Citation Nr: 18153922 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-09 362 DATE: November 28, 2018 ORDER The claim of entitlement to service connection for sleep apnea is denied. REMANDED The claim of entitlement to service connection for a left knee disability is remanded. The claim of entitlement to service connection for a right knee disability is remanded. The claim of entitlement to service connection for a right ankle disability is remanded. The claim of entitlement to service connection for chronic sinusitis is remanded. The claim of entitlement to service connection for stress incontinence is remanded. The claim of entitlement to service connection for residuals of cervical biopsies is remanded. The claim of entitlement to service connection for alopecia is remanded. FINDING OF FACT The Veteran does not have a present diagnosis of sleep apnea. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Navy from June 1999 to June 2013. 1. The claim of entitlement to service connection for sleep apnea The Veteran contends that she is entitled to service connection for sleep apnea. Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. §§ 1110 (2012). A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303 (2018); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of sleep apnea and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In June 2013, a VA examiner evaluated the Veteran and determined that she did not have a diagnosis of sleep apnea. Further, a June 2012 in-service sleep study failed to diagnose sleep apnea, instead noting that the Veteran snored. While there is a note of “organic sleep apnea” in subsequent service treatment records, it is unclear if another sleep study was conducted that actually diagnosed the condition following the negative finding in June 2012. Finally, the Veteran admitted in her February 2016 Substantive Appeal that her sleep apnea had been formally diagnosed as narcolepsy, for which she is presently service-connected. She indicated that she continued to experience difficulty sleeping, but would claim such in conjunction with a future claim of an acquired psychiatric disorder. While the Veteran believes she has a current diagnosis of sleep apnea, she is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence of record failing to diagnose sleep apnea. Based on the foregoing, the claim of entitlement to service connection for sleep apnea is denied. The preponderance of the evidence is against the Veteran’s claim; thus, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). REASONS FOR REMAND 1. The claim of entitlement to service connection for a left knee disability is remanded. The Board cannot make a fully informed decision regarding the claim of entitlement to service connection for a left knee disability as the medical opinion of record is inadequate. The Veteran’s service treatment records reflect repeated complaints pertaining to her left knee beginning in February 2007 through February 2013. The Veteran has subsequently reported pain associated with her left knee, including in her March 2016 Substantive Appeal. The Veteran’s May 2013 VA examination, however, noted that there was no pathology with which to render a diagnosis, and, as such, service connection was denied. Pain may be considered a disability for VA purposes if it results in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). It is unclear from the record the degree to which the Veteran’s knee pain causes functional impairment. Accordingly, a new VA examination is necessary on remand in order to obtain an opinion regarding functional impairment that considers the Veteran’s competent lay reports of symptomatology. 2. The claim of entitlement to service connection for a right knee disability is remanded. The Board cannot make a fully informed decision regarding the claim of entitlement to service connection for a right knee disability as the medical opinion of record is inadequate. The Veteran’s service treatment records reflect repeated complaints pertaining to her right knee following a trauma in June 2008. The Veteran has subsequently reported pain associated with her right knee, including in her March 2016 Substantive Appeal. The Veteran’s May 2013 VA examination, however, noted that there was no pathology with which to render a diagnosis, and, as such, service connection was denied. Pain may be considered a disability for VA purposes if it results in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). It is unclear from the record the degree to which the Veteran’s knee pain causes functional impairment. Accordingly, a new VA examination is necessary on remand in order to obtain an opinion regarding functional impairment that considers the Veteran’s competent lay reports of symptomatology. 3. The claim of entitlement to service connection for a right ankle disability is remanded. The Board cannot make a fully informed decision regarding the claim of entitlement to service connection for a right ankle disability as the medical opinion of record is inadequate. The Veteran’s service treatment records reflect an injury to the right ankle in August 2011. The Veteran has subsequently reported pain associated with her right ankle since discharge from service, including in her March 2016 Substantive Appeal. The Veteran’s May 2013 VA examination, however, noted that there was no pathology with which to render a diagnosis, and, as such, service connection was denied. Pain may be considered a disability for VA purposes if it results in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). It is unclear from the record the degree to which the Veteran’s ankle pain causes functional impairment. Accordingly, a new VA examination is necessary on remand in order to obtain an opinion regarding functional impairment that considers the Veteran’s competent lay reports of symptomatology. 4. The claim of entitlement to service connection for chronic sinusitis is remanded. The Board cannot make a fully informed decision regarding the claim of entitlement to service connection for chronic sinusitis as the medical opinion of record is inadequate. The Veteran’s service treatment records reflect multiple complaints involving her sinuses. In medical reports from March 2007 and October 2010, the Veteran indicated that she experienced ongoing problems with her sinuses. Her service treatment records also reflect multiple upper respiratory infections with associated sinus symptoms and a sinus infection. The Veteran reports that she has experienced symptoms involving her sinuses since discharge, and have worsened to the point of causing headaches. The May 2013 VA examination, however, did not diagnose a present disability. Radiology noted a thickening of the left maxillary antrum and bilateral ethmoid sinuses, but the examiner succinctly determined those findings were clinically insignificant. The examiner found that there was no pathology to render a diagnosis, while also remarking that medication was continually required for control of a sinus condition. As this conclusion lacks a sufficient rationale, and does not appear to consider the Veteran’s lay reports of ongoing symptomatology, a new examination is necessary on remand. 5. The claim of entitlement to service connection for stress incontinence is remanded. The Board cannot make a fully informed decision regarding the claim of entitlement to service connection for stress incontinence as the medical opinion of record is inadequate. During a May 2013 VA examination, the Veteran reported symptoms of incontinence and the need to use liners beginning in 2012 while on active duty. The examiner then denied that she experienced symptoms of urinary incontinence, and determined that she did not have a present diagnosis of urinary incontinence. This is clearly contrary to the Veteran’s competent lay reports of symptoms, and a new examination is necessary to properly consider her observed symptomatology. 6. The claim of entitlement to service connection for residuals of cervical biopsies is remanded. The Board cannot make a fully informed decision regarding the claim of entitlement to service connection for residuals of cervical biopsies as the medical opinion of record is inadequate. The May 2013 VA examination reported that the Veteran did not have any current symptoms associated with her previous in-service cervical biopsies. The Veteran reported, however, that she experienced internal pain stemming from the biopsy sites. Accordingly, a new examination is necessary to determine the cause of this pain and whether the Veteran continues to experience residuals from her in-service cervical biopsies. 7. The claim of entitlement to service connection for alopecia is remanded. The Board cannot make a fully informed decision regarding the claim of entitlement to service connection for alopecia as the medical opinion of record is inadequate. The May 2013 VA examination reported that the Veteran did not have any current symptoms related to alopecia. In the Veteran’s February 2016 Substantive Appeal, she reported that her hair had been thinning and falling out since discharge from service. She also reported ongoing problems with alopecia in her October 2013 Notice of Disagreement. Accordingly, a new examination is necessary to determine the cause of her hair loss and whether such a condition is related to active duty service. The matters are REMANDED for the following actions: 1. Contact the Veteran and the representative of record to identify any outstanding non-VA treatment records regarding the issues on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and the representative of record, and afford an opportunity to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 3. Once the aforementioned development is complete, schedule the Veteran for a VA examination to assess the nature and etiology of her claimed bilateral knee disability and right ankle disability. A complete copy of the claims file must be made available to the examiner. The examiner should take a full history of observable symptomatology associated with the claimed disabilities from the Veteran. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Identify any and all disabilities involving the Veteran’s knees and right ankle; (b.) For each identified diagnosis, is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran’s identified disability had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service? Note: pain may constitute a disability in of itself when it is sufficient to cause functional impairment. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 4. Once the aforementioned development is complete, schedule the Veteran for a VA examination to assess the nature and etiology of her claimed alopecia. A complete copy of the claims file must be made available to the examiner. The examiner should take a full history of observable symptomatology from the Veteran. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Does the Veteran have a present diagnosis of a condition, including alopecia, that causes her reports of hair thinning and loss? (b.) If so, is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran’s identified disability had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 5. Once the aforementioned development is complete, schedule the Veteran for a VA examination to assess the nature and etiology of her claimed chronic sinusitis. A complete copy of the claims file must be made available to the examiner. The examiner should take a full history of observable symptomatology from the Veteran. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Does the Veteran have a present diagnosis involving the sinuses? (b.) If so, is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran’s identified disability had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 6. Once the aforementioned development is complete, schedule the Veteran for a VA examination to assess the nature and etiology of her claimed residuals from multiple in-service cervical biopsies. A complete copy of the claims file must be made available to the examiner. The examiner should take a full history of observable symptomatology from the Veteran. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Does the Veteran have present residuals associated with cervical biopsies? (b.) If so, is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran’s identified residuals had their onset during active service or within one year of separation from service, or, otherwise resulted from active military service? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 7. Once the aforementioned development is complete, schedule the Veteran for a VA examination to assess the nature and etiology of her claimed stress incontinence. A complete copy of the claims file must be made available to the examiner. The examiner should take a full history of observable symptomatology from the Veteran. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Does the Veteran have a present diagnosis of stress incontinence? (b.) If so, is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran’s incontinence had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. (Continued on the next page)   8. Following completion of the foregoing, the Agency of Original Jurisdiction (AOJ) should review the record and readjudicate the claims on appeal. If any claim remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and her representative an opportunity to respond, and return the case to the Board. L. Chu Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel