Citation Nr: 21062386 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 16-12 315 DATE: October 7, 2021 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for psoriasis is granted. New and material evidence not having been received, the Veteran's claim for entitlement to service connection for keratoderma remains denied. 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 or disease. 2. The preponderance of the evidence is against finding that a back disability began during active service, or is otherwise related to an in-service injury or disease. 3. Affording the Veteran the benefit of the doubt, her current psoriasis began during active service. 4. An April 2008 rating decision denied entitlement to service-connection for plantar keratoderma. 5. Evidence added to the record since the previous final denial does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for keratoderma. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea 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 a back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 3. The criteria for entitlement to service connection for psoriasis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. New and material evidence has not been received to reopen the claim for service connection for keratoderma. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.159, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1997 to November 1997, from October 2001 to October 2002, from April 2005 to July 2006 and from September 2008 to April 2011. This matter was previously before the Board in June 2019, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in a September 2020 supplemental statement of the case. The Board finds that VA has substantially complied with the June 2019 Board remand. It is important to note that the Veteran has already been found to be 100 percent disabled by VA. The Veteran has been in receipt of a 100 percent disability rating effective January 19, 2018. In this case, the Board is only dealing with the limited outstanding issues that it must address under the law. SERVICE CONNECTION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1131. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State. 38 C.F.R. § 3.6(c)(3). In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for sleep apnea The Veteran contends that she suffers from sleep apnea that is etiologically related to her active duty service. At the outset, the Board notes that the Veteran has been diagnosed with obstructive sleep apnea following a sleep study in 2014. See November 2016 VA sleep apnea examination. The Veteran's service treatment records (STRs) do not mention any ongoing sleep problems. The Veteran was seen for other health conditions while in service and it does not appear logical for her to mention some problems and not her sleep troubles. Post-service treatment records include complaints of sleep problems, however the Board notes that the Veteran also suffers from an acquired psychiatric condition with noted symptoms of sleep disturbance. Treatment records also indicate that the Veteran's primary complaint has been an inability to sleep through the night and has been separately diagnosed with insomnia disorder. See July 2018, treatment notes. Moreover, a treating provider in July 2018 questioned the Veteran's prior sleep apnea diagnosis, noting the Veteran's lack of reported benefits from CPAP treatment. The provider explained that at a subsequent sleep study in 2018, the Veteran did not demonstrate clinically significant sleep apnea. The provider referenced her insomnia diagnosis but found no evidence of other sleep disorders. See July 11, 2018 VA treatment notes. The Board finds that when considering the evidence as a whole, the Veteran's record does not support a finding of service connection for sleep apnea. While the Veteran has been diagnosed with sleep apnea, her service treatment records are negative for treatment or complaints of sleep apnea while in service and there is a gap between her separation from service and her diagnosis of sleep apnea. The only evidence of record in support of such a nexus is the Veteran's lay opinion. To the extent the Veteran believes that her current sleep apnea is related to service, as a lay person, the Veteran does not have the specialized training sufficient to render such an opinion. Jandreau, 492 F.3d at 1377. The diagnoses and/or etiology of sleep apnea require medical testing and expertise to determine. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to her current claimed disorder, is a matter that requires medical expertise to determine. Thus, the Veteran's assertions regarding the diagnosis and etiology of sleep apnea, diagnosed several years after service, and service, are of little probative value. In this regard, it is important for the Veteran to understand that the post-service treatment records provide negative evidence against this case. A further VA examination or medical opinion regarding the etiology of her currently diagnosed sleep apnea is not indicated as there is no suggestion that the Veteran's current disorder may be associated with service. Again, there is no competent evidence of sleep apnea in service or within one year following discharge from service. Moreover, there is no competent and probative evidence to show that the Veteran was diagnosed and/or treated for sleep apnea, during or contemporaneous with service and no competent and probative evidence that her current disorder is related to her active duty service. On this record, there is no basis to grant the claim. Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for sleep apnea and that the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for a back disability The Veteran maintains that her current back disability is etiologically related to her active duty service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of chronic and low back pain, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The Veteran's service treatment records (STRs) and service personnel records do not show any reports of an in-service back injury. Moreover, the STRs are silent for any complaints, treatment, or diagnosis of a back condition during active duty service. Post-service treatments show the Veteran complained of back pain late 2013 and received epidural injections for the same. MRI imaging in December 2013 found No evidence of disk bulge, protrusion, canal stenosis or neural foraminal narrowing of the lumbar spine, no critical compressive pathology. See December 2013 VAMC records. The Board acknowledges that a VA medical opinion regarding the etiology of her current back disability has not been obtained. A VA examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Here, we find that a further VA examination for a medical opinion is not warranted. The evidence of record does not indicate that the Veteran's back disability may be associated with the Veteran's time in service. The service and post-service records clearly indicate a back problem that began after her active duty service. The only evidence of record relating the Veteran's condition to service is the Veteran's own general conclusory statements, which does not meet the threshold of an indication that her disabilities are due to service. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Therefore, the Board finds that a remand to obtain a VA examination for this claim is not necessary. Consequently, the Board finds that the weight of the evidence is against a finding of service connection for a back disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49, 54-56. Therefore, entitlement to service connection for a back disability is denied. Entitlement to service connection for psoriasis The Veteran has maintained that her current psoriasis is etiologically related to her active duty service. More specifically, the Veteran has alleged that this condition is secondary to keratoderma. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of 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). As discussed in more detail herein, reopening of the claim of entitlement to service connection for keratoderma has been denied. Therefore, keratoderma cannot serve as the basis of a grant of service connection for headaches. See 38 C.F.R. § 3.310 (a). Accordingly, the claim for service connection for psoriasis as secondary to a service-connected disability must be denied as a matter of law because there is no primary service-connected disability upon which secondary service connection may be granted. However, the Veteran is not precluded from proving entitlement to service connection for this disability on a direct basis. See Combee v. Brown, 5 Vet. App. 248 (1993). The Veteran has a current diagnosis of psoriasis. See November 2016 VA skin diseases examination. The examiner noted the Veteran's diagnosis with the disease as 2006, which is consistent with available service-treatment records showing multiple complaints of skin conditions while in service, to include psoriasis. Treatment records from April 2010, while the Veteran was on active duty, also indicate a diagnosis of, and treatment for, psoriasis. See April 2010 outpatient treatment records. In light of the above, the Board finds the evidence is in equipoise as to whether the Veteran's sleep apnea had its onset in active service. The Board will resolve any doubt in favor of the Veteran. 38 C.F.R. § 3.102; 38 U.S.C. § 5107 (b). Accordingly, the Board finds that the preponderance of the evidence warrants service connection for the Veteran's psoriasis on a direct basis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. New and material evidence not having been received, the Veteran's claim for entitlement to service connection for keratoderma remains denied As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened, and the former disposition reviewed. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to consider all the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that the language of 38 C.F.R. § 3.156 (a) creates a low threshold, and the Court has viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason the claim was last denied but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The record shows that an April 2008 rating decision denied entitlement to service connection for keratoderma. The Veteran did not appeal the rating decision and it accordingly became final. The relevant evidence prior to the previous final denial included the Veteran's service treatment records, treatment records and statements by the Veteran. The relevant evidence received after the previous final denial consists of ongoing treatment records. The evidence received after the previous final denial is "new" in that it was not of record at the time of the prior denial. However, the evidence is not "material" because it does not relate to an unestablished fact necessary to substantiate the Veteran's claim. There is nothing in the newly submitted evidence to show the Veteran's back disability was incurred in or due to her time in service. Therefore, because none of the evidence submitted from the previous final denial is both new and material, the Veteran's claim to reopen her claim for service connection for keratoderma must be denied. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.