Citation Nr: 1802112	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  14-25 799	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1. Entitlement to service connection for sleep apnea.
	
2. Entitlement to a compensable evaluation for ingrown toenails with onychomycosis and tinea pedis, bilateral feet.

3. Entitlement to a compensable evaluation for hemorrhoids.

4. Entitlement to an evaluation in excess of 10 percent for status post bursectomy left knee with degenerative changes and scar.

5. Entitlement to an evaluation in excess of 10 percent for status post left axillary abscess with scar.
 

REPRESENTATION

Appellant represented by:	The American Legion

WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

Matthew Miller, Associate Counsel


INTRODUCTION

The Veteran had active duty service from February 1975 to August 1987. 

This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. Jurisdiction was subsequently transferred to the Seattle, Washington RO.

In February 2015, the Veteran appeared at a hearing before a Decision Review Officer (DRO) at the Seattle, Washington RO. A transcript of that hearing is included in the claims file

The Board notes that in a May 2015 rating decision, the Veteran's evaluation of status post left axillary abscess with scar was increased from noncompensable to 10 percent disabling, effective January 28, 2015. The Veteran has not contested the effective date of this award and the current 10 percent evaluation will be addressed below.

In May 2017, the Veteran appeared at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is included in the claims file.
 
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).

The issues of entitlement to a compensable evaluation for hemorrhoids, entitlement an evaluation in excess of 10 percent for status post bursectomy left knee with degenerative changes and scar, and entitlement to an evaluation in excess of 10 percent for status post left axillary abscess with scar 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 May 2017 hearing, the Veteran, through his representative, requested to withdraw the issue of entitlement to a compensable evaluation for ingrown toenails with onychomycosis and tinea pedis, bilateral feet.

2. The most probative evidence of record indicates that the Veteran's sleep apnea had its onset during active duty.


CONCLUSIONS OF LAW

1. The criteria for withdrawal of a substantive appeal on the issue of entitlement to a compensable evaluation for ingrown toenails with onychomycosis and tinea pedis, bilateral feet have been met and the appeal as to this issue is withdrawn. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2. Resolving the benefit of doubt in favor of the Veteran, the criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303, 3.304 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Dismissal

Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2017). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c).

In the present case, at the May 2017 hearing, the Veteran, through his representative, withdrew from consideration the issue of entitlement to a compensable evaluation for ingrown toenails with onychomycosis and tinea pedis, bilateral feet. Accordingly, the Board does not have jurisdiction to review the appeal on this issue, and it is dismissed.

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist a claimant in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C. §§ 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). The VCAA applies in the instant case. However, the Board's grant of entitlement to service connection for sleep apnea herein represents a complete grant of the benefit sought on appeal. Thus, no further discussion of VA's duty to notify and assist is necessary.

Legal Principles and Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease initially diagnosed after service when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
To establish direct service connection for such a disability, the record must reflect: (1) Competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Shedden v. Principi, 381 F.3d 1163 (2004).

First, the record clearly indicates a current diagnosis of sleep apnea in the Veteran. The Veteran participated in a sleep study in June 2011 and was subsequently diagnosed with sleep apnea after exhibiting symptoms such as snoring and irregular breathing. He was placed on a continuous positive airway pressure (CPAP) device at that time. Accordingly, the first Shedden element has been met.

Further, the record contains credible lay statements indicating that the Veteran showed symptoms of sleep apnea during service. For instance, in January 2015, the Veteran and his spouse testified before a DRO that his sleep apnea problems onset during service. Then, in May 2017, the Veteran testified before the undersigned that he first experienced trouble sleeping during service and that he would awake frequently at night. He explained that his sleeping problems continued until they became so serious as to seek medical treatment, and he was later placed on a CPAP machine. Moreover, the Veteran's wife testified that the couple were married while the Veteran was still in service and she first noticed that the Veteran would frequently snore and/or stop breathing for brief periods of time during the night, beginning sometime in the early 1980s. She stated that she was worried about the Veteran's sleeping patterns and these problems continued for many years after his discharge from service. The Board finds that the lay statements of the Veteran and his wife are competent and credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting that laypersons are competent to report symptoms they observe through their senses). Accordingly, the second Shedden element has been met.

Finally, the record contains competent evidence establishing a nexus between the Veteran's sleep apnea and his active service. In a November 2011 letter, the Veteran's private physician, Dr. E. DeMun opined that it is "more probable than not" that the Veteran "had sleep apnea dating back to at least, if not before, the early 1980s." Dr. E. DeMun based his opinion on a review of records, as well as an interview and physical examination of the Veteran. 

The Board notes the negative etiological opinion provided most recently by the April 2015 VA examiner. The April 2015 examiner based her opinion on the fact that the Veteran's service treatment records were silent as to any sleeping problems and attributed the onset of sleep apnea to the Veteran's weight gain. The Board further notes that, in this case, the Veteran and his spouse are of the opinion that the symptoms began during service and Dr. DeMun linked those symptoms to sleep apnea. Taken together, these statements are afforded substantial probative weight. 

Thus, resolving the benefit of the doubt in favor of the Veteran, the Board finds the evidence is at least in relative equipoise as to whether his sleep apnea had its onset during active duty. As such, service connection for sleep apnea is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for sleep apnea is granted.

The appeal as to entitlement to a compensable evaluation for ingrown toenails with onychomycosis and tinea pedis, bilateral feet is dismissed.


REMAND

Review of the record reveals that a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Specifically, remand is required to retrieve any outstanding treatment records and to provide new VA examinations.

The Veteran seeks entitlement to a compensable evaluation for hemorrhoids, entitlement to an evaluation in excess of 10 percent for status post bursectomy left knee with degenerative changes and scar, and entitlement to an evaluation in excess of 10 percent for status post left axillary abscess with scar.

The Veteran's most recent and pertinent VA examinations for his claimed conditions took place in April 2015. These examinations formed the basis for his currently assigned evaluations. 

In March 2017, the Veteran testified that his service-connected disabilities have worsened. Particularly, he stated that his hemorrhoids act up every couple of months, and that they continue to be painful and itchy. The Veteran also indicated that his left axillary abscess frequently becomes infected and that is very painful. As to the Veteran's left knee, he complained of frequent knee pain, along with stiffness and mobility problems. He also stated that he has a high pain tolerance and did not inform the examiner when his knee hurt during range of motion testing. As such, new VA examinations are warranted. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). Given the Veteran's testimony and the time period since the Veteran's previous VA examinations, the Board finds that new VA examinations would be of considerable assistance in determining his claims.

VA should also obtain all relevant VA treatment records. Bell v. Derwinski, 2 Vet. App. 611 (1992). According to the Veteran, he has received some treatment for his conditions, but there are no treatment records after approximately 2014. Therefore, the AOJ should obtain any additional relevant and appropriate medical treatment records.

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. Obtain all VA treatment records for the Veteran dated from September 2014 to the present.  All attempts to obtain these records must be documented in the claims file.

2. Then, arrange for appropriate examinations to evaluate the current manifestations and severity of the Veteran's service-connected hemorrhoids and status post left axillary abscess with scar. The entire claims file must be provided to the examiner(s) for review in conjunction with the examination. All clinically indicated tests and consultations should be performed and any findings reported in detail.

3. Next, schedule the Veteran for a VA examination to evaluate the manifestations and severity of his service-connected status post bursectomy left knee with degenerative changes and scar. The entire electronic claims file must be provided to the examiner for review, and the examination report should reflect that such a review was accomplished. All clinically indicated tests and consultations should be performed and any findings reported in detail. The VA examination must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 

The examiner should indicate whether there is objective evidence of pain on motion, weakness, excess fatigability, instability, and/or incoordination of the right knee and to what extent the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must also specifically comment on the Veteran's lay statements, as applicable.

4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative, if applicable, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response.

The appellant 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).



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs