Citation Nr: 21068793 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 16-13 244 DATE: November 12, 2021 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for right hand numbness is denied. Entitlement to service connection for left hand numbness is denied. FINDINGS OF FACT 1. The Veteran's sleep apnea did not originate in service or until years after service and is not otherwise etiologically related to service. 2. The Veteran's right hand numbness did not originate in service or until years after service and is not otherwise etiologically related to service. 3. The Veteran's left hand numbness did not originate in service or until years after service and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for right hand numbness have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for left hand numbness have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1972 to May 1982. The Veteran also served in the U.S. Army Reserve from May 1982 to September 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied the Veteran's claims. In October 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is in the record. This case was before the Board in November 2019 and October 2020. The Veteran's claims were remanded for further development. The case is now again before the Board for further appellate action. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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); 38 C.F.R. § 3.303. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for sleep apnea is denied. The Veteran contends that he has sleep apnea that is related to an in-service injury, event, or disease. He filed a claim for service connection in January 2011, which was denied by an April 2012 rating decision. A review of the Veteran's service treatment records does not reflect any complaints, findings, or treatment for a sleep disorder. Reports of medical history completed by the Veteran in March 1977 and April 1982 documented the Veteran's negative responses to whether he ever had frequent trouble sleeping. The April 1982 report of medical history reported that the Veteran has difficulty catching his breath. An April 1982 separation report of medical examination did not report any sleep problems. At the time of the examination the Veteran weighed 160 pounds. After his discharge from active service, the Veteran served in the U.S. Army Reserve from May 1982 to May 1994. Reports of medical history completed by the Veteran in March 1986, November 1989, and February 1994 documented the Veteran's negative responses to whether he ever had frequent trouble sleeping or shortness of breath. An August 2005 private health assessment reported the Veteran had no shortness of breath and no history of asthma or wheezing. A review of the Veteran's genitourinary system reported nocturia of one time with no change in pattern. The Veteran did not report any trouble sleeping. The assessment noted that Veteran was 217 pounds and had gained 30 to 40 pounds in the last three years. A January 2011 private medical record reported that a sleep study revealed symptoms consistent with severe obstructive sleep apnea. The Veteran's weight was reported as 221 pounds. In August 2016, the Veteran submitted a VA Form 9, Appeal to Board of Veterans' Appeals, in which he expressed that he suffered from sleep problems since the late 1970s but did not want to inform his superiors of the problem out of concern for his promotion potential. In December 2018, the Veteran submitted a lay statement from Major H.M., who reported that he served with the Veteran in Korea from 1972 to 1976. He stated that he recalled witnessing the Veteran snoring so heavily in-service that he would awaken himself. According to Major H.M., the Veteran seemed "moody, easily irritated, with headaches, tired and sleepy." The Veteran was afforded a VA sleep apnea examination in April 2021. The Veteran was diagnosed with obstructive sleep apnea. He reported that roommates would tell him that he used to snore very loudly along with gasping in the middle of the night which would affect him during the day as he would have headaches, fatigue, and sleepiness. He did not seek treatment and thought it was just normal. He reported the symptoms continued after service. He had a sleep study in 2010 that showed severe obstructive sleep apnea. The examiner opined that the Veteran's sleep apnea is less likely than not (50 percent or greater probability) incurred in or caused by an in-service injury, event, or illness. As rationale, the examiner explained that snoring and breathing pauses are not sufficient for a diagnosis of sleep apnea without a sleep study and the Veteran was not diagnosed with sleep apnea by a sleep study until 28 years after service. As previously described, the Veteran's service medical records do not reflect any complaints, findings, or treatment for any conditions related to sleep apnea. An April 1982 separation report of medical examination did not report any sleep problems. Moreover, the Veteran explicitly denied having frequent trouble sleeping in 1982, 1986, 1989, and 1994. The April 1982 separation report of medical history documented the Veteran's report of having difficulty catching his breath but no frequent trouble sleeping. Reports of medical history completed by the Veteran in March 1986, November 1989, and February 1994 documented the Veteran's negative responses to whether he ever had frequent trouble sleeping or shortness of breath. The Board acknowledges that the Veteran has expressed that he suffered from sleep problems since the late 1970s but did not want to inform his superiors of the problem out of concern for his promotion potential. However, on the Veteran's April 1982 separation report of medical history, he disclosed a number of medical problems, including eye trouble, hearing loss, leg cramps, frequent indigestion, painful shoulder, and foot trouble. Notably, the Veteran indicated on this report of medical history that he did not have frequent trouble sleeping. An August 2005 private health assessment reported the Veteran had no shortness of breath and did not report any trouble sleeping. The Veteran was first diagnosed with sleep apnea by a January 2011 sleep study. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000; see also Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). A lay person is competent to address etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the record dates a diagnosis of sleep apnea to more than 28 years after separation from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his sleep apnea. Consequently, the Board gives more probative weight to the April 2021 examination report and medical opinion. After reviewing the Veteran's claims file and examining the Veteran, the examiner opined that the Veteran's sleep apnea is less likely than not incurred in or caused by an in-service injury, event, or illness. As rationale, the examiner explained that snoring and breathing pauses are not sufficient for a diagnosis of sleep apnea without a sleep study and the Veteran was not diagnosed with sleep apnea by a sleep study until 28 years after service. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for sleep apnea. 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 Veteran's claims, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran's claim for sleep apnea must be denied. 2. Entitlement to service connection for right hand numbness is denied. 3. Entitlement to service connection for left hand numbness is denied. The Veteran contends that he has bilateral hand numbness that is related to an in-service injury, event, or disease. He filed a claim for service connection for bilateral hand numbness in January 2011, which was denied by an April 2012 rating decision. A review of the Veteran's service treatment records does not reflect any complaints, findings, or treatment for hand numbness. An April 1982 report of medical examination reported the Veteran's upper extremities were normal. An April 1982 separation report of medical history documented the Veteran's report that he had not had any neuritis or paralysis. The Veteran complained of shoulder pain but no hand pain or numbness. A March 1986 report of medical history documented the Veteran's report that he had not had any neuritis or paralysis. The Veteran reported "I am in good health and take vitamins on a daily basis." A November 1989 report of medical history documented the Veteran's report that he had not had any neuritis or paralysis. Other than reporting three occurrences of gout in his left lower extremity, the Veteran reported he considered himself to be in good health and did not have any serious medical defects. A February 1994 report of medical history documented the Veteran's report that he had not had any neuritis or paralysis. A February 1994 report of medical examination reported the Veteran's upper extremities were normal. An August 2005 private health assessment reported that an examination of the Veteran's extremities found no edema and pulses intact. No complaints of hand numbness were reported. A December 2007 private medical record documented the Veteran's report of experiencing pain in his right elbow for two months. He reported experiencing right elbow pain the day prior to the visit after doing some painting. No complaints of hand numbness were reported. A December 2009 private health assessment report indicated that a routine physical examination was conducted by a physician. The past medical history did not list hand numbness. An examination of the Veteran's extremities reported normal pulses and no abnormalities. The sensory system was reported to be intact. No complaints of hand numbness were reported. A January 2010 private medical record reported the Veteran was experiencing right elbow pain. The pain began a day after being on his knees and elbows to work on a toilet pipe. He also reported experiencing some tingling in the right "3-5th fingers." Some swelling in the Veteran's right hand fingers was noted. In January 2011, the Veteran completed a VA Form 21-526 that included a service connection claim for bilateral hand numbness. A July 26, 2013 VA treatment record documented the Veteran's complaint of radiating pain, paresthesias, and numbness in the right upper extremity for a few months. He reported he was also starting to have symptoms on the left side. He experienced mild swelling in the right upper extremity on and off, increased nocturnal paresthesias, and mild neck pain. In July 2013, the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, in which he reported that, during his more than 25 years of military service, he was continuously subjected to vigorous physical training activities. According to the Veteran, "[a]ll this military and combat related activities and 25+ years of military service took a toll on both my shoulders, upper and lower arms, hands and fingers. I now have constant pain in both of my arms, upper and lower arms, hands and fingers. On a daily basis I experience muscle spasms, swelling, numbness, weakness and bruising on my shoulders, arms, hands and fingers." The Veteran was afforded a VA examination of his peripheral nerves in May 2016. The examiner diagnosed the Veteran with bilateral carpal tunnel syndrome with a date of diagnosis of 2013. The Veteran reported that he first noticed the numbness and tingling in both hands while in Korea in 1975. He reported the condition has progressed and that he now has constant pain and numbness in his hands. The Veteran was afforded another VA examination of his peripheral nerves in April 2021. The Veteran reported symptoms of burning, tingling and numbness to his hands and fingers. In 2016, he had an electromyography/nerve conduction velocity study that confirmed bilateral carpal tunnel syndrome. He had a right carpal tunnel release surgery in November 2016. Veteran reports that he started experiencing bilateral hand numbness in 1975, while he was in active duty. He recalls the condition of numbness and tingling of hand and fingers, which he claimed were reported in his separation exam. He believes the strenuous airborne and field duty attributed to his numbness. Upon examination, the examiner reported that the Veteran experienced mild constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in his right and left upper extremities. The examiner noted that the Veteran's right and left hand numbness were symptoms and not diagnoses. The examiner diagnosed the Veteran with left carpal tunnel syndrome and right carpal tunnel release. The examiner opined that the Veteran's bilateral hand numbness is less likely than not (50 percent or greater probability) incurred in or caused by an in-service injury, event, or illness. Explained that electrodiagnostic testing of the upper extremity nerves in 2016 showed that the nerve causing his symptoms of numbness, pain and tingling in the right and left hand were the median nerves and the diagnosis was carpal tunnel syndrome. The examiner explained there has been no evidence of a wrist, hand, or carpal tunnel that was found during service. To say that the Veteran injured his wrist during a parachute jump would be mere speculation since no evidence of x-ray, treatment record, report of injury, or an existing condition during service. As previously described, the Veteran's service medical records do not reflect any complaints, findings, or treatment for any conditions related to hand numbness. An April 1982 separation report of medical examination reported the Veteran's upper extremities were normal. An April 1982 separation report of medical history documented the Veteran's report that he had not had any neuritis or paralysis. The Veteran complained of shoulder pain but no hand pain or numbness. Reports of medical history completed by the Veteran in March 1986, November 1989, and February 1994 documented the Veteran's negative responses to whether he ever had neuritis or paralysis. Medical examination reports completed in March 1986, November 1989, and February 1994 all report the Veteran's upper extremities were normal with no complaints of hand numbness. An examination of the Veteran's extremities in December 2009 reported normal pulses and no abnormalities. The sensory system was reported to be intact. No complaints of hand numbness were reported. The first evidence of a hand disorder was when the Veteran complained of tingling in the fingers of his right hand after being on his elbows working on a toilet pipe in January 2010. One year later, the Veteran filed a service connection claim for bilateral hand numbness in January 2011. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000; see also Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). At the Veteran's May 2016 VA peripheral nerves examination, he reported that he first noticed the numbness and tingling in both hands while in Korea in 1975. At the Veteran's April 2021 VA peripheral nerves examination, he reported that he experienced bilateral hand numbness on active duty and the conditions were reported in his separation examination. In the Veteran's August 2016 substantive appeal, he expressed that, during his April 1982 medical examination, the Army doctor clearly stated that he had numbness in his legs and hands and that he had bad circulation. However, the April 1982 separation medical examination reported the Veteran's upper extremities were normal and the April 1982 report of medical history documented the Veteran's report of having no neuritis or paralysis. While he complained of circulation in his legs, there is no mention of any problems with his hands on the April 1982 report. In consideration of the review of the evidence of record described above, the Board does not find the Veteran's statements that he experienced bilateral hand numbness in service to be credible. A lay person is competent to address etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the first documented complaint of hand numbness was than 27 years after separation from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his bilateral hand disorder. Consequently, the Board gives more probative weight to the April 2021 examination report and medical opinion. After reviewing the Veteran's claims file and examining the Veteran, the examiner opined that the Veteran's current bilateral carpal tunnel syndrome is less likely than not incurred in or caused by an in-service injury, event, or illness. As rationale, the examiner explained that there has been no evidence of a wrist, hand, or carpal tunnel that was found during service. To say that the Veteran injured his wrist during a parachute jump would be mere speculation since no evidence of x-ray, treatment record, report of injury, or an existing condition during service. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for for right hand numbness and left hand numbness. 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 Veteran's claims, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran's claims for right hand numbness and left hand numbness must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore, 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.