Citation Nr: 20032001 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 18-02 097 DATE: May 6, 2020 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for peripheral neuropathy of the right upper extremity, including as secondary to exposure to herbicides, is denied. Entitlement to service connection for peripheral neuropathy of the left upper extremity, including as secondary to exposure to herbicides, is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity, including as secondary to exposure to herbicides, is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity, including as secondary to exposure to herbicides, is denied. The appeal of the reduction of the rating for non-Hodgkin's lymphoma from 100 percent to 20 percent effective December 1, 2015 is withdrawn. REMANDED Entitlement to service connection for tinea unguium, claimed as ingrown toenails with nail fungus due to jungle rot is remanded. Entitlement to service connection for anxiety with night sweats, including as secondary to service-connected disability is remanded. Entitlement to an initial rating higher than 10 percent for left knee arthralgia is remanded. Entitlement to an initial rating higher than 10 percent for right knee arthralgia is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows the Veteran's sleep apnea did not have its onset in service and is not etiologically related to his service. 2. The Veteran does not have a diagnosis of peripheral neuropathy of the upper extremities. 3. The Veteran does not have a diagnosis of peripheral neuropathy of the lower extremities. 4. At the March 2020 Board hearing, and prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw his appeal of the reduction of the rating for non-Hodgkin's lymphoma from 100 percent to 20 percent effective December 1, 2015. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for peripheral neuropathy of the upper extremities, including as secondary to exposure to herbicides have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for peripheral neuropathy of the lower extremities, including as secondary to exposure to herbicides have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 4. The criteria for withdrawal of the appeal of the reduction of the rating for non-Hodgkin's lymphoma from 100 percent to 20 percent effective December 1, 2015 by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1965 to September 1967. He is a recipient of the Combat Infantry Badge (CIB). These matters are before the Board of Veterans’ Appeals (Board) from April 2015, June 2015 and September 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing held in March 2020. At the hearing the Veteran opted to waive RO review of any additional evidence submitted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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). Sleep Apnea The Veteran contends he has sleep apnea related to his active duty service. Service treatment records are negative for any complaints, treatment, diagnosis or other findings related to a sleep disorder. During his September 1967 service medical examination, the Veteran reported he did not have frequent trouble sleeping; and on clinical evaluation there was no mention of a sleep disorder. The initial post-service mention of sleep apnea was in January 2010 (more than 42 years after separation from service) when the Veteran was seen as a new patient at a VA clinic. Sleep apnea on CPAP was noted in the clinical report. The assessment was sleep apnea. In December 2019 the Veteran underwent a sleep study by a private provider. The results showed diagnoses of obstructive sleep apnea syndrome and central sleep apnea due to a Cheyne-Stokes breathing pattern. Here, while a current disability is shown, there is no competent evidence that links the Veteran’s sleep apnea to his military service. The Board is aware that the Veteran has not been afforded a VA nexus examination with respect to his claim of service connection for sleep apnea. As there has been no competent evidence of a nexus to date, there is no reasonable possibility that a VA examination could result in favorable findings, particularly as no sleeping problems were reported or shown upon separation from service. The Board has considered the Veteran’s assertions that his sleep apnea is related to his military service, but he lacks the training and credentials necessary to establish an etiological link between his service and a sleep apnea disorder diagnosed many years after his separation from service. A diagnosis of sleep apnea is made based upon laboratory studies and is not based upon lay observation, such as is the case with tinnitus or headaches. His assertions in this regard do not constitute competent evidence. See Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007). Based on the foregoing, the Board finds the preponderance of the evidence is against entitlement to service connection for sleep apnea. The Veteran’s sleep apnea was not manifested in, and is not shown to be related to, his active duty service. There is no doubt to be resolved; therefore, the benefit-of-the-doubt doctrine does not apply and the claim of entitlement to service connection for sleep apnea must be denied. Peripheral Neuropathy of the Upper and Lower Extremities The Veteran contends he has peripheral neuropathy of the upper and lower extremities due to exposure to herbicides while serving in the Republic of Vietnam from September 1966 to September 1967. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease becomes manifest to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). The presumption is rebuttable. See 38 C.F.R. § 3.307(d). In addition to the presumption of herbicide exposure, noted above, certain diseases are deemed to be associated with herbicide exposure. These diseases include early onset peripheral neuropathy. 38 C.F.R. § 3.309(e). The regulations formerly referred to acute and subacute peripheral neuropathy; however, effective September 6, 2013, VA adopted a proposed rule to amend its adjudication regulations regarding presumptive service connection for acute and subacute peripheral neuropathy associated with exposure to certain herbicide agents. Specifically, based on findings from a September 2010 National Academy of Sciences (NAS) report that concluded that early-onset peripheral neuropathy associated with herbicide exposure is not necessarily a transient condition, the amendment replaced the terms “acute and subacute” in 38 C.F.R. § 3.307(a)(6)(ii) and 38 C.F.R. § 3.309(e) with the term “early-onset” and removed the Note to 38 C.F.R. § 3.309(e) requiring that the neuropathy be “transient.” This change effectively removed the requirement that acute and subacute peripheral neuropathy appear “within weeks or months” after exposure and that the condition resolve within two years of the date of onset for the presumption to apply. This amendment clarified that VA will not deny presumptive service connection for early-onset peripheral neuropathy solely because the condition persisted for more than two years after the date of the last herbicide exposure. However, it did not change the requirement that peripheral neuropathy must have become manifest to a degree of ten percent or more within one year after the Veteran’s last in-service exposure in order to qualify for the presumption of service connection. Service treatment records are negative for any complaints, treatment, or diagnosis of peripheral neuropathy during the Veteran’s period of active duty service. His September 1967 service separation medical history and medical examination reports indicate no neurological abnormalities. Post-service VA and private treatment records currently of record are devoid of clinical diagnoses of peripheral neuropathy of the upper and lower extremities. A thorough review of the record reveals only negative findings regarding the Veteran having peripheral neuropathy. For example, in October 2016 the Veteran visited his VA primary care physician with complaints of burning pain in his feet. He inquired as to whether he had “neuropathy.” A nerve conduction study and an EMG [electromyography] were conducted in November 2016; both studies revealed there was no evidence of peripheral neuropathy. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110. The Veteran does not have the training or credentials to provide a competent diagnosis of peripheral neuropathy. See Jandreau, supra. As the evidence is against finding current disabilities of peripheral neuropathy of the upper and lower extremities, the criteria for establishing service connection have not been met. The evidence is not in equipoise, so the benefit-of-the-doubt rule does not apply. The claims of entitlement to service connection for peripheral neuropathy of the upper and lower extremities are denied. Withdrawal of Appeal 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. 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. § 20.205. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.205(a). At the March 2020 Board hearing, the Veteran expressed his intent to withdraw his appeal of the reduction of the rating for non-Hodgkin’s lymphoma from 100 percent to 20 percent effective December 1, 2015. The Board finds the Veteran’s expression at the hearing qualifies as a valid withdrawal of the issue. See 38 C.F.R. § 20.205(b). Since the Veteran has withdrawn the appeal, there remain no allegations of errors of fact or law for appellate consideration. The Board does not have jurisdiction to review the appeal as to the issue, and it is dismissed. REASONS FOR REMAND Tinea Unguium The Veteran contends he has bilateral foot fungus as a result of combat service in Vietnam. He stated that he served in Vietnam for 11 months and 20 days. He explained that he was in reconnaissance and spent time as a tunnel rat in many areas of Vietnam; and that he has been under doctor’s care for ingrown toenails since he got out of the service. The Veteran underwent a VA examination in March 2015. He was diagnosed with having tinea unguium. The examiner opined that the Veteran’s current tinea unguium of all the nails of the left foot is less likely as not due to ingrown toenail removal during service as there is no mention of fungal infection of the foot in service. There is no common nexus between the ingrown toenail and tinea unguium. The Board finds the rationale in this instance inadequate, as the VA examiner did not consider the Veteran’s statements of record concerning his combat experiences in Vietnam. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. On remand, the RO should schedule the Veteran for a new skin conditions examination (since the last examination was in 2015) and request the examiner provide an opinion with rationale that adequately addresses the Veteran's tinea unguium, claimed as ingrown toenails with nail fungus due to jungle rot. Anxiety with Night Sweats At the March 2020 hearing, the Veteran expressed that his anxiety is related to his service-connected non-Hodgkin’s lymphoma. He stated that his lymphoma is in remission, but he worries about it coming back as he was told that with each flare-up “it’s going to get worse.” He stated that when he was tested for “Post-Traumatic” he was borderline. The Veteran has not been afforded a VA examination for his claimed anxiety with night sweats, which he essentially asserts is secondary to his service-connected non-Hodgkin’s lymphoma; therefore, remand is necessary to schedule the Veteran for a VA examination. Left and Right Knee Arthralgia and Bilateral Hearing Loss Regarding the claims of entitlement to initial ratings higher than 10 percent each for left and right knee arthralgia, and a compensable rating for bilateral hearing loss, the Veteran testified at the March 2020 hearing that his symptoms have increased in severity for each of the service-connected disabilities since he was last examined in July 2016 for his knee disabilities and in August 2016 for bilateral hearing loss. Considering the Veteran’s assertions that his service-connected bilateral knee and bilateral hearing loss disabilities have increased in severity, and mindful that examinations were last conducted nearly four years old, current examinations must be afforded to accurately assess the current level of severity of the service-connected disabilities. TDIU The matter of TDIU has been raised by the record in this case and is inextricably intertwined with the increased rating claims being remanded. Therefore, consideration of TDIU must be deferred. VA treatment records last associated with the Veteran’s claims file are dated in October 2017. On remand, request updated VA treatment records. The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records from November 2017 to the present and associate such records with the Veteran’s claims file. 2. Arrange for the Veteran to undergo a VA skin examination to ascertain the nature and etiology of his tinea unguium, claimed as ingrown toenails with nail fungus due to jungle rot. The examiner must review the Veteran's claims file and elicit a full history from the Veteran regarding the symptoms of his diagnosed tinea unguium, claimed as ingrown toenails with nail fungus due to jungle rot. All necessary tests and studies should be accomplished, and all pertinent symptoms and clinical findings should be reported in detail. After the record review, and a thorough examination and interview of the Veteran, the VA examiner should offer an opinion addressing the following: Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's diagnosed tinea unguium, claimed as ingrown toenails with nail fungus due to jungle rot, had its onset during active service or is otherwise related to any in service disease, event, or injury, to include exposure to herbicides. The Board invites the examiners' attention to the fact that the Veteran served in combat in Vietnam from September 1966 to November 1967 and described being in reconnaissance and spending time as a tunnel rat in many areas of Vietnam; as a result, he developed ingrown toenails and foot fungus. The Board invites the examiners' attention to the Veteran's lay statement that he contracted bilateral foot fungus while in Vietnam and has had issues with recurrent fungal infections of his toes and feet ever since. The examiner must address the lay statements from the Veteran regarding his tinea unguium. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). 3. Schedule the Veteran for an examination by a psychiatrist or psychologist to determine the nature and etiology of his claimed anxiety with night sweats. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must address the following: (a) Whether the claimed anxiety with night sweats is at least as likely as not (a 50 percent probability or greater) related to an in-service injury, event, or disease. (b) Whether the claimed anxiety with night sweats is at least as likely as not (1) proximately due to his service-connected non-Hodgkin’s lymphoma, or (2) was aggravated beyond its natural progression by the service-connected non-Hodgkin’s lymphoma. A rationale must be provided for all opinions. 4. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected left and right knee arthralgias. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All appropriate tests, including range of motion testing, both active and passive, and in weightbearing an non-weightbearing, should be accomplished. The examiner should estimate any additional functional limitation due to factors such as pain and weakness, and during flare-ups. The examiner is asked to note the extent to which the Veteran's disability affect his activities of daily living and ability to obtain/maintain gainful employment. A rationale must be provided for all opinions. 5. Schedule the Veteran for a VA audiological examination to determine the current severity of his service-connected bilateral hearing loss. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All indicated tests should be performed, and all findings should be reported in detail. The examiner is asked to note the extent to which the Veteran’s disability affect his activities of daily living and ability to obtain/maintain gainful employment. A rationale must be provided for all opinions. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Young, 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.