Citation Nr: 18143660 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 14-35 273 DATE: October 19, 2018 ORDER Service connection for obstructive sleep apnea (OSA) is denied. Service connection for a skin disorder is denied. An initial compensable rating for status post-operative left inguinal hernia is denied. REMANDED An effective date prior to October 25, 2016, for the grant of service connection for status post-operative left inguinal hernia repair. FINDINGS OF FACT 1. The Veteran had active service from February 1977 to November 1983, and from October 1990 to May 1991. 2. OSA was not shown in service and is not etiologically related to service. 3. A skin disorder was not shown in service and is not etiologically related to service. 4. The Veteran has not experienced recurrence of a left inguinal hernia following service separation. CONCLUSIONS OF LAW 1. Sleep apnea was not incurred in active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). 2. A skin disorder was not incurred in active service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2017). 3. The criteria for a compensable rating for post-operative residuals of a left inguinal hernia repair have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.21, 4.114, Diagnostic Code (DC) 7338 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the Veteran perfected an appeal for the issue of service connection for tinnitus in December 2017. Service connection was subsequently granted in an August 2018 rating decision. He has not indicated that he is in disagreement with the rating or effective date assigned. As such, the Board has limited its consideration accordingly. Service Connection Claims Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Obstructive Sleep Apnea The Veteran asserts that he has OSA which began in service. Regarding direct service connection, the Veteran was diagnosed with OSA in December 2016. As such a current disorder is shown, and the first element of service connection, a current diagnosis, has been satisfied. Next, the service treatment records (STRs), were largely silent for any complaints of or treatment for a sleep disorder. However, the Veteran did indicate positively that he experienced frequent trouble sleeping at his April 1991 separation examination. Importantly, no diagnosis for sleep apnea, or other associated symptomatology, was made during active service. However, as trouble sleeping could be related to sleep apnea, the Board will assume that in-service occurrence is present and evaluate the third element required to establish direct service connection. Thus, the remaining question is whether there is a relationship between the Veteran’s current disorder and the in-service incurrence. Post-service treatment records are silent for symptoms associated with OSA until approximately August 2011, when he reported trouble sleeping as due to racing thoughts. The Veteran sought treatment intermittently for sleep trouble, until he was diagnosed with mild positional sleep apnea by VA sleep study in December 2016. The VA provider recommended sleep hygiene and positional treatment for treatment, but did not advise for CPAP therapy. The treatment provider also recommended weight loss as a method to avoid desaturation. At a February 2017 VA examination, a diagnosis for sleep apnea was continued by the examiner. The Veteran discussed positional therapy with the examiner and reported that sleeping on his side did result in significant improvement, and denied any complicating secondary effects. The examiner noted that related pertinent findings included the Veteran’s body mass index and weight, which were recorded as 36 and 271 pounds, respectively. The Veteran reported an approximately 100-pound weight gain since his separation from service. Based on the foregoing, the examiner opined that the Veteran’s OSA was less likely than not incurred in or caused by active service. The examiner reasoned that the Veteran separated from service in 1991, and was not diagnosed with OSA until more than 15 years following separation. Further, during service he was not diagnosed with and did not complain of any pertinent symptomatology. The examiner reasoned that based on the mild positional nature of his disorder, it was likely that it was a result of his significant weight gain since separation, which is a major contributor to the development of the disorder. Since that time, the Veteran has supplemented the record with copious amounts of treatment notes which indicate ongoing treatment for his OSA; however, the treatment continues to fail to indicate a nexus with service connection, or any incident thereof. Therefore, the medical evidence does not support the claim. Skin Disorder The Veteran asserts that he has a skin disorder which is a result of his active service. Initially, he has been diagnosed with tinea corporis with a history of Majocchi’s granuloma. Accordingly, a current diagnosis is found and the first element of service connection is satisfied. Next, the Veteran does not assert, and the evidence does not show, that his rashes began in service. Instead, he contends that he was exposed to toxic chemicals in 1991 during active service and his rashes later manifested as a result. Importantly, his skin was found to be normal upon examination at his April 1991 separation evaluation. However, the Veteran’s exposure to toxic chemicals was verified by a July 1997 letter supplied by the Department of Defense. Accordingly, the Board will assume that an in-service occurrence is present and will evaluate the third element required to establish direct service connection. Thus, the remaining question is whether there is a relationship between the Veteran’s current disorder and the toxic exposure in 1991. Post-service treatment records show diagnoses for tinea coroporis, Majocchi’s granuloma, and indications of skin cancer in remission. VA treatment notes indicated that the Veteran’s father had a history of skin cancer as well. At a June 2016 VA examination, the Veteran described a rash from his knees to his middle torso that began in February 2016. He denied any rashes, complaints, diagnoses, or treatment while in the military, and reported treatment with Lamisil with good relief. The examiner found erythema with macules and patches covering less than 5 percent of total body area, but no inflammation, ecchymosis, signs of infections, or ulcers. The examiner opined that the Veteran’s skin disorder was less likely than not a result of his active service and reasoned that the rashes did not appear until twenty years following separation from service, and the alleged exposure to toxic materials in service. Given the significant time elapsed between exposure and manifestation, it was less likely that the rashes were related. Therefore, the medical evidence does not support the claim. With respect to both service connection claims, the Board places significant probative value on the VA opinions undertaken specifically to address the issues on appeal. Specifically, the Veteran symptoms were considered and the examiners reviewed the claims file and the prior medical history. There is no indication that the VA examiners were not fully aware of the past medical history or that any relevant fact was misstated. Specifically, the examiners discussed the Veteran’s history of sleep hygiene and symptomatology at length. Moreover, the examiners have the requisite medical expertise to render a medical opinion regarding the etiology of the disorders and had sufficient facts and data on which to base the conclusions. Therefore, the VA examiners’ opinions are of great probative value and it against the claims. The Board has considered the Veteran’s lay statements that disorders were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the examination reports and clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Increased Rating for Inguinal Hernia Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s left inguinal hernia is rated as noncompensable under DC 7338, which provides a 0 percent rating with a small inguinal hernia, reducible, or without true hernia protrusion or if it is not operated but remediable, and a 10 percent rating if the hernia is postoperative recurrent, readily reducible and well supported by a truss or belt. A Note to this DC provides that 10 percent is to be added for bilateral involvement, provided the second hernia is compensable. This means that the more severely disabling hernia is to be rated, and 10 percent added for the second hernia, if the second hernia is of compensable degree. 38 C.F.R. § 4.114, DC 7338. At VA examinations, as well as VA outpatient treatment records, the Veteran has not exhibited recurrence of a left inguinal hernia since the initial surgical repairs and did not report any pain at the surgical site. At a February 2017 VA examination, the examiner found no evidence of recurrence and no present hernias on physical examination. The examiner also found no neuropathic residuals and no tenderness over the scar, which was noted to be well-healed and nontender. For these reasons, the medical evidence does not support a higher rating. The Board has considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s hernia disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiner has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran’s subjective evidence of complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In a February 2017 rating decision, the regional office (RO) issued a rating decision granting service connection for a post-operative left inguinal hernia, rated as noncompensable, effective October 25, 2016. In his March 2017 notice of disagreement, the Veteran disagreed with both the rating and effective date of the award. In December 2017, the RO issued a statement of the case addressing the evaluation of the award, but did not address the effective date. A review of the record reveals that he has not been issued a statement of the case for this issue. Accordingly, a remand is warranted. Manlincon v. West, 12 Vet. App. 238 (1999). The matter is REMANDED for the following action: Issue a statement of the case to the Veteran and his representative concerning the effective date of the grant of service connection for post-operative left inguinal hernia. The Veteran must be advised of the necessity of filing a timely substantive appeal if he wants the Board to consider this issue. Then, only if an appeal is timely perfected, the issue should be returned to the Board for further appellate consideration, if otherwise in order. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel