Citation Nr: 18140894 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-24 918 DATE: ORDER Service connection for obstructive sleep apnea is denied. Service connection for a prostate disability, diagnosed as benign prostatic hyperplasia, is denied. An effective date earlier than January 8, 2014 for the grant of service connection for diabetes mellitus type II is denied. FINDINGS OF FACT 1. The Veteran’s obstructive sleep apnea is not shown to have been present during active service, and the record contains no indication it is causally related to his service, or causally related to or aggravated by any service connected disability. 2. The Veteran’s benign prostatic hyperplasia is not shown to have been present during active service, and the record contains no indication it is causally related to his service, or causally related to or aggravated by any service connected disability. 3. An informal claim for service connection for diabetes mellitus type II was received by VA on January 8, 2014. 4. No document that can be construed as a claim for service connection for diabetes mellitus type II was received by VA prior to January 8, 2014. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea have not been satisfied. 38 U.S.C. §§ 1110, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for benign prostatic hyperplasia have not been satisfied. 38 U.S.C. §§ 1110, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 3. The criteria for an effective date earlier than January 8, 2014, for service connection for diabetes mellitus type II have not been satisfied. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.155, 3.157 (in effect prior to March 24, 2015), 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1968 to November 1971, to include service in the Republic of Vietnam from September 1969 to August 1970. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or aggravated by a service connected disease or injury. 38 C.F.R. § 3.310. As a general matter, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.304; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed Cir. 2004). Veterans who had active service in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran was exposed to an herbicide agent during active service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). VA has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. 75 FR 81332 (Dec. 27, 2010). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. OBSTRUCTIVE SLEEP APNEA As an initial matter, the Board observes that during the May 2015 VA posttraumatic stress disorder (PTSD) examination, the Veteran reported symptoms including sleep difficulties. The Veteran’s sleep disturbances were considered in the assignment of his disability rating for his service connected PTSD. The evidence of record also demonstrates the Veteran was separately diagnosed with obstructive sleep apnea in October 2014, which is during the appeal period. In adjudicating the Veteran’s January 2013 claim for service connection for sleep disturbances, the agency of original jurisdiction (AOJ) recharacterized the issue currently on appeal as one for sleep apnea, and the Board has similarly recharacterized the issue as listed above. The Veteran contends his obstructive sleep apnea was incurred while serving in the Republic of Vietnam. See May 2016 VA Form 9. The Board acknowledges that, to date, the Veteran has not been provided with a VA examination, and a medical opinion has not been obtained, in relation to his claim for service connection for obstructive sleep apnea. The Board finds that the evidence of record is sufficient to decide the claim and no VA medical opinion or examination is warranted. 38 U.S.C. § 5103A(a); De La Rosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). In determining whether VA’s duty to assist requires that a VA medical examination be provided or a medical opinion obtained with respect to a Veteran’s claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran’s service or with another service connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Regarding the third factor, the Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence indicates that there may be a nexus between the current disability or symptoms and the Veteran’s service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence suggesting a nexus that is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptoms that are capable of lay observation. In this case, the only indication the Veteran’s obstructive sleep apnea may be associated with his military service is his own lay statement. A conclusory generalized lay statement alone suggesting a nexus between a current disability and service is not sufficient to warrant a medical examination. Waters v. Shinseki, 601 F.3d 1274, 1278-1279 (Fed. Cir. 2010). The Federal Circuit has held such would be contrary to the intent of Congress, and result in medical examinations being routinely and virtually automatically provided to all Veterans in disability compensation claims involving nexus issues. Id. The Board of Veterans’ Appeals (Board) has considered the Veteran’s statement that he believes his obstructive sleep apnea is due to, or began while, serving in Vietnam; however, the Board finds he has not been shown to have the requisite medical expertise and training to diagnose and opine as to the origin of a complex medical condition such as obstructive sleep apnea. 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). While the Veteran is competent to report symptoms and his medical history, the cause of the Veteran’s obstructive sleep apnea involves complex medical questions, and as a lay person, his opinions do not constitute competent medical evidence. 38 C.F.R. § 3.159(a). Although the Veteran did not specifically assert his obstructive sleep apnea is due to herbicide agent exposure, the Board acknowledges that the Veteran is presumed to have been exposed to herbicide agents during his service in Vietnam and has considered whether the Veteran is entitled to presumptive service connection for obstructive sleep apnea. 38 C.F.R. § 3.307(a)(6)(iii). The Board notes that obstructive sleep apnea is not among the medical conditions for which presumptive service connection is warranted under 38 C.F.R. § 3.309(e); however, direct service connection may still be established by showing that a disability is causally linked to herbicide agent exposure. Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). The Veteran’s service treatment records are silent for any complaints related to sleep trouble. Additionally, although the Veteran is competent to attest to observable symptoms, he has not asserted, nor does the evidence demonstrate, that he experienced symptoms of sleep apnea continuously since service. The Veteran was not diagnosed with obstructive sleep apnea until October 2014, more than 42 years after his separation from service. The evidence of record is against a finding that obstructive sleep apnea is related to the Veteran’s active service, or his presumed exposure to herbicide agents. The Board further notes that there is no other probative evidence of record which contains any indication the Veteran’s obstructive sleep apnea is causally related to or aggravated by any service connected disability. The preponderance of evidence is against a finding that the Veteran’s obstructive sleep apnea is related to service. Therefore, the benefit of the doubt rule does not apply and the claim is denied. 2. PROSTATE CONDITION The Veteran contends his prostate disability was incurred while serving in the Republic of Vietnam. See May 2016 VA Form 9. The Veteran has a diagnosis of benign prostatic hyperplasia. Similar to the Veteran’s service connection claim for obstructive sleep apnea above, the Board recognizes that the Veteran has not been provided with a VA examination, and a medical opinion has not been obtained, in relation to his claim for service connection for a prostate disability. Again, the Board finds that the evidence of record is sufficient to decide the claim and no VA medical opinion is warranted. 38 U.S.C. § 5103A(a); De La Rosa, 515 F.3d at 1322 (Fed. Cir. 2008). The Board has considered the Veteran’s statement that he believes his benign prostatic hyperplasia is due to, or began while, serving in Vietnam; however, the Board finds he has not been shown to have the requisite medical expertise and training to diagnose and opine as to the origin of a complex medical condition such as benign prostatic hyperplasia. 38 C.F.R. § 3.159(a)(2); Washington, 19 Vet. App. at 368. While the Veteran is competent to report symptoms and his medical history, the etiology of benign prostatic hyperplasia falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Although the Veteran did not specifically assert his prostate disability is due to herbicide agent exposure, the Board has considered whether the Veteran is entitled to presumptive service connection for his prostate disability. 38 C.F.R. § 3.307(a)(6)(iii). The Board observes that the evidence of record indicates the Veteran’s only diagnosis related to a prostate disorder is benign prostatic hyperplasia, which is not among the medical conditions for which presumptive service connection is warranted under 38 C.F.R. § 3.309(e). However, direct service connection may still be established by showing that a disability is causally linked to herbicide agent exposure. Combee, 34 F.3d at 1044. Service treatment records are silent for any complaints related to a prostate disability, to include benign prostatic hyperplasia. In fact, the Veteran’s November 1971 separation medical examination noted that the Veteran’s digital rectal examination was normal. Additionally, although the Veteran is competent to attest to observable symptoms, he has not asserted, nor is there evidence in the record to support, that he has experienced symptoms of a prostate disability continuously since service. The evidence of record is against a finding that benign prostatic hyperplasia is related to the Veteran’s active service, or his presumed exposure to herbicide agents. The Board further notes that there is no other probative evidence of record which contains any indication the Veteran’s benign prostatic hyperplasia was causally related to or aggravated by any service connected disability. The preponderance of evidence is against a finding that the Veteran’s benign prostatic hyperplasia is related to service. Therefore, the benefit of the doubt rule does not apply and the claim is denied. Effective Date Unless specifically provided otherwise, the effective date of an award of disability compensation is set in accordance with the facts found, but cannot be earlier than the date of receipt of the claim for the compensation that was granted. 38 U.S.C. § 5110(a). For presumptive service connection, the effective date of a claim for disability compensation is the day following separation from active service if a claim is received within one year after separation, the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(ii). When determining the effective date of an award of compensation benefits, the Board is required to review all the communications in the file that could be interpreted to be a formal or informal claim for benefits. Lalonde v. West, 12 Vet. App. 377, 380-381 (1999). Under the regulations in effect for this appeal, any communication or action from a Veteran or his representative, indicating an intent to apply for one or more benefits under laws administered by VA, may be considered an informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). An informal claim must identify the benefit sought, the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. Brannon v. West, 12 Vet. App. 32, 35 (1998). The essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). The Veteran contends the effective date for service connection for diabetes mellitus type II should be in January 2013. See March 2014 notice of disagreement. As it was already established that the Veteran had active service in the Republic of Vietnam, he met the requirements for service connection for diabetes mellitus type II on a presumptive basis as due to exposure to herbicide agents. 38 C.F.R. §§ 3.307, 3.309. The Veteran did not assert, and there is no indication the Veteran was entitled to or filed a claim for, service connection for diabetes mellitus type II within one year of separation from service. In reviewing all the communications in the file, the Board observes that the Veteran submitted a claim for disability compensation benefits in January 2013. See January 2013 VA Form 21-526EZ. The January 2013 claim for disability compensation benefits did not identify diabetes mellitus type II. Rather, the Veteran only claimed entitlement to service connection for PTSD, erectile dysfunction, his prostate disability, a skin disease and sleep disturbance. In July 2013, VA received authorization for the release of records from the Veteran, which indicated private treatment records containing evidence pertinent to the January 2013 claim for benefits. See July 2013 VA Form 21-4142. The private treatment records indicated on the July 2013 VA Form 21-4142 were received by the VA in January 2014, and the records revealed the Veteran had a diagnosis of diabetes mellitus type II. The AOJ contacted the Veteran on January 8, 2014 and confirmed that the Veteran intended to file a claim for service connection for diabetes mellitus type II. See January 2014 VA Form 21-0820. Neither the January 2013 VA Form 21-526EZ, nor the identification of medical records relevant to the Veteran’s claim for benefits can be construed as an informal claim for service connection for diabetes mellitus type II. Brannon, 12 Vet. App. at 35. The record contains no evidence that the Veteran identified a claim, formal or informal, for service connection for diabetes mellitus type II at any time prior to January 8, 2014. The Board recognizes that the Veteran is a Nehmer class member under the provisions of 38 C.F.R. § 3.816, as he is a Vietnam Veteran who has a covered herbicide disease, to include diabetes. Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989; or if there was a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law, which, in this case is May 8, 2001. See 38 C.F.R. § 3.816(c)(1)-(3) (2017). However, if the requirements of 38 C.F.R. § 3.816(c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 (2017) and 3.400. See 38 C.F.R. § 3.816(c)(4) (2017). In this case, the Veteran had no prior claims for diabetes that were denied or pending during the time periods identified above. As such, the special effective date provisions for Nehmer class members are not applicable in this case. As there is no indication that the Veteran filed a service-connection claim (formal or informal) for diabetes prior to January 8, 2014, there is no basis for the assignment of an earlier effective date for the award of service connection. The claim must be denied. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Mask, Associate Counsel