Citation Nr: 21000287 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-00 891 DATE: January 5, 2021 ORDER Entitlement to service connection for residuals of tuberculosis is denied. Entitlement to service connection for left foot drop and balance problems is denied. Service connection for sleep apnea is granted. REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for a left shoulder disorder is remanded. FINDINGS OF FACT 1. The Veteran does not have any current residuals of tuberculosis. 2. The Veteran does not have a current left foot disability. 3. The Veteran’s sleep apnea had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of tuberculosis are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for service connection for left foot drop and balance problems are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1962 to April 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In November 2019, the Veteran presented sworn testimony during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s claims file. This claim was previously before the Board in March 2020, at which time it was remanded for further development. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also 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) (2017). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for residuals of tuberculosis At the November 2019 Board hearing, the Veteran testified that the serviceman that slept above him during his last years of service tested positive for tuberculin. Everyone in the division who slept in the department had to take three white pills per day for a year and get a chest x-ray every three months. As such, he always tests positive for a tuberculosis skin test, but he did not have the condition. Pursuant to the March 2020 Board remand, the Veteran received a VA examination in October 2020 and the examiner found that he did not have a diagnosis of an infectious disease. The Veteran repeated the contentions that he was exposed to a person with active tuberculosis while in the military and stated he was told that he would always have a positive skin test. He denied, however, any symptoms related to a diagnosis of tuberculosis and denied complications from medication during that time. The examiner further noted that the Veteran did not have any residual complications. The Board finds the October 2020 VA examination highly probative and concludes that there is no current disability; thus, the first element of the service connection claim has not been satisfied. Congress specifically limits entitlement for service-connected disease or injury to cases where incidents have resulted in a recognized disability. In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, in this case, without evidence of a current disability, direct service connection for residuals of tuberculosis must be denied. Entitlement to service connection for left foot drop and balance problems At the November 2019 Board hearing, the Veteran testified that he rides his bike many miles per year, but denied having to wear anything special for his left foot when riding. The Veteran also denied falling, indicating that he was “pretty well balanced” and in good shape. Pursuant to the March 2020 Board remand, the Veteran received a VA examination in October 2020 and the examiner found that he did not have a diagnosis of a peripheral nerve condition. The Veteran stated that he had been experiencing left foot drop sporadically over the years, describing his left foot giving out and not being able to lift it while walking. The last episode occurred approximately two years earlier after walking. The Veteran also believed that it could be related to his back. The examiner’s findings revealed no evidence of left lower extremity peripheral neuropathy, the examiner further noting that an October 2007 EMG revealed normal results and no signs of acute or chronic radiculopathy. The examiner also determined that the Veteran’s subjective complaints were not productive of any functional impairment. Based on the results of the examination, the examiner concluded that there were no objective findings to explain the Veteran’s subjective complaints of left foot drop. The Board finds the October 2020 VA examination highly probative and concludes that there is no current disability or functional impairment associated with the Veteran’s subjective complaints; thus, the first element of the service connection claim has not been satisfied. Congress specifically limits entitlement for service-connected disease or injury to cases where incidents have resulted in a recognized disability. In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, in this case, without evidence of a current disability, direct service connection for left foot drop and balance problems must be denied. Entitlement to service connection for sleep apnea The Veteran’s former spouse submitted correspondence in April 2013 indicating that she was married to the Veteran in June 1967 and lived together in Spain while he was in service. During that time, the Veteran’s snoring was extremely loud, and he would periodically experience respiratory disruption while sleeping. At the November 2019 Board hearing, the Veteran testified that his wives complained about his snoring. His first wife was with him during his military service and noticed his sleep issues. His second wife, however, also complained of his snoring; the Veteran testified that she would have to go to sleep before him because she could not otherwise fall asleep. Pursuant to the March 2020 Board remand, the Veteran received a VA examination in October 2020 and the examiner noted a diagnosis of sleep apnea. Based on the results of the examination, the examiner concluded that the Veteran’s sleep apnea was less likely as not the result of service, and less likely as not caused or aggravated by his service-connected chronic obstructive pulmonary disease (COPD). While the Veteran’s wives reported loud snoring and respiratory disruption while sleeping, the examiner found no record of treatment during service for sleep disturbances or a sleep condition. The diagnosis of sleep apnea was in 2013, nearly 45 years after service. Furthermore, there was no documentation found to support the contention that his sleep apnea had worsened due to his COPD. The Board finds that the negative opinion is ultimately based on the lack of complaints, treatment, or diagnosis of sleep apnea during service. This examiner appears to assume that a diagnosis in service is necessary. It has long been held that 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. See 38 C.F.R. § 3.303. The Veteran’s wives are competent to report these observed symptoms, as they are within the realm of their personal experiences and are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469-70 (a layperson is considered competent to report on that of which he or she has personal knowledge). The Board also finds that the Veteran’s reports of these symptoms during and since service are credible. As such, there is persuasive lay evidence demonstrating that the Veteran’s symptoms began in service. In light of the foregoing, and resolving reasonable doubt in the Veteran’s favor, and considering the minimal probative value of the VA medical opinion against the claim and the competent and credible reports of sleep disturbances in and since service that was ultimately diagnosed as sleep apnea, the Board finds that the evidence is at least evenly balanced for and against the claim, and that service connection for sleep apnea is therefore warranted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND Entitlement to service connection for a left knee disorder Entitlement to service connection for a right shoulder disorder Entitlement to service connection for a left shoulder disorder Pursuant to the March 2020 Board remand, the Veteran received VA examinations in October 2020 and the examiner noted diagnoses of left knee degenerative arthritis, right rotator cuff tendonitis, left rotator cuff tear, and bilateral shoulder degenerative arthritis. The Veteran reported that he fell down a 25-foot set of aircraft carrier stainless steel stairs, hitting every step. He was prescribed bed rest for 7 to 10 days and was given light duty for 10 months. His shoulder pain had continued following service and his left knee pain “has been going on since my 20s” following the fall. Based on the results of the examination, the examiner opined that it was less likely than not that the Veteran’s knee and shoulder conditions were the result of the injury/incident during military service. There were no diagnoses nor treatment during service or close to discharge, and post-service medical records were silent for treatment for any of the conditions. The Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Therefore, these claims must be remanded for a new examination. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of his left knee and bilateral shoulder disorders. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s left knee and bilateral shoulder disorders had their onset in service or is otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements that the Veteran sustained a fall during service, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, 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.