Citation Nr: 21063652 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 18-48 926 DATE: October 15, 2021 ORDER 1. The appeal concerning the issue of entitlement to service connection for residuals of a traumatic brain injury (TBI) is dismissed. 2. Entitlement to service connection for radiculopathy of the left lower extremity is denied. 3. Entitlement to service connection for obstructive sleep apnea, to include on a secondary basis, is denied. FINDINGS OF FACT 1. Prior to the promulgation of a Board decision in the appeal, at the July 2021 Board hearing, the Veteran withdrew his appeal concerning the issue of entitlement to service connection for residuals of a TBI. 2. The Veteran has not been diagnosed to have radiculopathy of the left lower extremity during the pendency of his claim. 3. Obstructive sleep apnea was not diagnosed in service or until many years thereafter; and it has not been linked by probative evidence to service, or service connected disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to service connection for residuals of a TBI have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2020). 2. The criteria for entitlement to service connection for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). 3. The criteria for service connection for obstructive sleep apnea, to include on a secondary basis, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1997 to August 2006. This case is before the Board of Veterans' Appeals (Board) on appeal from September 2017, January 2018, and April 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Withdrawal The appeal concerning the issue of entitlement to service connection for residuals of a TBI is dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, a substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. At the July 2021 Board hearing, the Veteran withdrew his appeal concerning the issue of entitlement to service connection for residuals of a TBI. Hence, there remain no allegations of errors of fact or law for appellate consideration regarding this issue. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran may be competent in certain situations to provide a diagnosis of a simple condition; however, the Veteran is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement for service connection for radiculopathy of the left lower extremity is denied. The Veteran contends that he has radiculopathy of the left lower extremity that is related to his military service. Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of a disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). In the instant case, the Board notes that post-service treatment records are silent regarding any complaints, diagnoses, or symptomatology related to the claimed condition. Indeed, there is no evidence to support that a current disability exists regarding radiculopathy of the left lower extremity. The Board notes that an August 2017 VA back examination did not reveal any radicular symptoms of the left lower extremity. Thus, the probative evidence of record fails to demonstrate a current diagnosis related to the claimed radiculopathy of the left lower extremity. Although the Board has also considered the Court's holding in Romanowsky, supra, there is also no probative evidence of a recent diagnosis of this disability prior to the Veteran's claim, nor evidence of functional impairment attributed to such a condition. The Board has considered the Veteran's testimony that he experiences pain and numbness radiating from his left hip down to his left foot. See July 2021 Board Hearing Transcript p. 8-9. However, the evidentiary record does not reflect that such symptoms have been attributed to a specific disability, or produced functional impairment. The Board notes that the Veteran is competent to report his own symptoms or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (the Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because he was a layperson, conflicts with Jandreau). However, the matter of a medical diagnosis for a disability not capable of lay observation, such as that at issue here, is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Specifically, a diagnosis of radiculopathy involves medical subjects concerning internal processes extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of specialized testing. In the instant case, there is no suggestion that the Veteran has had any medical training. Therefore, as the Veteran does not have the appropriate medical training and expertise to competently self-diagnose this condition, the lay assertions in this regard have no probative value. Jandreau, supra at 1377 n.4 ("[s]ometimes 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"); see also Woehlaert, supra. There is also no persuasive evidence that he has symptoms that result in any functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Thus, where, as here, the probative evidence indicates that the Veteran does not have a current diagnosis of radiculopathy of the left lower extremity for the entire appeal period; there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for radiculopathy of the left lower extremity. As such, that doctrine is not applicable in the instant appeal, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for obstructive sleep apnea, to include on a secondary basis, is denied. Post-service treatment records indicate that the Veteran has been diagnosed to have obstructive sleep apnea. See March 2018 VA Examination Report. However, the Board finds that service connection for this condition is not warranted. The preponderance of the evidence shows that the claimed disability is not related to the Veteran's active duty or a service-connected condition. There is no competent evidence of record indicating that the diagnosed condition is due to any disease or injury from military service. The Board notes that the Veteran has reported difficulty sleeping during service, to which he attributes his current diagnosis of obstructive sleep apnea. His service treatment records documented reports of difficulty sleeping in August 2004. See Report of Medical History dated August 9, 2004. However, no complaints or diagnoses related to sleep apnea were reported during service, and the record does not include probative evidence linking the Veteran's sleep apnea to service. No documentary evidence has been submitted in support of the claim, and the Veteran's lay opinion concerning this matter requiring medical expertise is not competent evidence of a nexus. See Jandreau, supra. Following an examination in March 2018, a VA examiner opined that the claimed condition was less likely than not related to military service and concluded that the Veteran's in-service reports of difficulty sleeping were consistent with his mental health issues at that time. The examiner further noted that the Veteran did not report symptoms related to sleep apnea until 2014. The Board acknowledges the Veteran's representative's contention that the sleep apnea may be related to medications prescribed for service-connected conditions. However, there is no medical support in the record for that contention. That being the case, the threshold requirement to obtain a medical opinion on the question has not been met. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). (Continued on the next page) In this case, the preponderance of the evidence is against entitlement to service connection for obstructive sleep apnea. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the Veteran's claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.