Citation Nr: 21002534 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 14-14 607 DATE: January 13, 2021 ORDER Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, is denied. Entitlement to service connection for a left hand disorder, to include arthritis and nerve damage, is denied. The issues of entitlement to increased ratings for the Veteran’s right shoulder, left knee strain, right knee strain, and residuals of a right knee arthroscopy will be addressed in a separate Board decision. REMAND Entitlement to service connection for a bilateral foot disorder other than bilateral pes planus is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that sleep apnea began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The Veteran does not have any diagnosed left hand disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to a left hand disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1976 to February 1986, and from August 1988 to March 1999. The undersigned Veteran’s Law Judge (VLJ) conducted a Board hearing on the issues addressed herein during a June 2016 central office hearing. A different VLJ addressed the remaining outstanding issues during a February 2020 travel Board hearing, and those issues therefore will be addressed in a separate Board decision. Service Connection Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. To establish service connection, the evidence must show competent evidence of (1) a present disability, (2) an in-service incurrence or aggravation of a disease or injury, 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, 1167 (Fed. Cir. 2004). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process – or relatively close thereto – can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea The Veteran seeks entitlement to service connection for obstructive sleep apnea. A September 2006 VA sleep study raised the possibility of a sleep disorder, and records indicate treatment for unspecified sleep apnea. See, e.g., February 2011 VA Treatment Records. The Veteran has provided testimony that he began having problems with snoring in 1997, during active duty service. See June 2016 Hearing Testimony. His spouse also provided a June 2016 statement describing symptoms such as snoring, gasping for air, and pauses in breathing, but she did not indicate when those symptoms began. The Veteran and his spouse are competent to report his symptomology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these statements credible. However, the Veteran and his spouse are not shown to be competent to opine that any in-service symptoms represented signs of sleep apnea or a diagnosis of sleep apnea during service, or to determine the etiology of his sleep apnea disorder. The Veteran and his spouse are not competent because they are not shown to possess the requisite medical training necessary to formulate an opinion in this regard. Id. Therefore, the witness opinions linking sleep apnea to service have no probative value. During a July 2017 VA examination, the examiner noted that the Veterans claims file had been reviewed, but noted that she was unable to confirm a diagnosis of sleep apnea because there was no sleep study of record. The examiner determined that an objective examination reflected no evidence of sleep apnea. The examiner further noted symptoms were subjective only, and determined that there was no nexus to service. The Board notes that this VA examination is inadequate for rating purposes, as the claims file does contain a September 2006 sleep study noted above. In November 2017, the Veteran underwent a VA split night polysomnogram and was diagnosed with moderate obstructive sleep apnea. During an April 2018 VA examination, the same examiner that conducted the July 2017 VA examination diagnosed the Veteran with obstructive sleep apnea, but again determined that there was no nexus to service. The examiner opined that there were no findings or complaints of sleep apnea during service, and the diagnosis came subsequent to service. The Board notes that this examination is also inadequate for rating purposes as the examiner did not address the Veteran’s testimony of in-service snoring or apply the criteria for diagnosing sleep apnea to the facts of the Veteran’s case. During a January 2020 addendum VA opinion, a different examiner reviewed the claims file and determined the Veteran’s diagnosed sleep apnea is less likely than not related to service. The examiner noted that the Veteran has a long history of nasal congestion, and further noted that sinus issues can cause snoring and sleeping difficulties. The examiner noted the Veteran’s testimony and the spouse statements regarding symptomology, but noted that, in this case, lay testimony does not constitute credible evidence of a diagnosis of sleep apnea. The examiner further noted the Veteran’s body mass index was as high as 252 in May 2016, and sleep apnea is most often caused by excess weight that causes soft tissue of the throat and mouth to block the airway during sleep. While the Board accepts as true the Veteran’s testimony that snoring began during service, the best evidence of record is the January 2020 VA medical examiner’s opinion as it was prepared by a skilled, neutral medical professional after review of the claims file and medical literature. Furthermore, it is supported by a complete rationale which specifically considered the lay description of symptoms but, relying on review of the medical record, found a less than 50 percent probability that sleep apnea first manifested in service and/or is due to service. The Veteran has not disputed the medical opinion or provided a favorable medical opinion to weigh in this matter. The Board further notes that sleep apnea is not deemed a chronic disease under 38 C.F.R. § 3.309(a). Thus, the lay description of continuous symptoms since service alone is insufficient to establish the onset of sleep apnea in service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. As the evidence is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. 5107(b); 38 C.F.R. 3.102. 2. Entitlement to service connection for a left hand disorder, to include arthritis and nerve damage The Veteran seeks entitlement to service-connection for a left hand disorder, to include arthritis and nerve damage. July 1988 service treatment records reflect treatment for an injury to his left thumb. February 1997 service treatment records reflect treatment for “hand problems,” but specifically indicate right hand swelling and deformity. June 2016 VA treatment records reflect that during a nerve study, there was no response during simulation of the left ulnar sensory nerve; however, the results were interpreted as “normal.” During a July 2017 VA examination for peripheral nerve conditions, the examiner conducted objective testing and determined that the Veteran manifested normal nerves of his left upper extremity. Additionally, during the examination, the Veteran described numbness and tingling in his right hand and feet bilaterally, but did not address any left hand issues. Additionally, the examiner noted no arthritis or other left hand disorders, and indicated the Veteran’s left hand is “normal.” Upon testing, the Veteran’s left hand demonstrated a normal range of motion. While the Veteran again described issues with his right hand, he did not indicate any left hand issues. The examiner ultimately determined that the Veteran did not have a diagnosis of any disorders related to his left hand. During his June 2016 Board hearing, the Veteran testified that his left hand “is coming to be like my right [,]” indicating trouble with pain and squeezing. The Veteran is competent to report his symptomology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, in this case, the Board does not find the Veteran’s testimony to be credible evidence of compensable functional impairment of the left hand, as the Veteran specifically omitted any left hand issues while describing right hand and bilateral feet issues during the July 2017 VA examination and objective testing has determined that the left hand did not manifest and nerve issues or arthritis, motion loss or functional impairment. While the Board notes June 2016 VA treatment records reflecting no response during simulation of the left ulnar sensory nerve during a study, the Board also notes both that the June 2016 physician indicated the left hand testing results were normal and the July 2017 VA examiner determined left hand testing results were also normal. Therefore, the preponderance of the evidence indicates that the Veteran does not have a current left hand disorder. For a disability to be service-connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, there is no medical evidence of record to indicate the Veteran has any left hand disorder, and the Veteran has not indicated there are any such relevant, outstanding medical records. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability or functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (2018). Entitlement to service connection for a left hand disorder is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral foot disorder other than bilateral pes planus is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issues of entitlement to service connection for a bilateral foot disorder other than bilateral pes planus. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran is already service-connected for bilateral pes planus. See June 2006 Rating Decision. In a November 2016 remand, the Board noted that the Veteran is seeking service connection for a bilateral foot disorder, including hallux valgus. While in service, he was treated for athlete’s foot, frostbite on his feet, corns on his bilateral little toes, and bilateral foot pain. See, e.g., May 1979, January 1980, April 1981, October 1985, and June 1990 Service Treatment Records. A June 1999 VA examination indicated ossification in the right foot, and May 2006 VA treatment records contained imaging reflecting mild bilateral hallux valgus. In January 2016, the Veteran underwent a VA examination that determined he had no bilateral foot disorders other than pes planus. While the examiner indicated that the claims file had been reviewed, the examiner also indicated no imaging studies were available. The examiner did not address the May 2006 imaging reflecting mild bilateral hallux; the June 1999 VA examination finding of ossification of the right foot; or service treatment records indicating treatment for athlete’s foot, frostbite, and corns. As such, the January 2016 examination is insufficient for rating purposes. Therefore, the Board’s November 2016 remand instructed the AOJ to obtain an additional VA examination to determine the nature and etiology of any diagnosed bilateral foot disorder other than pes planus, with the following instructions: The examiner must address service treatment records indicating treatment for athlete’s foot, frostbite, and corns. The examiner must also address the June 1999 VA examination indicated ossification in the right foot, and May 2006 VA treatment records contained imaging reflecting mild bilateral hallux valgus. A complete rationale must be provided for these opinions. Further, if the Veteran has any diagnosed bilateral foot disorder, other than pes planus, that is not etiologically related to service, the examiner must opine as to whether it is at least as likely as not (50 percent or greater possibility) that any such diagnosed bilateral foot disorder was caused OR aggravated beyond the normal progress of the disorder by service-connected pes planus. The AOJ obtained a July 2017 VA examination that diagnosed the Veteran with bilateral frostbite and bilateral foot strain, but noted no hallux valgus present upon examination. The examiner asserted that bilateral foot strain is related to service-connected pes planus, and further indicated that the Veteran’s bilateral status post frostbite should be evaluated for service connection. It is unclear whether the bilateral foot strain is a symptom of service-connected pes planus or a separate disorder. Further, the examiner provided inadequate rationale regarding status post bilateral frostbite, and the examiner did not address VA treatment records reflecting ossification of the right foot or mild bilateral hallux valgus. A remand is needed to obtain an additional VA medical opinion concerning the nature and etiology of any diagnosed foot condition other than pes planus. The examiner should address the relevant treatment records and the July 2017 VA examination, and should further opine as to whether the Veteran’s service-connected pes planus aggravates any other diagnosed bilateral foot condition beyond its normal course of progression. The matter is REMANDED for the following action: 1. Obtain VA treatment records since June 2020 and associate them with the claims file. 2. Forward the claims folder to a qualified examiner for an addendum opinion regarding the nature and etiology of any diagnosed foot disorders other than pes planus. The examiner should address the following questions: (a) Is it at least as likely as not (i.e., a 50 percent or greater possibility) that any diagnosed foot disorder other than pes planus had its onset during active duty, or is otherwise etiologically related to his active duty service? (b) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed foot disorder is caused or aggravated by his service-connected pes planus? In answering these questions, the examiner should address the following: • service treatment records indicating treatment for athlete’s foot, frostbite, and corns (see, e.g., May 1979, January 1980, April 1981, October 1985, and June 1990 service treatment records); • A June 1999 VA examination indicated ossification in the right foot; • May 2006 imaging reflecting mild bilateral hallux and July 2017 VA examination reflecting no hallux valgus; • bilateral status post frostbite and symptoms of numbness and tingling noted in the July 2017 VA examination; and • whether bilateral foot strain is a symptom of pes planus or a diagnosis of a separate disorder. If an examination is needed, one should be scheduled. All opinions expressed must be supported by complete rationale. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Howell, 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.