Citation Nr: 19158167 Decision Date: 07/26/19 Archive Date: 07/26/19 DOCKET NO. 1845309 DATE: July 26, 2019 ORDER Service connection for sleep apnea is denied. A compensable rating for scar, rectum status post-surgery as secondary to service-connected disability of anal fissure with rectal bleeding and pain with impairment of rectal sphincter control is denied. REMANDED The claim for service connection for a foot disorder (also claimed as foot pain) is remanded. The claim for service connection for a psychiatric condition, including depression, and claimed posttraumatic stress disorder (PTSD), is remanded. The claim for a compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. There is not competent evidence indicating that the Veteran’s sleep apnea was incurred or aggravated in service or caused or aggravated by service-connected tinnitus. 2. The post-surgical scar following a 2014 procedure regarding treatment for an anal fissure does not have surface area, painfulness, or other characteristics that would qualify for a minimum compensable rating. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. § §§ 3.102, 3.159, 3.303 (2018). 2. The criteria for a compensable rating for scar, rectum status post-surgery as secondary to service-connected disability of anal fissure with rectal bleeding and pain with impairment of rectal sphincter control have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. § §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10; 4.118, Diagnostic Code 7802 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1985 to November 1988. The claim of service connection for a psychiatric disorder is expanded to include all claimed clinical syndromes, along with PTSD. See generally, Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran had also contested the rating awarded for the service-connected anal fissure condition. When that was increased to 60 percent, the Veteran did not further pursue the matter on appeal. The Board has considered the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) and its attendant obligations regarding VA’s duty to notify and assist the claimant, and finds these requirements met. The VA treatment records and other documentation from the medical history was obtained. There is no indication of relevant evidence that was not already obtained. The Veteran has not been afforded VA examinations to assess the nature and etiology of his sleep apnea. VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, a VA examination is unnecessary to decide the claim for service connection for sleep apnea because there is no competent medical or lay evidence indicating that the Veteran’s sleep apnea may be related directly to service or caused or aggravated by a service-connected disability. As discussed below, the medical evidence does not support such a finding, and the Veteran’s assertion that his tinnitus caused his sleep apnea is not competent evidence. The duty to notify and assist are both considered met, and the Board proceeds to the merits of the claim. 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012); 38 C.F.R. § §§ 3.102, 3.156(a), 3.159, 3.326 (2018). 1. Entitlement to service connection for sleep apnea. Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § § 3.303(a) (2018). Service connection also may be granted for disease diagnosed after discharge where incurred in service. 38 C.F.R. § § 3.303(d). Basic requirements for service connection are: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2017); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). As a general rule, under VA’s benefit-of-the-doubt doctrine, when after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § § 3.102. Having reviewed the evidence, the Board finds that this claim must be denied. There was the post-service diagnosis of obstructive sleep apnea (OSA) over the last few years, but unfortunately, nothing preceding it. Sleep-related symptoms or sleep apnea are not shown within Service Treatment Records (STRs). Post-service medical records do not show anything further supporting a causal linkage between sleep apnea and an incident of service. VA law clearly acknowledges one’s competent lay witness testimony. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, the Veteran has not advanced a lay theory under regarding direct service connection. In his Notice of Disagreement (NOD), the Veteran stated that his tinnitus caused difficulty sleeping at night. The Veteran is competent to state that his tinnitus interferes with his sleep. But for the reasons below, he is not competent to state that his tinnitus caused or aggravated his sleep apnea. Because there is no universal rule as to competence on this issue, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Lay persons are competent to provide opinions on some medical issues. Id. at 435. However, the specific issue in this case, whether the Veteran’s tinnitus caused or aggravated sleep apnea, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4. Determining the etiology of the Veteran’s sleep apnea requires medical inquiry into biological processes, anatomical relationships, and physiological functioning. Determining the impact of ringing in in the ears on the development of obstructive sleep apnea. The Veteran has been diagnosed with obstructive sleep apnea, which results from “collapse or obstruction of the airway with the inhibition of muscle tone that occurs during REM sleep.” Dorland’s Illustrated Medical Dictionary, 117 (32nd ed. 2012). This internal process is not readily observable and it is not within the competence of the Veteran in this case to state whether the ringing in his hears has impact on the process of obstructive sleep apnea. He has not been shown by the evidence of record to have the skills, experience, or medical training needed to make such a complex determination. As a result, his lay assertions are not competent evidence. In summary, there is not competent evidence that helps support the claim. Under these circumstances VA’s benefit-of-the-doubt doctrine is not applicable, and the claim is being denied. 2. Entitlement to a compensable rating for scar, rectum status post-surgery as secondary to service-connected disability of anal fissure with rectal bleeding and pain with impairment of rectal sphincter control. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § § 4.7. This claim seeks a compensable rating (in excess of 0 percent) for service-connected scar, rectum status-post surgery, associated with anal fissure with rectal bleeding and pain with impairment of rectal sphincter control. Service connection had been granted for this condition effective from October 19, 2017. Regarding the rating criteria for scars, there was an update to the evaluation criteria effective August 13, 2018. Generally, a change in rating criteria during pendency of the claim applies prospectively if more favorable. See VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000). The proper criteria will be applied based upon effective date, and prospectively as warranted. First considered is the VA rating criteria prior to August 13, 2018. The provisions have not changed substantially since. To the extent changes have occurred they are recounted below. Diagnostic Code 7800 is reserved for scars of the head, face, neck regions, and does not apply. Diagnostic Code 7801 pertains to scars not of the head, face or neck that are deep and nonlinear. Under Diagnostic Code 7801, the next higher 30 percent rating applies where there is a scar of area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). Note (1): A deep scar is one associated with underlying soft tissue damage. Note (2) addresses combined rating practice if multiple qualifying scars are present. Diagnostic Code 7802 is reserved for scars not of the head, face or neck, that are superficial and nonlinear. The maximum rating available is 10 percent, and thus is not applicable here. Diagnostic Code 7804 provides that a 10 percent evaluation is assigned where there are one or two scars that are unstable or painful; a 20 percent rating may be assigned where there are three or four scars that are unstable or painful; and a 30 percent rating may be assigned where there are five or more scars that are unstable or painful. See 38 C.F.R. § § 4.118, Diagnostic Code 7804. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin. Note (2) to Diagnostic Code 7804 provides that if one or more scars are both unstable and painful, then 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Note (3) to Diagnostic Code 7804 provides that scars evaluated under Diagnostic Code 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. Diagnostic Code 7805 operates effectively as a “catch-all” provision, evaluating any disabling effect not already considered under the preceding diagnostic codes. As indicated, the last changes were made to the rating criteria for skin disabilities (see 38 C.F.R. § § 4.118), effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018). To summarize, the revisions to Diagnostic Codes 7801, 7802, and 7805, pertaining to scars: (1) replace the deep/nonlinear/superficial terminology in Diagnostic Code 7801 and 7802 with “underlying soft tissue damage”; (2) streamline the body parts/areas into six zones of the body, defined as each extremity, the anterior trunk and the posterior trunk (Note 1 to Diagnostic Codes 7801 and 7802); and (3) indicate how to assign separate evaluations for each affected zone of the body under § 4.25 (Note 2 to Diagnostic Codes 7801 and 7802). The Board concludes that the preponderance of the evidence is against a compensable evaluation for the Veteran’s rectal scar. Neither the lay nor the medical evidence more nearly reflects the criteria for a higher evaluation. 38 C.F.R. § 4.7, 4.118, Diagnostic Codes 7801-7805 (2017), and Diagnostic Codes 7801-7805 (revised effective August 13, 2018). Reviewing the evidence, the existing noncompensable rating remains warranted. On the most recent VA examination from September 2018, the scar located at the rectum had measurements of 2-cm by 0.2-cm. The scar status post surgery was without pain, instability, or other pertinent findings. Moreover, the findings were identical to that obtained on previous examination, back in October 2017. More remotely back on examination in 2013, the Veteran had not yet undergone the treatment procedure of a sphincterotomy and as a result there was a not a service-connected post-surgical scar present for evaluative purposes. On the whole therefore, the Veteran’s service-connected rectal scar under evaluation did not involve a scar of qualifying size, attendant discomfort, other characteristics, or limited functionality as to qualify for a minimum compensable evaluation under the VA rating schedule. There is no medical or lay evidence that the scar is painful. The scar has been rated accurately and based upon the available medical evidence, when applied to the rating criteria. It follows that the claim for increased rating for the service-connected scar must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a foot disorder (also claimed as foot pain) is remanded. The Veteran asserts that plantar fasciitis and other bilateral foot pathology are etiologically related to service, namely in-service sports related injury. The Veteran is competent to state that his feet hurt after using them during sports because this is observable through the senses. VA examination and opinion should be requested regarding the etiology of the stated disorder. 38 C.F.R. § § 3.159 (c)(4) (2018); McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (providing for examination where claimed current disability “may be” attributable to service). 2. Entitlement to service connection for a psychiatric condition, including depression and PTSD, is remanded. By statement set forth within his February 2018 Notice of Disagreement (NOD) with the RO rating decision that issued the denial of service connection for depression, the Veteran asserted that this condition developed secondarily to various service-connected disabilities, including service-connected tinnitus and anal fissure condition. The Veteran is competent to state that he feels depressed when he experiences symptoms from his service-connected disabilities such as ringing in his ears or having to use absorbent materials. Feeling depressed after experiencing symptoms is a sensation that is capable of observation through the senses. An examination is warranted. 3. Entitlement to a compensable rating for bilateral hearing loss is remanded. The Veteran’s most recent examination for his hearing is relatively recent, from June 2017. However, since that he stated that he has had to wear his hearing aids to work, indicating that his hearing has gotten worse. A new examination is needed. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of any current bilateral foot disability. The examiner must opine whether the bilateral foot condition is at least as likely as not (50 percent or greater probability) etiologically related to an in-service injury, event, or disease, including a claimed recreational sports injury during service. The examiner should provide a complete rationale for any opinions provided. 2. Schedule the Veteran for an examination to determine the nature and etiology of any current mental health condition, including posttraumatic stress disorder (PTSD). The examiner must opine as to the following: a. whether the psychiatric conditions that are diagnosed are at least as likely as not (50 percent or greater probability) etiologically related to an in-service injury, event, or disease during service. b. Whether it is at least as likely as not that the Veteran’s psychiatric disorder was proximately due to or the result of his service-connected disabilities. c. Whether it is at least as likely as not that the psychiatric disorder was aggravated beyond its natural progression by his service-connected disabilities. The examiner should provide a complete rationale for any opinions provided. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his bilateral hearing loss. All findings should be reported in detail. 4. Review the claims file. If the directives specified in this remand have not been implemented, take proper corrective action before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). (Continued on the next page)   5. Then readjudicate the claims on appeal in light of all additional evidence received. If any benefit sought on appeal is not granted in full, the Veteran should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jason A. Lyons, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § § 20.1303.