Citation Nr: 18147379 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 15-22 023 DATE: November 6, 2018 ORDER Entitlement to service connection for myopia is denied. Entitlement to service connection for tuberculosis is denied. Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for a skin disorder (claimed as skin disorder from shaving) is denied. REMANDED Entitlement to service connection for right knee arthritis is remanded. Entitlement to service connection for left knee arthritis is remanded. Entitlement to service connection for right hand arthritis is remanded. Entitlement to service connection for allergic rhinitis is remanded. Entitlement to service connection for a bilateral foot disorder is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for major depressive disorder is remanded. FINDINGS OF FACT 1. Myopia is a congenital disease or defect for which service connection cannot be granted, and the evidence does not show a superimposed disease or disability resulting in additional levels of disability. 2. The Veteran does not have a current diagnosis of tuberculosis. 3. There is no probative evidence that the Veteran’s obstructive sleep apnea manifested during active service or for many years thereafter. 4. There is no probative evidence that the Veteran had a skin disorder that manifested during active service or for many years thereafter. CONCLUSIONS OF LAW 1. The criteria for service connection for myopia have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2018). 2. The criteria for service connection for tuberculosis have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a skin disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1987 to January 1993. He testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in May 2018. Service Connection Generally, to establish service connection a Veteran 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Generally, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. Finally, for veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established for chronic disability that cannot be attributed to a known clinical diagnosis (undiagnosed illness) or for a medically unexplained multisymptom illness (e.g., chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome). See 38 C.F.R. § 3.317. However, the Southwest Asia theater of operations does not include Turkey; where the Veteran had active duty service. As such, these regulations are not applicable to the Veteran’s claims. 1. Entitlement to service connection for myopia The Veteran contends he is entitled to service connection for an eye disorder. A review of the record reveals that he has a diagnosis of myopia. As an initial matter, myopia is not a recognized chronic disease for VA purposes, and therefore service connection based on the presumption in favor of chronic diseases and continuity of symptomatology is not warranted. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303, 3.307, 3.309. Turning to direct service connection, although the Veteran complains of blurred vision, these complaints have been diagnosed as myopia, which is fully corrected with the use of glasses. Myopia is defined as a refractive error of the eye. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1225 (32d ed. 2012). Refractive errors of the eyes are congenital or developmental defects and not a disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Thus, VA regulations specifically prohibit service connection for refractory errors of the eyes unless such defect was subjected to a superimposed disease or injury. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). As such, service connection cannot be granted for myopia as a matter of law. There is no competent medical evidence of record indicating that there was a superimposed disability on the Veteran’s diagnosed myopia. Therefore, an opinion as to the issue of a superimposed disability is not warranted. Although the Veteran has established a current diagnosis of myopia, this diagnosis is for a refractive error of the eye for which service connection cannot be granted as a matter of law, and there is no competent and credible evidence of a superimposed disability affecting the Veteran’s vision. 38 C.F.R. §§ 3.303(c), 4.9. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57; 38 C.F.R. § 3.102. For these reasons, the claim is denied. 2. Entitlement to service connection for residuals of a positive purified protein derivative (PPD) test, claimed as tuberculosis The Veteran seeks service connection for tuberculosis. At his Board hearing, he seemed to suggest that he has dyspnea related to the positive PPD test from service. For the reasons that follow, the Board finds that this claim must be denied. The Veteran’s service treatment records show that he had a positive PPD while in service. A positive PPD test result is a laboratory finding used to test for exposure to mycobacterium tuberculosis when exploring a possible diagnosis of tuberculosis. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1498, 1962 (30th ed. 2003). It does not represent a clinical finding of tuberculosis. There was no diagnosis of active tuberculosis in service or at any time after service. The Veteran’s post-service treatment records show that although he reported a history of a positive PPD test; there was ultimately no diagnosis of active tuberculosis. Indeed, he was afforded a VA examination for tuberculosis in November 2012. After examining the Veteran, the examiner stated that the Veteran did not have an active tuberculosis diagnosis. At his Board hearing, the Veteran attempted to state that he had dyspnea related to his positive in-service PPD test. However, a review of his VA treatment records show that he has dyspnea on exertion related to his heart; there is no indication that he has dyspnea on exertion related to this positive in-service PPD test. As there is no clinical diagnosis of active tuberculosis, there is no disability for which VA compensation benefits are payable, despite the Veteran’s contentions that he has the disease. Moreover, the residuals reported by the Veteran have specifically been attributed to his heart; as opposed to any lung diagnoses related to a positive PPD test. As the Veteran has not shown to have medical training or expertise, the Board finds that he is not competent to render a diagnosis for this disability. As such, service connection for residuals of a positive in-service PPD test must be denied. 3. Entitlement to service connection for a claimed skin disorder due to shaving and obstructive sleep apnea The Veteran generally contends that he has obstructive sleep apnea and a skin disorder due to service. With regard to the Veteran’s claim for obstructive sleep apnea, the Board notes that review of his VA treatment records shows that he has a current diagnosis of obstructive sleep apnea. See September 2016 VA Treatment Records. However, there is nothing in the Veteran’s service treatment records documenting any complaints, treatment, or diagnoses related to a sleep disorder. Moreover, the Veteran himself has not identified any in-service sleep complaints. For the Veteran’s claim for a skin disorder, the Board notes that the Veteran’s VA treatment records are replete with complaints related to his skin. However, the Veteran’s service treatment records do not document any complaints, treatment, or diagnoses related to the skin. The Veteran has generally contended that he has a skin disorder due to exposure to environmental hazards in service. Essentially, he contends that he has a disability due to service in the Southwest Asia theater of operations. However, on review of the Veteran’s service personnel records, it is clear that the Veteran was stationed at Incirlik Air Base in Turkey in June 1990. These records do not show any service in Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. Therefore, the Veteran is not presumed to have been exposed to environmental hazards such that section 3.317 is for application. Furthermore, he has not demonstrated actual exposure to environmental hazards. The Board acknowledges that no VA examinations or medical opinions have been obtained as to the Veteran’s obstructive sleep apnea and skin disorder claims. However, given the lack of any in-service symptoms or complaints related to, or any other in-service events that could result in a sleep disorder or skin disorder, the low threshold for obtaining a VA examination and medical opinion have not been met in this case. See 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Consequently, the Board concludes that there is no in-service injury or event on which to predicate a claim of service connection for obstructive sleep apnea or a skin disorder. The claims must therefore be denied. See 38 C.F.R. § 3.303. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral foot disorder is remanded. The Veteran seeks service connection for a bilateral foot disorder. At his Board hearing, he testified that during service, he began to experience aching and swelling in his feet due to the amount of walking required for active duty. The Veteran’s entrance examination shows that he had a diagnosis of asymptomatic bilateral hallux valgus and asymptomatic bilateral pes planus. As such, a remand is required to obtain a medical opinion regarding whether his foot disorders were at least as likely as not aggravated beyond their natural progression during service. 2. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder. A review of the Veteran’s VA treatment records establishes that he has a diagnosis of major depressive disorder. He testified at his Board hearing that soon after leaving service, he was required to go to anger management. He identified various stressors which he believes caused an acquired psychiatric disorder. When considering this evidence together, the Board finds that the requirements of McLendon are met and a VA examination is warranted. 3. Entitlement to service connection for bilateral knee and right-hand arthritis. The Veteran contends that he has bilateral knee and right-hand arthritis as a result of service. Specifically, at his Board hearing, he reported having pain in his knees from constantly kneeling down on concrete in service. He additionally contends that he has right hand arthritis from handling safety wire during service. He stated it was from “the tool that we use to do the safety wire. It’s kind of like a set of pliers with a piece that comes down the middle of it, and you would have to safety wire using needle nose and then you’d clamp the end and you’d pull—and sometimes my hand would cramp up right before I’d start pulling from all the safety wire.” Given the Veteran’s current diagnoses and his reports of in-service injuries, the Board finds that remand is required to obtain a VA medical opinion. 4. Entitlement to service connection for allergic rhinitis The Veteran’s VA treatment records establish that he has a current diagnosis of allergic rhinitis. His service treatment records also document allergies in service. He contends that his current allergic rhinitis is due to the fumes from the airplanes. He stated that as soon as he got out of service, he began to experience a runny nose and while in service, he also experienced red eyes. As such, a remand is warranted to obtain a VA medical opinion. 5. Entitlement to service connection for headaches. The Veteran contends that he has headaches due to service. His service treatment records document that he had whiplash prior to service. They do not document complaints of headaches; however, the Veteran stated that he did not go to sick call for his headaches. He contends they are now severe in nature and he believes they are the result of him hitting his head multiple times in service whereby he experienced lightheadedness and dizziness from 5-15 minutes thereafter. Given this evidence, the Board finds that a VA examination is warranted to determine the type of headaches the Veteran experiences and whether they are the type of headaches that are related to head trauma. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any diagnosed bilateral foot disorders. The examiner should provide all diagnoses related to the feet. For any diagnosis other than bilateral hallux valgus and bilateral pes planus, the examiner is asked to opine whether it is at least as likely as not due to service. For the Veteran’s bilateral hallux valgus and bilateral pes planus, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that these disorders, which were noted to have been present at his entrance examination, were aggravated beyond their natural progression during service. A complete rationale for any opinion expressed must be provided. 2. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any diagnosed acquired psychiatric disorders. For any diagnosed psychiatric disorder, the examiner is asked to opine whether it is at least as likely as not related to service, to include the Veteran’s reported stressors of having a bed thrown at his head; being told to get off a plane by a pilot; and witnessing a plane take off and come right back down, ultimately crashing on the runway. A complete rationale for any opinion expressed must be provided. 3. Obtain a VA medical opinion regarding the Veteran’s bilateral knee and right-hand arthritis. The need for an in-person examination is left to the discretion of the examining clinician. After reviewing the Veteran’s entire claims file, the examiner is asked to opine whether the Veteran’s bilateral knee arthritis and right-hand arthritis is at least as likely as not due to service including having to constantly kneel on concrete and having to handle safety wire. A complete rationale for any opinion rendered must be provided. 4. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his headaches. The examiner is asked to clarify the type of headaches the Veteran experiences and then opine whether the headaches are at least as likely as not related to the Veteran hitting his head in service and thereafter becoming dizzy and lightheaded for approximately 5-10 minutes. The examiner should address the fact that the Veteran had also experienced whiplash prior to service and explain whether the headaches the Veteran experiences are the type that would be more likely due to the whiplash than blunt trauma. A complete rationale must be provided for any opinion rendered. 5. Obtain a VA medical opinion regarding the Veteran’s allergic rhinitis from an appropriate clinician. The need for an in-person examination is left to the discretion of the examiner. (Continued on the next page)   After reviewing the Veteran’s entire claims file, the examiner is asked to opine: whether the Veteran’s allergic rhinitis is at least as likely as not due to service to include exposure to jet engine fuel. A complete rationale must be provided for any opinion rendered. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Martha R. Luboch, Associate Counsel