Citation Nr: 20036554 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 18-24 835 DATE: May 28, 2020 ORDER Entitlement to service connection for obstructive sleep apnea (claimed as sleep problems) is denied. Entitlement to a compensable rating for allergic rhinitis is denied. Entitlement to a rating in excess of 10 percent for ulnar nerve entrapment, right arm (major) is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against a finding that the Veteran’s obstructive sleep apnea was incurred in or is otherwise related to his active military service 2. The preponderance of the evidence of record is against a finding that the Veteran’s obstructive sleep apnea is proximately caused or proximately aggravated by his service-connected gastric ulcer condition. 3. Throughout the period on appeal, the preponderance of the evidence of record supports a finding that the Veteran’s rhinitis has not resulted in 50 percent obstruction of both nasal passages; complete obstruction of either nasal passage; or polyps. 4. Throughout the period on appeal, the preponderance of the evidence supports a finding that the Veteran’s right ulnar condition has resulted in no more than mild, incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a compensable rating for rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6522. 3. The criteria for a rating in excess of 10 percent for ulnar nerve entrapment, right arm (major) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8516. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1963 to April 1986. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified at a video conference hearing in the Oakland, California RO before the undersigned Veterans Law Judge sitting at the Central Office in Washington, D.C. A transcript of the hearing is available in the record. Service Connection 1. Entitlement to service connection for obstructive sleep apnea (claimed as sleep problems) is denied. The Veteran has claimed entitlement to service connection for a sleep condition, including obstructive sleep apnea (OSA). The Veteran has argued entitlement under both direct and secondary service connection theories, arguing that his OSA symptoms originated during active service; and alternatively arguing that his OSA was caused or aggravated by his service-connected gastric ulcer condition. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran was diagnosed with OSA in October 2011. See January 2017 Medical Treatment Record – Non-Government Facility. It should be noted that the Veteran originally claimed service connection for chronic fatigue syndrome. See January 2017 VA Form 21-526EZ, Fully Developed Claim (Compensation). The Veteran is not presently diagnosed with chronic fatigue syndrome. See March 2017 C&P Examination. Later, the Veteran described his claim as for a generalized sleep problem, which included both OSA and insomnia. See January 2017 and April 2018 VA Form 21-4138, Statement in Support of Claim. Although the Veteran does not have a diagnosis for an insomnia condition, the Veteran’s service-connected psychiatric disorder, presently evaluated at 100 percent disabling, results in chronic sleep impairment as one of its manifesting symptoms. See August 2019 C&P Examination. The Veteran’s insomnia symptoms are therefore evaluated as part of his service-connected psychiatric disorder, and cannot also be evaluated as a separate claim. 38 C.F.R. § 4.14. Nonetheless, as the Veteran is presently diagnosed with OSA, the Board finds the first Hickson prong is satisfied. The second Hickson element requires a showing of an in-service injury or event which. The Veteran’s service treatment records (STRs) are silent for any diagnosis, treatment, or complaint of OSA during his time on active duty. See generally, STR-Medical. Both the Veteran and his wife have provided testimony, and the Veteran has provided additional lay statements, that they believe his OSA condition originated during active service, sometime after the Veteran initially complained of recurring insomnia. See December 2019 Hearing Transcript (describing symptoms of snoring and interrupted breathing in service in the 1970s); and see April 2018 VA Form 21-4138 Statement in Support of Claim (“I developed Sleep Apnea a few years after my diagnosis with insomnia in 1967”). The Veteran and his wife are competent to report readily-observable symptoms, and the Board finds their statements to be credible. However, the evidence has not established that either the Veteran or his wife have the necessary medical training or credentials to diagnose a medical condition. See Jandreau, 492F.3d at 1377, n.4 (‘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’); 38 C.F.R. § 3.159 (a)(2). The Board therefore finds that the second Hickson element is satisfied in that the Veteran and his spouse observed symptoms of snoring and interrupted breathing during service. The third Hickson element requires evidence of a medical link, or nexus, between the present diagnosis and the Veteran’s service. The Board finds insufficient evidence of such a nexus in the evidence of record. At the time of the Veteran’s retirement from the military in 1986, he was afforded a VA physical examination. The Veteran reported to doctors that he had frequent trouble sleeping, which he had also reported earlier during service. However, no diagnosis of OSA was made at that time. See June 1986 STR-Medical. After his diagnosis of OSA in December 2011, the Veteran has received ongoing treatment for his OSA, including intermittent use of a CPAP machine. However, both private and VA medical treatment records are silent as to whether the Veteran’s OSA originated during his military service or is otherwise related to his military service. In March 2017, the Veteran underwent a VA Compensation and Pension (C&P) examination to determine the nature and etiology of his OSA. The examiner documented the Veteran’s lay statements regarding his symptomatology and the Veteran’s belief that his OSA had originated during service. The examiner observed that the Veteran described his symptoms as having resulted because of anxiety and recollections of traumatic in-service events. The examiner explained that such symptoms were not attributable to OSA, but were rather part of the Veteran’s service-connected psychiatric disorder. See March 2017 C&P Examination. The examiner offered an opinion that based on the available data, the Veteran’s OSA was less likely than not incurred in or caused by the Veteran’s active duty. In the remarks section, the examiner explained that the Veteran’s OSA diagnosis came 15 years after his military service with no evaluation shown in the record for any of the symptoms of obstructed breathing, excessive snoring witnessed apneas or daytime fatigue. Such symptoms, the examiner noted, were unrelated to the Veteran’s in-service reports of insomnia, which the Veteran had described to the examiner as trouble getting to sleep and anxious awakening. Id. The Board finds the examiner’s opinion to be highly probative, as the in-person examination involved a thorough analysis of the Veteran’s lay statements, as well as a medical evaluation of his condition. Weighing the probative evidence of record, the Board concludes that the preponderance of the evidence is against a finding that the Veteran’s present OSA condition was incurred in or aggravated by his active service. No medical opinion in support of such a finding is found in the record. The third Hickson element is not satisfied, and the claim must be denied on a direct service-connection basis. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). The Veteran’s OSA diagnosis satisfies the first Allen prong, as the Veteran has a present disability. The second Allen prong requires evidence that the present disability was proximately caused or aggravated by a service-connected disability. The C&P Examination in March 2017 also evaluated whether the Veteran’s OSA was caused or aggravated by his service-connected gastric ulcer condition. The examiner observed that upon discussion with the Veteran, the Veteran denied that a relationship might exist between his OSA and his gastric ulcer. The examiner described “no known or currently stated relationship to [the Veteran’s] prior ulcer,” which the examiner further noted was not an active condition. See March 2017 C&P Examination. The examiner offered an opinion that it was less likely than not (less than 50 percent probability) that the Veteran’s OSA is proximately due to or the result of the Veteran’s service-connected ulcer disability. The Board affords this opinion high probative value as it is based on a thorough medical examination and discussion with the Veteran regarding his lay statements of symptoms during and since service. Weighing the probative evidence of record, the Board finds the preponderance of the evidence is against a finding that the Veteran’s service-connected gastric ulcer disability proximately caused or aggravated his OSA. The second Allen consideration is therefore not satisfied. As the elements for service connection have not been met on either a direct or secondary basis, the claim for service connection for OSA is denied. Increased Rating 2. Entitlement to a compensable rating for allergic rhinitis is denied. The Veteran has argued entitlement to an increased rating for his service-connected allergic rhinitis, presently evaluated at 0 percent disabling. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, a practice known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. Where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1995). A veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. Allergic rhinitis is evaluated under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6522. Under DC 6522, a 10 percent evaluation is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. The maximum evaluation of 30 percent is warranted for allergic or vasomotor rhinitis with polyps. See 38 C.F.R. § 4.97, DC 6522. The Veteran’s VA and private medical records show extensive treatment for his allergic rhinitis condition since his retirement from military service. However, those records are silent for any mention of polyps or of obstructed nasal passages due to rhinitis. See generally VA Medical Treatment Records and Medical Treatment Records – Non-Government Facility. The Veteran has provided numerous lay statements regarding his history of treatment and symptoms for his rhinitis condition, as well as sworn testimony to the same effect. The Board finds these statements probative as background in understanding the Veteran’s condition. However, the lay statements are neither diagnostic nor evaluative in nature, and they do not establish whether the Veteran’s nasal passages were blocked or if polyps formed from the Veteran’s rhinitis. In March 2017, the Veteran underwent a C&P examination for his rhinitis condition. The examiner observed that the Veteran had a present diagnosis of rhinitis. The examiner documented that the Veteran’s nasal passages were not obstructed 50 percent or greater on both sides, and that neither the left nor the right side were completely obstructed. No nasal polyps were observed. The examiner indicated that the Veteran’s condition did not impact his ability to work. See March 2017 C&P Examination. The Board affords this examination high probative value based on a thorough in-person examination and review of the Veteran’s medical history. The Board finds the preponderance of the evidence of record does not support a finding that the Veteran’s rhinitis has resulted in 50 percent obstruction of both nasal passages; complete obstruction of either nasal passage; or polyps. Therefore, the present 0 percent rating is appropriate. A higher rating of 10 percent is not warranted as the Veteran’s condition is not shown to have resulted in 50 percent obstruction of both nasal passages. The maximum evaluation of 30 percent is not warranted as the Veteran’s rhinitis has not been shown to result in polyps. Accordingly, the claim for an increased rating is denied. 3. Entitlement to a rating in excess of 10 percent for ulnar nerve entrapment, right arm (major) is denied. The Veteran has argued entitlement to an increased rating for his right arm ulnar nerve condition. The Veteran’s right arm ulnar nerve condition is evaluated under 38 C.F.R. § 4.124a, DC 8516. Under DC 8516 different ratings are applied for the major (dominant) extremity and the minor extremity. The Veteran’s condition affects his major extremity. Thus, under DC 8516, a 10 percent rating is warranted for a showing of mild, incomplete paralysis of the ulnar nerve; a 30 percent rating is warranted for moderate, incomplete paralysis of the ulnar nerve; a 40 percent rating is warranted for severe, incomplete paralysis of the ulnar nerve; the maximum rating of 60 percent is warranted upon a showing of complete paralysis; the “griffin claw” deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; or loss of extension of ring and little fingers, cannot spread the fingers (or reverse), cannot adduct the thumb; or flexion of wrist weakened. See 38 C.F.R. § 4.124a, DC 8516. In December 2016, treatment records from a private facility indicate the Veteran reported difficulty with his handwriting, and that his hand sometimes clenched into a “claw” position. The examining physician reported that study of the Veteran’s ulnar nerve was mildly abnormal, having yielded no response. Other nerves of the right arm showed normal sensory and motor study. The physician noted that the Veteran’s symptoms at that time were not consistent with ulnar neuropathy. See December 2016 treatment notes in January 2017 Medical Treatment Record – Non-Government Facility. In January 2017, the Veteran again received private treatment based on continued reports of pain, numbness, and reports of his hand going into a “claw” position. The physician described the arm tremulousness as a “dystonic / claw-like posture” which was “not clawlike because of weakness.” See January 2017 Medical Treatment Record – Non-Government Facility. The Veteran’s condition was diagnosed as “weakness of the right hand.” Id. In March 2017, the Veteran underwent a VA C&P examination to evaluate his right ulnar nerve condition. The examiner described a history of treatment for the Veteran’s right hand, including symptoms of numbness and tingling in the two ulnar digits, as well as occasional pain, and the feeling of difficulty with grasping. The examiner documented mild intermittent pain in the upper right extremity, mild paresthesias and/or dysesthesias, and moderate numbness. The examiner found the Veteran’s right ulnar nerve caused mild, incomplete paralysis. The examiner wrote that there were no motor abnormalities to the examination including grip, pinch and opposition, finger abduction or adduction, or intrinsic wasting. The examiner concluded that the Veteran’s condition resulted in impact on the Veteran’s ability to work, in that he had potential difficulty with prolonged handwriting, gripping or grasping. See March 2017 C&P Examination. This examination is highly probative as it is based on a thorough review of the Veteran’s medical history of treatment, and a thorough in-person examination. The Board finds that throughout the period on appeal, the preponderance of the evidence supports a finding that the Veteran’s right ulnar condition has resulted in no more than mild, incomplete paralysis. Accordingly, the present 10 percent rating is appropriate. Higher ratings of 30 or 40 percent are not warranted, as the Veteran’s incomplete paralysis has not been shown to be moderate or severe. The maximum evaluation of 60 percent is not warranted as the Veteran’s condition has not been shown to cause the “griffin claw” deformity; loss of extension of ring and little fingers; inability to spread the fingers or reverse; inability to adduct the thumb; or weakened flexion of the wrist. The claim for an increased rating is therefore denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hermsdorfer, 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.