Citation Nr: 1751222 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 12-31 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a kidney disorder. 4. Entitlement to service connection for edema. 5. Entitlement to service connection for neuropathy. 6. Entitlement to service connection for a left foot disorder. 7. Entitlement to service connection for a right foot/ankle disorder. 8. Entitlement to service connection for depression. REPRESENTATION Appellant represented by: William L'Esperance, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from July 1975 to August 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the VA Regional Office (RO) in Albuquerque, New Mexico. Due to the location of the Veteran's current residence, jurisdiction of this appeal is with the RO in Denver, Colorado. The Veteran testified at a hearing conducted before the undersigned in December 2013. A transcript of the hearing has been associated with the claims file. Following the hearing, the case was remanded by the Board for further development in March 2015. The Board also dismissed the withdrawn issues of service connection for hemorrhoids and hypolipidemia; as such, those issues are no longer on appeal. FINDINGS OF FACT 1. Sleep apnea was not present during the Veteran's service and did not develop as a result of any incident during service. 2. Hypertension was not present during the Veteran's service, was not manifested within one year of discharge from service, and did not develop as a result of any incident during service. 3. A kidney disorder was not present during the Veteran's service, was not manifested within one year of discharge from service, and did not develop as a result of any incident during service. 4. Edema was not present during the Veteran's service and did not develop as a result of any incident during service. 5. Neuropathy was not present during the Veteran's service, was not manifested within one year of discharge from service, and did not develop as a result of any incident during service. 6. The Veteran does not have a current left foot disability that is etiologically related to service. 7. The Veteran does not have a current right foot/ankle disability that is etiologically related to service. 8. The Veteran does not have a current mental health diagnosis. CONCLUSIONS OF LAW 1. Sleep apnea was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. Hypertension was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 3. A kidney disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 4. Edema was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 5. Neuropathy was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 6. A left foot disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 7. A right foot/ankle disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 8. Depression was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. VA's Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). II. Analysis A. Applicable laws and regulations Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including cardiovascular-renal disease and organic neurological disorders, are presumed to be service connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. B. Sleep Apnea In this case, the Board acknowledges that the Veteran's complete service records (STRs) are not of record. The Board has reviewed what is of record and notes that no sleep complaints were indicated in a November 1974 examination. Significantly, the Veteran has not reported being treated for any sleep complaints during service. Based on the Veteran's testimony regarding his in-service duties, the Board concedes exposure to methyl ethyl ketone (MEK) during service. Given the above, the remaining question for the Board is whether there is an etiological relationship, or nexus, between the current disability and service, specifically the in-service exposure to MEK. Evidence directly addressing the question of nexus is limited to an August 2015 VA sleep apnea examination report. The VA examiner found, after a claims file review, that it was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner opined that they found no evidence to attribute the Veteran's sleep apnea to an event, exposure, trauma or concurrent illness in the military. The Board finds that the August 2015 VA examination opinion is the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. As to the Veteran's own contentions, he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to a diagnosis or the onset date of such diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In summary, the preponderance of the evidence is against the claim for service connection for sleep apnea, and the claim must be denied. 38 U.S.C.A. § 5107(b). C. Hypertension In this case, the only STR of record, the November 1974 examination report, shows no hypertension complaints and blood pressure of 130/86. Significantly, the Veteran has not reported being treated for hypertension during service. Given the above, the remaining question for the Board is whether there is an etiological relationship, or nexus, between the current disability and service, specifically the in-service MEK exposure. Evidence directly addressing the question of nexus is limited to an August 2015 VA hypertension examination report. The VA examiner found, after a claims file review, that it was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner opined that they found no evidence to attribute the Veteran's hypertension to an event, exposure, trauma or concurrent illness in the military. The Board finds that the August 2015 VA examination opinion is the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. As to the Veteran's own contentions, he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to a diagnosis or the onset date of such diagnosis. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2017). In summary, the preponderance of the evidence is against the claim for service connection for hypertension, and the claim must be denied. 38 U.S.C.A. § 5107(b). D. Kidney Disorder In this case, the only STR of record, the November 1974 examination report, shows no kidney complaints. The Veteran testified he was treated for a urinary tract infection during service around 1983. Given the above, the remaining question for the Board is whether there is an etiological relationship, or nexus, between the current disability of chronic kidney disease and service. Evidence directly addressing the question of nexus is limited to a January 2009 treatment record and an August 2015 VA hypertension examination report. The January 2009 record shows that the Veteran's chronic kidney disease was presumed to be from hypertensive nephropathy. In the examination for the Veteran's hypertension, the examiner opined that the Veteran's hypertension was likely the source of his chronic kidney disease. The Board acknowledges a September 2008 letter from a VA physician noting the Veteran's reported MEK exposure and currently diagnosed chronic kidney disease; however, such letter does not include an etiological opinion regarding the Veteran's disability. The Board finds that the August 2015 VA examination report is the most probative evidence of record as the examiner reviewed the claims file and provided a rationale based on the Veteran's treatment records. As to the Veteran's own contentions, he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to a diagnosis or the onset date of such diagnosis. See Jandreau, supra. In summary, the preponderance of the evidence is against the claim for service connection for a kidney disorder, and the claim must be denied. 38 U.S.C.A. § 5107(b). E. Edema In this case, the only STR of record, the November 1974 examination report, shows no edema complaints. Significantly, the Veteran has not reported being treated for any edema complaints during service. Given the above, the remaining question for the Board is whether there is an etiological relationship, or nexus, between the current disability and service, specifically the in-service MEK exposure. Evidence directly addressing the question of nexus is limited to an August 2015 VA artery and vein conditions examination report. The VA examiner found, after a claims file review, that it was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner opined that they found no evidence to attribute the Veteran's edema to an event, exposure, trauma or concurrent illness in the military. As with the Veteran's chronic kidney disease, the September 2008 letter from a VA physician notes the Veteran's reported MEK exposure and currently diagnosed edema; however, such letter does relate edema to the Veteran's service. Indeed, this letter shows that the Veteran's edema was caused by his chronic kidney disease. The Board finds that the August 2015 VA examination opinion is the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. As to the Veteran's own contentions, he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to a diagnosis or the onset date of such diagnosis. See Jandreau, supra. In summary, the preponderance of the evidence is against the claim for service connection for edema, and the claim must be denied. 38 U.S.C.A. § 5107(b). F. Neuropathy In this case, the only STR of record, the November 1974 examination report, shows no neuropathy complaints. Significantly, the Veteran has not reported being treated for any neuropathy complaints during service. Given the above, the remaining question for the Board is whether there is an etiological relationship, or nexus, between the current disability and service, specifically the in-service MEK exposure. Evidence directly addressing the question of nexus is limited to a neurology note and an August 2015 VA peripheral nerve conditions examination report. A January 2009 record shows that, per neurology, a review of the literature and hexane-associated neuropathies showed that certainly prolonged exposure to MEK could cause peripheral neuropathy. The note reveals that all case reports and studies showed abnormal nerve studies as it affected the larger fibers and was of a mixed, sensorimotor neuropathy with demyelinating features. The note concluded that the Veteran's nerve studies were normal and not compatible with that type of neuropathy. The VA examiner found, after a claims file review, that it was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner opined that they found no evidence to attribute the Veteran's neuropathy to an event, exposure, trauma or concurrent illness in the military. The September 2008 letter from a VA physician notes the Veteran's reported MEK exposure and currently diagnosed neuropathy. This letter indicates that prolonged exposure to MEK could cause sensorimotor neuropathy. However, such letter does specifically relate this Veteran's neuropathy to his in-service MEK exposure The Board finds that the neurology note and the August 2015 VA examination opinion are the most probative evidence of record. The neurology note discussed medical literature and the Veteran's nerve studies, while the examiner reviewed the claims file and provided a detailed rationale. As to the Veteran's own contentions, he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to a diagnosis or the onset date of such diagnosis. See Jandreau, supra. In summary, the preponderance of the evidence is against the claim for service connection for neuropathy, and the claim must be denied. 38 U.S.C.A. § 5107(b). G. Left Foot Disorder The Board has reviewed the Veteran's STRs that are of record and post-service medical records but finds no evidence confirming a current and chronic left foot disorder. The only disorders shown are hallux valgus and plantar fasciitis in September 2012 (following service). An August 2015 VA foot conditions examination report indicates that the Veteran's claimed disability was constant pain of a burning nature related to peripheral neuropathy. The Veteran specifically reported that his in-service stress fracture was treated and healed with full functional ability to complete his military service without limitations. The examiner found no current diagnosis. In finding no diagnosis, the examiner reported that the Veteran "clearly stated that claimed bilateral foot disorder means pain and swelling." The examiner opined that the Veteran had pain from diabetic neuropathy. The Board finds that the August 2015 VA examination opinion is the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. The Board acknowledges the Veteran's hearing testimony of an in-service stress fracture and lay report of current symptoms. Although no opinion regarding hallux valgus and plantar fasciitis was provided, the Board notes that the Veteran has not claimed those disorders; he specifically referred to his neuropathic pain to the VA examiner as his claimed disability. The Veteran is competent to describe current symptoms but does not have the training or credentials to provide a competent opinion as to a diagnosis or the onset date of such diagnosis. See Jandreau, supra. Accordingly, his lay opinion lacks probative value and is substantially outweighed by the August 2015 examiner's opinion, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C.A. § 5107(b). H. Right Foot/Ankle Disorder The Board has reviewed the Veteran's STRs that are of record and post-service medical records but finds no evidence confirming a current and chronic right foot or ankle disorder. The only disorder shown is plantar fasciitis in September 2012 (following service), which the Veteran has not specifically claimed is related to an in-service right ankle fracture. An August 2015 VA foot conditions examination report shows that the examiner found no current diagnosis. As already noted above, the examiner reported that the Veteran's claimed disorder meant pain and swelling, which the examiner opined was from diabetic neuropathy. The Board finds that the August 2015 VA examination opinion is the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. Again, the Board acknowledges the Veteran's hearing testimony of having a right ankle fracture and lay report of current symptoms. Although no opinion regarding plantar fasciitis was provided, the Board reiterates that the Veteran has not specifically claimed those disorders; rather, he specifically referred to his neuropathic pain to the VA examiner as his claimed disability. The Veteran is competent to describe current symptoms but does not have the training or credentials to provide a competent opinion as to a diagnosis or the onset date of such diagnosis. See Jandreau, supra. Accordingly, his lay opinion lacks probative value and is substantially outweighed by the August 2015 examiner's opinion, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C.A. § 5107(b). I. Depression The Board has reviewed the Veteran's STRs that are of record and post-service medical records but finds no evidence confirming a current and chronic psychiatric disorder. An August 2015 VA mental disorders examination report shows that the examiner found no current diagnosis. Treatment records, including a September 2012 record, have shown complaints of depression, but the evidence does not confirm a current and chronic diagnosis. The Board finds that the August 2015 VA examination opinion is the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. Again, the Board acknowledges the Veteran's hearing testimony of having depression and lay report of having depression. The Veteran is competent to describe current symptoms but does not have the training or credentials to provide a competent opinion as to a diagnosis or the onset date of such diagnosis. See Jandreau, supra. Accordingly, his lay opinion lacks probative value and is substantially outweighed by the August 2015 examiner's opinion, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for a kidney disorder is denied. Entitlement to service connection for edema is denied. Entitlement to service connection for neuropathy is denied. Entitlement to service connection for a left foot disorder is denied. Entitlement to service connection for a right foot/ankle disorder is denied. Entitlement to service connection for depression is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs