Citation Nr: 1800221 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 12-17 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent prior to July 26, 2016, and in excess of 40 percent thereafter for lumbosacral paravertebral myositis and osteoarthritis of L5-S1 apophyseal joints (low back disability). 2. Entitlement to an evaluation in excess of 10 percent for pterygium. 3. Entitlement to service connection for sleep apnea REPRESENTATION Veteran represented by: David Lugo Mariani, Esq. ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from January 1978 to December 1981. This matter comes before the Board of Veterans Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, that, in pertinent part, continued a 10 percent evaluation for pterygium, increased the evaluation for the Veteran's service-connected low back disability to 20 percent, and denied entitlement to service connection for sleep apnea. The Veteran filed a notice of disagreement dated in May 2011 and the RO issued a Statement of the Case in June 2012. The Veteran submitted his substantive appeal in June 2012. Before the appeal was certified to the Board, in a July 2016 rating decision, the RO increased the evaluation of the Veteran's service-connected low back disability to 40 percent disabling effective July 26, 2016. Although an increased rating was granted, as the maximum schedular rating was not assigned nor did the appellant withdraw his appeal, the issue remains in appellate status as characterized above. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Prior to July 26, 2016, the Veteran's low back disability was manifested by forward flexion to 35 degrees with pain at 20 degrees; there was no evidence of ankylosis of the entire thoracolumbar spine, nor did the Veteran's low back disability produce incapacitating episodes having a total duration of at least 6 weeks in a one year period. 2. From July 26, 2016, the Veteran's low back disability was manifested by forward flexion limited to 20 degrees; there was no evidence of ankylosis of the entire thoracolumbar spine, nor did the Veteran's low back disability produce incapacitating episodes having a total duration of at least 6 weeks in a one year period. 3. The Veteran's service-connected eye disability is productive of recurrent nasal pterygium, left eye, dry eye, bilateral blepharitis, and small atrophic temporal pterygium of the right eye. 4. Sleep apnea did not have its onset during the Veteran's active service and the most probative evidence establishes that the Veteran's current sleep apnea is not otherwise causally related to his active service or any incident therein. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating, but no higher, for lumbosacral paravertebral myositis and osteoarthritis of L5-S1 apophyseal joints have been met for the entire period of the claim. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). 2. The criteria for a rating in excess of 10 percent for pterygium have not been met. 38 U.S.C.A. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.118, Diagnostic Code 6018 (2017). 3. The criteria for an award of service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA. Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Increased ratings. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See e.g. Hart v. Mansfield, 21 Vet. App. 505 (2007). A. Low back disability The Veteran's lumbar spine disability is rated as 20 percent disabling prior to July 26, 2016, and 40 percent thereafter, under Diagnostic Code 5242. There are two sets of applicable criteria for evaluating spine disabilities. First, under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5237-5242), in relevant part, a 20 percent is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5242. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees. Normal extension, bilateral lateral flexion, and bilateral rotation is zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Note (2) and (Plate V); see also DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); 38 C.F.R. §§ 4.40, 4.45 (2016) (concerning consideration of additional symptoms (e.g., painful motion and functional loss due to pain) when rating a claim based upon limitation of motion); see also Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011) (Pain without accompanying functional limitation cannot serve as the basis for a higher rating). Second, under 38 C.F.R. § 4.71a, Diagnostic Code 5243 for intervertebral disc syndrome, in pertinent part, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is assigned in cases of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum 60 percent evaluation contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note 1. In pertinent part, the evidence in this case shows that in August 2010, the Veteran submitted a claim for an increased rating for his service-connected low back disability. In connection with the claim, he was examined in October 2010. The Veteran's claims file was reviewed in connection with the examination and report. The Veteran reported pain in the lumbar spine radiating to the lower extremities. The Veteran indicated that he developed pain in the lumbosacral area during service that he attributed to heavy lifting and strenuous exercise and a motor vehicle accident. He indicated that the condition had improved since onset. Flare-ups were noted on heavy lifting and prolonged standing. These were severe, weekly, and lasted hours. There was no history of urinary incontinence, urgency, retention, frequency, or nocturia. There was no history of fecal incontinence, constipation, erectile dysfunction, numbness, paresthesias, leg or foot weakness, falls, unsteadiness, or fatigue. There was a history of decreased motion, stiffness, and spasm. Pain was noted in the lumbosacral area radiating to the lower extremities. It was described as stabbing pain of moderate severity that would last hours. There were no incapacitating episodes and the Veteran was able to walk 1/4 mile. His gait was normal and there was no abnormal spine curvature, gibbus, kyphosis, lumbar lordosis or list. There was lumbar flattening and reverse lordosis. There was no scoliosis or ankylosis. There was spasm, guarding, pain with motion, and tenderness, but no atrophy, or weakness. Muscle spasm, tenderness and guarding were not severe enough to be responsible for abnormal gait or abnormal spinal contour. Range of motion testing indicated flexion to 40 degrees, extension to 20 degrees, and right and left lateral flexion and right and left lateral rotation to 10 degrees each. There was objective evidence of pain on active range of motion and after repetitive motion, but the examiner did not address the point at which pain set in. There was no additional limitation after three repetitions of range of motion. There was normal motor examination and decreased pinprick in the left side at L5/S1 on sensory examination. Lasegue's sign was positive, and there was no evidence of Wadell's. Imaging studies indicated minimal early changes of degenerative disc disease, no significant spondylosis or facet arthrosis, minimal concentric disc bulging at L4/L5, L5/S1. EMG indicated L5/S1 left radiculopathy. The Veteran was diagnosed with lumbar strain (myositis), lumbar spondylosis at L5/S1, and left side lumbar radiculopathy. Private clinical records received in support of the claim showed that the Veteran had been treated on several occasions between April 2005 and October 2010 for thoracic and lumbar spondylosis and thoracic and lumbar chronic myofascial pain syndrome. The Veteran was indicated to have daily moderate to severe pain, muscle spasm, sensory loss, decreased range of motion, and tenderness. He had spasm in the thoracic and lumbar spine. Thoracolumbar spine exhibited 0-20 degrees of lateral flexion bilaterally, and 0-50 degrees of forward flexion. It was noted that an October 2010 MRI showed minimal early changes of lumbar degenerative disc disease. September 2010 X-rays reportedly showed a normal lumbar spine and thoracic spondylosis. The Veteran was noted to have marked persistent spasm. Straight leg raising test was 60 degrees bilaterally. The Veteran had restricted use of stairs due to pain and spasm and could not use ladders. An October 2010 private examination showed straight leg rising was positive on left and right at 45 degrees. The physician indicated 10 degrees for right and left lateral flexion. The findings for forward flexion and extension were not recorded. The Veteran was able to sit and stand for 30 minutes before needing to get up or walk around. On November 22, 2011, the Veteran was afforded a general medical examination. The Veteran was diagnosed with lumbar paravertebral myositis, lumbar radiculopathy L5/S1, left sided, and lumbar spondylosis. The Veteran reported flare-ups upon stooping, prolonged standing, and cloudy or rainy days. Range of motion testing indicated forward flexion at 35 degrees with pain at 20 degrees, extension of 10 degrees with pain at 5 degrees, right lateral flexion of 15 degrees with pain at 10 degrees, left lateral flexion of 20 degrees with pain at 10 degrees, right lateral rotation at 15 degrees with pain at 10 degrees, and left lateral rotation at 10 degrees with pain at 5 degrees. There was no repetitive testing due to pain. There was localized tenderness or pain to palpation for joints at the lumbar paravertebrals. Guarding and/or muscle spasm was present but did not result in abnormal gait or spinal contour. There was no atrophy and no IVDS. Left lower radiculopathy was noted to be moderate in severity. Finally, the Veteran was afforded a VA examination dated in July 2016. The Veteran's claims file was reviewed in connection with the examination and report. The Veteran was diagnosed with intervertebral disc syndrome, lumbosacral paravertebral myositis, osteoarthritis of L5-S1 apophyseal joints, and lumbar radiculopathy at the left side (L5/S1). The Veteran reported complaints of constant local low back pain which radiates to both lower extremities. He also had complaints bilateral foot burning-like pain sensation. He had limitations on standing, and dressing/undressing the lower parts of his body. Range of motion testing showed forward flexion (0 to 90) of 0 to 35 degrees; extension (0 to 30) of 0 to 5 degrees; right lateral flexion (0 to 30) of 0 to 14 degrees; left lateral flexion (0 to 30) of 0 to 10 degrees; right lateral rotation (0 to 30) of 0 to 15 degrees; and left lateral rotation (0 to 30) of 0 to 12 degrees. There was no evidence of pain with weight bearing, but there was localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine and lumbar paravertebral muscles. Repetitive use testing with at least three repetitions was performed and there was additional loss of function or range of motion after three repetitions due to pain as follows: forward flexion (0 to 90) of 0 to 25 degrees; extension (0 to 30) of 0 to 5 degrees; right lateral flexion (0 to 30) of 0 to 10 degrees; left lateral flexion (0 to 30) of 0 to 10 degrees; right lateral rotation (0 to 30) of 0 to 15 degrees; and left lateral rotation (0 to 30) of 0 to 10 degrees. The examiner reported that he was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. In this regard, the examiner stated that pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. At this moment, however, there was no evidence of fatigability, incoordination, muscle weakness or pain during the physical examination. The Veteran had guarding of the thoracolumbar spine (back), but no muscle spasm. Localized tenderness and guarding did not result in abnormal gait or abnormal spinal contour. Muscle strength was 5/5 and there was no atrophy or ankylosis. Reflexes and sensory examination was normal, and the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was IVDS with episodes of bed rest having a total duration of at least one week but less than two weeks during the past 12 months. The examiner stated that there was no objective evidence of right or left lumbar radiculopathy during physical examination or by most recent lower extremity EMG (July 2016). Applying the facts in this case to the legal criteria set forth above, the Board finds that an evaluation of 40 percent is warranted for the Veteran's service-connected low back disability for the entire period of the claim. In this regard, the Board notes that the November 2011 VA examination report indicated range of motion testing with forward flexion at 35 degrees with pain at 20 degrees, sufficient to meet the criteria for a 40 percent rating. The Board notes that the October 2010 examination report showed that flexion was possible to 40 degrees. The examiner noted objective evidence of pain, but did not address the point at which pain set in. Although flexion limited to 40 degrees does not meet the criteria for a 40 percent rating, given the examiner's notations of severe weekly flare-ups lasting for hours at a time, and affording the Veteran the benefit of the doubt, the Board finds that a 40 percent may be assigned for the entire period of the claim. An evaluation in excess of 40 percent, however, is not warranted for any period of the claim. As noted above, under the general rating formula, in order to warrant a rating in excess of 40 percent, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine. In addition, the only higher schedular rating available under the formula for rating intervertebral disc syndrome is a 60 percent rating which requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A review of the record, including both private and VA treatment records, shows that the Veteran's service-connected low back disability is not productive of ankylosis. Examination has shown that the Veteran retains motion in his spine. The clinical evidence of record contains either specific findings of no ankylosis or findings reflecting that there is no ankylosis. The lay statements similarly do not indicate that there has been ankylosis. Moreover, the Veteran does not exhibit the indicia of ankylosis, such as difficulty walking because of a limited line of vision, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen. See Note(5). Moreover, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45 (2013), this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Finally, the record shows that the Veteran has not suffered from incapacitating episodes due to intervertebral disc syndrome and he has not contended otherwise. B. Pterygium. The Veteran's eye disability is currently evaluated as 10 percent disabling under Diagnostic Code 6018 for conjunctivitis. 38 C.F.R. § 4.20 Diagnostic Code 6018. Under Diagnostic Code 6018, active chronic conjunctivitis will be rated as 10 percent disabling, and inactive chronic conjunctivitis is rated non-compensable. No higher rating is available. See 38 C.F.R. § 4.20. Therefore, the Veteran's current evaluation under Diagnostic Code 6018 will remain at 10 percent disabling. The clinical evidence reflects that the Veteran's service-connected eye disability includes other eye conditions. In the October 2010 eye examination, the Veteran was noted to have blepharitis associated with conjunctivitis, mild dry eyes, no recurrent pterygium, and left eye incipient recurrent pterygium. In June 2016, the Veteran was diagnosed with recurrent nasal pterygium, left eye, dry eye, bilateral blepharitis, and small atrophic temporal pterygium of the right eye. The Veteran has experienced inflammation of the eyelids as reported in the VA examination reports. The Board has considered rating the Veteran's eye disability under Diagnostic Code 6009, applicable to an unhealed eye injury. Under that diagnostic code, the disability is rated on the basis of either visual impairment caused by the particular condition or on the basis of incapacitating episodes. When incapacitating episodes have a total duration of at least one week, but less than two weeks, during the past 12 months, a 10 percent rating is assigned. Incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months warrant a 20 percent rating. Incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months warrant a 40 percent rating. Incapacitating episodes having a total duration of at least six weeks during the past 12 months warrant a 60 percent rating. 38 C.F.R. § 4.79, General Rating Formula for Diagnostic Codes 6000 through 6009. An "incapacitating episode" is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. 38 C.F.R. § 4.79, General Rating Formula for Diagnostic Codes 6000 through 6009. In this case, the VA examination report dated in October 2010 indicated that the Veteran had diagnoses of refractive error (myopia presbyopia), blepharitis with associated conjunctivitis, mild dry eyes, no recurrent pterygium noted in the right eye, and left eye incipient recurrent pterygium. He had complaints of bilateral red eyes since 20 years ago, but denied ocular pain. Previous eye surgery was noted for pterygium on both eyes. The examiner indicated that the loss of vision on examination was caused by or a result of a refractive error, and that the Veteran's other symptoms were caused by or a result of the blepharitis with associated conjunctivitis and dry eyes. There was no indication of incapacitating episodes related to the Veteran's blepharitis. In the January 2012 VA examination, the Veteran was indicated to have no history of eye trauma, eye neoplasm, or incapacitating periods due to eye disease. He was noted to have had eye surgery for pterygium in 1984 for his left eye and in 1994 for his right eye. General symptoms in both eyes consisted of redness, burning or stinging, and watering. There were no visual symptoms. On the right, the Veteran was noted to have a cornea nasal keratectomy scar, temporal pterygium 1mm, atrophic decreased tear break up time. On the left there was a cornea nasal keratectomy scar, recurrent pterygium, 1.3mm into cornea. He was diagnosed with refractive error - presbyopia. A February 2012 optometry note indicated diagnoses of refractive error, dry eye, and blepharitis. In June 2016, the VA eye examination indicated diagnoses of recurrent nasal pterygium, left eye, dry eye, bilateral blepharitis, and small atrophic temporal pterygium of the right eye. The Veteran reported a history of pterygium surgery in both eyes over 20 years prior. Current complaints were of discomfort in the eyes, needing to blink to feel better. He indicated that he would find relief with use of over-the-counter refresh tears. Examination of conjunctiva/sclera on the right indicated follicular reaction; atrophic temporal pterygium, and on the left indicated follicular reaction; nasal pterygium, temporal pinguecula. Examination of the cornea noted, on the right, decreased tear break up time; nasal keratectomy scar; atrophic temporal pterygium less than 1 mm onto cornea, and on the left decreased tear break up time; nasal keratectomy scar, nasal pterygium 1.4 mm onto cornea. There was some loss of vision but no visual field defect. The Veteran did not have another corneal condition that may result in an irregular cornea (for example, pellucid marginal degeneration, irregular astigmatism from corneal scar, post-laser refractive surgery, acne rosacea keratopathy, etc.), and the examiner noted that small atrophic temporal pterygium, right eye, and nasal recurrent pterygium, left eye, was not near the visual axis and did not cause decrease in visual acuity. The eye condition did not cause scarring or disfigurement and, during the past 12 months, there were no incapacitating episodes attributable to any eye conditions. The examiner stated that the Veteran's loss of vision was due to refractive error, mild hyperopia, mild astigmatism and presbyopia. Atrophic temporal pterygium, right eye, and nasal recurrent pterygium, left eye, had shown no progression as compared to the last VA examination in January 2012. A review of the Veteran's outpatient treatment records and statements does not indicate symptoms worse than those reported in the VA examination reports above. Based on the foregoing, the Board finds that a higher evaluation is not warranted for the Veteran service-connected pterygium based on Diagnostic Code 6009, as there is no evidence that the Veteran's condition resulted in incapacitating episodes. The Veteran, however, was noted to have scars associated with his surgeries for pterygium. Scarification of the eyes can be evaluated under the Diagnostic Codes applicable to scars, Diagnostic Code 7800-7804. Diagnostic Code 7800 is the Diagnostic Code applicable to burn scars of the head or face, and is the one applicable to the issue at hand. The criteria for rating scars were revised, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805). As the present claim for an increased rating was filed after that date, only the amended criteria apply to the present claim. Under Diagnostic Code 7800, a 10 percent evaluation is warranted for scars with one characteristic of disfigurement. A 30 percent rating is warranted for scars with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. A 50 percent rating is warranted for scars with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. Id. An 80 percent rating is warranted for scars with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. Id. Note (1) indicates the eight characteristics of disfigurement, for purposes of evaluation under § 4.118, are: (1) scar 5 or more inches (13 or more centimeters) in length, (2) scar at least one-quarter inch (0.6 centimeters) wide at widest part, (3) surface contour of scar elevated or depressed on palpation, (4) scar adherent to underlying tissue; (5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 square centimeters), (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters), (7) underlying soft tissue missing in an area exceeding six square inches (39 square centimeters), and (8) skin indurated and inflexible in an area exceeding six square inches (39 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1). As noted in the VA examination reports above, the Veteran has scarring related to his prior surgeries for pterygium. Specifically, he was noted to have bilateral nasal keratectomy scars. These scars, however, were noted to have none of the characteristics of disfigurement outlined in Diagnostic Code 7800 as to warrant a compensable evaluation under this Diagnostic Code. In sum, a rating higher than the Veteran's current 10 percent rating for service-connected pterygium is denied. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to an increased evaluation, that doctrine does not apply. 38 U.S.C.A. § 5107 (b). The Veteran is competent to report his symptoms, to include redness, burring and watering. See generally Barr v. Nicholson, 21 Vet. App. 303 (2007). In this regard, the Board notes that ratings for scars are determined by specific symptoms and physical manifestations, which are assessed by medical testing. And "incapacitating episode" is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. Therefore, as such is a complex medical question, the Veteran is not competent to offer an opinions regarding the severity of his disability under the relevant regulations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). III. Service connection for sleep apnea. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for listed chronic diseases when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under § 3.303(b), an alternative method of establishing the second and/or third elements of service connection for a listed chronic disease is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the evidence indicates that the Veteran has been diagnosed, in October 2009, with moderate obstructive sleep apnea with good response to use of CPAP at 5cm H20. He was also noted to have sleep impairment in a December 2010 orthopedic evaluation and was noted to have been assessed with obstructive sleep apnea in the Veteran's VA treatment records. There is no evidence, however, linking this condition to the Veteran's service of a service-connected disability. As such, the board finds that, without more, service connection for sleep apnea is not warranted. While the Veteran has been diagnosed with this condition, the evidence lacks a connection to the Veteran military service or a service-connected disability. In this regard, the Board notes that the Veteran has not been afforded a VA examination in connection with this disability. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, because the service treatment records are silent as to any complaints or treatment for sleep apnea and the post-service evidence does not indicate any current complaints or treatment referable to such condition until many years following separation or indicate a causal relationship between the current disability and active service, a VA examination is not required in this case, even under the low threshold of McLendon. The Veteran has contended on his own behalf that sleep apnea is related to his service. In this regard, lay witnesses are competent to provide testimony or statements relating to symptoms or facts that are observable and within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition). Specifically, in Jandreau, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist 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. Similarly, the Court has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, however, the question of whether sleep apnea is related to military service is a complex medical question that is not subject to lay observation alone. Hence, the opinions of the Veteran in this regard are not competent in this case. Additionally, as sleep apnea is not a chronic disease, lay evidence of continuity of symptomatology cannot serve as an independent basis for an award of service connection. In summary, the medical evidence in this case is against the claim. As such, the preponderance of the evidence is against service connection. Reasonable doubt does not arise and the claim, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An evaluation in excess of 20 percent prior to November 22, 2011, for service-connected low back disability, is denied. An evaluation of 40 percent for service-connected low back disability from and after November 22, 2011 is granted, subject to the controlling laws governing the award of benefits. An evaluation in excess of 40 percent from November 22, 2011, for service-connected low back disability, is denied. An evaluation in excess of 10 percent for pterygium is denied. Service connection for sleep apnea is denied. ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs