Citation Nr: 18124591 Decision Date: 08/07/18 Archive Date: 08/07/18 DOCKET NO. 15-19 382 DATE: August 7, 2018 ORDER Service connection for obstructive sleep apnea is denied. Service connection for right shoulder disability is denied. Service connection for left shoulder disability is denied. Service connection for lumbar spine arthritis is denied. FINDINGS OF FACT 1. The Veteran’s current obstructive sleep apnea was not manifest in service and is unrelated to service. 2. The Veteran’s current right and left shoulder disabilities, impingement syndrome with arthritic spurring, were not manifest in service or, for arthritis, to a degree of 10 percent within 1 year of separation; and are unrelated to service. 3. The Veteran’s current lumbar spine arthritis was not manifest in service or to a degree of 10 percent within 1 year of separation and is unrelated to service. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for right and left shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for lumbar spine arthritis have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to September 1984, October 2001 to September 2002, and February 2003 to February 2004. He and his spouse provided testimony during a hearing before the undersigned in April 2018. He submitted evidence at that time and later, after he was given 60 more days to do so, and he waived initial RO consideration of the evidence. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Arthritis is listed as a chronic disease. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was “noted” during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496–97(1997)); see 38 C.F.R. § 3.303(b). Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current obstructive sleep apnea disability. The preponderance of the evidence indicates that it was not manifest in service and is unrelated to service. It is not complained of or shown in service treatment records and the Veteran’s related systems were found to be normal on service physical examinations. Furthermore, as late as February 2010, the Veteran denied chronic health problems. The first documentary evidence in the record of sleep apnea is in 2013, more than 9 years after service discharge. On initial evaluation in July 2013, the Veteran reported that he snored and would stop breathing when he sleeps. In October 2013, the Veteran was seen with a group of others for sleep apnea, and following this, sleep apnea was diagnosed. The Veteran, his wife, and/or his buddies have made statements, including to the effect that he had symptoms in or near service. However, symptoms are not the same as a diagnosed disability, and their reports of symptoms in or near service do not establish the existence of sleep apnea in service. It is a complex medical matter requiring the expertise of a trained health care provider. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, the Veteran's denial of chronic health problems as late as February 2010, in a medical setting about 6 years post service, and with no indication of sleep apnea in the interim, and then with the first shown diagnosis of sleep apnea being in 2013, strongly suggests that he did not have sleep apnea in service. He has provided an April 2018 medical opinion from a clinician who indicates that based on a review of the Veteran's military records and evaluations at his clinic over the years, it is highly likely that the Veteran's sleep apnea was caused by his service. However, no rationale was given for this opinion, so it lacks any probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As there is no competent indication that the Veteran’s current obstructive sleep apnea is related to service, further development to obtain a VA examination and/or medical opinion is not warranted. Based on the evidence, the Board concludes that service connection is not warranted for right or left shoulder disability. The preponderance of the evidence shows that the Veteran's current right and left shoulder disability is impingement syndrome with degenerative arthritic spurring which was not manifest in service or, for arthritis, to a degree of 10 percent within 1 year of separation, and that it is unrelated to service. While there were right and left shoulder problems in service, the preponderance of the evidence indicates that they were not impingement syndrome or arthritis. Impingement syndrome with arthritic spurring was not shown until X rays at the time of a VA examination in June 2013, and earlier shoulder images were normal on X rays taken in February 2005, February 2006, and March 2006. Additionally, a VA examiner in June 2013 examined the matter of whether current shoulder disability is related to service, and concluded that it was probably not. The examiner explained that the Veteran has acromioclavicular spurring and hypertrophy of the acromioclavicular joint associated with impingement, and that this is a degenerative condition. The examiner explained that the Veteran had shoulder trauma in service, but the examiner indicated that trauma is not the cause of degenerative spurring and impingement. Additionally, at the time of VA treatment in June 2016, the Veteran reported that he had had discomfort and stiffness of his shoulders only for the past 3 years. The private clinician who attributed the Veteran's sleep apnea to service in April 2018 also attributed the Veteran's impingement syndrome to service, without providing any rationale for that medical opinion. Accordingly, that medical opinion lacks any probative value. See Nieves-Rodriguez, supra. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current lumbar spine disability, which evidence from February 2016 shows to be spondylosis (arthritis). Service treatment records show treatment for mid and low back pain in April 1984 after the Veteran jumped for a ball. The assessment was myofascial strain (strain of the fascia of the muscle). His back was normal on service examinations in July 1986, February 1990, February 1995, and February 2000, and/or he denied recurrent back pain or the like at that time. He was seen for upper back pain in February 2002, assessed as muscle strain. Post-service, the Veteran was seen again in August 2007, at which time lumbar spine X rays were normal. In November 2007, low back pain was reported. In October 2009, he reported low back pain for several years, with the most recent episode beginning 2 months prior when he was performing a military press and twisted, causing his low back to flare up. Lumbago with a suspected herniated nucleus pulposus L4/5, L5/S1 was assessed. Lumbar disc disease was also reported in October 2009. As far as current lumbar spine disability is concerned (current meaning from the time the claim was filed in May 2013), in July 2013 and March 2014, the Veteran reported chronic low back pain. In February 2016, an MRI showed mild spondylitic (arthritic) changes at L3-4, L4-5, and L5-S1. The preponderance of the evidence indicates that this was not manifest in service, or to a degree of 10 percent within 1 year after service. To the contrary, X rays of the Veteran's lumbar spine were normal as late as August 2007. The private clinician who attributed the Veteran's sleep apnea and impingement syndrome to service in April 2018 also attributed the Veteran's lumbar spine arthritis to service, without providing any rationale for that medical opinion. Accordingly, that medical opinion lacks any probative value. See Nieves-Rodriguez, supra. As there is no competent indication that the Veteran’s current low back disability is related to service, further development to obtain a VA examination and/or medical opinion is not warranted. The Veteran has attempted to attribute disabilities at issue to in service exposure to chemicals. However, there is no competent evidence in the record relating them to chemical exposure. His feelings about such causation are not competent, as complex medical matters are involved. See Jandreau, supra. No competent evidence has been submitted showing that any of his disorders addressed above are related to in service chemical exposure, or to any other incident of service. REMANDED The matter of a rating in excess of 10 percent for right knee disability is remanded. REASONS FOR REMAND The Veteran appeals for a rating higher than 10 percent for right knee disability. At the time of the Veteran's hearing in April 2018, he testified that his right knee gives out from time to time and that it has gotten worse. The most recent VA examination was in June 2016, and his right knee was found to be stable at that time. When it has been alleged that a disability has become worse since the most recent VA examination, another VA examination is necessary. The Board is ordering another VA examination, as indicated below, and beforehand, any additional relevant medical records should be obtained. The matters are REMANDED for the following action: 1. Make arrangements to obtain any additional medical records relevant to rating the Veteran's right knee arthritis disability. 2. After the above development is completed, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and severity of his service-connected right knee arthritis disability. The claims folder should be made available to the examiner. All indicated tests should be performed, and the results should be reported in detail. The examiner is requested to delineate all symptomatology associated with, and the current severity of, the service-connected right knee disability, and to identify and describe all limitation of function due to the disability. a. The examiner must test and record range of motion with active motion, passive motion, weight-bearing, and nonweight-bearing, if applicable. b. The examiner should also estimate functional loss due to any reported flare-ups in terms of additional limitation of motion. If it is not possible to provide such opinions / estimations   without resorting to mere speculation, the examiner should please so state and provide an explanation as to why such opinions / estimations cannot be given. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lawson, Counsel