Citation Nr: 20021087 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 11-28 824 DATE: March 24, 2020 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected disability, is denied. FINDINGS OF FACT 1. Sleep apnea did not manifest in service and is not attributable to service. 2. A bilateral hip disability did not manifest in service and is not attributable to service; arthritis of the hips did not manifest to a compensable degree within one year of discharge from service. 3. A bilateral hip disability is not caused or aggravated by service-connected disability. CONCLUSIONS OF LAW 1. Sleep apnea was not incurred in service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2019). 2. A bilateral hip disability was not incurred in service and arthritis may not be presumed to have been incurred therein; nor has it been shown to be proximately due to or the result of a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1989 to September 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). While the Veteran had requested a Board hearing, the Veteran withdrew that request in August 2016. The Board notes that the Veteran’s attorney withdrew her representation in June 2016, at which time the Veteran was notified of, and acknowledged, the withdrawal. To date, the Veteran has not appointed another representative and the Board recognizes her as proceeding pro se. The Board remanded these claims in April 2018. The Veteran’s claims folder has returned to the Board for further appellate consideration. Service Connection Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: “(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”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). VA regulations define an original claim as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160(b). In this case, the claims on appeal are original claims for compensation filed in May 2008 as contemplated by the operative VA regulations. See id. The Veteran was scheduled for VA examinations in May 2019 and failed to report without a showing of good cause. See the January 2020 SSOC. She was informed via a letter dated November 2018 from the AOJ that she would be scheduled for VA examinations. There is no indication that the letter was not received, as it was not returned as undeliverable. After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 1. Sleep apnea The Veteran contends that she has sleep apnea that is related to service. The Board notes that a June 1991 service treatment record notes trouble sleeping. The Veteran’s service treatment records are otherwise absent complaints of or treatment for sleep apnea. Thus, there was no diagnosis of sleep apnea during service. Post-service medical records reflect multiple VA treatment records, including from July 2008 and August 2014, noting diagnoses of obstructive sleep apnea. In light of the aforementioned potential evidence indicating an onset of the Veteran’s sleep apnea during service, the RO scheduled the Veteran for a VA examination to take place in May 2019 and for the examiner to state whether it is at least as likely as not that the Veteran’s sleep apnea had its onset during service. Unfortunately, the Veteran did not appear for her examination. Therefore, no further determination could be made regarding whether she has sleep apnea that manifested during service, and the case must be decided solely on the basis of the evidence of record. See 38 C.F.R. § 3.655(b). Notably, while the Veteran had in-service treatment for difficulty sleeping, the September 1991 separation examination revealed normal findings, and the Veteran denied having symptoms attributable to sleep apnea. Indeed, there are no post-service findings noted that are consistent with sleep apnea until May 2008 when the Veteran filed her claim for VA benefits. Therefore, the Board finds that the Veteran’s sleep apnea did not have its onset during service. Again, without an examination and opinion to resolve a question as to whether the Veteran has sleep apnea that is related to service, no further determination can be made regarding the diagnosis and relationship to service of the Veteran’s sleep apnea, and the case must be decided solely on the basis of the evidence of record. See 38 C.F.R. § 3.655(b). The Board notes that there is no probative evidence supporting the contention that the Veteran’s current sleep apnea is due to any event or incident in active service other than the Veteran’s own statements. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”); see also Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). A layman is competent to report what he or she experiences through one of the senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Thus, the Veteran is competent to report that she has had problems with sleep during service and thereafter. However, the Board finds that the probative evidence of the record (e.g., service treatment records and post-service medical records) indicate that the Veteran does not have sleep apnea that manifested in service. Further, the Veteran is not competent to opine as to nexus between service and her sleep apnea, which was diagnosed many years after her period of service. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for sleep apnea. The benefit sought on appeal is accordingly denied. 2. Hip bursitis The Veteran contends that she has a bilateral hip disability that is related to service or is alternatively secondary to her service-connected degenerative disc disease (DDD) of the lumbar spine. The Board notes that the Veteran’s service treatment records are absent complaints of or treatment for a bilateral hip disability. However, the Veteran has reported that she has experienced hip problems since service. See Statement from the Veteran dated in October 2008. Further, VA treatment records from August 2013 note diagnoses of degenerative joint disease and bursitis. Also, as to the secondary service connection claim, an October 2006 VA treatment record notes the Veteran’s clinical history of back pain with aggravation, radiating to the hips, raising the theory that the Veteran’s hip disabilities might be secondary to her service-connected low back disability. The Board notes that the Veteran is service connected for DDD of the lumbar spine. In light of the aforementioned potential evidence indicating an onset of the Veteran’s bilateral hip disability during service or alternatively secondary to the service-connected DDD of the lumbar spine, the RO scheduled the Veteran for a VA examination to take place in May 2019 and for the examiner to state whether it is at least as likely as not that the Veteran’s bilateral hip disability had its onset during service or is alternatively caused or aggravated by the DDD of the lumbar spine. Unfortunately, the Veteran did not appear for her examination. Therefore, no further determination could be made regarding whether she has a bilateral hip disability that manifested during service or is caused or aggravated by the service-connected DDD of the lumbar spine, and the case must be decided solely on the basis of the evidence of record. See 38 C.F.R. § 3.655(b). Notably, the Veteran’s September 1991 separation examination revealed normal findings as to the hips, and the Veteran denied having symptoms attributable to the hips. Indeed, there are no post-service findings noted that are consistent with a bilateral hip disability until May 2008 when the Veteran filed her claim for VA benefits. Therefore, the Board finds that the Veteran’s bilateral hip disability did not have its onset during service. Additionally, there is no objective evidence of record that indicates the Veteran has a bilateral hip disability that was caused or aggravated by the DDD of the lumbar spine. The Board observes she is already service connected for bilateral lower extremity radiculopathy associated with her DDD of the lumbar spine. Again, without an examination and opinion to resolve a question as to whether the Veteran has a bilateral hip disability that is related to service or the service-connected DDD of the lumbar spine, no further determination can be made regarding the diagnosis and relationship to service or DDD of the lumbar spine of the Veteran’s bilateral hip disability, and the case must be decided solely on the basis of the evidence of record. See 38 C.F.R. § 3.655(b). The Board notes that there is no probative evidence supporting the contention that the Veteran’s current bilateral hip disability is due to any event or incident in active service or secondary to the DDD of the lumbar spine other than the Veteran’s own statements. The Board also notes that chronic hip pathology was not noted during service and the hips were normal at separation. In addition, chronic pathology was not identified within one year of separation. In short, the probative evidence establishes that arthritis of the hips was not manifest during service or within one year of separation. (Continued on the next page)   While the Veteran is competent to report that she has had longstanding problems with her hips, the Board finds that the probative evidence of the record (e.g., service treatment records and post-service medical records) indicate that the Veteran does not have a bilateral hip disability that manifested in service or is secondary to the service-connected DDD of the lumbar spine. Further, she is not competent to opine as to nexus between a hip disability and her service or another service-connected disability. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a bilateral hip disability to include as secondary to service-connected disability. The benefit sought on appeal is accordingly denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nadia Kamal, 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.