Citation Nr: 21064997 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-15 007 DATE: October 22, 2021 ORDER Entitlement to service connection for a left foot disorder is denied. Entitlement to service connection for a right foot disorder is denied. Entitlement to service connection for obstructive sleep apnea is denied. FINDING OF FACT The preponderance of the evidence shows that left and right foot disorders as well as obstructive sleep apnea were not present in service or until many years thereafter, are not caused by an injury while serving with a Reserve Component, they are not related to service or to an incident of service origin, and obstructive sleep apnea was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for left and right foot disorders as well as obstructive sleep apnea have not been met. 38 U.S.C. §§ 101, 106, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty with the United States Army from November 1990 to December 1997. The Veteran also had service with a Reserve Component. In January 2019, the Board of Veterans' Appeal (Board) Remanded the appeal. In May 2020, a Veterans' Law Judge not the undersigned issued a Board decision that, among other things, denied service connection for left and right foot disorders as well as for obstructive sleep apnea. The Veteran appealed the May 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 order, that incorporated the parties Joint Motion for Remand (JMR), the Court vacated and remanded the Board's May 2020 decision to the extent that it denied service connection for left and right foot disorders as well as for obstructive sleep apnea. In May 2021, the Board remanded the appeal. The Concerns Raised by the JMR and Post-Remand Compliance As to the concerns raised in the JMR and post-Remand compliance, the Board finds that the post-Remand development substantially complied with both because it finds that the VA examinations obtained in August 2021 provides all needed information to adjudicate the claims under all theories of entitlement because they considered the competent and credible lay claims regarding observable symptomatology, the in-service and post-service medical record, included an aggravation as to the obstructive sleep apnea claim, and because the opinion are supported by medical reasoning. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order); ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). The Board also finds that the post-Remand development substantially complied with the Remand because all identified and available VA and private treatment records were obtained and associated with the claims file including the VISTA records identified in the JMPR which were obtained in February 2021 and from Dr. Green of Chattanooga Ear, Nose & Throat which were obtained in July 2021. See 38 U.S.C. § 5103A(b); Stegall, supra. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with new VA examinations or to obtain additional medical records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Further development or analysis does not serve the interests of the Veteran or the VA. The Service Connection Claims The Veteran claims that he is entitled to service connection for left and right foot disorders as well as obstructive sleep apnea because, in substance, they are due to his military service. As to the obstructive sleep apnea, he also claims it is due to his service-connected allergic rhinitis and/or sinusitis. 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, 1110. 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 U.S.C. § 1110; 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. 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, 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). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). 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). Initially, the Board notes that the record shows the Veteran being diagnosed with left and right foot pes planus, arthritis, and heal spurs a well as obstructive sleep apnea. See, e.g., VA examinations dated in May 2019 and August 2021; private sleep study dated in September 2017. Next, the Board finds that the Veteran is competent to report on the events he experienced while on active duty as well as manifestations of his disabilities. See Davidson, supra. However, service and Reserve Component treatment records, including the September 1997 separation examination and August 1998 Annual Medical Certification, are negative for injuries, history, complaints, diagnoses, or treatment for left and right foot disorders as well as obstructive sleep apnea. See Colvin, supra. In fact, the Veteran denied having a history of swollen or painful joints, lameness, foot trouble, and frequent trouble sleeping at his September 1997 separation examination. Moreover, on examination in September 1997 it was opined that his neck, nose, mouth, throat, lungs, and feet were normal; these medical opinions are not contradicted by any other medical evidence of record. Id. Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty or an injury while service with a Reserve Component that caused his current left and right foot disorders as well as obstructive sleep apnea. See 38 U.S.C. § 101, 106, 1110; 38 C.F.R. § 3.303(a). In this regard, the Board finds that the detailed service record, which documents the Veteran's complaints, diagnoses, or treatment for a number of other problems weights against his current claims that he had problems with observable symptoms of left and right foot disorders as well as obstructive sleep apnea while on his last period of active duty almost 20 years ago. See Owens, supra. Overall, the Board must find the service records provide unusually highly probative evidence against these claims because they are very detailed, clearly indicating that the Veteran did not have left and right foot disorders as well as obstructive sleep apnea while on active duty. In this regard, it is important for the Veteran to understand that at this point it is the Veteran himself that provides evidence against his claims. As to service connection for left and right foot disorders based on the presumptions found at 38 C.F.R. § 3.309(a), the record does not show that arthritis of either foot manifested in the first year following his separation from a qualifying period of active duty. Therefore, the Board finds that the presumptions found at 38 C.F.R. § 3.309(a) do not help the Veteran establish service connection for left and right foot disorders. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307. Next, the Board will consider whether the Veteran is entitled to service connection for left and right foot disorders as well as obstructive sleep apnea due to continuity of symptomatology under 38 U.S.C. § 1110; 38 C.F.R. § 3.303(b). However, the post-service record does not show that the Veteran had a continued problem with left and right foot disorders as well as obstructive sleep apnea in and since his last period of active duty almost 20 years ago. In fact, as noted above, service treatment records, including the September 1997 separation examination and August 1998 Annual Medical Certification, are negative for injuries, history, complaints, diagnoses, or treatment for left and right foot disorders as well as obstructive sleep apnea; providing highly probative evidence against the claims. See Colvin, supra. In fact, as noted above, at the September 1997 separation examination the Veteran denied having a history of swollen or painful joints, lameness, foot trouble, and frequent trouble sleeping and on examination it was opined that his neck, nose, mouth, throat, lungs, and feet were normal. Id. Likewise, and as important, the post-service is negative for any complaints, diagnoses, or treatment for left and right foot disorders as well as obstructive sleep apnea until 2016; almost two decades after the Veteran's 1997 separation from his last period of active duty. See, e.g., VA treatment records dated in March 2016 and June 2016; private sleep study dated in September 2017. In this regard, and as noted by the May 2019 VA examiner, while the February 2017 VA treatment records that first documented the Veteran's complaints, diagnoses, or treatment for obstructive sleep apnea also reported that the onset date was 10 to 15 years prior, this would still place its' onset date between 2002 and 2007 which is many years after his 1997 separation from his last period of active duty. The Board also finds it significant that at no time in any of his in-service or pre-2016 post-service medical record did the Veteran report first injuring his feet and/or having problems with obstructive sleep apnea while on active duty in the and/or had continued problems since active duty which ended almost 20 years earlier. In this regard, and as noted by Judge Toth in Davis v. McDonough, No. 20-3267 (September 22, 2021), the Board's duty as fact finder is to determine whether the evidence shows that the principal fact is true with a degree of certainty that satisfies the requisite standard of proof. See Holland v. U.S., 348 U.S. 121, 140 (1954); Also see Journal, 11 Nov. 1850, in 2 Journal of Henry D. Thoreau 94 (Bradford Torrey & Francis H. Allen eds., 1962). Given this record, the Board finds that the evidence in the form of the service medical records and the post-service medical evidence provides highly probative evidence, overall, against these claims which evidence the Board finds more probative than the Veteran's claims that he had observable symptoms of left and right foot disorders as well as obstructive sleep apnea in service and since that time. See Owens, supra. For the reasons noted above, the Board finds that the post-service medical records provide highly probative evidence against these claims. Id. The service and post-service records in this case provide particularly negative evidence against these claims (both are highly detailed; clearly indicating problems that began years after service). Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with left and right foot disorders as well as obstructive sleep apnea in and since his last period of active duty service almost 20 years earlier. See 38 U.S.C. §§ 101, 106, 1110; 38 C.F.R. § 3.303(b). The Board also finds that the preponderance of the evidence shows that the Veteran's current left and right foot disorders as well as obstructive sleep apnea are not due to his military service. See 38 U.S.C. §§ 101, 106, 1110; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In this regard, the May 2019 VA examiner opined that the Veteran's obstructive sleep apnea is not due to his military service. Likewise, and as discussed in part above, the August 2021 VA examiner opined that the left and right foot disorders are not due to his military service. Moreover, the Board finds these opinions the most probative evidence of record for the following reasons: they considered the service treatment records and the post-servicer treatment records; they considered the appellant's competent and credible claims regarding observable symptoms; they considered the in-service and post-service medical records; they took into account all theories of entitlement; the opinions are supported by medical reasoning as well as controlling medical literature; and because they are not contradicted by any other medical evidence of record. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran's position); Owens, supra; Colvin, supra. The Board also finds that the Veteran is not competent to provide the missing nexus opinions because he does not have the required medical expertise to provide answers to these complex medical questions (i.e., what caused the current left and right foot disorders as well as obstructive sleep apnea). See Davidson, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's left and right foot disorders as well as obstructive sleep apnea are not due to his military service. See 38 U.S.C. §§ 101, 106, 1110; 38 C.F.R. § 3.303(d); also see Rabideau, supra. In this regard, the key question in this case is not if the Veteran had a disease or injury while on active duty or an injury while serving with a Reserve Component or if he currently has left and right foot disorders as well as obstructive sleep apnea. The key issue is whether any disease or injury the Veteran had during his last period of active duty almost 20 years ago or an injury while serving with a Reserve Component was at least as likely as not (a 50 percent or greater chance) the cause of the current problems. The fact that he may, or may not, have had feet and sleep problems while on active duty and/or while serving with a Reserve Component does not always provide the basis to find that his current left and right foot disorders as well as obstructive sleep apnea are the result of that disease and/or injury from almost 20 years ago. Sometimes, in some cases, the best evidence provides evidence against such claims. In this case, the Board finds that there is now significant evidence in this record, in both the service and post-service (and sometimes the Veteran's own statements), that provides highly probative evidence against the claims that clearly outweigh all evidence that supports the claims. See Owens, supra. The Board next finds that the preponderance of the evidence shows that the Veteran's obstructive sleep apnea is not caused or aggravated by his already service-connected allergic rhinitis and/or sinusitis. See 38 U.S.C. §§ 101, 106, 1110; 38 C.F.R. § 3.310; Also see Allen, supra; Wallin, supra; Ward, supra. In this regard, and as discussed in part above, the Board finds that the May 2019 and 2021 VA examiners opinions, when taken together, provide competent and credible opinions as to the Veteran's obstructive sleep apnea not being caused or aggravated by his service-connected allergic rhinitis and/or sinusitis. Moreover, the Board finds these opinions the most probative evidence of record for the following reasons: they considered the service treatment records and the post-servicer treatment records; they considered the appellant's competent and credible claims regarding observable symptoms; they considered the in-service and post-service medical records; they took into account all theories of entitlement; the opinions are supported by medical reasoning as well as controlling medical literature; and because they are not contradicted by any other medical evidence of record. See Owens, supra; Guerrieri, supra; Wray, supra; ElAmin, supra; Colvin, supra. In reaching the above conclusion, the Board has not overlooked the fact that some of the Veteran's treatment records noted problems sleeping due to his service connected allergic rhinitis and/or sinusitis. For example, a November 2017 VA treatment note documented complaints of waking every one-to-two hours and having difficulty with CPAP due to sinus congestion. However, these treatment records, including those surrounding May 2019 nasal surgery, do not ever include a medical opinion that the Veteran's sinus congestion due to his service-connected disability sinusitis caused or aggravated the effects of his obstructive sleep apnea. Therefore, the Board finds that they are not pertinent to the secondary service connection question. See Owens, supra. The Board again finds that the Veteran is not competent to provide the missing nexus opinions because he does not have the required medical expertise to provide an answer to this complex medical question (i.e., what caused and/or aggravated his current obstructive sleep apnea). See Davidson, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's obstructive sleep apnea ais not secondary to a service connected disability. See 38 U.S.C. §§ 101, 106, 1110; 38 C.F.R. § 3.310; Also see Allen, supra; Wallin, supra; Ward, supra. It is vital for the Veteran to understand that the Board has taken his concerns seriously (it was the bases of the Board Remands), however, there is now overwhelming medical and factual evidence against these claims from the VA examiners that the Board cannot ignore. The service and post-service treatment records, as noted above, also have been found by the Board to provide highly probative evidence against these claims, beyond the medical opinions in this case that also provide evidence against these claims. There is no basis to assume that yet another medical opinion in this case will provide a basis to grant these claims, in light of this record. With regard to any contention from the Veteran that he has had both problem for over 20 years, the Board must find that any such statement by the Veteran would be outweighed by the evidence of record. Therefore, the Board finds that the claims of service connection for left and right foot disorders as well as obstructive sleep apnea are denied. 38 U.S.C. §§ 101, 106, 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. (Continued on the next page) In reaching all the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claims, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.