Citation Nr: 18158160 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-05 726A DATE: December 14, 2018 ORDER Entitlement to service connection for gout is denied. Entitlement to service connection for right shoulder impingement syndrome with degenerative arthritis is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has gout due to an injury, event, or disease in service. 2. The preponderance of the evidence is against finding that the Veteran has right shoulder impingement syndrome with degenerative arthritis due to an injury, event, or disease in service. 3. The preponderance of the evidence is against finding that the Veteran has sleep apnea due to an injury, event, or disease in service. 4. The preponderance of the evidence is against finding that the Veteran has GERD due to an injury, event, or disease in service. CONCLUSIONS OF LAW 1. The criteria for service connection for gout have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for right shoulder impingement syndrome with degenerative arthritis have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for GERD have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1959 to April 1963 and from March 1978 to September 1994. On appeal is a June 2014 rating decision that denied service connection for sleep apnea; and a September 2016 rating decision that denied service connection for gout, right shoulder impingement syndrome with degenerative arthritis, and GERD. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board”). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. A VA examination of the Veteran’s right shoulder was conducted in June 2015. However, the Board acknowledges that no examination has been provided for gout, sleep apnea, and GERD. In determining whether the duty to assist requires that a VA examination be provided or medical opinion obtained with respect to a claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The threshold for determining a possibility of a nexus to service is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As is discussed in greater detail below, however, there is no indication of gout, sleep apnea, or GERD in service or that any such disability is related to the Veteran’s time on active duty. Therefore, the Board finds that a VA examination as to those claimed disabilities is not warranted. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for gout The Veteran contends that he is entitled to service connection for gout. More specifically, he contends that he contracted gout during his service in Panama. 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 has closely reviewed the medical and lay evidence in the Veteran’s claims file and finds no evidence that may serve as a medical nexus between the Veteran’s service and his currently diagnosed gout. Service treatment records are silent for any complaint, diagnosis, or treatment of gout. For the Veteran’s first tour of duty, the October 1959 entrance exam Report of Medical Examination reflects the Veteran had a normal examination and he was determined to be fit for duty. The March 1963 exit Report of Medical Examination reflects the Veteran has a normal examination with no defects or diagnosis noted. The companion March 1963 exit Report of Medical History reflects the Veteran specifically denied arthritis, rheumatism, bursitis and any foot trouble. For the Veteran’s second tour of duty, the September 1977 entrance Report of Medical Examination reflects the Veteran had a normal examination and was determined to be fit for duty. The May 1994 exit Report of Medical Examination reflects the Veteran had a normal examination with only defective visual acuity noted. The June 1994 exit Report of Medical History reflects the Veteran again specifically denied arthritis, rheumatism, bursitis and any foot trouble. Post-service VA treatment records from the Miami VAMC and Atlanta VAMC are associated with the Veteran’s claims file. In summary, these records show the Veteran was diagnosed with gout in September 2009, 15 years after his separation form service, and that he takes medication daily for his condition. However, none of these records provide a nexus or link between the Veteran’s gout and his military service. The Board concedes that the Veteran has a current diagnosis of gout, but none of his treatment providers have provided an opinion that any such disability is related to military service. There is simply no competent medical evidence of record to suggest that the Veteran’s gout is in any way related to his time on active duty. Thus, in this case, when weighing the evidence of record, the Board finds compelling the lack of evidence linking the Veteran’s gout to his military service. In this case, the only evidence in favor of the Veteran’s claim is his own statements concerning his belief that his gout, diagnosed 15 years after service, is due to service. With regard to the Veteran’s contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report symptoms of gout such as foot pain, the claimed disability is not the type of condition that is amenable to lay determination regarding its etiology, as specific findings are needed to properly determine etiology. Id. As such, the Board finds that, other than the Veteran’s unsupported contentions, there is simply no evidence in the record of any etiological relationship between the Veteran’s gout and his time in service. Further, there is no mention in VA treatment records of a relationship between the Veteran’s service and his current gout, or any other competent evidence of record to suggest an etiological relationship between the Veteran’s service and his gout. Thus, the criteria for service connection for gout have not been met. The evidence weighs against the Veteran’s claim. Service connection for gout must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to service connection for right shoulder impingement syndrome with degenerative arthritis The Veteran contends that he is entitled to service connection for right shoulder impingement syndrome with degenerative arthritis. More specifically, he contends that he injured his right shoulder when he was on routine patrol in Panama and the vehicle he was in came under fire, swerving into a ditch with the impact landing on his shoulder. 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 has closely reviewed the medical and lay evidence in the Veteran’s claims file and finds no evidence that may serve as a medical nexus between the Veteran’s service and his right shoulder impingement syndrome with degenerative arthritis. Service treatment records reflect a single complaint of right shoulder pain. An October 1981 reflects the Veteran complained of right shoulder pain. An x-ray was taken, and the radiographic report states no significant abnormalities were noted. There are no other service treatment records reflecting any follow up treatment on the right shoulder. The May 1994 exit Report of Medical Examination reflects the Veteran had a normal examination with only defective visual acuity noted. The June 1994 exit Report of Medical History reflects the Veteran specifically denied arthritis, rheumatism, bursitis, and a painful or trick shoulder. Post-service VA treatment records from the Miami VAMC and Atlanta VAMC are associated with the Veteran’s claims file. In summary, these records show the Veteran often complained of right shoulder pain, and that x-rays taken in October 2014 showed mild arthritis throughout his shoulder. However, none of these records provide a nexus or link between the Veteran’s right shoulder impingement syndrome with degenerative arthritis and his military service. A VA examination of the Veteran’s right shoulder was conducted in June 2015. The examiner opined that it is less likely than not that the current right shoulder condition is proximately due to service. By way of rationale, the examiner explained that the x-ray dated in October 1981 was normal and there were no subsequent in-service records indicating any right shoulder condition. The examiner noted that records were silent as to complaints or treatment of a right shoulder disorder until 2014. The Board has also considered the lay evidence in this case. While the Veteran is competent to report having experienced symptoms of right shoulder pain, he is not competent to provide a diagnosis in this case, determine etiology, or determine that these symptoms were manifestations of right shoulder arthritis. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the June 2015 VA examiner’s opinion is probative, because it is based not only on the Veteran’s report of right shoulder pain, but also a review of an accurate medical history in the Veteran’s case file, and it provides an explanation that contains clear conclusions and supporting data, namely that the Veteran did not seek VA care for his right shoulder pain until approximately 20 years after separation from service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. There is no nexus between the Veteran’s service and his current right shoulder impingement syndrome with degenerative arthritis. As such, the appeal is denied. 3. Entitlement to service connection for sleep apnea The Veteran contends that he is entitled to service connection for sleep apnea. In an Appellate Brief filed in November 2018, the Veteran contends his sleep apnea is due to his service-connected PTSD. 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, or to service-connected disability. The Board has closely reviewed the medical and lay evidence in the Veteran’s claims file and finds no evidence that may serve as a medical nexus between the Veteran’s service and his sleep apnea, or between his sleep apnea and his service-connected PTSD. Service treatment records are silent for any complaint, diagnosis, or treatment of sleep apnea. For the Veteran’s first tour of duty, the October 1959 entrance Report of Medical Examination reflects the Veteran had a normal examination, and he was determined to be fit for duty. The March 1963 exit Report of Medical Examination reflects the Veteran has a normal examination with no defects or diagnosis noted. The companion March 1963 exit Report of Medical History reflects the Veteran specifically denied frequent trouble sleeping. For the Veteran’s second tour of duty, the September 1977 entrance Report of Medical Examination reflects the Veteran had a normal examination and was determined to be fit for duty. The May 1994 exit Report of Medical Examination reflects the Veteran had a normal examination with only defective visual acuity noted. The June 1994 exit Report of Medical History reflects the Veteran specifically denied frequent trouble sleeping. Post-service VA treatment records from the Miami VAMC and Atlanta VAMC are associated with the Veteran’s claims file. In summary, these records show the Veteran was diagnosed with sleep apnea in March 2014, and that he reported having snoring and apneas since he was in the military. However, none of these records provide a nexus or link between the Veteran’s sleep apnea and his military service. The Board notes that a November 2014 record reflects an examiner at the Atlanta VAMC noted he “suspects” the Veteran’s dream-enacting movements and behavior is due to his PTSD and that the Veteran’s nightmares “may” improve with regular use of his CPAP machine and treatment of his obstructive sleep apnea. However, the Board finds this statement to be internally conflicting and speculative at best. This speculative opinion is thus accorded little probative value. See Stegman v. Derwinski, 3 Vet. App. 228 (1992). Private medical records from Reliance Family Care are also associated with the Veteran’s case file. In summary, these records show a diagnosis of obstructive sleep apnea with onset in July 2017. The Board concedes that the Veteran has a current diagnosis of sleep apnea, but none of his treatment providers have provided a competent, probative opinion that any such disability is related to military service or to service-connected disability. There is simply no competent and probative medical evidence of record to suggest that the Veteran’s sleep apnea is related to his time on active duty or to his service-connected PTSD. Thus, in this case, when weighing the evidence of record, the Board finds compelling the lack of evidence linking the Veteran’s sleep apnea to his military service or service-connected disability. In this case, the only evidence in favor of the Veteran’s claim is his own statements concerning his belief that his sleep apnea, diagnosed 20 years after service, is due to service or to his service-connected PTSD. With regard to the Veteran’s contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report symptoms of sleep apnea such as snoring, the claimed disability is not the type of condition that is amenable to lay determination regarding its etiology, as specific findings are needed to properly determine etiology. Id; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As such, the Board finds that, other than the Veteran’s unsupported contentions, there is simply no credible evidence in the record of any etiological relationship between the Veteran’s sleep apnea and his time in service or his PTSD. Thus, the criteria for service connection for sleep apnea have not been met. The evidence weighs against the Veteran’s claim. Service connection for sleep apnea must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 4. Entitlement to service connection for gastroesophageal reflux disease (GERD) The Veteran contends that he is entitled to service connection for GERD. In an Appellate Brief filed in November 2018, the Veteran contends his GERD is “severely aggravated by his anxiety accentuated with PTSD.” 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, or to service-connected disability. The Board has closely reviewed the medical and lay evidence in the Veteran’s claims file and finds no evidence that may serve as a medical nexus between the Veteran’s service and his GERD, or between GERD and his PTSD. Service treatment records are silent for any complaint, diagnosis, or treatment of GERD. For the Veteran’s first tour of duty, the October 1959 entrance Report of Medical Examination reflects the Veteran had a normal examination and was determined to be fit for duty. The March 1963 exit Report of Medical Examination reflects the Veteran had a normal examination with no defects or diagnosis noted. The companion March 1963 exit Report of Medical History reflects the Veteran specifically denied frequent indigestion and any stomach, liver or intestinal trouble. For the Veteran’s second tour of duty, the September 1977 entrance Report of Medical Examination reflects the Veteran had a normal examination and was determined to be fit for duty. The May 1994 exit Report of Medical Examination reflects the Veteran had a normal examination with only defective visual acuity noted. The June 1994 exit Report of Medical History reflects the Veteran specifically denied frequent indigestion and any stomach, liver or intestinal trouble. Post service VA treatment records from the Miami VAMC and Atlanta VAMC are associated with the Veteran’s claims file. In summary, these records show the Veteran is diagnosed with GERD and that it is stable on medication. However, none of these records provide a nexus or link between the Veteran’s GERD and his military service or his service-connected PTSD. Private treatment records from Southern Gastroenterology Specialists also reflect a diagnosis of GERD. The Board concedes that the Veteran has a current diagnosis of GERD, but none of his treatment providers have provided an opinion that any such disability is related to military service, or to his service-connected PTSD. There is simply no competent medical evidence of record to suggest that the Veteran’s GERD is in any way related to his time on active duty, or to service-connected disability. Thus, in this case, when weighing the evidence of record, the Board finds compelling the lack of evidence linking the Veteran’s GERD to his military service. In this case, the only evidence in favor of the Veteran’s claim is his own statements concerning his belief that his GERD, diagnosed approximately 15 years after service, is due to service or to his service-connected PTSD. With regard to the Veteran’s contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report symptoms of GERD, such as heartburn, the claimed disability is not the type of condition that is amenable to lay determination regarding its etiology, as specific findings are needed to properly determine etiology. Id.; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As such, the Board finds that, other than the Veteran’s unsupported contentions, there is simply no evidence in the record of any etiological relationship between the Veteran’s GERD and his time in service, or his service-connected PTSD. Further, there is simply no mention in VA treatment records of a relationship between the Veteran’s service and his current GERD, or any other competent evidence of record to suggest an etiological relationship between the Veteran’s service and his GERD, or between his GERD and service-connected PTSD. Thus, the criteria for service connection for GERD have not been met. The evidence weighs against the Veteran’s claim. Service connection for GERD must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Jiggetts, Associate Counsel