Citation Nr: 20026089 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 19-03 653 DATE: April 15, 2020 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) is denied. Entitlement to service connection for a psychiatric disability manifested by occasional nightmares is denied. REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for a right eye condition is remanded. FINDINGS OF FACT 1. The Veteran has sleep apnea; however, the evidence does not establish an in-service incurrence or a nexus. 2. While there is evidence of a current respiratory disorder, the evidence does not establish an in-service incurrence or a nexus. 3. The evidence is against a finding that the Veteran has a current disability manifested by occasional nightmares or if present, that any claimed symptoms are service related. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a respiratory condition, to include COPD, have not been met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a psychiatric disability manifested by occasional nightmares have not been met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1976 to November 1979 and from May 1980 to August 1990. The Veteran earned a Combat Action Award. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claim for service connection for COPD has been recharacterized as a claim for a respiratory condition, to include COPD. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); Clemmons v. West, 206 F.3d 1401 (Fed. Cir. 2000) Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of Operations (Southwest Asia) during the Persian Gulf War, or that became manifest to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). In order to be considered a Persian Gulf veteran, a veteran must have served in Southwest Asia on or after August 2, 1990. 38 U.S.C. § 101(33); 38 C.F.R. § 3.317(e)(1). The Veteran’s most recent DD Form 214 shows that he separated from active duty service on August 9, 1990. There is no evidence of record to indicate, and the Veteran has not contended, that he served in Southwest Asia between August 2, 1990 and August 9, 1990. As such, the Veteran is not considered a Persian Gulf veteran, and the law and regulations providing for presumptive service connection for Persian Gulf veterans with qualifying chronic diseases are not applicable. 38 C.F.R. § 3.317. The Veteran’s DD-214 indicates that he earned a Combat Action Award and that he served as an infantryman, assistant gunner, and boatswain’s mate. The Veteran does not contend that he sustained injuries while engaged in combat. Nonetheless, when a veteran has engaged in combat with the enemy, satisfactory lay or other evidence “shall be accepted as sufficient proof of service connection” for certain diseases or injuries, even if “there is no official record of such incurrence or aggravation in such service.” 38 U.S.C. § 1154 (b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) (“Section 1154(b) does not create a statutory presumption that a combat veteran’s alleged disease or injury is service-connected”). 1. Entitlement to service connection for sleep apnea and a respiratory disorder. The Veteran contends that he has sleep apnea and a respiratory disorder that is related to his active military service. For the reasons that follow, the Board finds that service connection is not warranted. VA treatment records show a diagnosis of mild obstructive sleep apnea. See October 2009 VA treatment record. VA treatment records also show complaints and treatment for shortness of breath. COPD is noted in the Veteran’s past medical history. An October 2018 VA treatment record shows a diagnosis of dyspnea. Thus, the first element of service connection, a current disability, for sleep apnea and a respiratory disorder has been established. Turning to the second element, an in-service incurrence, the Board finds that this element has not been met. The Veteran’s service treatment records (STRs) are silent for any complaints, treatment, or diagnoses related to a sleep disorder or respiratory disorder. All body systems were noted as normal on his August 1990 Report of Medical Examination at separation. Moreover, throughout his active service, the Veteran consistently denied frequent trouble sleeping, shortness of breath, and chronic coughing. See February 1978, May 1984, May 1986, April 1988, August 1988, and August 1990 Report of Medical Histories. Beyond his general assertion that his sleep apnea and respiratory condition are related to service, the Veteran has not contended that either of the conditions are due to any specific injury, disease, or event in service. There also is no competent and probative evidence linking the aforementioned conditions to service. The Board acknowledges that the Veteran has contended that his sleep apnea is due to an undiagnosed illness. See December 2016 Notice of Disagreement. However, as explained above, the Veteran is not a Persian Gulf veteran, and the Veteran’s current sleep condition been attributed to a known clinical diagnosis of conclusive pathophysiology and etiology. Thus, the presumptive laws and regulations pertaining to an undiagnosed illness are not for application. 38 C.F.R. § 3.317. Additionally, the Board acknowledges the provisions of section 1154(b). Nonetheless, the service treatment records affirmatively show no complaints of a sleep disorder or respiratory disorder during service. Moreover, the evidence does not suggest a nexus between any event of service and the Veteran’s current disorders. Thus, service connection cannot be established even when considering this provision. The Veteran has not been afforded a medical examination in connection with his claims, but in the absence of any competent, credible evidence of a possible association with service, VA is not required to further develop the claims by affording the Veteran VA examinations or by obtaining medical opinions. There is no competent or probative evidence indicating that the Veteran’s sleep apnea or respiratory condition may be related to service. Therefore, a VA examination or opinion is not necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). As the preponderance of the evidence is against the claims; the benefit of doubt doctrine is not for application. Service connection for sleep apnea or a respiratory disorder is not warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to service connection for a disability manifested by occasional nightmares. The Veteran contends that he has a disability manifested by occasional nightmares that is related to his active duty service. For the reasons that follow, the Board finds that service connection is not warranted. The Veteran’s STRs are silent for any complaints, treatment, or diagnoses related to nightmares. All body systems were noted as normal on his Report of Medical Examination at separation in August 1990. Moreover, as noted above, throughout his active service, the Veteran consistently reported “no” to “frequent trouble sleeping” on all Report of Medical Histories. A review of the record does not contain any diagnosis related to nightmares. VA treatment records are silent for any complaints of nightmares. In fact, VA treatment records show that the Veteran has consistently denied having nightmares. See November 2012 and September 2017 VA treatment records. While the Board acknowledges that the Veteran has contended that he has occasional nightmares, which he is competent to report, there is no evidence of record to indicate, and the Veteran has not contended, that he has a diagnosed disability that has manifested in nightmares. Moreover, even if the Veteran did have a diagnosable disability that manifests in nightmares, as the treatment reports at times show notations of depression, the record is devoid of any evidence suggesting any nexus to service even when considering the provisions of 1154(b). In sum, the Board finds the most competent and probative evidence weighs against a finding that the Veteran has a current diagnosis related to nightmares, and even if a disability is present, the record does not create a nexus to service or any event of service. There is no doubt to be resolved; service connection for a disability manifested by occasional nightmares is not warranted. REASONS FOR REMAND Entitlement to service connection for a bilateral knee, low back, and right eye condition is remanded. The Veteran contends that he has a bilateral knee, low back, and right eye condition that is related to his active military service. The Board finds that additional development is necessary prior to adjudication. VA treatment records show that the Veteran underwent bilateral knee replacement surgery in 2000 and has continued to experience bilateral knee pain. See October 2013 VA treatment record; June 2018 VA treatment record. VA treatment records also show that the Veteran underwent surgery for a cataract of the right eye in 2016. Diagnoses of multilevel degenerative disc disease (DDD) of the lower thoracic and lumbar spine, lumbar stenosis, and lumbar spondylosis also are shown in VA treatment records. A review of the Veteran’s STRs shows that in November 1982 the Veteran was involved in a motorcycle accident during which he was thrown from the bike and landed on his back. At that time, he complained of pain in the left flank of the lower back. On an April 1988 Report of Medical History, the Veteran reported “yes” to “painful joints;” “eye trouble;” and “arthritis, rheumatism, or bursitis.” The Veteran also reported “don’t know” to “‘trick’ or locked knee.” On an August 1988 Report of Medical History, the Veteran again reported “yes” to “eye trouble,” and the examining physician noted occasional burning sensation in the right eye duct. In light of the foregoing, and as the Veteran generally contends that his current conditions are related to his active military service, the Board finds that the Veteran should be afforded VA examinations on remand to determine the nature and etiology of his bilateral knee, low back, and right eye conditions. McLendon, 20 Vet. App. at 81. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his bilateral knee, low back, and right eye conditions. The examiner must review the claims file and a copy of this Remand. The examiner must opine: a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral knee condition had its onset in, or is otherwise related to, active service, to include his report of joint pain and/or “arthritis, rheumatism, or bursitis” in service. b) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s low back condition had its onset in, or is otherwise related to, active service, to include the November 1982 motorcycle accident. c) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s right eye condition had its onset in, or is otherwise related to, active service, to include his reports of eye trouble and complaint of occasional burning sensation in the eye duct. A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran’s lay statements. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, Associate 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.