Citation Nr: 18154801 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-37 569 DATE: November 30, 2018 ORDER Service connection for methicillin-resistant staphylococcus aureus (MRSA), to include as secondary to service-connected right wrist disability, is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for residuals of fibrocystic breast disease is remanded. Entitlement to service connection for residuals of a peri urethral tear and clitoral numbness is remanded. FINDING OF FACT The Veteran has not been shown to have MRSA at any time since separation from active service in July 2006. CONCLUSION OF LAW The criteria are not met to establish service connection for MRSA, to include as secondary to service-connected right wrist disability. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from September 2004 to July 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Since the case was certified to the Board in August 2016, additional evidence not relevant to the issue of service connection for MRSA has been obtained and associated with the record. As a result, a waiver of initial Agency of Original Jurisdiction (AOJ) review is not needed and the Board may proceed with the claim. Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings liberally does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to service connection for MRSA, to include as secondary to service-connected right wrist disability Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The disorder at issue in this case is not considered a chronic disease as enumerated for VA compensation purposes. As such, the provisions for continuity of symptomatology after discharge and for a chronic disease on a presumptive basis are not for application in this case. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, the Board finds that the Veteran is not a Persian Gulf Veteran. Although she served on active duty during the during the Persian Gulf War, her service personnel records do not show she served in the Southwest Asia theater of operations at any time during her period of active service from September 2004 to July 2006. As a result, consideration of whether service connection for the claim below will not be considered on a presumptive basis for a Persian Gulf Veteran. In April 2014, the Veteran requested service connection for MRSA. In the November 2014 notice of disagreement, she further noted that MRSA started from her right wrist surgery and she still suffers from the condition. The Veteran’s service treatment records indicate she contracted MRSA while in the military during a procedure involving her right wrist. A May 2005 service treatment record indicates the Veteran’s MRSA was resolved. Review of post-service medical records are silent for any findings of a recurrence or symptoms of MRSA. In fact, the Veteran was afforded a VA examination in connection with her claim in July 2014. The VA examiner noted the Veteran contracted MRSA while her right wrist was being treated. He indicated the Veteran was not on continuous medication and that while she was a carrier of the disease, the condition was inactive. At the time of the examination, the examiner found no signs or symptoms of MRSA. Based on the evidence of record, there is no probative and competent evidence that demonstrates a current disorder of MRSA during the appeal period. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d). The Board has also considered the Veteran’s contention that she has MRSA. Generally, lay persons are competent to report as to the observable symptoms and its history. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not competent to provide a diagnosis of MRSA as it is a complex medical determination based upon internal medical processes and is not capable of lay observation. The evidence does not show that she has the medical expertise to provide such a diagnosis. Moreover, to the extent that the Veteran is competent to opine on this matter, the Board finds that the specific, reasoned opinion of the VA examiner is of greater probative weight than her more general lay assertions in this regard. Based on the foregoing, the Board finds that the Veteran is a carrier of MRSA but does not have active MRSA. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; 38 C.F.R. § 3.310; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim on direct and secondary bases, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea In July 2014, the Veteran was afforded a VA examination for sleep apnea. Following the clinical evaluation, which included a sleep study, there was no current diagnosis provided for sleep apnea. The examiner indicated there were no complaints or treatment related to symptoms of sleep apnea in the Veteran’s service treatment records and suggested the Veteran lose weight to help control her symptoms. During the appeal, the Veteran has asserted that she snored during service and had difficulty breathing. Review of post-service treatment records show that in July 2012 the Veteran was seen out of concern for possible sleep apnea and requested a sleep study. In light of such evidence, it appears the July 2014 VA relied on an inaccurate factual history and there are outstanding potentially relevant treatment records that have not been obtained and associated with the record. 2. Entitlement to service connection for residuals of fibrocystic breast disease In July 2014, the Veteran was afforded a VA examination for breast conditions and disorders. The examination report indicates the Veteran has been followed and evaluated by a breast specialist at St. Anthony’s; however, it is unclear if the AOJ has attempted to obtain these identified private treatment records and associate them with the claims file. Therefore, on remand, the AOJ should attempt to obtain these identified outstanding private treatment records. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3) (2018)). 3. Entitlement to service connection for residuals of a peri urethral tear and clitoral numbness In July 2014, the Veteran was afforded a VA examination for gynecological conditions. The examiner noted the Veteran was treated for a post-surgical peri urethral tear while in service. He also noted the Veteran reported having no feeling in her clitoris. However, while the AOJ indicated the examiner provided a nexus opinion, the Board did not find an opinion from the examiner to determine whether the Veteran had current residuals of a peri urethral tear related to her military service. Therefore, the claim is remanded for a VA medical opinion. The matters are REMANDED for the following actions: 1. Contact the Veteran and request that she identify any private treatment facilities or providers for her claims on appeal for sleep apnea and residuals of fibrocystic breast disease and provide her with the appropriate release forms. Then, make appropriate efforts to obtain any outstanding records so authorized for release from any facility identified by the Veteran, to include (a) from St. Anthony’s for residuals of fibrocystic breast disease and (b) any outstanding sleep study identified by the Veteran. If these records cannot be located, the AOJ must specifically document the attempts made to locate them and notify the Veteran. 2. Then, return the Veteran’s claims file to the examiner who conducted the July 2014 VA examination for sleep apnea so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. After review of any additional relevant treatment records obtained and associated with the record, to include outstanding sleep study(ies), the examiner must opine as to the following: (a.) Whether the Veteran has a current diagnosis of sleep apnea (even if since resolved). (b.) If so, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea began during active service or is related to an incident of service, to include the Veteran’s reported snoring and difficulty breathing during her period of service from September 2004 to July 2006. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Return the Veteran’s claims file to the examiner who conducted the July 2014 VA examination for gynecological conditions so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s residuals of a peri urethral tear and clitoral numbness began during active service or is related to an incident of service, to include a post-surgical peri urethral tear. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Then, review the examination reports and medical opinions to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. (Continued on the next page)   5. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.M. Walker, Associate Counsel