Citation Nr: 20021740 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-24 455 DATE: March 26, 2020 ORDER Service connection for hypertension is denied. Service connection for an eye (vision) disability is denied Service connection for sleep disturbances is denied. REMANDED Entitlement to service connection for allergies is remanded. Entitlement to service connection for a sinus condition is remanded. Entitlement to service connection for gastrointestinal reflux disease (GERD) is remanded. Entitlement to service connection for post-traumatic osteoarthritis is remanded. Entitlement to service connection for strains is remanded. Entitlement to service connection for shin splints is remanded. Entitlement to service connection for right ankle sprain is remanded. Entitlement to service connection for left ankle sprain is remanded. Entitlement to service connection for plantar fasciitis is remanded. Entitlement to service connection for tendonitis is remanded. Entitlement to service connection for right (major) wrist strain is remanded. Entitlement to service connection for left (minor) wrist strain is remanded. Entitlement to service connection for a left knee condition is remanded. FINDINGS OF FACT 1. The Veteran’s current hypertension was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. Myopia is a refractive error of the eye and not a disease or injury subject to VA disability compensation, and the evidence of record does not show a superimposed disease or injury to the eye during service resulting in additional disability. 3. The weight of the evidence is against a finding that the Veteran has a diagnosed sleep disorder or a mental health disability that accounts for her sleep impairment; there is no indication that her sleep impairment has reached the level of a functional impairment of earning capacity. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for an eye (vision) disability have not been met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for sleep disturbances have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from June 1995 to November 1999. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2018 rating decision. Service connection The Veteran seeks service connection for multiple disabilities, as detailed below. She asserts that her claimed disabilities are the result of her military service. In this regard, she has indicated that the excessive exercise and training she experienced in service caused excessive wear and tear on her body. She believes that she would not have any of her claimed disabilities had it not been for her service in the Navy. 01/18/2019, NOD; see also 08/12/2019, Form 9. VA has acknowledged that the Veteran served in Southwest Asia after August 2, 1990. 11/13/2018, Rating Decision; 06/19/2019, SOC. The circumstances of such service, however, are unclear, as the Veteran’s military personnel records do not provide any relevant details, other than to suggest that she received a National Defense Service Medal for service in support of operations Desert Storm and Desert Shield. 07/27/2018, Military Personnel Record, at 72. The Board further notes that the Veteran has not referenced any hazardous environmental exposure during service in Southwest Asia, nor has she explicitly asserted that any of her claimed conditions are etiologically related to any such exposure.   1. Entitlement to service connection for hypertension is denied. The Veteran seeks service connection for high blood pressure. 07/19/2018, Fully Developed Claim. An October 2018 VA examination shows a diagnosis of hypertension. At the VA examination, the Veteran indicated that she could not recall when the hypertension was first diagnosed. The examiner noted a 2002 date of diagnosis. This date is consistent with VA treatment records, which show that the Veteran was diagnosed with hypertension in August 2002. 07/27/2018, CAPRI, at 127. A follow-up treatment note reflects that the Veteran had mildly high blood pressure. It was noted that most blood pressure readings at home had been less than 140/90. Id. at 120. There is no argument or indication that the Veteran’s hypertension began in service. In fact, her August 1999 separation examination shows a blood pressure reading of 130/72 (not indicative of hypertension); furthermore, she denied a history of high blood pressure. 08/31/2018, STR-Medical, at 92-95. The Board notes that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. See 38 C.F.R. § 4.104, DC 7101, Note (1); see also Gill v. Shinseki, 26 Vet. App. 386, 390 (2013) (holding that "the specified number of readings [in § 4.104, DC 7101, Note 1] applies only to the confirmation of the existence of hypertension, as opposed to the level of hypertension necessary for a particular disability rating"). Similarly, there is no argument or indication that the Veteran’s hypertension manifested to the needed degree or was diagnosed within one year after separation from service. The Veteran separated from service in November 1999. In contrast, the earliest record of a hypertension diagnosis is dated August 2002, more than one year after separation. In October 2018, a VA examiner opined that the Veteran’s hypertension is less likely than not related to service. The examiner’s rationale was that hypertension is not specific to Southwest Asia exposures, and that there was no evidence of hypertension in the Veteran’s service treatment records. The Board finds that this opinion is adequate in the present context, as the Veteran has not submitted any evidence indicative of a causal link between her hypertension and her service. The Board acknowledges the Veteran’s belief that her hypertension is related to service. The Veteran, however, is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, to include the vascular system, and interpretation of diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the medical training or credentials to make such a determination. Id.; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As such, her statements in this regard lack competence and weight. In the absence of evidence that the Veteran’s hypertension was diagnosed in service or within one year after service, or that it is otherwise etiologically related to service, the Board finds that the preponderance of the evidence is against the claim and service connection for this disability is denied. 2. Entitlement to service connection for an eye (vision) disability is denied. The Veteran seeks service connection for an eye (vision) disability. 07/19/2018, Fully Developed Claim. A November 2018 VA examination is negative for an eye disorder. Rather, the examination report indicates a history of bilateral myopia that predates service. In fact, her myopia was noted at the Veteran’s enlistment examination. 08/31/2018 STR – Medical, at 101. Refractive errors of the eye (such as myopia) are congenital or developmental abnormalities, and not a disease or injury within the meaning of applicable regulation [i.e., not compensable disabilities]. 38 C.F.R. §§ 3.303 (c), 4.9. However, service connection may be granted for disability due to aggravation of a congenital or developmental abnormality from superimposed disease or injury in service. See Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). VA’s General Counsel has held that service connection may be granted for diseases of congenital, developmental or familial origin, if the evidence as a whole shows that the manifestations of the disease in service constituted “aggravation” of the disease within the meaning of applicable VA regulations. VA General Counsel also has held that a congenital defect can be subject to superimposed disease or injury, and if superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); 38 C.F.R. § 3.303 (c). In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eye, including myopia, presbyopia and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9. In this case, there is no argument or indication that the Veteran has a superimposed eye disorder. Rather, the medical evidence only shows that the Veteran has myopia. See 11/05/2018 C&P Exam (stating that the Veteran has myopia (blurry distance vision that gets worse every year) of both eyes). Based on this evidence, the Board concludes that, while the Veteran has current diagnosis of myopia, service connection is not available for this eye condition as a matter of law because it is a refractive error of the eye without a superimposed disease or injury. See 38 C.F.R. §§ 3.303 (c), 4.9. 3. Entitlement to service connection for sleep disturbances is denied. The Veteran seeks service connection for a disability manifesting as sleep disturbances. 07/19/2018, Fully Developed Claim. At an October 2018 VA mental health examination, she reported a history of discontinuous sleep since basic training. She also reported a history of being easily startled during sleep and indicated that she once experienced an episode of anxiety while riding in a car. The October 2018 VA examiner, however, concluded that there was insufficient information to assert that the Veteran at least as likely as not suffers from a psychiatric disorder that was incurred or is related to service. In this regard, the examiner noted that the Veteran did not cite significant social or occupation deficits associated with her symptoms, and that any problems encountered by her were not severe to motivate her to seek psychiatric treatment. The examiner also noted that the Veteran had not undergone a formal sleep study. The Board acknowledges the Veteran’s reports of sleep impairment. The Board, however, concludes that the Veteran does not have a current diagnosis that account for her sleep disturbances and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this regard, the Board notes that the Veteran has not submitted any evidence that would tend to show either a diagnosis or a nexus between her symptoms and service. In contrast, the evidence of record establishes that the Veteran’s sleep impairment has not resulted in social and occupational impairment, to be diagnosed as a mental health disorder. Additionally, there is no argument or indication that the Veteran’s sleep impairment reaches the level of a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018). Insofar as the Veteran believes that she has a sleep disorder that is related to service, the Board notes that she is not competent to either provide a diagnosis or establish a causal nexus. The issue is medically complex, as it requires specialized medical education, to include of the sleep process and its factors. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such, the Board finds that the Veteran is not competent to provide diagnosis or nexus evidence and her statements in this regard lack weight. The Board gives more probative weight to the competent medical evidence. In sum, the weight of the evidence is against a finding that the Veteran has a diagnosed sleep disorder or a mental health disability that accounts for her sleep impairment. Similarly, there is no indication that her sleep impairment has reached the level of a functional impairment of earning capacity. Rather, the competent evidence supports a finding that the Veteran’s symptoms do not cause any social or occupational impairment or have been severe enough to require treatment. For these reasons, the preponderance of the evidence is against the claim and service connection for sleep disturbances is not warranted.   REASONS FOR REMAND 1. Entitlement to service connection for allergies is remanded. 2. Entitlement to service connection for a sinus condition is remanded. The Veteran seeks service connection for both allergies and a sinus condition. 07/19/2018, Fully Developed Claim. As noted above, she asserts that her claimed disabilities are the result of her military service. She believes that she would not have any of her claimed disabilities had it not been for her service in the Navy. 01/18/2019, NOD; see also 08/12/2019, Form 9. VA has acknowledged that the Veteran served in Southwest Asia after August 2, 1990. 11/13/2018, Rating Decision; 06/19/2019, SOC. Private treatment records show a diagnosis of allergic rhinitis, unspecified. 07/27/2018, Medical Treatment Record - Non-Government Facility. An October 2018 VA examination also shows a diagnosis of chronic sinusitis. A VA examiner has opined that the Veteran’s allergic rhinitis and chronic sinusitis are less likely than not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner’s sole rationale was that the Veteran denied hay fever and sinusitis during her October 1999 separation examination. The examiner did not provide further rationale for her opinion. The October 2018 VA opinion is inadequate for several reasons as it does not show adequate consideration of the relevant evidence, does not include a medical rationale, and appears to rely on the absence of corroborating evidence to rule out a nexus. Significantly, the examiner acknowledged that the Veteran was seen for sinusitis on September 28, 1999, while still on active duty, but did not address the extent to which the current sinusitis had its onset during service. As an adequate opinion is not of record, the Board finds that a remand for a new VA examination and medical opinion is necessary.   3. Entitlement to service connection for gastrointestinal reflux disease (GERD) is remanded. The Veteran seeks service connection for GERD. 07/19/2018, Fully Developed Claim. A July 2018 private treatment note shows a diagnosis of GERD. 07/27/2018, Medical Treatment Record - Non-Government Facility, at 9. Service treatment records show that the Veteran was diagnosed with viral gastroenteritis. The date of the note is unclear, but a notation in the treatment note suggests that it is later than September 1997. 08/31/2018, STR-Medical, at 58. The Veteran underwent a VA examination in October 2018. This examination, however, did not address the Veteran’s GERD. The Board finds that the RO erred by not requesting a VA examination related to the Veteran’s GERD. As noted above, service treatment records show treatment for gastrointestinal symptoms. Considering that evidence, the Board finds that VA’s duty to provide a VA examination has been triggered. See 38 C.F.R. §§ 3.159(c), 3.326; McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006) (concerning when a VA examination or opinion is necessary). 4. Entitlement to service connection for posttraumatic osteoarthritis is remanded. 5. Entitlement to service connection for strains is remanded. 6. Entitlement to service connection for shin splints is remanded. 7. Entitlement to service connection for right ankle sprain is remanded. 8. Entitlement to service connection for left ankle sprain is remanded. 9. Entitlement to service connection for plantar fasciitis is remanded. 10. Entitlement to service connection for tendonitis is remanded. 11. Entitlement to service connection for right (major) wrist strain is remanded. 12. Entitlement to service connection for left (minor) wrist strain is remanded. 13. Entitlement to service connection for a left knee condition is remanded. The Veteran seeks service connection for multiples musculoskeletal disabilities. She has described these disabilities as: posttraumatic osteoarthritis, strains, shin splints, ankle sprain, plantar fasciitis, tendonitis, wrist pain, and a left knee condition. 07/19/2018, Fully Developed Claim. She asserts that her claimed disabilities are the result of her military service. In this regard, she has indicated that the excessive exercise and training she experienced in service caused excessive wear and tear on her body. She believes that she would not have any of her claimed disabilities had it not been for her service in the Navy. 01/18/2019, NOD; see also 08/12/2019, Form 9. The Veteran underwent a VA examination in October 2018. A DBQ for ankle conditions shows diagnoses of bilateral tendonitis and bilateral degenerative arthritis. A DBQ for knee and lower leg conditions shows diagnoses of left knee meniscal tear and bilateral knee joint osteoarthritis. A DBQ for wrist conditions shows a diagnosis of bilateral chronic wrist sprain. At the VA examination, the Veteran indicated that she developed ankle, knee, and wrist symptoms in service, and that they have continued to the present, progressively worsening. The October 2019 VA examiner opined that the diagnosed ankle, knee, and wrist conditions were less likely than not related to a specific exposure event during service in Southwest Asia. The examiner, however, did not discuss the Veteran’s report of symptoms in and since service, or address the Veteran’s assertion that her current musculoskeletal disabilities are related to physical wear and tear from service. The examiner’s failure to address this evidence renders her opinion inadequate. A new VA examination and opinion are therefore necessary. Regarding the claimed plantar fasciitis, the Veteran has not undergone a VA examiner for her feet. While there is no record of a diagnosis of plantar fasciitis, the Board finds that the Veteran’s assertion of plantar fasciitis due to physical wear and tear during service, especially in light of the Veteran’s complex disability picture, is enough to trigger VA’s duty to provide a VA examination. As such, any new VA examination should include consideration of the claimed plantar fasciitis. The VA examiner should be aware that the Veteran’s enlistment examination shows that she had mild asymptomatic pes planus at entrance into service. 08/31/2018, STR-Medical, at 100. As such, this disability is noted and the provisions of 38 U.S.C. § 1153 apply. See 38 C.F.R. § 3.304(b) (2018) (stating that a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service and that only such conditions as are recorded in examination reports are to be considered as noted). 14. Entitlement to service connection for polycystic ovary syndrome is remanded. The Veteran seeks service connection for polycystic ovary syndrome (PCOS). 07/19/2018, Fully Developed Claim. An October 2018 VA examination shows a diagnosis of PCOS. At the VA examination, the Veteran indicated that she developed irregular cycles during service and that these have continued since. She stated that she was diagnosed with PCOS in 2003. The VA examiner opined that this diagnosis is less likely than not related to a specific exposure event during service in Southwest Asia. The examiner noted that PCOS is not specific to Southwest Asia exposures, and service treatment records were silent for report of irregular cycles or any other symptoms of PCOS or a diagnosis of PCOS. The Board finds that the October 2018 VA opinion is inadequate because it lacks a comprehensive medical rationale, does not show adequate consideration of the relevant evidence, and relies on the absence of corroborating evidence to rule out a nexus. In this regard, the Board notes that the Veteran’s service treatment records show treatment for multiple gynecological issues, to include vaginitis, cystitis, and bacterial vaginosis. The VA opinion does not show adequate consideration of this in-service treatment, nor does it explain why any such treatment is not relevant to the present claim. Additionally, the VA opinion does not show consideration of the Veteran’s report of irregular cycles in and since service. As an adequate opinion is not of record, the Board finds a remand for a new examination and opinion is necessary.   These matters are REMANDED for the following action(s): Schedule the Veteran for examinations by appropriate clinicians to determine the nature and etiology of her claimed disabilities (listed and discussed above in the Remand section). For each current diagnosis related to the claimed disabilities, the examiner is to provide an opinion whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner’s opinion must show adequate consideration of the relevant evidence, to include any subjective reports of symptoms in and since service. The opinion must also address the Veteran’s assertion that her musculoskeletal disabilities are related to the physical wear and tear experienced by her during service. For any diagnosis of arthritis, the examiner must also opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. (Continued on the next page)   If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. López, 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.