Citation Nr: 20004099 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 15-00 075A DATE: January 16, 2020 ORDER Service connection for right shoulder injury is denied. REMANDED An initial compensable rating for sleep apnea is remanded. FINDING OF FACT The Veteran has not been diagnosed as having a right shoulder injury. CONCLUSION OF LAW Service connection for a right shoulder injury have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 2004 to March 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. By way of procedural history, the Veteran requested a hearing before the Board in his January 2015 Form 9. A Board videoconference hearing was scheduled for March 2018. The hearing was postponed due to Federal Government closure due to weather. The Veteran was then scheduled for a June 2019 Board videoconference hearing. However, the Veteran was deemed a no-show for the hearing, and to date the Veteran has not requested that the hearing be rescheduled. Service connection for right shoulder injury is denied. Service connection will be granted if it is shown that the Veteran has a disability resulting from an injury incurred or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in line of duty, in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain: (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 (Fed. Cir. 2004). Disabilities diagnosed after separation 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) (2016); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt in resolving each such issue shall be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. The Veteran contends he has a right shoulder injury from poor circulation caused by regular movement of heavy bags during active service. Initially, the Board notes that while the Veteran reports that he mentioned his right shoulder symptoms to medical staff while on active duty, his service medical records do not indicate complaint or treatment for a shoulder injury. In fact, the Veteran reported not suffering from any injury or illness while on active duty for which he sought medical care, during his February 2011 separation examination. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). The Veteran has not submitted any medical evidence that shows he has a diagnosed right shoulder injury during the appellate period or a diagnosis close in time to the appeal period. The Veteran underwent a VA shoulder examination in May 2013. The examiner opined that based on the Veteran’s complaints and examination there is a presumptive diagnosis of left-sided thoracic outlet syndrome due to the positive Adson test for the left shoulder only. There was no diagnosis pertaining to the Veteran’s right shoulder. Assuming, arguendo, that the Veteran does have a diagnosed right shoulder injury, the Board finds that the evidence of record does not support a finding of service connection. The Board has considered the Veteran’s reports attributing a right shoulder injury to service, but the evidence of record does not demonstrate that the Veteran has the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Therefore, the Veteran is not competent to provide an opinion on the diagnosis and etiology of any right shoulder injury. See Jandreau, 492 F. 3d at 1377. In the absence of any persuasive and probative evidence that the Veteran has a right shoulder injury that is etiologically related to active service, service connection is not warranted, and the claim must be denied. Accordingly, service connection for right shoulder injury is denied. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107 (b). REASONS FOR REMAND 1. An initial compensable rating for sleep apnea is remanded. The Veteran appellant seeks an increased rating for sleep apnea. The Veteran underwent a VA examination for sleep apnea in May 2013. The examiner reviewed the Veteran’s medical records using the Acceptable Clinical Evidence (ACE) process and found no findings, signs or symptoms attributable to the Veteran’s sleep apnea. The Veteran has provided additional contentions after the May 2013 VA examination that need to be addressed. The Veteran’s Form 9 states he experiences day-time hypersomnolence and regularly requires stimulants and chronic naps to run at full function during the day. A remand is necessary for a VA examiner to consider the Veteran’s contentions. The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess his service-connected obstructive sleep apnea. All pertinent evidence of record should be made available to and reviewed by the examiner. The examiner should take note of the Veteran’s contentions and competent report that he experiences day-time hypersomnolence and regularly requires stimulants and chronic naps to run at full function during the day. The examiner must specifically address the Veteran’s contentions and competent reports. A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. The Veteran has the right to submit additional evidence and argument on the matter 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 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. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Russell 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.