report that the Veteran stopped breathing in his sleep. The Board finds the evidence in relative equipoise. As there is an approximate balance of positive and negative evidence, all reasonable doubt will be resolved in favor of the Veteran. See 38 C.F.R. § 3.102. The Board finds the criteria for service connection for sleep apnea met. See 38 C.F.R. § 3.303. Regarding benign prostate hypertrophy (BPH), the Board finds that the criteria for service connection have been met based on the record. See 38 C.F.R. § 3.303. The evidence shows a current diagnosis. VA records show treatment for BPH, and the July 2008 examiner also diagnosed BPH. The evidence also shows complaints of testicular and penile pain in September 1987 during service. The February 1999 separation examination indicates prostate problems. During the July 2008 examination and the Board hearing, the Veteran reported frequent urination and problems that existed since service. The July 2008 examiner did not provide an opinion on a relationship between service and BPH. However, in a May 2016 opinion, Dr. JWB concluded that there was a nexus between the Veteran's service and the development of BPH because service treatment records revealed recurrent complaints related to the prostate. Based on this opinion, the Veteran's report of continuous symptoms, and in-service complaints, the Board finds that BPH is related to service and service connection is warranted. See 38 C.F.R. § 3.303. Next, after review of the record, the Board finds the criteria for service connection for right knee arthritis have been met. The evidence shows current knee disabilities. A July 2008 radiology report notes that views of the right knee showed no evidence of fracture or other significant bone, joint, or soft tissue abnormality. During the July 2008 examination, the Veteran reported no complaints with the right knee and the examiner found full range of motion, normal ligaments, and no signs of edema, effusion, weakness, subluxation, or guarding of movement. Later, in March 2015, a treating provider noted mild to moderate osteoarthritis in both knees. Indeed, the Veteran reported that he was diagnosed with arthritis in 2015. See Board hearing. The Veteran is service connected for left knee medial meniscus tear. In the May 2016 opinion, Dr. JWB found that the right knee disability was as likely as not related to service because there was a secondary nexus between the Veteran's right knee pathology and his already service connected left knee pathology, as a result of unequal lower extreme loading principles. VA did not provide an opinion on the relationship between the left and right knee disabilities because the 2008 examiner found no right knee disability. Therefore, the evidence supports a finding that the service-connected left knee caused the right knee arthritis and service connection is warranted on a secondary basis. See 39 C.F.R. §§ 3.303, 3.310. For the epididymitis claim, the criteria for service connection for epididymitis have not been met because the evidence does not show a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); 38 C.F.R. § 3.303. Service treatment records show complaints of scrotal and testicle pain, including in July 1977. In September 1987, a provider diagnosed epididymitis during the Veteran's period of service. However, the July 2008 examiner wrote that he could not diagnose any epididymitis or other condition because there was no pathology to render the diagnosis. During the Board hearing, the Veteran endorsed scrotal pain in service and since but reported that he had not had a diagnosis since service. Pain alone, without an underlying diagnosis, is not a disability. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Dr. JWB provided a positive opinion on service connection, writing that service treatment records revealed recurrent complaints related to the testicles. Dr. JWB reviewed the record but did not perform a physical examination on the Veteran. Therefore, his opinion is not probative as to whether the Veteran has a current diagnosis. Service connection cannot be established when there is no present disability shown. See Brammer, 3 Vet. App. at 225; 38 C.F.R. § 3.303. With no evidence of epididymitis during the claims period, service connection cannot be established. See id. Similarly, the criteria for service connection for a left groin disability have not been met because the evidence does not show a current disability. See Brammer, 3 Vet. App. at 225; 38 C.F.R. § 3.303. Service treatment records show a pulled muscle in the groin area; the date of the record is unclear. During the Board hearing, the Veteran reported being treated for pain and a groin disorder in service. He noted that he still has symptoms currently. See Board hearing, July 2008 examination. The July 2008 examiner wrote that he could not diagnose a groin disability because there was no pathology to render such a diagnosis. Current treatment records also do not show diagnosis of a groin disability. The Board understands the Veteran's reports of continuous symptoms, but pain alone is not a compensable disability. See Sanchez-Benitez, 259 F.3d at 1356. The Board finds the examiner's clinical evidence most probative of the presence of a disability. Service connection for a groin disability cannot be established if there is no current diagnosis. See Brammer, 3 Vet. App. at 225; 38 C.F.R. § 3.303. ORDER The appeal of the denial of service connection for an eye disability is dismissed. Service connection for obstructive sleep apnea is granted. Service connection for benign prostate hypertrophy is granted. Service connection for right knee arthritis is granted. Service connection for epididymitis is denied. Service connection for a left groin disability is denied. REMAND The claims of service connection for back, heart, colon, and ear disabilities are remanded to the AOJ for additional development. With respect to the back disability, current treatment records show lumbar neuritis as a problem and a March 2015 radiology report shows mild to moderate multilevel loss of disk space height and endplate. A December 1997 in-service treatment record notes complaints and an assessment of low back pain. Dr. JWB wrote that the Veteran's back disability was as likely as not related to service because there is a nexus between the Veteran's service and development of lumbar pathology. Dr. JWB did not provide any rationale for his conclusion, therefore, the opinion is inadequate. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). However, the opinion does suggest a possible relationship such that VA should provide the Veteran with an examination for his back claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the heart claim, current treatment records note a rhythm disorder, a January 2008 EKG report shows that murmurs were heard, and the February 1999 separation examination also detected a murmur. The January 2015 VA examiner only discussed left ventricular hypertrophy, not the heart murmur. An addendum opinion would be helpful. For the colon claim, the Veteran marked stomach, liver, or intestinal problems on his service separation examination in February 1999. The evidence shows that in 2004, prior to the claim period, the Veteran had colon polyps removed. The July 2008 examiner found no evidence of a current colon condition. However, current treatment records show diverticulitis of the colon on the problem lists. A VA examination would is needed to determine if there is any connection between in-service complaints and current diverticulitis of the colon. See McLendon, 20 Vet. App. at 79. Finally, for the ear claim, the Veteran reported at the Board hearing that his symptoms included tinnitus. The AOJ has not been able to consider a claim for tinnitus. Service treatment records from July 1986 show impacted cerumen treated with irrigation. A medical opinion should be obtained to determine whether current tinnitus could be related to in-service impacted cerumen and irrigation. See McLendon, 20 Vet. App. at 79. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Thereafter, schedule the Veteran for a spine examination and forward the claims file to the examiner to discuss the following: a. Is the Veteran's back disability at least as likely as not related to service, including a complaint of low back pain? Consider all lay and medical evidence. Provide rationale for any conclusions. If the requested opinion cannot be provided without resort to speculation, court cases require the examiner explain why the opinion cannot be offered, and state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. 3. Schedule the Veteran for a cardiovascular examination and forward the claims file to the examiner to discuss the following: a. Is the Veteran's heart murmur associated with a disability or otherwise disabling? b. Is the murmur or other heart disability at least as likely as not related to service or did it begin in service? Please consider the February 1999 separation examination. Consider all lay and medical evidence. Provide rationale for conclusions. If the requested opinion cannot be provided without resort to speculation, court cases require the examiner explain why the opinion cannot be offered, and state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. 4. Schedule the Veteran for an examination for his colon disability claim and forward the claims file to the examiner to address the following: a. Is diverticulitis of the colon, shown in current treatment records, at least as likely as not related to complaints of stomach or intestinal problems at separation? Consider all lay and medical evidence. Provide rationale for conclusions. If the requested opinion cannot be provided without resort to speculation, court cases require the examiner explain why the opinion cannot be offered, and state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. 5. Schedule the Veteran for an auditory examination and forward the claims file to the examiner to address the following: a. Is reported tinnitus, or any other symptoms of the ears at least as likely as not related to impacted cerumen and/or irrigation in service? Consider all lay and medical evidence. Provide rationale for conclusions. If the requested opinion cannot be provided without resort to speculation, court cases require the examiner explain why the opinion cannot be offered, and state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. 6. Issue a supplemental statement of the case with consideration to the new evidence of record and return the appeal to the Board if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs