Citation Nr: 18156952 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-52 518 DATE: December 11, 2018 ORDER Entitlement to service connection for residuals of a right ankle inversion injury is denied. Entitlement to service connection is sleep apnea is granted. FINDINGS OF FACT 1. A right ankle inversion injury that was incurred in service was acute, and resolved and the current right ankle pain and popping with the need for an ankle brace first manifested after service and swelling, and was not caused or aggravated by service. 2. Obstructive sleep apnea was first manifest in service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a right ankle inversion injury have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). 2. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service as a wheeled vehicle mechanic in the United States Army from February 2004 to February 2007 with service in Southwest Asia. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has recharacterized the issue as residuals of a right ankle inversion injury to address the Veteran’s symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet App. 1, 5 (2009). Service Connection The Veteran contends that he has residuals of a right knee inversion injury that manifested during service and continued after service to the present. He also contends that obstructive sleep apnea (OSA) was incurred in active service. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Residuals, Right Ankle Inversion Injury A review of service treatment records (STRs) shows that in April and May 2005, the Veteran sought treatment for right ankle pain after running with no report of a traumatic fall. X-rays of both ankles were normal. Range of motion and stability were normal. A clinician provided a provisional diagnosis of right ankle inversion injury. Other STRs reveal that the Veteran reported that he was restricted from running for two months, underwent physical therapy, and was advised to obtain new and different running shoes. He also sought treatment for left knee pain. The clinical records carried forward the history of right ankle injury and pain but there was not further treatment. In an August 2006 physical examination, the Veteran denied any arthritis, foot trouble, impaired use of the legs or feet and did not report any symptoms or dysfunction of the right ankle. The Veteran also experienced a serious eye injury during a deployment, underwent a medical board that determined that he could not continue service because of the eye injury, and received an honorable discharge because of this disability. In October 2006 prior to discharge, the Veteran underwent a VA general examination in which the examiner addressed the left knee. Although the opportunity was available, there were no reports by the Veteran or observations by the examiner of deficits of the right ankle. The Veteran had a normal gait and full strength in the lower extremities. In October 2009, the Veteran underwent a VA primary care annual physical examination that was comprehensive but silent for any symptoms or deficits of the right ankle. Gait and joints were normal. In March 2010, he underwent a VA joints examination that identified deficits of the right and left knees. Although there was an opportunity to report right ankle pain and dysfunction, none was reported or observed by the examiner. In April 2014, the Veteran submitted a claim for service connection for the right ankle. In October 2014, the RO denied service connection for the right ankle because there was no competent evidence of a current disability. In September 2016, the Veteran was scheduled for a VA examination but did not appear. A VA nurse practitioner reviewed the record and determined that the veteran did sustain an acute ankle inversion in 2005 while running but that it was not permanent and that there were no chronic residuals as a result of the injury. Another September 2016 primary care annual physical examination was silent for any reports, observations, or treatment of right ankle dysfunction with no mention of an on-going ankle disorder. In his October 2016 substantive appeal, he explained that he could not attend the examination because of his work as a full-time vehicle and grounds maintenance employee of a school district which he had been doing for the past eight years. In lay statements, the Veteran reported that his right ankle bothered him since the inversion injury. He reported on-going symptoms of right ankle popping and pain. Post-service VA treatment records reflect these reports of right ankle complaints. Clinicians indicated that the Veteran stated that his right ankle “problem” affected his daily functioning. Upon VA examination in December 2016, the Veteran reported a history of right ankle chronic dull pain and popping. The examiner did not review the file but noted an injury to the right ankle in 2004 with a diagnosis of a lateral collateral ligament strain. The Veteran reported swelling, bruising, and pain and use of an ankle brace. It is not clear whether the examiner noted the wrong date of the injury, although the only source of information during that examination was the Veteran. The examiner found that the right ankle sprain and pain was not caused by the in-service injury because of the absence of chronicity of ankle symptoms. The Board places greater weight on the service treatment records, examinations in August 2006 and October 2006, the two - primary care physical examinations, the absence of any mention of the right ankle in regular treatment records, and the opinion of the examiner in December 2016. Although the date of an injury in 2004, presumably reported by the Veteran, may be mistaken, the examiner provided a competent and probative opinion that a lateral ligament strain, whether in service in 2004 or 2005, was acute and not productive of a chronic disability. The Veteran contends that residuals, right ankle inversion injury, to include popping and chronic dull pain, were a result of the in-service right ankle injury. The Board places less probative weight on these reports because they are not consistent with the records that show an acute injury in 2005 that resolved with rest and therapy. The Veteran could continue his duties and deploy to Southwest Asia. VA mental health treatment records show that the Veteran did participate in rigorous operations. Right ankle dysfunction was not reported or observed during the August 2006 examination, during medical board proceedings, or in the October 2006 VA examination prior to discharge. After service, VA primary care comprehensive annual physical examinations in 2009 and 2016 are silent for any right ankle deficits and these would have been opportunities to report any chronic disability. The Board finds the Veteran’s statements to be competent but are inconsistent with the records. Therefore, the Board finds that the Veteran’s current manifestations of ankle pain and popping manifested after service and are not caused or aggravated by the inversion injury in 2005. Sleep Apnea STRs reveal that the Veteran complained of sleep disturbances. Clinicians prescribed zolpidem tartrate; they also provided notations to the effect that the Veteran’s sleep disturbances could be attributed to poor sleep cycles. STRs do not report resolution of the disturbances. Post-service treatment records are instructive. Private providers indicated that the Veteran suffered from insomnia in November 2008. VA not only continued a clinical impression of sleep disturbance, one VA provider opined that the Veteran had received a diagnosis of “unspecified sleep disturbance.” Subsequent VA treatment records indicate that both sleep disturbances and obstructive sleep apnea were on-going problems. In a December 16, 2008 treatment addendum in the VA records, a physician noted that the Veteran complained of being continually sleepy and tired. This physician also opined that the Veteran’s sleep partner observed “frequent apneic spells.” In April 2014, a VA examiner opined that the Veteran had received diagnosis of obstructive sleep apnea in a sleep study that was performed in September 2011. Reporting as to the Veteran’s medical history, the examiner noted that the Veteran described an initial phase of snoring and fatigue. Moreover, there is another notation concerning a witness observing apneic events. In lay statements, the Veteran reported that he informed a physician at W. R. Hospital that he was experiencing on-going sleep issues while in active service. In turn, according to his account, he was sent for psychiatric evaluation and prescribed zolpidem tartrate, which did not resolve his sleep issues. In his January 2017 substantive appeal, the Veteran reported that his symptoms resolved in 2008 when he returned to the civilian life and when he was diagnosed and treated for sleep apnea with a continuous positive airway pressure device. The evidence of record also shows that the Veteran availed himself of VA respiratory therapy services at a local Continuous Positive Airway Pressure (CPAP) clinic. The Veteran contends that his present diagnosed obstructive sleep apnea was incurred in service. During active service, he complained of sleep disturbances and received medication that proved ineffective. The Board finds the Veteran’s statements to be competent, consistent, and credible. Post-service records continued clinical impressions of sleep disturbances, added notations as to observed “apneic spells,” and, obstructive sleep apnea that was diagnosed in September 2011. Obstructive sleep apnea was not diagnosed during service. However, the date of diagnosis in not dispositive. Rather, the evidence indicates that manifestations sufficient to establish that he had the disability in service as likely as not existed. This finding is based upon evidence in post-service medical records as well as credible lay evidence. As above, this too is an appropriate case therefore in which to invoke VA’s doctrine of reasonable doubt and grant the claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel