Citation Nr: 20042010 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 18-47 856 DATE: June 19, 2020 ORDER Entitlement to service connection for a lumbar disorder, characterized as spondylosis and levoscoliosis, is denied. Entitlement to service connection for obstructive sleep apnea, is denied. REMANDED Entitlement to service connection for dermatophytosis, characterized as athlete's foot, is remanded. Entitlement to service connection for a dental disorder, is remanded. FINDINGS OF FACT 1. The Veteran’s lumbar disorder was not incurred in or is otherwise related to active duty service. 2. The Veteran does not have a current diagnosis of obstructive sleep apnea. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar disorder, characterized as spondylosis and levoscoliosis, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for obstructive sleep apnea, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army National Guard with periods of ACDUTRA from January 2003 to September 2003; during the response to Hurricane Katrina in 2004 from September 15-16; and from September 2005 to December 2005. The Board notes that a claim for an increased rating for an acquired psychiatric disorder was denied by the Board in April 2019, and was vacated by the Court of Appeals for Veteran’s claims in April 2020. This appeal is still in development and will be addressed in a separate decision. Service Connection The Veteran is seeking service connection for a lumbar disorder, characterized as spondylosis, and for obstructive sleep apnea. Specifically, the Veteran asserts that his lumbar disorder stems from carrying heavy gear during training and multiple incidents while on active duty; he has not alleged a specific etiology for his claimed sleep apnea. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for a lumbar disorder, characterized as spondylosis and levoscoliosis Initially, the Board notes that the Veteran’s service treatment records fail to establish that his back disorder, diagnosed as spondylosis, was incurred in or is etiologically related to his active duty service. The only in-service entry, concerning his back, is a June 2007 line of duty investigation indicating a single episode in service of low back strain. There was no other signs, symptoms, or treatment for the Veteran’s back in his service treatment records including examinations and reports of medical history in March 1999 and February 2004. The Veteran’s post-service medical records do not reflect signs or treatment of a back disorder until April 2017 when the Veteran was diagnosed with spondylosis and levoscoliosis. Given the gap between his separation from service and the diagnosis of his current lumbar disorder of more than a decade, and the lack of treatment reported by the Veteran, continuity of service is not supported by the evidence of record, including for the purposes of the chronic disease presumption under 38 C.F.R. § 3.307 (a)(3). The Board acknowledges the Veteran’s statements regarding the history of his symptoms of his lumbar disorder. Although he is competent to report that he experienced the symptoms of these disorders, he is not competent to determine that these symptoms were manifestations of a particular disorder. See Jandreau, 492 F.3d at 1377, 1377 n.4. Nevertheless, to the extent he contends that this disorder has persisted since service, the Board determines that the reported history of continued symptoms while competent, is nonetheless not probative in establishing the nexus element because the evidence, including the Veteran’s own statements, shows that he did not seek treatment for his lumbar disorder for more than a decade after his separation from service. The fact that he did not seek treatment for these significant durations after his active duty service weighs against his credibility. Finally, service connection may be granted when the evidence establishes a medical nexus between active duty service and the current diagnosis. However, there is not sufficient evidence in the medical records to demonstrate a nexus between his active duty service and his lumbar disorder. Indeed, there is no objective medical evidence linking the Veteran’s lumbar disorder to his active duty service. Further, the Board notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a nexus between his active service and his back disorder. Moreover, at the April 2017 VA examination, the examiner, who also reviewed the x-rays. Diagnosed spondylosis and levoscoliosis of the lumbar spine. However, the examiner opined that this disorder was less likely than not related to service. In providing this opinion, the examiner reflected that, although the Veteran did experience a lumbar strain in service, there was no indication that this disorder was chronic in nature, as there was no follow-on treatment. Moreover, the examiner noted that the Veteran’s current disability is not one for which would result from a lifting injury, as was the case in service. Moreover, the examiner stressed that the lack of back treatment for years since service weighed against the conclusion that there was a link between service and the Veteran’s current complaints. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating his lumbar disorder to his active duty service. The Federal Circuit has held that “[l]ay 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.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau, 492 F.3d at 1377). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his lumbar disorder. See Jandreau, 492 F.3d at 1377, n.4. Although he can provide competent testimony regarding symptoms, this is not a disorder that can be diagnosed by its unique and identifiable features as they do not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See id. at 1376-77. Thus, to the extent that the Veteran believes that his lumbar disorder, is related to his active duty service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. By virtue of the foregoing, the Board concludes that service connection for a lumbar disorder is not warranted. 2. Entitlement to service connection for obstructive sleep apnea Next, the Board observes that the Veteran has not been diagnosed with any disorder described as obstructive sleep apnea. Based upon a review of the record, the Board concludes that service connection is not warranted for sleep apnea. No diagnosis of sleep apnea is shown in his post service medical treatment records. Moreover, a current diagnosis of a chronic sleep disorder is not shown. While the Veteran’s statements are competent evidence to report having sleep apnea, the Veteran as a layperson has not been shown to be capable of making medical conclusions; thus, his statements regarding a current diagnosis of a chronic disability are not competent. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Despite the Veteran’s claims herein, there is no indication that he has ever sought any treatment for his claimed sleep apnea. Further, the Veteran’s medical records are silent for complaints of sleep apnea. “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (emphasis added). In the absence of competent medical evidence of any current diagnosis of sleep apnea, the criteria for establishing service connection for this condition has not been established. Id. Therefore, the preponderance of the evidence is against the Veteran’s claims. As there is no doubt to be resolved, service connection for sleep apnea is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for dermatophytosis, characterized as athlete's foot, is remanded. 2. Entitlement to service connection for a dental disorder, is remanded. The Veteran has also claimed entitlement to service connection for dermatophytosis of the feet and for a dental disorder. Specifically, the Veteran has indicated that he believes his dermatophytosis is linked to his service during the Hurricane Katrina relief effort, and his dental disorder to a physical injury to his teeth. In regard to the Veteran’s claim for dermatophytosis, the Veteran has submitted statements attesting to the symptoms of his claimed disorder, including sores that form on his feet. To date, he has not been diagnosed with a specific disorder of the feet, however, he has also not received a VA examination to examine his reported symptoms. The Veteran has specifically linked his dermatophytosis to service during Hurricane Katrina and submitted statements regarding the environmental conditions of that service, namely the water that he and other soldiers were immersed in. The Board observes that after such an event as a hurricane, that standing water could potentially contain bacteria or other man-made hazards. As such, the Board determines that an examination is necessary to determine the nature and etiology of the Veteran’s described dermatophytosis of the feet. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Next, the Board notes that the Veteran has claimed a dental disorder due to a physical injury while serving in Afghanistan. The specific claim the Veteran has submitted is in regard to a loss of teeth due to that injury. However, it has been indicated that his dental disorder could be a result of a dental trauma. The Veteran’s dental disorder has similarly not been subject to an examination to determine nature and etiology, and the Board requires a nexus opinion to properly adjudicate his claim. Id. Accordingly, the Board determines that remands are necessary for both the Veteran’s claimed dermatophytosis and dental disorder, in order to facilitate examinations to determine the nature of the Veteran’s claimed disorders, and their potential etiology. The matters are REMANDED for the following action: 1. The Regional Office (RO) should invite the Veteran to submit any additional evidence in support of his claim If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them; 2. Schedule the Veteran for new examinations, with appropriate clinicians, to determine the nature, extent, onset, and etiology of his dermatophytosis of the feet, and dental disorder. (To include the impact of his service during Hurricane Katrina, physical oral injury, and oral disorder documented in service) The claims file should be provided to the examiner for review. All indicated studies deemed necessary by the examiner should be performed, and all findings of these tests should be reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s dermatophytosis of the feet, and dental disorder is etiologically related to his periods of ACDUTRA. All opinions should be accompanied by adequate reasons and bases. Such reasons and bases may include, but is not limited to, the presence of symptomatology in service, specifically cited medical literature, and past evidence in the record. If the examiner cannot provide the requested opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. The Regional Office (RO) should readjudicate the Veteran’s claims for service connection for dermatophytosis of the feet, and dental disorder.   If those claims remain denied, the RO should issue a supplemental statement of the case, and then return the claims to the Board for appellate review. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Hernan, Associate Counsel