Citation Nr: 1800095 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-18 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to allergic rhinitis. 2. Entitlement to service connection for a right hand condition. 3. Entitlement to service connection for a left hand condition. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from August 1984 to August 2004. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran's April 2014 Statement of the Case included the issue of service connection for posttraumatic stress disorder (PTSD), but he excluded this issue from his April 2014 Substantive Appeal, and it is accordingly not before the Board at present. The Board notes that service connection is separately in effect for a different trauma/stressor-related disorder, evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9413. The Veteran testified before the undersigned Veteran Law Judge at an August 2016 hearing before the Board. A copy of the hearing transcript has been associated with the claims folder. FINDINGS OF FACT 1. The Veteran's sleep apnea has not been shown to be etiologically related to service or to the service-connected allergic rhinitis. 2. The Veteran's right hand condition has not been shown to be etiologically related to service. 2. The Veteran's left hand condition has not been shown to be etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea, to include on a secondary service connection basis, have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for service connection for a right hand condition have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for a left hand condition have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. 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. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2016); 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 notes that, during his August 2016 hearing, the Veteran waived agency of original jurisdiction review of new evidence but also confirmed that, to the best of his knowledge, all relevant evidence had already been furnished to VA. II. 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. §§ 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 arthritis, 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. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). III. Analysis A. Sleep Apnea The Board acknowledges the Veteran's current diagnosis for sleep apnea. The first diagnosis for sleep apnea appears in the Veteran's medical records in 2004. The Board must determine whether there is an etiological relationship, or nexus, between the current sleep apnea and the Veteran's active service. Specifically, the Veteran contends he had documented sleeping problems in service. The Veteran's records are silent for a diagnosis for sleep apnea during military service. The Veteran's entrance and separation examinations were silent for indications of a sleep apnea. A thorough review of the Veteran's service treatment records (STRs) show the Veteran reported problems sleeping during service in 1987. The Board notes multiple examinations (August 1983, April 1989, January 1994, March 1994, February 1999, August 2000, and February 2001) in the Veteran's STRs which the Veteran marked "No" for a history of frequent trouble sleeping. The Veteran was afforded VA examinations in November 2012 and January 2014. The Veteran's VA examinations and medical records are negative for any nexus opinions stating the Veteran's sleep apnea was caused by active military service. The January 2014 examiner opined that the sleep apnea was less likely than not caused by service. The examiner found no diagnosis for sleep apnea in service, and noted the most important risk factors to be advancing age, male gender, obesity, and upper airway soft tissue abnormalities. The Veteran's obesity (Body Mass Index of 40.41) was found to be more than likely the cause of his sleep apnea. Therefore, the Board does not find a positive nexus between the sleep apnea and military service, on a direct basis. The Veteran also contends his sleep apnea is secondary to his service-connected allergic rhinitis. The Board must determine if the Veteran's sleep apnea was caused by or aggravated beyond its natural progression by the Veteran's service-connected disabilities. The Veteran was afforded a VA examination in November 2012 to provide an opinion as to the effect of allergic rhinitis on the Veteran's sleep apnea. The examiner provided a negative nexus opinion for causation and aggravation of the Veteran's sleep apnea. The veteran did have septoplasty related to his allergic rhinitis in July 1990, but as of separation in 2004 there was no diagnosis for sleep apnea. If the septoplasty was the cause, symptoms would have started soon after surgery. The Veteran was instead diagnosed with sleep apnea 21 years after surgery. There is no contrary medical evidence in the record to support a positive nexus opinion between the Veteran's allergic rhinitis and sleep apnea. The Board does acknowledge the Veteran's lay contentions of an etiological relationship between the sleep apnea and his active service. Regarding lay evidence, the Veteran is competent to describe symptoms but does not have the training or credentials to provide a competent opinion as to the etiology of his sleep apnea, particularly in regard to the medically complex question of whether one disability (allergic rhinitis) has a causal effect on another (sleep apnea). Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay opinions lack probative value and are substantially outweighed by the VA examiners' opinions; therefore the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b). B. Right and Left Hand Conditions The Board acknowledges the Veteran's current diagnosis for bilateral osteoarthritis (OA) of the hands. The first diagnosis for OA of the hands appears in the Veteran's medical records in 2011. The Board must determine whether there is an etiological relationship, or nexus, between the current bilateral hand condition and the Veteran's active service. Specifically, the Veteran contends his work as a chef/baker/cook for 20 years during active duty caused his bilateral hand condition. The Veteran's records are silent for a diagnosis or symptoms of OA of the hands during military service. The Veteran's entrance and separation examinations were silent for indications of any OA related hand condition. A thorough review of the Veteran's service treatment records (STRs) shows the Veteran reported multiple burns and lacerations to his hands during his military service, in connection with his duties. The Veteran was afforded a VA examination in January 2013. The examiner provided a negative nexus opinion, stating the bilateral arthritis was not caused by or a result of repetitive hand motions from working as a cook in the military for 20 years. The examiner noted that occupations of physical labor for extended periods of time can lead to OA of the hand, but the Veteran had been working in a mail room using repetitive motions since his separation in 2004. The superficial burns and lacerations are not risk factors for OA, and they did not involve any joint/tendon injury. The examiner opined the mild degenerative joint disease to be part of the natural aging process due to the Veteran's age. The Veteran's VA examination and medical records are negative for any positive nexus opinions stating the Veteran's bilateral hand condition was caused by active military service. Therefore, the Board does not find a positive nexus between the OA and military service, on a direct basis. Arthritis is a chronic disability listed under 38 C.F.R. § 3.309(a), eligible for service connection on a presumptive basis if the evidence shows chronicity during service, continuity of symptomatology since service, or if manifested to a compensable degree within one year of the Veteran's separation from service. The Veteran's STRs are negative for arthritis, however, and the Veteran was first not diagnosed with bilateral OA until 2011, approximately seven years after separation. There is no competent and credible evidence to support continuity of symptomatology since service, or evidence of the Veteran manifesting arthritis to a compensable degree by August 2005, one year from separation. The Board again acknowledges the Veteran's lay contentions of an etiological relationship between the bilateral hand condition and his active service. Regarding lay evidence, the Veteran is competent to describe symptoms but does not have the training or credentials to provide a competent opinion as to the etiology of his arthritis, a disability shown by x-ray per 38 C.F.R. § 4.71a, Diagnostic Code 5003. See Jandreau v. Nicholson, supra. Accordingly his lay opinion lacks probative value and is substantially outweighed by the VA examiner's opinion; therefore the preponderance of the evidence is against the claims, and the claims must be denied. 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for sleep apnea, to include as secondary to allergic rhinitis, is denied. Entitlement to service connection for a right hand condition is denied. Entitlement to service connection for a left hand condition is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs