Citation Nr: 18155033 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 18-35 336 DATE: December 3, 2018 ORDER Entitlement to service connection for a disability of the cervical spine, claimed as cervicalgia and spondylosis is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for peripheral neuropathy of the left upper extremity is denied. Entitlement to service connection for peripheral neuropathy of the right upper extremity is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity is denied. REMANDED The issue of entitlement to service connection for paresthesias of the skin, also claimed as myofascial pain. is remanded. The issue of entitlement to service connection for chronic fatigue syndrome, also claimed as chronic joint pain is remanded. The issue of entitlement to service connection for bipolar disorder is remanded. The issue of entitlement to service connection for major depressive disorder is remanded. The issue of entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. The issue of entitlement to a total disability evaluation based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a cervical spine disability began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that sleep apnea began during active service, or is otherwise related to an in-service injury, event, or disease. 3. Peripheral neuropathy of the left upper extremity is attributable to nonservice-connected disability. 4. Peripheral neuropathy of the right upper extremity is attributable to nonservice-connected disability. 5. The record contains no evidence showing diagnosis of peripheral neuropathy of the left lower extremity. 6. The record contains no evidence showing diagnosis of peripheral neuropathy of the right lower extremity. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a disability of the cervical spine, claimed as cervicalgia and spondylosis have not been met. 38 U.S.C. §§ 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.307, 3,309 (2018). 2. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). 3. The criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.307, 3,309 (2018). 4. The criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.307, 3,309 (2018). 5. The criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.307, 3,309 (2018). 6. The criteria for entitlement to service connection for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.307, 3,309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying active service between May and October 1990, and from January 1991 to May 1995. The record indicates that he also had national guard service between February 2000 and October 2004 for which he received an other than honorable discharge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) regional office (RO). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). Establishing service connection requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities such as neurological disability are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309 (a)). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for a disability of the cervical spine, claimed as cervicalgia and spondylosis. 2. Entitlement to service connection for peripheral neuropathy of the left upper extremity. 3. Entitlement to service connection for peripheral neuropathy of the right upper extremity. The Veteran asserts that he has a disability of the cervical spine attributable to, or incurred in, service. He also claims entitlement to service connection for associated neuropathy of each upper extremity as secondary to cervical spine disability. 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, while the Veteran has diagnoses of cervical spondylosis and degenerative disc disease, with associated cervical radiculopathy, the preponderance of the evidence is against finding that cervical disease began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Here, the Veteran’s service treatment records contain no notations regarding the neck or any upper extremity symptoms or complaints. VA records document an assessment of degenerative disc disease of the cervical spine, with associated neuropathy of each upper extremity, in September 2016. No evidence indicates that the disabilities are related to, or incurred in, service. Indeed, the disabilities were not assessed until decades following the Veteran’s discharge. While the Veteran believes cervical spine disability with associated neuropathy in each upper extremity is somehow related to service, the Board reiterates that the preponderance of the evidence weighs against finding that any in-service event, disease or injury occurred to cause such disability, and against finding that the disorder manifested within the first year of separation from active service in 1995. See Gilbert and Alemany, both supra. 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity. 5. Entitlement to service connection for peripheral neuropathy of the right lower extremity. The Veteran asserts that he has peripheral neuropathy of each lower extremity related to service. 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 peripheral neuropathy of either lower extremity, 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). Despite receiving consistent VA treatment since 2011, no VA record contains a diagnosis of peripheral neuropathy of either lower extremity. Nor do any private medical records show any such assessments. While the Veteran believes he has a current diagnosis of peripheral neuropathy of each lower extremity, he 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. 6. Entitlement to service connection for sleep apnea The Veteran asserts that he has sleep apnea attributable to, or incurred in, service. 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, while the Veteran has a diagnosis of obstructive sleep apnea, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Here, the Veteran’s service treatment records contain no notations regarding any sleep impairment. VA records document an assessment of obstructive sleep apnea in February 2017. No evidence indicates that the disability is related to, or incurred in, service. Indeed, the obstructive sleep apnea was not assessed until decades following the Veteran’s discharge. While the Veteran believes his obstructive sleep apnea is somehow related to service, the Board reiterates that the preponderance of the evidence weighs against finding that any in-service event, disease or injury occurred. REASONS FOR REMAND 1. Entitlement to service connection for bipolar disorder is remanded. 2. Entitlement to service connection for major depressive disorder is remanded. In addition to claiming service connection for PTSD, the Veteran has also claimed entitlement to service connection for bipolar disorder and major depressive disorder. He was afforded VA examination in September 2017, which resulted in a positive etiological opinion with respect to the assessed PTSD. However, the record documents diagnosis of bipolar disorder and depression as well. The examination report does not address these diagnoses, whether they are connected to service, whether they are secondary to PTSD and, if not, whether their symptomatology can be differentiated from PTSD. See Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, additional medical inquiry is warranted into these claims. 38 C.F.R. § 4.2. 3. Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. Given that the development directed above regarding the claims of entitlement to service connection for bipolar disorder and major depressive disorder may impact this claim, the Board will defer adjudication. See Harris v. Derwinski, 1 Vet. App. 180 (1991). 4. Entitlement to service connection for paresthesias of the skin, also claimed as myofascial pain, is remanded. 5. Entitlement to service connection for chronic fatigue syndrome, also claimed as chronic joint pain is remanded. A review of the record indicates that the Veteran may have disabilities manifested by myofascial pain and fatigue as related to psychiatric disabilities. Accordingly, a VA examination is indicated. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) 6. Entitlement to a TDIU is remanded. Adjudication of this claim is deferred pending the development directed above. Harris, supra. The matters are REMANDED for the following action: 1. Include in the claims file any relevant VA medical evidence not currently of file. 2. Schedule an examination for the purpose of ascertaining the, presence, nature and likely etiology of any diagnosed psychiatric disability, other than PTSD, to include bipolar disorder and depression. After reviewing the claims file, interviewing the Veteran, and examining the Veteran, the examiner should answer the following questions: (a). Is it at least as likely as not (i.e., a 50 percent probability or greater) that any diagnosed psychiatric disability, other than PTSD, is attributable to service? (b). Is it at least as likely as not that any diagnosed psychiatric disability, other than PTSD, is caused by or due to PTSD? If not, is it at least as likely as not that any diagnosed psychiatric disability, other than PTSD, is aggravated by PTSD? (c). If the answers to (a) and (b) are negative, is it at least as likely as not that symptomatology related to nonservice-connected depression and bipolar disorders cannot be differentiated from PTSD symptomatology? Please explain in detail any opinion provided. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. A complete rationale for any opinion expressed must be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner is informed that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. 3. After the development directed in paragraph 2 has been completed to the extent possible, schedule an examination to address the nature and etiology of his claimed paresthesias of the skin (claimed as myofascial pain) and chronic fatigue syndrome (claimed as chronic joint pain). After reviewing the claims file, interviewing the Veteran, and examining the Veteran, the examiner should answer the following questions: (a). Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran incurred claimed paresthesias of the skin (claimed as myofascial pain) and/or chronic fatigue syndrome (claimed as chronic joint pain) during service or that any such disability is otherwise attributable thereto? (b). Is it at least as likely as not that service-connected PTSD, or any other psychiatric disability found to be attributable to, or incurred in, service, caused either claimed paresthesias of the skin (claimed as myofascial pain) or chronic fatigue syndrome (claimed as chronic joint pain)? (c). If it is determined that paresthesias of the skin (claimed as myofascial pain) or chronic fatigue syndrome (claimed as chronic joint pain) was not caused by any service-connected psychiatric disability, the examiner should opine whether it is at least as likely as not that paresthesias of the skin (claimed as myofascial pain) or chronic fatigue syndrome (claimed as chronic joint pain) has been aggravated (that is, worsened) by the service-connected PTSD or any other psychiatric disability found to be attributable to, or incurred in, service beyond natural progression, and if so, the examiner should indicate to the extent possible the approximate degree of disability or baseline before the onset of the aggravation. Please explain in detail any opinion provided. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. A complete rationale for any opinion expressed must be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner is informed that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph R. Keselyak