Citation Nr: 20007447 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 17-00 148 DATE: January 30, 2020 ORDER Entitlement to a rating in excess of 20 percent for right shoulder disability is dismissed. Entitlement to service connection for forehead basal cell carcinoma is dismissed. Entitlement to service connection for a bilateral hand disorder is denied. Entitlement to service connection for a mouth disorder is dismissed. Entitlement to service connection for bilateral hearing loss is dismissed. Entitlement to service connection for a sleep disorder is denied. REMANDED Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a headache disorder is remanded. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. At the September 2019 hearing, prior to the promulgation of a decision on this appeal, the Veteran notified the Board of Veterans’ Appeals (Board) that he requested a withdrawal of his appeal for entitlement to service connection for entitlement to a rating in excess of 20 percent for right shoulder disability, entitlement to service connection for forehead basal cell carcinoma, entitlement to service connection for a mouth disorder, and entitlement to service connection for bilateral hearing loss. 2. The preponderance of the evidence provides evidence against the Veteran’s diagnosed right cervical neuropathy, claimed as a bilateral hand disorder, is related to his active service. 3. The competent evidence of record shows that the Veteran does not have a current diagnosis of a sleep disorder which could be attributable to his active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to a rating in excess of 20 percent for right shoulder disability have been met. 2. The criteria for withdrawal of the appeal for entitlement to service connection for forehead basal cell carcinoma have been met. 3. The criteria for withdrawal of the appeal for entitlement to service connection for a mouth disorder have been met. 4. The criteria for withdrawal of the appeal for entitlement to service connection for bilateral hearing loss have been met. 5. The criteria for service connection for right cervical neuropathy, claimed as a bilateral hand disorder, have not been met. 6. The criteria for service connection for a sleep disorder have not been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1969 to June 1971. The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge (VLJ) in September 2019. A transcript of that hearing is of record. See hearing transcript, September 20, 2019. WITHDRAWAL The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2018). Withdrawal may be made by the appellant or by his authorized representative. Id. At the September 2019 hearing, the appellant indicated that he wished to withdraw his appeal for entitlement to a rating in excess of 20 percent for right shoulder disability, entitlement to service connection for forehead basal cell carcinoma, entitlement to service connection for a mouth disorder, and entitlement to service connection for bilateral hearing loss. The withdrawal was effective immediately upon receipt by VA. 38 C.F.R. § 20.204 (b)(3) (2018). The Board finds that the Veteran’s withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action, where the Veteran informed the undersigned that he understood the consequences of the withdrawal and that he was withdrawing based on his own volition. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Thus, there remains no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal concerning the above-mentioned issues and they are dismissed. Service Connection 1. Bilateral Hand Disorder The Veteran asserts that his bilateral hand disorder is related to his active service. Specifically, the Veteran asserts that his bilateral hand disorder is related to his clavicle fracture residuals. In the alternative, the Veteran asserts that his bilateral hand disorder is due to in-service herbicide exposure. 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, 1131 (2012); 38 C.F.R. § 3.303 (a) (2018). As a threshold matter, the Board notes that military records reflect that the Veteran had active military service in the Republic of Vietnam from August 1970 to May 1971. As such, his exposure to herbicide was conceded by the regional office (RO). See rating decision, October 17, 2012. A Veteran who, during active military, naval, or air service, served in Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in Vietnam during the Vietnam era. “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii) (2018). Peripheral neuropathy is a chronic disease subject to presumptive service connection as an organic disease of the nervous system if it manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service, except for chloracne and early-onset peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service, the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307, 3.309(e) (2018). In light of the foregoing, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, the Veteran must show that he served in Vietnam during the Vietnam era. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307 (a)(6) (2018). Second, the Veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309 (e), or otherwise establish a nexus to service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997). The question before the Board is whether the Veteran currently experiences the claimed bilateral hand disorder which either began during active service or is etiologically related to an in-service disease or injury. The Veteran does not have a diagnosis of peripheral neuropathy, but rather of cervical radiculopathy. See VA Disability Benefits Questionnaire (DBQ), January 11, 2017. There are no medical records showing a diagnosis of peripheral neuropathy within one year of service, and no current diagnosis of peripheral neuropathy. The weight of the evidence simply does not show a diagnosis of early onset peripheral neuropathy. The Veteran has a current diagnosis of right cervical radiculopathy. See DBQ, January 11, 2017. Thus, the first element of service connection is met. The Board concludes that, while the Veteran has a current diagnosis of right cervical radiculopathy, the preponderance of the evidence weighs against finding that the Veteran’s diagnosed disorder began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d) (2018). In sum, while the Veteran’s claim meets the first prong, a current disability, it fails at prongs two and three, as there is no in-service occurrence and there is no nexus between the Veteran’s current right cervical radiculopathy and his active service. Specifically, there is no evidence showing that right cervical radiculopathy occurred during active service. The Veteran’s service treatment records (STRs) include no complaint, finding, or diagnosis with respect to the claimed right cervical radiculopathy. The upper extremities and neurological system were indicated to be normal on his April 1971 separation examination, and he denied related complaints on report of medical history at that time. See STRs. Post-service records show that the Veteran was first diagnosed with right cervical radiculopathy in or about 2007. See DBQ, January 11, 2017. The Veteran underwent a peripheral nerves DBQ in July 2015. See DBQ, July 28, 2015. The examiner diagnosed the Veteran with cervical radiculopathy of the right upper extremity. The Veteran related that he developed tingling, burning, and cramping in his right hand in the mid-1970s. He denied any treatment for the condition. The examiner opined that the Veteran’s right-hand condition was less likely as not related to his service-connected right shoulder/clavicle fracture, as it was the result of cervical (neck) issues. See DBQ, July 29, 2015. The Veteran underwent another VA DBQ in January 2017. See DBQ, January 11, 2017. The examiner stated that the Veteran was first diagnosed with right cervical radiculopathy in or about 2007. The examiner opined that the Veteran’s right cervical radiculopathy was less likely as not related to his active service, as the Veteran’s VA medical records showed that he hurt his neck while moving furniture in 2009, which resulted in a diagnosis of right rotator cuff injury and right arm radiculopathy. The VA medical records showed that the Veteran filed a workman’s compensation claim for that injury. The examiner added that the healed clavicular fracture had any role in aggravation of his right cervical radiculopathy. See DBQ, January 11, 2017. The Veteran’s VA treatment records show that he was diagnosed with right arm radiculopathy on April 7, 2011. The records do not speak to the etiology of the Veteran’s right arm radiculopathy, nor its connection to his active service. See VA treatment records, November 9, 2011. As such, service connection for right arm radiculopathy, claimed as bilateral hand disorder, is denied. In reaching this determination, the Board has also considered the lay assertions of record, including the contentions of the Veteran in support of medical nexus. As a lay person, the Veteran is competent to report observable symptoms. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, “[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability”); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau, 492 F.3d at 1377 n.4. However, the Veteran is not competent to provide a diagnosis of right cervical radiculopathy in this case, or determine that his diagnosed disorder is somehow related to his active service. This issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence in this case. Crucially, the evidence of record does not show that the Veteran’s right cervical radiculopathy, which was diagnosed in or about 2007, is in any way related to his active service. It is important for the Veteran to understand that no medical professional has tied his right cervical radiculopathy to his active service. Accordingly, service connection for right cervical radiculopathy is not warranted because the Veteran has not satisfied the second and third requirements of service connection, i.e., an in-service incident and a nexus. See 38 C.F.R. § 3.303 (2018); see again Gilpin, 155 F.3d at 1353; Brammer, 3 Vet. App. at 225. In reaching the above conclusion, the Board has considered the benefit-of- the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for right cervical radiculopathy, that doctrine does not apply. 38 U.S.C. § 5107 (b) (2012). The claim of entitlement to service connection for right cervical radiculopathy is denied. 2. Sleep Disorder The Veteran asserts that he experiences a sleep disorder which is related to his active service. Specifically, the Veteran asserts that he experiences that he cannot sleep at night. 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, 1131 (2012); 38 C.F.R. § § 3.303 (a) (2018). The question for the Board is whether the Veteran has a current diagnosis of a sleep disorder that began during service or is related to service. The Board finds that there is no competent, credible, and probative evidence that would establish that the Veteran experiences a sleep disorder that is etiologically related to his active service, or to a service-connected disability. In short, the Veteran’s claim fails at prong (1) a current disability, as the Veteran does not have a diagnosis of a sleep disorder. Regarding the first element of service connection (i.e. a current disability), importantly, the Veteran’s medical records do not show a diagnosis of a sleep disorder. The Veteran’s STRs do not show any sleep issues or complaints. No sleep issues were noted at separation, and his systems were indicated to be normal on his April 1971 separation examination, and he denied related complaints on report of medical history at that time. See STRs. The Veteran’s post-service VA treatment records show that the Veteran complained of difficulty falling and staying asleep. See VA treatment records, July 10, 2012. There was no diagnosis of a sleep disorder, or any further notes related to it or complaints by the Veteran. VA treatment records show that the Veteran’s sleep complaints were related to his service-connected PTSD, and that this symptom was considered with the evaluation of that service-connected disability. The records show that the Veteran did not have a separate diagnosis of a sleep impairment. The Veteran underwent a VA PTSD examination in May 2015. See VA DBQ, May 27, 2015. The examiner noted that the Veteran experienced sleep disturbance and impairment as part and parcel of his PTSD. The examiner did not diagnose or note any other sleep disorders. As such, the Veteran’s claim for entitlement to service connection for a sleep disorder fails. While he did have some complaints of sleep issues, he did not have a diagnosis of a sleep disorder in active service or after active service. His sleep issues were ascribed to the Veteran’s diagnosed PTSD, for which he is already separately service-connected. And the competent evidence of record shows that the Veteran does not have a current diagnosis of a sleep disorder. In the absence of proof of a present disorder (and, if so, of a nexus between that disorder and the active military service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that “a Veteran seeking disability benefits must establish... the existence of a disability [and] a connection between the Veteran’s service and the disability.” Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Board has considered whether the Veteran experienced a sleep disorder at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no evidence of a sleep disorder at any time during the pendency of this appeal. The Veteran also has not identified or submitted any competent evidence, to include a diagnosis of the disorder, or a medical nexus, relating his claimed sleep disorder to active service. The Board has considered the Veteran’s lay statements in support of his claim. Although laypersons are competent to provide opinions on some medical issues, as to the specific issues in this case, diagnosing a sleep disorder, this issue falls outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (laypersons not competent to diagnose cancer). As a layperson, the Veteran has not been shown to possess the medical expertise to diagnose a sleep disorder and its etiology. The claims file does not contain any medical examinations diagnosing the Veteran with a sleep disorder or linking his self-reported symptoms to his active service. In sum, there is no evidence, medical or otherwise, to support the Veteran’s statements. Thus, as previously stated, the medical evidence of record is against the Veteran’s service connection claim. The Board acknowledges that the Veteran has not been afforded a VA examination addressing his claimed sleep disorder and its relationship to his active service. No such an examination is required, as the only evidence that the Veteran’s claimed disability is related to his military service are his own conclusory generalized lay statements, which are unsupported by even speculative medical evidence. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010). Accordingly, service connection for a sleep disorder is not warranted because the Veteran has not satisfied the first requirement of service connection, i.e., a current diagnosis of a disability. See 38 C.F.R. § § 3.303 (2018); see again Gilpin, 155 F.3d at 1353; Brammer, 3 Vet. App. at 225. In reaching the above conclusion, the Board has considered the benefit-of- the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for a sleep disorder, that doctrine does not apply. 38 U.S.C. § § 5107 (b) (2012). The claim of entitlement to service connection for a sleep disorder is denied. REASONS FOR REMAND 1. PTSD The Veteran asserts that he is entitled to a rating in excess of 30 percent for PTSD. At the September 2019 hearing, the Veteran stated that he saw Dr. Weber and Frankie Marcano, both of whom work at the Vet Center, regularly, for both individual and group therapy. See hearing transcript, September 20, 2019. The Vet Center records address the Veteran’s ongoing PTSD-related issues and complaints, and ongoing treatment for the disability. As such, they are pertinent to the issue on appeal. These documents are not of record. They must be obtained on remand. In addition, any outstanding VA and private treatment records should be obtained, as the most recent medical treatment records in evidence are from August 31, 2016 (for VA records) and November 6, 2017 (for private records). 2. Headaches The Veteran asserts that his headaches are related to his active service. A veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and the absence of aggravation by clear and unmistakable evidence. Horn v. Shinseki, 25 Vet. App. 231 (2012). A “claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong,” even if clear and unmistakable evidence establishes that a disease preexisted service. Id. In other words, the “burden is not on the claimant to show that his disability increased in severity.” Id. To the contrary, the burden is on VA to “establish by clear and unmistakable evidence that [a preexisting disease] did not [increase in severity during service] or that any increase was due to the natural progress of the disease.” Id. This burden must be met by “affirmative evidence” demonstrating that there was no aggravation. Id. The burden is not met by finding “that the record contains insufficient evidence of aggravation. Id. The presumption of soundness relates to the second requirement - the showing of in-service incurrence or aggravation of a disease or injury. To invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service. Thereafter, except for conditions noted at induction, the presumption of soundness ordinarily operates to satisfy the second service connection requirement without further proof. Horn, 25 Vet. App. at 236. If a veteran is presumed sound at service entrance, a disease or injury that manifested in service is deemed incurred in service if the Secretary is unable to rebut the presumption. Gilbert, 26 Vet. App. at 53. The Veteran’s headache disorder was not noted on his April 1969 entrance examination. See STRs. The Veteran did not complain of any neurological problems or headache issues on the entrance examination. He did report a history of head injury which occurred at the age of five. His head injury was deem “resolved.” The Veteran was deemed fit for duty. He is presumed to have been in sound condition at entry. See 38 C.F.R. § 3.304 (b) (2018). The Veteran’s STRs show ongoing complaints of headaches. See STRs, November 13, 1969; March 23, 1971; March 25, 1971; April 4, 1971; April 10, 1971. The Veteran underwent a VA headaches DBQ in January 2017. See DBQ, January 11, 2017. The examiner stated that the Veteran was diagnosed with migraines in 2016, and did not have a formal diagnosis for his headaches prior to that date. The Veteran stated that his headaches started in the 1970s. The examiner opined that it was less likely as not that the Veteran’s headaches were related to his active service, as the Veteran’s in-service headaches were documented in connection with an upper respiratory infection and diarrhea, and his separation examination did not document any neurological abnormalities. The January 2017 examiner failed to use the requisite standard when issuing the nexus opinion. As such, an addendum opinion must be obtained from the January 2017 VA examiner to answer the question of whether the Veteran’s headache disorder clearly and unmistakably (undebatably) pre-existed service and, if so, whether it was not clearly and unmistakably (undebatably) aggravated or worsened by the Veteran’s active service. In addition, any outstanding VA and private treatment records should be obtained, as the most recent medical treatment records in evidence are from August 31, 2016 (for VA records) and November 6, 2017 (for private records). 3. TDIU The issue of entitlement to TDIU is inextricably intertwined with the other issues being remanded. The TDIU issue is intertwined with the other issues because the Veteran asserts that he is unemployable due to his service-connected (and claimed) disabilities. Thus, the Board finds that adjudication of the TDIU claim must be deferred pending resolution of the service connection claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Obtain any outstanding medical treatment records, specifically to include records from the Vet Center where Dr. Weber and Frankie Marcano treat the Veteran for his service-connected PTSD. 2. Return the claims file return the file to the examiner who conducted the January 2017 VA DBQ for an addendum opinion, if available. The examiner must review the claims file and note that review in the examination report. The examiner must provide the rationale for all opinions expressed. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the examiner is unable to provide the required opinions, the examiner should explain why that is. The examiner should address the following questions: (a.) Is there clear and unmistakable evidence (i.e., obvious, manifest, undebatable evidence) demonstrating that the Veteran’s headache disorder existed prior to his entry into active service in April 1969? (b.) Is there clear and unmistakable evidence (i.e., obvious, manifest, undebatable evidence) demonstrating that the Veteran’s headache disorder was NOT aggravated (the underlying disability was NOT increased in severity) beyond its normal progression during the Veteran’s active service, as based on sound medical principles? Temporary or intermittent flare-ups of a pre-service condition, without evidence of worsening of the underlying condition, are not sufficient to be considered aggravation. In addressing this question, the examiner should consider the STR notations regarding headache disorder symptoms and treatment, as well as the notation that the Veteran experienced a head injury at the age of five. (c.) If the examiner determines that the Veteran’s headache disorder did not clearly and unmistakably pre-exist service, or was not clearly and unmistakably not aggravated by service, state whether it is at least as likely as not (50 percent or greater degree of probability) that it began in service, was caused by service, or is otherwise related to military service. (d.) In addition, please obtain a detailed clinical history from the Veteran and provide a thorough account and analysis of the manner in which the Veteran’s headache disorder affects him in his everyday life, particularly the impact that it has on the Veteran’s ability to secure and follow a substantially gainful occupation. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lech, 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.