Citation Nr: 1800926 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 09-05 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a wart on the right thumb. 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities. 3. Entitlement to service connection for right arm numbness, to include as secondary to service-connected gastroesophageal reflux disorder (GERD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1989 to January 2001, including service in the Persian Gulf. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. After a March 2015 Board decision denied service connection, the Veteran subsequently appealed the decision to the Court of Appeals for Veterans Claims (CAVC). In July 2016, CAVC issued an order that vacated the Board's March 2015 decision and remanded the claim to the Board. Subsequently, the Board remanded the claim in October 2016 for additional development. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The issue of service connection for right arm numbness is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of a right thumb wart. 2. The Veteran's sleep apnea is proximately due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a right thumb wart are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107, 7104 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, are met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107, 7104 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either(a) proximately caused by or(b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 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. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Right Thumb Wart The Veteran seeks service connection for right thumb wart as a result of service. However, service connection is not warranted because the overall weight of the evidence is against a finding that the Veteran has a current right thumb diagnosis. A December 2010 treatment record indicates the presence of a wart on the Veteran's left thumb, with no notation regarding a current wart on the right thumb. Moreover, the Veteran reports that the symptoms on the left thumb began during service; however, he does not mention the right thumb. An October 2010 VA treatment record indicates a wart on the Veteran's left thumb; however, there is no indication of a current wart on the right thumb. The Veteran was afforded a VA examination in March 2017. Upon examination and review of the claims file, the Veteran's service treatment records are silent for right thumb wart complaint, diagnosis, or treatment. The examiner also noted the Veteran's post service VA and private treatment records are silent for any treatment or diagnoses related to a right thumb wart. Moreover, the report notes that the Veteran "denies ever being diagnosed with or treated for a right thumb wart." Thus, the record does not show a diagnosis of a right thumb wart at any point in time. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, because there is no evidence of a right thumb wart, the Board finds that service connection for the condition is not warranted. B. Obstructive Sleep Apnea The Veteran is seeking service connection for obstructive sleep apnea that he asserts is related to service-connected disabilities. After a careful review of the record, the Board finds that the evidence supports the Veteran's claim. Initially, the Board finds that the Veteran has a current diagnosis of obstructive sleep apnea. A March 2014 San Diego VAMC treatment record reflects current treatment for mild obstructive sleep apnea. A September 2016 treatment report reflects that the Veteran was diagnosed as having PTSD and placed on a medication regimen. A February 2017 private treatment record notes issues with PTSD and depression for which the Veteran was placed on medications. The attending physician noted the medications have exacerbated his weight gain, which, in turn, has worsened his sleep apnea. A March 2017 treatment record indicates weight gain since the psychiatric medications were adjusted. The psychiatrist noted weight gain has worsened the sleep apnea. At a March 2017 VA examination, the examiner diagnosed obstructive sleep apnea. The examiner opined that the Veteran's mild obstructive sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner further stated that it was unlikely that the obstructive sleep apnea was caused or aggravated by service or service-connected disabilities. As rationale, the examiner cited to medical literature. A private physician submitted a medical opinion in April 2017, which was based upon a review of the Veteran's claims file and medical literature. The private physician opined that the Veteran's sleep apnea was more likely than not secondary to his service-connected mood disorder, GERD, tinnitus, and chronic pain syndrome. The private physician also indicated the Veteran's weight gain contributes to his sleep apnea. The letter cited medical literature as evidence in support of the opinion, and included such medical literature in support of the Veteran's claim. Such evidence was also in support of a causal relationship between sleep apnea and service-connected disabilities. Additionally, April 2017 correspondence includes an opinion that the Veteran's sleep apnea was more likely than not secondary to his PTSD and depression. The letter cited medical literature as evidence in support of the opinion, and included such medical literature in support of the Veteran's claim. Such evidence was also in support of a causal relationship between sleep apnea and PTSD. Moreover, the private physician noted the medical literature cited by the VA examiner was outdated. With consideration of the above, the Board finds that the competent evidence supports the Veteran's contentions that he has obstructive sleep apnea secondary to his service-connected disabilities. The Board notes the March 2017 VA opinion did not consider whether the sleep apnea was related to the weight gain caused by psychiatric medications. In contrast, the private physician opinions indicated there was a significant volume of medical literature to support the Veteran's claim, and cited to such evidence in support of their opinions that the Veteran's obstructive sleep apnea was more likely than not secondary to his service-connected disabilities. As such, the Board finds the private physician's opinions to be more probative and persuasive. Based on the above, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for obstructive sleep apnea is warranted. ORDER Service connection for right thumb wart is denied. Service connection for obstructive sleep apnea is granted. REMAND As to the Veteran's right arm claim, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). With respect to right arm numbness, the Veteran underwent VA Gulf War examination in August 2017. The examiner, on review of the claims folder, provided a diagnosis of cervical degenerative disc disease (DDD) with radiculopathy right upper extremity. The examiner noted an August 2006 cervical spine MRI revealing DDD at C4-C7. The examiner noted that this was a diagnosable illness with medically explained etiology and that there was no evidence of this being related to any exposure in Southwest Asia. Moreover, the examiner indicated that he was unable to find any medical care for recurrent right arm numbness while in service in the file, which makes it less likely than not incurred in service. While the Board notes that the Veteran's right arm numbness is currently diagnosed as cervical DDD with radiculopathy right upper extremity, the question still remains whether or not the Veteran's cervical DDD is related to his service, in particular, in light of the examiner's statement that he was unable to find any medical care for right arm numbness. Notably, the Veteran's STRs indicate multiple complaints of back, shoulder, and arm pain. In March 1994, the Veteran complains of pain in his back, left shoulder, and "both sides." The physician noted tender muscle spasms relieved with urination. In November 1999, a medical assessment noted a 1992 on-base football injury in which Veteran sustained a right bicep muscle strain. Therefore, the Board finds that the August 2017 VA examiner's opinion is inadequate and another opinion is warranted. See Barr, 21 Vet. App. at 311. The Veteran should then be scheduled for an appropriate VA examination to determine the nature and etiology of all pathology pertaining to cervical DDD with radiculopathy right upper extremity prior to readjudicating his appeal. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature, onset and etiology of his cervical spine disability. The record must be made available for review of the Veteran's pertinent medical history. All appropriate tests and studies should be performed, and all clinical findings must be reported in detail. The VA examiner is requested to address the following: Confirm the diagnosis of cervical DDD with radiculopathy right upper extremity. Is it is at least as likely as not that the Veteran's cervical spine disability, to include DDD, had its onset during, or is otherwise related to, his active military service. Is it as least as likely as not that the cervical spine disability, to include cervical DDD was (i) caused or (ii) aggravated (permanently worsened) by one or more of the Veteran's service-connected disabilities? The examiner should note that this question requires two opinions: one for proximate causation and a second for aggravation. The term "aggravation" means a chronic worsening of a disability beyond its natural progression. If aggravation is found, then, to the extent possible, the examiner should attempt to establish a baseline level of severity for the cervical DDD. 2. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide the Veteran with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012). ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs