Citation Nr: 21076346 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-05 021 DATE: December 23, 2021 ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to service connection for a left foot disability, other than left lower extremity peripheral neuropathy. 3. Entitlement to service connection for a right foot disability, other than right lower extremity peripheral neuropathy. ORDER Entitlement to service connection for obstructive sleep apnea is denied. REMANDED Entitlement to service connection for a left foot disability, other than left lower extremity peripheral neuropathy is remanded. Entitlement to service connection for a right foot disability, other than right lower extremity peripheral neuropathy is remanded. FINDING OF FACT The Veteran does not have a sleep disability including obstructive sleep apnea. CONCLUSION OF LAW A sleep disability including obstructive sleep apnea was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1975 to September 1979. This matter is before the Board of Veterans Appeals (Board) on appeal from a February 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural history, the Board observes that these issues and others were previously remanded by the Board on March 31, 2021 for additional development. In particular, Veterans Law Judge (VLJ) Kilcoyne and Board Associate Counsel determined, "VA obtained records from the Social Security Administration which neither the RO nor the Veteran have had the opportunity to review in the context of this appeal. As such, remand is necessary to afford the Veteran his due process rights." Later that year, an August 2021 Rating decision granted numerous claims. These claim types were service connection, increased rating, Special Monthly Compensation (SMC), and a total disability rating based on individual unemployability (TDIU). The instant appeals reflected on the title page remained denied, and are now back before the Board. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The Veteran and his attorney were sent an August 2021 Supplemental Statement of the Case (SSOC) informing them of the essential evidentiary requirements necessary to substantiate his claims. The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection To establish service connection a Veteran must generally show: "(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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Entitlement to service connection for obstructive sleep apnea The Board incorporates its discussion from the sections above by reference. By way of legal criteria, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board observes that since the February 2017 Rating decision on appeal, there has been a change in the law with regard to impairment due to pain alone. Indeed, Saunders clarified that evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018). The United States Court of Appeals for the Federal Circuit (Federal Circuit) found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." The Board observes that Saunders does not eliminate the need for underlying pathology, disease, or injury (also sometimes called a diagnosis). Later, in Wait v. Wilkie, the United States Court of Appeals for Veterans Claims (CAVC) addressed the question of what is necessary for a claimant to demonstrate that his or her pain or other symptoms cause "functional impairment of earning capacity," and therefore meet the current disability requirement under Saunders. Wait v. Wilkie, 33 Vet. App. 8, 2020 U.S. App. Vet. Claims LEXIS 1609, 2020 WL 5200689. The CAVC held that, to meet the current disability requirement under Saunders, "there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person." The CAVC clarified that the Board must make the factual determination whether the appellant's manifestations rise to the level of a functional impairment in earning capacity. There must still be impairment. Sleep apnea is defined as transient periods of cessation of breathing during sleep. The two primary types are central sleep apnea and obstructive sleep apnea. See Dorland's Illustrated Medical Dictionary, 118 (31st ed. 2007). Obstructive sleep apnea is defined as sleep apnea resulting from collapse or obstruction of the airway with the inhibition of muscle tone that occurs during REM sleep. Id. By way of evidentiary history, the Service Treatment Records (STRs) include an August 1979 Report of Medical Examination from separation. It disclosed a clinically normal evaluation of the nose, sinuses, and mouth and throat. Over several years, the VA treatment records fail to show a diagnosed sleep disability, and instead contain evidence to the contrary. The VA treatment records include a December 2, 2015 Consent for Long-Term Opioids for Pain. It contains the notation that possible known side effects of medication include sleepiness or "slow thinking." The Board notes that this was a disclosure rather than a complaint by this particular Veteran. Indeed, a December 2, 2015 VA Primary Care Attending Note from that same day shows in part, "No sleep apnea. Smokes 1/2 pack per day." Subsequent VA visits for treatment include negative findings for obstructive sleep apnea or similar disability. For example, relatively recent VA treatment records do not show a current sleep disability. The January 29, 2020 VA treatment record on page 331 of 663 of the series reads: Respiratory: Normal Has Veteran ever been diagnosed with sleep apnea? No. Are you having chest pain? No. Recently, an April 1, 2021 VA Neurology Note does not contain any reports of sleep impairment or diagnoses of sleep apnea. It reads in part, "ROS: Denies visual change, dizziness, chest pain, shortness of breath, nausea or vomiting." Additional VA and Social Security Administration (SSA) treatment records are substantially the same. The Veteran contends that he is entitled to service connection for a sleep disability, claimed as obstructive sleep apnea. The Veteran is competent to provide evidence of some symptoms of obstructive sleep apnea, such as difficulty sleeping and gasping for breath, though not an actual "apnea" because one must be awake to observe such. Other lay persons could be competent to report symptoms and sleep difficulties that the Veteran experienced, including apneas, as such symptoms are readily apparent. Jandreau, 492 F.3d at 1372 (lay evidence can be competent and sufficient to establish a diagnosis of a condition when the layperson is reporting a contemporaneous medical diagnosis). The Veteran is competent to relate what he has been told by a professional. Id. He is also competent to report that he has difficulty sleeping. At the outset, we find the lack of objective medical evidence as to the existence and diagnosis for any current sleep disability, including obstructive sleep apnea, to be highly probative. There are no clinical reports or other objective evidence to the contrary. The Veteran and his attorney have had several years to present evidence of a diagnosed sleep condition. We have considered Saunders, but there is no other undiagnosed sleep impairment. Even assuming sleep impairment were identified, though we do not concede this, there is still no link to service (nexus). Specifically, any possible sleep disturbance as a side effect of opioid medication is still not a disability and would not establish a nexus to service. Additionally, a conclusory generalized lay statement that service event or illness caused the claimant's purported disability is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). There is no doubt to resolve. Therefore, service connection for a sleep disability to include obstructive sleep apnea is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching this conclusion, the Board finds that the preponderance of the evidence is against the claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND In light of the Veteran and his attorney's continued pursuit of his appeals, and the evidence of record, a remand is necessary to ensure that the Veteran is afforded due process, and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for a left foot disability, other than left lower extremity peripheral neuropathy is remanded. 2. Entitlement to service connection for a right foot disability, other than right lower extremity peripheral neuropathy is remanded. The Board incorporates its discussion from the sections above by reference. A review of the legal posture and criteria is instructive. First, we note that pain as organic disease of the nervous system is a recognized chronic disease, and as such, additional presumptive theories of entitlement are relevant in addition to direct service connection. See 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board is mindful that Saunders clarified that evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018). In Wait v. Wilkie, the United States Court of Appeals for Veterans Claims (CAVC) addressed the question of what is necessary for a claimant to demonstrate that his or her pain or other symptoms cause "functional impairment of earning capacity," and therefore meet the current disability requirement under Saunders. Wait v. Wilkie, 33 Vet. App. 8, 2020 U.S. App. Vet. Claims LEXIS 1609, 2020 WL 5200689. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. As a threshold consideration, the Veteran is already service-connected for left and right lower extremity neuropathy associated with degenerative joint/disc disease of the lumbar spine pursuant to Diagnostic Code (DC) 8620. These left and right foot appeals remain, exclusive of the pathology and impairment encompassed by the already-granted left and right lower extremity peripheral neuropathy ratings. To the extent there is additional claimed foot pain, the appeals survive exclusive of the peripheral neuropathy associated with the lumbar spine disability. By way of evidentiary history, the VA treatment records include several notations of bilateral peripheral neuropathy in the feet, in addition to post-service injuries to both feet. First, a June 16, 2003 VA Physician Emergency Department Note shows in part: Chief complaint: injury to left feet History of present illness: was mowing loan blade of weed eater fall on left feet. cc of pain can not bear weight. happened yest now more swelling and pain. There was swelling of the feet and tenderness. The physician ordered an x-ray. The physician, S. S. G., also identified pain in the feet. The subsequent x-ray impression reads: CHECKED THE PLAIN X RAY OF FOOT, DOES NOT SEEM TO REVEAL ACUTE CHANGES LIKE FX AND / OR DISLOCATIONA LT FOOT INJURY/ PAIN? BRUISE Next, a September 23, 2005 VA Primary Care Nursing Note shows that the Veteran complained of the arches in his feet hurting at times. An April 11, 2012 VA Telephone Triage note contains the following report: ----last 2 wks, falls daily, all joints ache, difficulty walking, numbness in feet and hands sometimes, "I get all over muscle spasms, it's like I lose control of my muscles, this has been growing over a 5 week period." Later, a June 29, 2018 VA Podiatry Consultation is of record. It reads in part, "Patient is 60 y/o diet dm male PTC for annual foot care appointment. Patient denies any new pain or problems to his feet today. Chart and medications reviewed and Documented." Six months later, a January 6, 2019 VA Physician Emergency Department Note shows: 60 y.o. wm, Hx DM, Infra renal Aortic aneurysm 4.8cm in nov. 2018, now presents to ER with right foot injury resulting from stumbling down the stairs while partially asleep in the dark. He had immediate pain, graded severe. He wasn't able to bear weight because of it. He didn't take any meds or apply ice prior to arrival. ros; no other injuries. From that same date, an Emergency Room Initial Nurse Evaluation describes the following: Chief Complaint: VET GOING DOWN STAIRS, MISSED A COUPLE STEPS ANDHYPEREXTENDED RT GREAT TOE - IMMEDIATE PAIN AND DISCOLORATION TO TOE. NOPAIN IN OTHER TOES, ANKLE OR FOOT. STATES HE DID NOT FALL ALL THE WAYDOWN, DENIES OTHER INJURY OR PAIN. ICE BAG APPLIED IN ER TO AREA. The Veteran described an aching, stabbing pain in the feet. The August 2021 Supplemental Statement of the Case (SSOC) only accepted the 2018 right foot injury, and highlighted the absence of any foot disability in the Social Security Administration (SSA) records. This could be because the prior Remand from VLJ Kilcoyne directed that the RO review these SSA records in the first instance, though it did not preclude a complete review of VA treatment records. As described above, the Veteran complained of and received treatment for the feet over one decade prior to 2018, though not necessarily related to service. He has not yet been afforded a VA examination for the feet. Here, there is a history of demonstrated foot impairment due to pain and post-service foot injuries. Evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018). The aching arches and muscle impairment may be attributable to already-service-connected peripheral neuropathy, or they may represent distinct foot disabilities. VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Moreover, VA must provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The documented foot complaints and treatment have triggered McLendon. Therefore, to fully address the Veteran's contentions, and to assist in fully developing the Veteran's claims, a VA examination with medical opinions for claimed left and right foot disabilities is necessary. The matters are REMANDED for the following action: 1. If the Veteran identifies other evidence, obtain updated copies of the Veteran's VA treatment records, and associate them with the Veteran's claims folder. 2. Please schedule the Veteran for a VA examination to determine the nature and etiology of any left and/ or right foot disability, exclusive of service-connected right and left lower extremity peripheral neuropathy. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran's active military service. The examiner should provide a rationale for all opinions expressed. (Continued on the next page.) 3. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his attorney an appropriate Supplemental Statement of the Case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Bodi, 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.