Citation Nr: 18142908 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 16-20 655 DATE: October 18, 2018 ORDER Service connection for sleep apnea is denied. Service connection for a right elbow disorder, characterized as right elbow swelling and pain, is denied. Service connection for a bilateral foot disorder, characterized as bunion bilateral feet, is denied. Service connection for sinusitis is denied. Service connection for rhinitis is denied. FINDINGS OF FACT 1. The Veteran’s sleep apnea was not caused by or related to active duty service. 2. The Veteran’s right elbow disorder was not caused by or related to active duty service. 3. The Veteran’s preexisting bilateral foot disorder was not aggravated by active duty service. 4. The Veteran’s sinusitis was not caused by or related to active duty service. 5. The Veteran’s rhinitis was not caused by or related to active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right elbow disorder, characterized as right elbow swelling and pain, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for a bilateral foot disorder, characterized as bunion bilateral feet, have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. 4. The criteria for entitlement to service connection for sinusitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 5. The criteria for entitlement to service connection for rhinitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1985 to October 2004. The Board acknowledges that the Veteran was not provided with a VA examination to determine whether his sleep apnea is related to his active duty service. The Board further acknowledges that the Veteran has requested that the Board order the conduct of a sleep study because he experiences sleep apnea symptoms such as snoring and frequent waking. However, given the absence of in-service evidence of manifestations of sleep apnea and the lack of any evidence of sleep apnea until over 11 years after his separation from service, the Board determines that a VA examination is not warranted. 38 C.F.R. § 4.2; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service Connection 1. Entitlement to service connection for sleep apnea 2. Entitlement to service connection for a right elbow disorder, characterized as right elbow swelling and pain 3. Entitlement to service connection for a bilateral foot disorder, characterized as bunion bilateral feet 4. Entitlement to service connection for sinusitis 5. Entitlement to service connection for rhinitis The Veteran asserts that his sleep apnea, right elbow disorder, sinusitis, and rhinitis were caused by or are related to his active duty service. The Veteran further asserts that his bilateral foot disorder was aggravated by his active duty service. Under the relevant laws and regulations, 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. Generally, the evidence must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In cases of preexisting disorders and aggravation, a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the disease or injury existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003); see also Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). If the disorder is noted upon entry into service, the veteran has the burden of establishing aggravation by showing that the preexisting disorder has increased in severity as a result of active duty service. See 38 U.S.C. § 1153; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). On the other hand, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). If such an increase in severity is shown, it is presumed to have been aggravated absent clear and unmistakable evidence that the increase in disability is due to the natural progression of the disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. 1112, 1113; 38 C.F.R. 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. 3.309(a). See 38 C.F.R. 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. 3.303(a). The Board concludes that although the Veteran has current diagnoses of sleep apnea, a right elbow disorder, sinusitis, and rhinitis, the preponderance of the evidence weighs against finding that those disorders began during service, or are otherwise etiologically to service. 38 U.S.C. 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. 3.303(a), (d), 3.304, 3.307, 3.309. With respect to the Veteran’s currently diagnosed bilateral foot disorder, the Board concludes that the preponderance of the evidence weighs against finding that such disorder was aggravated by the Veteran’s active duty service. 38 U.S.C. § 1153. Thus, based on the evidence of record, the Board determines that service connection for the Veteran’s sleep apnea, right elbow disorder, bilateral foot disorder, sinusitis, and rhinitis is not warranted. As an initial matter, the Board finds that the Veteran’s bilateral foot disorder was not aggravated by his active duty service. Here, both the January 1980 report of medical history completed by the Veteran and the report from the January 1980 entrance examination completed by a military physician note that the Veteran had a surgical procedure to remove bunions from both of his feet prior to enlistment. Therefore, the presumption of soundness does not attach to the Veteran’s bilateral foot disorder. See Wagner, 370 F.3d at 1096. The Board determines that the clinical evidence fails to show that the Veteran’s bilateral foot disorder was aggravated by active duty service. Indeed, the Veteran’s service treatment records do not reflect any complaints related to bunions or a worsening of the Veteran’s preexisting bilateral foot disorder. In fact, reports from examinations in October 1985, April 1993, and January 1996, and the report of October 2004 report of medical assessment do not indicate any abnormal foot conditions, must less a worsening of the Veteran’s preexisting foot disorder. Moreover, based upon her in-person examination of the Veteran and the review of the Veteran’s claim, the February 2014 VA examiner opined that the Veteran’s bilateral foot disorder was less likely than not incurred in or caused by active duty service. In support of her opinion, the February 2014 VA examiner explained that “per se” the Veteran’s bunions existed prior to military service. The Board acknowledges that the post-service treatment records, including records from September 2013 and October 2013, reflect that the Veteran sought treatment for foot pain related to his bilateral foot disability. Nevertheless, such records from approximately nine years after the Veteran’s separation from service do not attribute the symptoms experienced by the Veteran to his active duty service and do not evidence any worsening of the Veteran’s preexisting bilateral foot disorder given his lack of any complaints regarding such disorder during service. Next, based upon the evidence of record, the Board determines that service connection for the Veteran’s sleep apnea, right elbow disorder, sinusitis, and rhinitis is not warranted. Initially, the Board notes that the Veteran’s service treatment records fail to establish that the Veteran’s sleep apnea, right elbow disorder, sinusitis, or rhinitis were incurred in or are related to his active duty service. With respect to the Veteran’s sleep apnea, which was diagnosed in December 2015, the Veteran’s service treatment records are devoid of any reports or complaints of sleeping problems related to sleep apnea. The Board notes that while one service treatment record reflected that the Veteran had difficulty sleeping, such difficulty was attributed to leg pain. With respect to the Veteran’s right elbow disorder, which was diagnosed in 2012, the Board notes that a June 1999 record reflects treatment for right elbow pain that had persisted for five days. However, it does not appear that this was indicative of a chronic disorder, as the Veteran’s service treatment records lack other reports or complaints of elbow pain and examination reports from October 1985, April 1993, January 1996, and October 2004. With respect to the Veteran’s sinusitis and rhinitis, which were diagnosed in 2016, the Board observes that the service treatment records reflect numerous reports by the Veteran that he experienced a sore throat, a runny nose, sinus congestions, and headaches. Nevertheless, there is no indication that these were chronic in nature either, as physicians conducting examinations in October 1985, April 1993, and January 1996 determined that the Veteran’s sinuses, lungs, and chest were “normal.” The Board acknowledges that the October 2004 report of medical assessment indicates that the Veteran was taking Allegra. However, as discussed in greater detail below, there is no medical evidence establishing that the Veteran’s rhinitis or use of Allegra to combat rhinitis are related to his active duty service. Next, the post-service evidence does not indicate that the Veteran has experienced continuous symptoms related to his sleep apnea, right elbow disorder, sinusitis, and rhinitis until many years since active duty service. With respect to sleep apnea, the objective medical evidence does not demonstrate any symptoms of sleep apnea until the Veteran sought treatment and complained of snoring in September 2013. Similarly, the post-service evidence does not provide any objective indication of symptoms of a right elbow disorder until the Veteran sought treatment for right elbow pain in December 2011. Finally, the post-service evidence does not provide any objective indication of sinusitis or rhinitis until the Veteran reported congestion and rhinorrhea in October 2013. In fact, a September 2012 treatment record reflects that the Veteran had no sinus problems. Therefore, continuity of symptoms based upon the clinical evidence is not sufficient to support a direct nexus, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board acknowledges the statements from the Veteran regarding the history of symptoms of his disorders since service. While the Veteran is competent to report that he experienced symptoms, including snoring, difficulty breathing, pain, headaches, congestion, sore throats, postnasal drips, and coughing since service, he is not competent to provide a diagnosis or determine that these symptoms were manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, to the extent the Veteran asserts that his disorders have persisted since service, the Board determines that the Veteran’s reported history of continued symptoms while competent, is nonetheless not probative in establishing the nexus element. As an initial matter, the large gap in treatment for these disorders weighs against the Veteran’s claims. Moreover, the examination reports from October 1985, April 1993, January 1996, and October 2004, and October 2013 treatment record, contradict the Veteran’s assertions that his symptoms have persisted since service. Additionally, the Board notes that prior to filing the claims on appeal, in January 2012, the Veteran filed several claims for VA benefits. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out other claims for other benefits, but made no reference to the disorders he now claims, weighs heavily against his credibility. Finally, service connection may be granted when the evidence establishes a medical nexus between active duty service and the current diagnosis. However, the Board finds that the weight of the competent evidence does not attribute the Veteran’s claimed disorders to active duty service, despite his contentions to the contrary. Here, the Board places significant probative weight on the opinions of the February 2014 and June 2016 VA examiners. The February 2014 VA examiner considered whether the Veteran’s right elbow disorder was incurred in or caused by the Veteran’s active duty service. Based upon her in-person examination of the Veteran and her review of his claims file, the February 2014 VA examiner opined that his right elbow disability was less likely than not incurred in or caused by his active duty service. In support of her opinion, the February 2014 VA examiner explained that the June 1999 service treatment record reporting that the Veteran experienced right elbow pain was inconsistent with the current clinical presentation of right elbow tendonitis with high grade avulsion of the triceps. Given her in-person examination of the Veteran, her review of the claims file, and her expertise, the Board finds that the February 2014 VA examiner provided a persuasive rationale and a probative opinion. The June 2016 VA examiner considered whether the Veteran’s sinusitis and rhinitis were incurred in or caused by his active duty service. Based upon her in-person examination of the Veteran and her review of his claims file, the June 2016 VA examiner opined that his sinusitis and rhinitis were less likely than not incurred in or caused by active duty service. In support of her opinions, the June 2016 VA examiner explained that although the Veteran was currently receiving treatment for allergic rhinitis, there was insufficient evidence during service to establish that either the Veteran’s rhinitis or his sinusitis was a chronic disability. Given her in-person examination of the Veteran, her review of the claims file, and her expertise, the Board finds that the June 2016 VA examiner provided persuasive rationales and probative opinions. Moreover, the Board notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a nexus between the disorders on appeal and active service. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating his sleep apnea, right elbow disorder, bilateral foot disorder, sinusitis, and rhinitis to active service. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition 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.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his sleep apnea, right elbow disorder, bilateral foot disorder, sinusitis, and rhinitis. See Jandreau, 492 F.3d at 1377, n.4. Although the Veteran can provide competent testimony regarding symptoms, the disorders on appeal are not disorders that can be diagnosed by their unique and identifiable features as they do not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that his disorders are related to service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion.   By virtue of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claims and there is no doubt to be otherwise resolved. 38 U.S.C. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Crosnicker, Associate Counsel