Citation Nr: 18154654 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 15-35 262 DATE: December 3, 2018 ORDER 1. Entitlement to service connection for a right foot disability, claimed as tingling on the bottom of the foot, is denied. 2. Entitlement to service connection for a lumbar spine disability, to include lumbar strain, lumbosacral stenosis, listhesis, and lumbar herniated nucleus pulposus (HNP), is denied. 3. Entitlement to service connection for tinnitus is denied. 4. Entitlement to service connection for sleep apnea is denied. 5. Entitlement to service connection for bilateral carpal tunnel syndrome is denied. 6. Entitlement to an initial disability rating in excess of 10 percent for irritable bowel syndrome (IBS) with rectal discharge is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a diagnosed disability related to his right foot. 2. A lumbar spine disability and did not have its onset in service and is not otherwise related to active service or ACDUTRA. The lumbar spine disability pre-existed the Veteran’s second and third periods of active service but was not aggravated by those subsequent periods active service. 3. Tinnitus did not have its onset in service and did not manifest to a compensable degree within the one year of service discharge, and is not otherwise related to active service or ACDUTRA. Tinnitus pre-existed the Veteran’s second and third periods of active service but was not aggravated by those subsequent periods of active service. 4. Sleep apnea did not have its onset in service and is not otherwise related to service. 5. Bilateral carpal tunnel syndrome did not have its onset in service, did not manifest within one year following service discharge, and is not otherwise related to service. 6. IBS with rectal discharge is manifested by, at worst, intermittent diarrhea and abdominal distress which is not constant. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303, 3.304. 2. The criteria for service connection for a lumbar spine disability, to include lumbar strain, lumbosacral stenosis, listhesis, and lumbar HNP, have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107(b); 38 C.F.R. §§ 3.303, 3.306. 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 1153, 5107(b); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309. 4. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.306. 5. The criteria for service connection for bilateral carpal tunnel syndrome have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for an initial rating greater than 10 percent for IBS with rectal discharge have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7319. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from July 1971 to February 1972, March 2003 to July 2003 and from February 2004 to September 2004. The Veteran has also had active duty for training (ACDUTRA) in the reserves and retired in January 2011. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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 active service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be established under 38 C.F.R. § 3.303(b), if a chronic disease, such as tinnitus and carpal tunnel syndrome, is shown in service, and subsequent manifestations of the same chronic disease, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established under 38 C.F.R. § 3.303(b), where a disability in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as tinnitus and carpal tunnel syndrome, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Veterans are presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service. 38 U.S.C. §§ 1111, 1137. However, in this case there were no entrance examinations related to the second and third periods of active service from March 2003 to July 2003 and February 2004 to September 2004. As such, the presumption of soundness does not apply to those two periods of active service. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). A preexisting injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding, by clear and unmistakable evidence, that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The initial burden falls on the Veteran to establish an increase in the severity of the preexisting disability. See Jenson v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). 1. Entitlement to service connection for a right foot disability. After review of the evidence of record the Board finds that the preponderance of the evidence is against the Veteran’s claim for a right foot disability. In this case, the evidence of record does not show a diagnosis relating to the Veteran’s right foot. Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. In the absence of any competent evidence of a right foot disability, the Board must conclude the Veteran does not currently have a right foot disability. The Board has considered the Veteran’s general contention that he has a disability due to his right foot with tingling on the bottom as a result of service. The Veteran, however, is not competent to provide a diagnosis in this instance, as this requires medical expertise to assess whether tingling is the result of a medical disability, and the Veteran has not been shown to have medical expertise. Further, the Veteran has not asserted that his right foot disability with tingling has resulted in functional impairment nor does the evidence of record support that the Veteran’s right foot has resulted in functional impairment. Saunders v. Wilkie, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). For the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for right foot disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a lumbar spine disability, to include lumbar strain, lumbosacral stenosis, listhesis, and lumbar HNP. On the Veteran’s application for service connection filed in November 2011, the Veteran asserted that his lumbar spine disability began in January 1980 which is after his first period of active duty from July 1971 to February 1972 and before his second and third periods of active duty from March 2003 to July 2003 and February 2004 to September 2004. Therefore, the Board will address whether a lumbar spine disability periods of active service in March 2003 to July 2003 and February 2004 to September 2004 aggravated the Veteran’s lumbar spine disability, as the Veteran does not assert that his lumbar spine disability relates to his first period of active duty. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s lumbar spine disability was aggravated during periods of active duty in March 2003 to July 2003 and February 2004 to September 2004. The first required element for a direct service connection claim is a current disability. In this case, the earliest documentation of a lumbar spine disability was a lumbar spine strain, diagnosed by a private medical provider in December 1994. In November 2010, a private medical provider diagnosed the Veteran with lumbosacral stenosis, listhesis, and lumbar HNP. Therefore, the Board finds that the Veteran meets the first required element for a direct service connection claim because he has a current disability of the lumbar spine. Regarding the second required element for a direct service connection claim, which is aggravation of a disease or injury, the Board finds that the second element for service connection is not met, as the preponderance of evidence weighs against the Veteran’s claim. The Board finds that the evidence does not show that there was an increase in severity of the Veteran’s lumbar spine disability during active duty from March 2003 to July 2003 or from February 2004 to September 2004. In a June 2003 Report of Medical Examination, at the end of the second period of active duty, the Veteran was given a normal clinical evaluation for his spine. The Board notes that there are no subsequent Reports of Medical Examination in the STRs to determine the state of the Veteran’s spine during his last period of service. The Board also notes that in December 1994 the Veteran was diagnosed with a lumbar spine strain and in November 2010, a private medical provider diagnosed the Veteran with lumbosacral stenosis, listhesis, and lumbar HNP. The Board finds that the evidence does not show that the increase in the Veteran’s lumbar spine disability between 1994 and 2010 occurred during a period of active duty. Specifically, the Board notes that the STRs do not document complaints of or treatment for lumbar spine pain. The Veteran has not alleged a worsening of the lumbar spine disability during one of these periods of active duty. It seems that the Veteran may believe that if his lumbar spine disability occurred while he was in the reserves, this is sufficient to establish service connection. However, service connection must be based on a disease or injury that occurred during a period of active duty or ACDUTRA or an injury during a period of INACDUTRA. The Veteran asserted that during reserve duty, military personnel do not have access to medical aid, therefore there are no records supporting his assertions. However, the Board notes that there is an STR showing a shoulder injury during a period of active duty in September 2004. Regardless, there needs to be evidence of a worsening of the disability during the Veteran’s periods of active duty from March 2003 to July 2003 and/or from February 2004 to September 2004 to establish a finding of aggravation. Here, the Board finds that the Veteran has not met his burden of establishing that his lumbar spine disability was aggravated during one or both of these periods of ACDUTRA. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.306. For all the reasons stated above, the Board finds that service connection for a lumbar spine disability, to include lumbar strain, lumbosacral stenosis, listhesis, and lumbar HNP, is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for tinnitus. On the Veteran’s application for service connection filed in November 2011, he asserted that his “hearing” disability began in January 1973, which is after his first period of active duty from July 1971 to February 1972 and before his second and third periods of active duty from March 2003 to July 2003 and February 2004 to September 2004. In December 2011, VA contacted the Veteran for clarification as to what disabilities he was seeking, and the Veteran stated he was seeking service connection for bilateral hearing loss and tinnitus. In a November 2013 Notice of Disagreement, the Veteran specifically appealed the denial of service connection for tinnitus asserting that he is “constantly suffering from symptoms of constant ringing, buzzing and at times clicking and hissing” in his ears. The Board notes that the Veteran did not appeal his claim for service connection for bilateral hearing loss. As the Veteran alleges a hearing disability, specifically tinnitus, began in January 1973, the Board will address whether the Veteran’s tinnitus is related to an in-service event, injury or disease in his first period of active duty from July 1971 to February 1972. The Board will also address whether his tinnitus was aggravated by subsequent periods of active service. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that tinnitus had its onset in service, was manifested within one year following service discharge, or was aggravated during subsequent periods of active duty. Regarding service connection for a chronic disease, which would allow a finding of service connection for tinnitus if manifested to a compensable degree within one year following service, the Board finds that the preponderance of the evidence is against a finding that tinnitus manifested within one year following service discharge in February 1972. For example, when seen in April 2001, the Veteran reported ringing in the right ear for two weeks. When seen in March 2009 at an ear, nose, and throat facility, the examiner wrote that the Veteran presented with a six-month history of tinnitus. These two private medical records tend to show that the Veteran did not have tinnitus in 1973, or, if he did, it was not chronic. Thus, the Board finds that the Veteran’s allegation of tinnitus as of January 1973 is not credible, as he was not reporting a long history of tinnitus when seen in 2001. As a result, the Board finds that the Veteran’s claim for service connection for tinnitus is not warranted on a presumptive basis as a chronic disease. 38 C.F.R.§ 3.309(a). The first required element for a direct service connection claim is a current disability. There is competent evidence in the record of tinnitus. Therefore, the first element for a direct service connection claim is met. Regarding an in-service disease or injury, the Board concedes that the Veteran had in-service noise exposure during each of his periods of active duty. However, there is no competent evidence establishing a nexus between the post-service tinnitus and the Veteran’s first period of service. As noted above, the Board finds that the Veteran’s April 2001 report of a two-week history of tinnitus and the March 2009 report of a six-month history of tinnitus establishes that tinnitus did not have its onset during his first period of service. Regarding aggravation of the Veteran’s tinnitus diagnosed in April 2001 during the two periods of ACDUTRA in 2003 and 2004, the Board finds that the preponderance of evidence weighs against the Veteran’s claim for aggravation. The Veteran’s report in March 2009 of a six-month history of tinnitus tends to show that the 2001 diagnosis of tinnitus was not something that became chronic at that time, nor that it was aggravated during the periods of ACDUTRA in 2003 and 2004, as the March 2009 report would indicate it had started up again in 2008, which tends to show that tinnitus was not aggravated in 2003 and 2004. Further, the lay evidence does not support incurrence or aggravation of tinnitus during the Veteran’s second period of active duty from March 2003 to July 2003 or the third period of active duty from February 2004 to September 2004, as the Veteran has not alleged that his tinnitus was either incurred in or aggravated during these periods of service. Accordingly, service connection for tinnitus is not warranted. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. For the reasons discussed above, the Board finds that the preponderance of the evidence is against the claim for service connection for tinnitus. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to service connection for sleep apnea. In the application for service connection for sleep apnea, the Veteran asserted that this disability began in April 2004, during his last period of active duty from February 2004 to September 2004. After review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that sleep apnea is related to the Veteran’s active duty. The first required element for a direct service connection claim is met. In this case, the Veteran was diagnosed with sleep apnea at a private medical facility in January 2006 after the Veteran’s last period of active duty. As to the second element for a direct service connection claim, an in-service event, disease or injury, the STRs do not support a finding of sleep apnea having its onset during the Veteran’s period of active duty in 2004. The Veteran wrote that he would wake himself up from his snoring during this period of service. However, the Board finds that snoring alone is not a diagnosis of sleep apnea. Additionally, when the Veteran underwent the sleep study in January 2006, he told the examiner that he had not been noticed to stop breathing in his sleep nor would he awaken choking or gasping. Thus, the Veteran’s report of waking himself up from his snoring during his service in 2004 is not credible. He also reported he had been snoring for 10 years, which would place the onset of his snoring in 1996. This would establish that the Veteran’s snoring did not start during his period of service in 2004. The Board is willing to concede that he snored during the periods of service in 2003 and 2004 based on his report that he had been snoring for 10 years. Thus, there is an in-service disease or injury. As to evidence of a nexus to service, the Board finds that the preponderance of the evidence is against a nexus to service. The Veteran was not diagnosed with sleep apnea until a January 2006 sleep study report, and based on the wording in the report, it sounded like the Veteran’s complaints of falling asleep during the day were of a more recent onset. For example, the examiner wrote that the Veteran was referred for evaluation because of “complaints of snoring and falling asleep during the day.” The examiner then noted that the Veteran reported he had been snoring for 10 years. If the Veteran had been falling asleep during the day for 10 years, it would be likely that he would have reported that symptom as having been occurring for that period of time. Instead, he limited the symptom of snoring as occurring for 10 years. Finally, the service treatment records from the Veteran’s period of service in 2004 do not support a finding that the Veteran had sleep apnea at that time. While the Veteran asserts that he developed sleep apnea in service, he is not competent to provide the nexus between the current diagnosis of sleep apnea and service, as that requires medical expertise. The diagnosis of sleep apnea came more than one year following his most recent period of active duty. For these reasons, the Board find that the preponderance of the evidence is against a nexus between the diagnosis of sleep apnea and service. For all the reasons described above, the Board finds that the preponderance of the evidence is against the claim for service connection for sleep apnea. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 5. Entitlement to service connection for bilateral carpal tunnel syndrome. The Veteran has asserted on his application for service connection for bilateral carpal tunnel syndrome that this disability began in January 2007. The Board notes that the Veteran has reported the onset as having occurred after his last period of active duty from February 2004 to September 2004. He believes that all the typing he did while in service and in the reserves caused it. After a review of the evidence of record the Board finds that the preponderance of the evidence is against a finding that bilateral carpal tunnel syndrome is related to service. The Veteran has a current diagnosis for bilateral carpal tunnel syndrome, therefore, he meets the first required element for a direct service connection claim. Next, is the second required element for a direct service connection claim, which is an in-service event, injury or disease. The Board concedes that the Veteran typed during his periods of service, but there is no documentation in the service treatment records that the Veteran was experiencing symptoms of bilateral carpal tunnel syndrome. The Veteran was not seen for complaints pertaining to carpal tunnel syndrome during his periods of service. As to a nexus to service, in an October 2013 nerve conduction study, it showed that the Veteran had undergone testing in 2009 that demonstrated bilateral median mononeuropathies at the wrist. He had come back in October 2013 for reassessment because his right hand had become more symptomatic. The examiner diagnosed moderately severe mononeuropathy in his right wrist. In November 2013, a nerve conduction study showed that the Veteran had severe left median mononeuropathy in his left wrist. However, these diagnostic studies do not establish a nexus between the diagnosis of bilateral carpal tunnel syndrome and the Veteran’s periods of service. From these documents, it sounds as though the Veteran’s symptoms started in close proximity to 2009, which is many years after his last period of service. While the Veteran asserts that his bilateral carpal tunnel syndrome relates to years of typing and office level work in service, he is not competent to provide the nexus between the current bilateral carpal tunnel syndrome and service, as that requires medical expertise. The preponderance of the evidence is against a nexus between the post service diagnosis of bilateral carpal tunnel syndrome and service. In conclusion, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral carpal tunnel syndrome. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 6. Entitlement to an initial disability rating in excess of 10 percent for IBS with rectal discharge. Disability ratings are determined by evaluating the extent to which a service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155, 38 C.F.R. § 4.1. A disability rating may require re-evaluation in accordance with changes in condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. 38 C.F.R. § 4.1. When an appeal is based on the assignment of an initial rating, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Fenderson v. West, 12 Vet. App. 119 (1999). IBS is currently evaluated as 10 percent disabling, with an effective date of November 25, 2011, under 38 C.F.R. § 4.114, Diagnostic Code 7319 (irritable colon syndrome). A 10 percent rating is assigned under Diagnostic Code 7319 for moderate irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress. A maximum 30 percent rating is assigned for severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. Essentially, the Veteran contends that his IBS is severely disabling and results in constant abdominal pain and distress and diarrhea. For the reasons described below, the Board finds that the preponderance of the evidence is against an initial disability rating in excess of 10 percent for IBS with fecal discharge. The Veteran’s symptoms have not manifested with severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress for any period on appeal. For example, private medical records in June 2010 show that the Veteran had a history of chronic intermittent fecal incontinence, with some leakage after a formed movement of his bowels. In June 2011, a private medical provider from the same medical office, reported that the Veteran was seen for chronic diarrhea and had a history of fecal incontinence. The private medical provider also reported that the Veteran had denied abdominal discomfort. In February 2013, the Veteran was afforded a Gulf War VA examination. The examiner reported that the Veteran had frequent episodes of bowel disturbance with abdominal distress. The examiner reported a diagnosis of IBS. All these symptoms fall into the 10 percent rating, which contemplates moderate irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress. To the extent that the Veteran has continued to have symptoms related to his IBS with rectal discharge, the symptoms reported do not show severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. Therefore, the Board finds that an increase in the Veteran’s disability rating in excess of 10 percent for his IBS with rectal leakage is not warranted. For the reasons stated above, the Board finds that the preponderance of the evidence is against an increase in the Veteran’s initial disability rating for IBS with fecal discharge in excess of 10 percent. 38 C.F.R. § 4.114, Diagnostic Code 7319. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Morgan, Associate Counsel