Citation Nr: 1815397 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-19 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for a right heel injury. 4. Entitlement to service connection for a sinus condition. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel INTRODUCTION The Veteran had active service from November 1974 to November 1977, May 1978 to November 1986, and December 2003 to March 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Initially, the Board notes that service treatment records from the Veteran's period of active duty from December 2003 to March 2005 are not in the claims file. There is evidence that attempts have been made to locate those records enumerated in a December 2010 VA memorandum of a formal finding of unavailability of the service treatment records for the period of active duty from December 2003 to March 2005. Therefore, sufficient efforts to obtain the Veteran's service treatment records for his period of active duty have been made, and any further attempts would be futile. Thus, the Board will continue on the merits. The issue of service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's right shoulder disability is not etiologically related to the Veteran's active service. 2. The Veteran was not diagnosed with a right heel condition, to include a right heel injury, at any point in service or during the claim period. 3. The Veteran was not diagnosed with a sinus condition at any point in service or during the claim period. CONCLUSIONS OF LAW 1. A right shoulder disability was not incurred in nor is otherwise etiologically related to active service. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for service connection for a right heel injury have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for a sinus condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for a right shoulder disability The Veteran has claimed entitlement to service connection for a right shoulder disability. Specifically, he has reported that he has experienced pain in his right shoulder since active service. First, the evidence of record shows the Veteran has a current diagnosis of a right shoulder disability. See e.g., March 2011 VA examination. Thus, the element of a current disability is satisfied. Second, the Veteran's service treatment and examination records include a complaint of right shoulder pain which manifested as tendon tendinitis of the right shoulder. See November 1982 Service Treatment Record. Therefore, the Veteran's claim for entitlement to service connection for a right shoulder condition turns on the matter of nexus. At a March 2011 VA examination, the Veteran reported he experienced right shoulder pain, which had been continuous since the mid-1980s during his active service. He reported pain at 5 out of 10 intensity, that was aggravated by reaching overhead. No trauma was reported, and no specific treatment was received. Upon examination, there was a bony joint enlargement of the right clavicular head of the shoulder, with no weakness. The Veteran was assigned a diagnosis of mild joint arthropathy of the right shoulder. The examiner opined that the right shoulder condition is less likely as not caused by the in-service condition, as only mild bicipital tendonitis was reported during active service. The examiner concluded that mild bicipital tendonitis is a self-limiting condition. The Board finds the March 2011 VA examination to have significant probative value. The examiner reviewed the claims file, considered the Veteran's reported history and lay statements, and supported his conclusions with clear rationale. The examiner also addressed the Veteran's contentions in this case and relied on his expertise. No other nexus opinion exists of record. The Board has considered the Veteran's lay statements. The Veteran is certainly competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, although he is competent to relate that the he suffers from symptomatology of a right shoulder disability and right shoulder pain, he is not competent to provide an opinion as to whether such symptoms are attributable to service, as this is a complex medical determination based upon internal medical processes. It is not capable of lay observation. The Veteran has not contended, and the evidence does not show, that he has the medical expertise to provide such opinions. See Jandreau, 492 F.3d at 1377; Layno, 6 Vet. App. at 465. II. Entitlement to service connection for a right heel injury and a sinus condition The Veteran has claimed entitlement to service connection for a right heel injury and a sinus condition. He reported he injured his right heel tendon "early in my military career" and that he has had problems since that time. He indicated his sinus problems have worsened since he returned from Iraq and that it is an off and on problem consistently through the year. He also indicated that he mostly self treats for his sinus issues. The service treatment records are absent any complaints, symptoms, treatment, or diagnosis of a right heel injury or of a sinus condition. The Veteran's post-service treatment records are absent any treatment or diagnosis for a right heel injury or of a sinus condition. The Board acknowledges that VA medical examinations or medical opinions have not been obtained in response to the claims for entitlement to service connection for a right heel injury and entitlement to service connection for a sinus condition. VA is obliged to provide a VA examination or obtain a medical opinion when: (1) there is competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) there is evidence establishing that the Veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) the evidence indicates that the current disability or symptoms may be associated with service or with another service-connected disability, and (4) there is not sufficient medical evidence to make a decision. 38 C.F.R. § 3.159 (c)(4) (2017); Charles v. Principi, 16 Vet. App. 370 (2002). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. § 1131; Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (Fed. Cir. 1992). In sum, there is no evidence of record indicating that the Veteran has a current disability of the right heel or a sinus condition. Further, there is no objective, independently verifiable evidence of these symptoms. 38 C.F.R. § 3.317. Further, there is no evidence of record indicating that the Veteran has residuals of a right heel injury or a sinus condition that may be associated with service. Moreover, there has been no competent clinical evidence presented which establishes that the veteran's claimed subjective symptoms of right heel pain and/or sinus issues are related to the veteran's period of service or are representative of symptoms of an illness related to Gulf War service. Therefore, the Board finds that the medical evidence currently of record is sufficient to decide the claim and a VA examination or medical opinion is unnecessary. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any outstanding evidence. The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a right heel injury is denied. Entitlement to service connection for a sinus condition is denied. REMAND The Board finds that additional development is required before the Veteran's claim for entitlement to service connection for sleep apnea is decided. A review of the record shows that there is competent evidence that the Veteran suffers from sleep apnea. See July 2006 North Alabama Sleep Disorders Center Sleep Study. A review of the record shows that the Veteran has not been afforded a VA examination to determine the nature and etiology of his disability. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA or non-VA treatment records pertaining to sleep apnea. 2. Schedule the Veteran for a VA examination by an examiner with appropriate expertise, to determine the nature and etiology of the Veteran's sleep apnea. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that sleep apnea had its onset during active service or is otherwise etiologically related to active service. The rationale for all opinions expressed must be provided. 3. Then, readjudicate the remaining claim on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs