Citation Nr: 18144347 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-22 994 DATE: October 24, 2018 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for numbness in feet and toes is denied. Entitlement to service connection for headaches/migraines with fatigue is denied. Entitlement to service connection for a dental disability is denied. FINDINGS OF FACT 1. Sleep apnea has not been shown to exist at any time during the pendency of the appeal. 2. Chronic numbness in feet and toes has not been shown to exist at any time during the pendency of the appeal. 3. The preponderance of the evidence is against a finding that the Veteran’s headaches/migraines are causally related to an event, injury, or disease in service, to include exposure to ionizing radiation and Gulf War syndrome. 4. The preponderance of the evidence is against a finding that the claimed dental disability, to include tooth extractions, is due to in-service trauma or disease such as osteomyelitis. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for numbness in feet and toes have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for headaches/migraines with fatigue have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 4. The Veteran does not have a dental disability for compensation purposes, to include loss of teeth. 38 U.S.C. §§ 1131, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2003 to April 2007. The Board notes that the issues of entitlement to increased disability ratings for anal fistula and hemorrhoids as well as an effective date prior to November 8, 2016 for a 10 percent disability rating for anal fistula are part of a separate appeal stream, with a pending hearing request. As such, the issues are not currently before the Board and will be addressed in a separate decision at a later date. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). 1. Entitlement to service connection for sleep apnea 2. Entitlement to service connection for numbness in feet and toes The Veteran contends that service connection is warranted for sleep apnea and numbness in feet and toes. However, the Board finds that there is simply no evidence of record indicating that the Veteran has been diagnosed with sleep apnea or numbness in feet and toes. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). At the very least, the evidence must show that, at some point during the appeal period the Veteran has the disability for which benefits are being claimed. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no competent indication that sleep apnea or numbness in feet and toes had an onset in service or is otherwise related to active duty. There is no medical evidence of record indicating that the Veteran has ever been diagnosed with sleep apnea or numbness in feet and toes. Post-service treatment records are silent for any complaints or treatment for these conditions. Medical records consistently note that the Veteran has normal neurological function with motor and sensory grossly intact. See e.g. September 2016 Surgery Consult. In addition, an August 2016 Pulmonary Diagnostic Study Report after an overnight polysomnography did not suggest a diagnosis of obstructive sleep apnea. The Veteran was also afforded a VA examination in March 2013 to determine the etiology of his sleep apnea and numbness in feet and toes. The VA examiner found that the Veteran’s claimed conditions were less likely than not related to service, noting that the Veteran did not have a diagnosis for either sleep apnea or numbness in feet and toes. While it was noted that the Veteran suffered from chronic sleep impairment, the examiner stated that it was a symptom associated with the Veteran’s service-connected posttraumatic stress disorder (PTSD). Furthermore, neurological testing of the Veteran’s upper and lower extremities during the VA examination had normal results. Accordingly, the Board finds that the preponderance of the evidence is against the claims for service connection for sleep apnea and numbness in feet and toes. At no time during the pendency of the appeal has a diagnosis for either claimed disability been shown. The Veteran has not been shown to possess the medical training or credentials to provide a diagnosis in this regard. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims of entitlement to service connection for sleep apnea and numbness in feet and toes are denied. See 38 U.S.C. §5107. 3. Entitlement to service connection for headaches/migraines with fatigue The Veteran claims that his headaches/migraines are due to radiation exposure in service. Specifically, he contends that he was exposed to microwave and radiofrequency radiation six days a week while in service. In general, service connection for a condition which is claimed to be attributable to ionizing radiation exposure during service may be established in one of three different ways. First, it may be presumptively service connected under 38 U.S.C. § 1112(c) and 38 C.F.R. 3.309(d) for radiation-exposed Veterans. Second, it may be service-connected on a direct basis after specified development procedures are conducted under the special framework of 38 C.F.R. § 3.311 if the claimed disability is a radiogenic disease. Third, even if it is not a listed disease under § 3.309 or a radiogenic disease under § 3.311, direct service connection can be established by showing that the disease was incurred during or aggravated by service, including presumptive service connection for chronic disease. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Regarding service connection on a presumptive basis, if a Veteran has a listed disease under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d) and was a radiation-exposed Veteran, then it will be presumed that the disease was incurred in service, and service connection is established for the disease. However, presumptive service connection is not warranted in this case. Specifically, the Veteran asserts that he was exposed to ionizing radiation as a result of his purported proximity to radio, microwave systems, and aircraft jammer equipment. See January 2013 Radiation Risk Activity Information Sheet. The United States Court of Appeals for Veterans Claims (Court) has taken judicial notice that radar equipment emits microwave-type, non-ionizing radiation. Rucker v. Brown, 10 Vet. App. 67, 69, 71-72 (1997). Non-ionizing exposure from radar equipment is not the type of radiation exposure addressed by the VA regulations found at 38 C.F.R. §§ 3.309, 3.311 (2016). As the type of radiation the Veteran claims to have been exposed to is not considered to be ionizing radiation, the provisions relating to ionizing radiation are not applicable to the instant claims. As such, the weight of the evidence demonstrates that the Veteran did not participate in a “radiation risk activity” while in service and headaches/migraines are not among the diseases listed under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). Therefore, the weight of the evidence demonstrates that the Veteran’s headaches/migraines were not incurred in or the result of exposure to ionizing radiation during active service. There are no favorable competent opinions of record, nor does the evidence otherwise suggest that the Veteran’s headaches/migraines are related to radiation exposure. In the alternative, the Veteran has argued that his headache/migraine symptoms are due to his service in the Persian Gulf War. Service connection may be established for a qualifying chronic disability manifested by certain signs or symptoms which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016, and which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). A “qualifying chronic disability” includes: (a) an undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C. § 1117 (a)(2)(B); 38 C.F.R. § 3.317. The Veteran’s personnel and service treatment records verify that he has qualifying active service in the Southwest Asia theater of operations during the Persian Gulf War. Military personnel records indicate that the Veteran served in the Southwest Asia Theater of Operations during the Gulf War, and headaches are listed as a sign or symptom that may be a manifestation of an undiagnosed illness under 38 C.F.R. § 3.317. Therefore, the remaining inquiry is whether the medical evidence of record demonstrates the incurrence of headaches in service or as a result of service. Upon review of the evidence, the Board concludes that the evidence of record is against a finding that the Veteran’s headaches/migraines are related to his military service. At the outset, the Board notes that there is no competent, credible evidence that the Veteran’s headaches/migraines are related directly to an event or injury in service. With the exception of two notations of complaints of headaches, which resolved after a short period of time, the Veteran’s service treatment records (STRs) are silent are silent for any complaints, treatment, or diagnoses related to headaches/migraines. See December 2004 STR (the Veteran reports migraine symptoms; physician notes increased stress and directs Veteran to drink plenty of fluids); March 2005 STR (the Veteran reports headache among other symptoms; diagnosis of viral syndrome and mild dehydration). The Board therefore finds the two reported instances of headaches/migraines in service to be acute and transitory. During a March 2016 VA examination, the Veteran reported experiencing headaches once or twice a month that cause pressure in his nasal cavity and bilateral temples. The Veteran also stated he has sensitivity to light and sound when he suffers from a headache that can last up to an hour and a half if not treated with Tylenol. The VA examiner determined that it was less likely than not that the Veteran’s headaches are related to service, including any claimed exposure to environmental hazards. The examiner considered the Veteran’s lay statements and noted that the Veteran had not been seen with the frequency or severity of headaches to suggest a chronic, primary headache condition. The examiner ultimately opined that he could find no evidence that the Veteran’s claimed frequent headaches are a result of any in-service event, to include exposure to environmental hazards. In making its determination, the Board has also considered the Veteran’s own statements made in support of his claim. Lay persons are competent to report on what they experience through their senses, such as experiencing or observing someone else experience symptoms of pain. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the lay statements of record have been considered in the context of the Veteran’s claim for service connection based on a theory of continuity of symptomatology. The Board has considered the Veteran’s contentions that his headaches are the result of his exposure to environmental toxins during his service in the Gulf War. However, the Veteran does not possess the medical training or expertise to determine the etiology of his headaches or the nexus/relationship between his headaches and military service. As headaches can have many causes (as demonstrated in the record here), medical expertise is necessary to determine its etiology. Here, the medical evidence of record and medical opinion evidence indicate that the Veteran’s headaches are not likely signs or symptoms of an undiagnosed illness, and were acute and transitory in nature during service. As such, the Veteran’s lay contentions are insufficient to show that any headaches that he has experienced over the years are a continuing disease process of symptomatology noted during service, as opposed to acute episodes in response to post-service events separate and distinct from any in-service symptomatology. See Madden v. Gober, 125 F.3d 1477, 1480-81 (Fed. Cir. 1997). In sum, for the reasons described above, the Board finds that the weight of the competent evidence demonstrates that the Veteran did not participate in a radiation risk activity and does not have a radiogenic disease or a disease associated with radiation-exposed Veterans. In addition, there is no medical evidence of record that supports a finding that the Veteran’s claimed frequent headaches/migraines are a result of any in-service event, to include exposure to ionizing radiation or environmental hazards during his service in the Gulf War. Accordingly, the Board finds that service connection for the Veteran’s headaches/migraines must be denied. As the preponderance of the evidence weighs against the Veteran’s claim for service connection, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to service connection for a dental disability Dental disabilities are treated differently from other medical disabilities in the VA benefits system. Generally, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not considered disabling conditions and, therefore, they may not be service-connected except for the purpose of establishing entitlement to VA outpatient dental treatment. 38 C.F.R. § 3.381(a). The dental conditions for which service-connected compensation benefits are available are set forth under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Loss of teeth, as claimed by the Veteran, is contemplated under Diagnostic Code 9913. The Note following the rating criteria indicates that these ratings apply only to bone loss through trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, since that loss is not considered disabling. It is noted that having dental extractions is not tantamount to dental trauma, because trauma of teeth, even extractions, in and of itself, does not constitute dental trauma. VAOPGCPREC 5-97 (1997), 62 Fed. Reg. 15,566 (1997); see also Nielson v. Shinseki, 607 F.3d 802 (Fed. Cir. 2010). Service treatment records show the Veteran received treatment for swollen and bleeding gums in August 2003 due to plaque-induced gingivitis. He was seen several additional times during service for extensive gingival caries and subsequently had teeth 16, 17, and 32 extracted in September 2003 and June 2004. Following active duty service, private dental records show that the Veteran had fifteen teeth that needed fillings due to tooth decay and five teeth that needed to be extracted due to gross caries. See August 2012 Private J.W. Dental Record. On review, the Veteran currently has missing teeth and gingivitis. The Board acknowledges that teeth were extracted during service. There is, however, no indication that any tooth loss was due to trauma or disease such as osteomyelitis. Under these circumstances, the criteria for service-connected compensation benefits are not met. 38 C.F.R. § 4.150. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claim for service-connected compensation for a dental disability is denied. 38 C.F.R. § 3.102. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Mukherjee, Associate Counsel