Citation Nr: A21020120 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 190617-77999 DATE: December 16, 2021 ORDER Entitlement to service connection for left nasal cavity is denied. Entitlement to service connection for a chest scar is denied. Entitlement to service connection for an abdominal scar is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran does not have a current left nasal cavity disability for VA purposes. 2. The Veteran's chest/abdominal scars are not related to, or proximately due to, active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left nasal cavity have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for chest/abdominal scars have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1985 to October 1988. He appeals a July 2015 rating decision rating denying entitlement to service connection for a nose condition, a stomach condition, and a chest condition. He also appeals a July 2017 rating decision denying entitlement to service connection for sleep apnea. He opted for 90 days to submit additional evidence after a Board hearing under the provisions of the Appeals Modernization Act. 38 C.F.R. § 20.202(b). In June 2021, the Veteran testified before the undersigned Veterans Law Judge via virtual hearing. A transcript is of record. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304, 3.307, 3.309, 3.310. Generally, the evidence must 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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). There is no provision for service connection for residuals of an elective surgery. The Veteran's circumstance post-abdominoplasty & mammoplasty is analogous to the effects of ameliorative surgery during service for a pre-existing disability (and guidelines for adjudicating the claim are provided in 38 C.F.R. § 3.306 (b)(1)). In other words, residuals from an elective surgery will not be considered service connected unless the disease or injury is otherwise aggravated by service. 1. Entitlement to service connection for left nasal cavity. The Veteran seeks entitlement to service connection for a left nasal cavity disorder. After a review of the evidence, the Board finds that service connection is not warranted. Service treatment records from May 1986 show treatment for a 3cm cut on the Veteran's left nasal cavity after falling on a ladder. Some swelling was noted and the Veteran was treated with stitches. No other residual symptoms were noted. Service treatment records are silent for further treatment for the Veteran's nose injury. At separation, he did not report any nasal issues and reported that he was in "good health". To date, no diagnosis for any left nasal cavity condition is of record. As to continuity of symptoms, the Veteran reported at this June 2021 hearing that he primarily suffers from headaches, a diminished sense of smell, and limitations on breathing. However, he admitted that his loss of smell did not begin until several years after separation from service. In addition, a medical note from April 2017 reports that the Veteran has denied ever actually experiences headaches. The Veteran contends that he has experienced occasional difficulty breathing since the in-service injury. Regarding a nexus, The Veteran was afforded a VA examination in October 2017. On that occasion, the VA examiner opined that it is less likely than not that the Veteran's claimed condition is related to the in-service nose trauma from May 1986. The examiner noted that the condition resolved in service and no current diagnosis could be rendered due to a lack of exam/x-ray findings, history, and medical evidence. The Board recognizes the statements from the Veteran regarding his described symptoms and their relation to his claimed left nasal cavity condition. However, though the Veteran is competent to report experienced symptoms, he is not competent to provide a diagnosis or determine that such symptoms are manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the unsubstantiated statements from the Veteran regarding the existence of a left nasal cavity condition that is attributable service are found to lack competency. The Board affords significant weight to the opinion of the October 2017 VA examiner. The opinion was rendered by a qualified medical professional after review of the claims file and application of the evidence to current medical knowledge. In conclusion, a thorough review of the record does not show that the Veteran's claimed left nasal cavity condition is related to active service. Accordingly, service connection is not warranted and the claim is denied. 2. Entitlement to service connection for chest and abdomen scars. The Veteran contends that his chest and abdomen scars are related to service. Specifically, he argues that the procedures that produced that scars should not be considered cosmetic for VA disability compensation purposes. After a review of the evidence, the Board finds that service connection is not warranted. A review of the Veteran's service treatment record notes "relaxed skin from weight loss," noting that the Veteran had lost 130 lbs. in the 18 months prior to enlistment. In September 1987, he underwent mammoplasties and an abdominoplasty to address the pre-service weight loss. No other treatment for post-surgery residuals is noted in the service treatment record. It is clear from the record that the Veteran lost a tremendous amount of weight in order to meet qualification standards for entry into active military service. Unfortunately, the rapid weight loss resulted in gynecomastia and excess abdominal skin. The Veteran reports being harassed about his appearance and several buddy statements show that he was picked on by his friends regarding his appearance. Military personnel records show that the Veteran expressed a desire to change his appearance and his Command approved elective surgery to address his appearance in September 1987. Clinically, "elective" is defined as "subject to the choice or decision of the patient or physician; applied to procedures that are advantageous to the patient but not urgent." Dorland's Illustrated Medical Dictionary 599 (32nd ed. 2012). At the time, the Veteran reported a desire to stay in the service and felt that the surgery would improve his appearance in uniform. His Command approved the surgery as the Veteran appeared "highly motivated." Overall, the Board finds the weight of the evidence is against service connection on a direct basis. Although the Board is sensitive to the Veteran's statements, the fact that he lost weight in order to meet the physical qualifications of the military is not a "disorder" for purposes of VA regulations. Moreover, the evidence shows that his procedure was purely elective in nature. It was not performed to address any urgent injury or ailment, but rather to enhance the Veteran's future in the Navy. Accordingly, service connection is only warranted if the surgery residuals were aggravated by service. The Board finds that it is not. The Board reiterates that VA compensation benefits are not payable for expected residuals from elective procedures. Thus far, the Veteran has not reported any residuals symptoms from the elective surgery other than the natural scars to be expected from such a procedure. The medical evidence does not show any complaints of or treatment for any post-surgery residuals at any time during or after active service. Hence, no current disability has been shown. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a), (b) In conclusion, the Board finds that the elective surgery performed during the Veteran's active service did not result in any ratable disability for VA compensation purposes. The Board notes that there is no evidence of any current disabilities attributable to the elective surgeries. Here, there is no indication that the condition was aggravated by the Veteran's service. Accordingly, the claim must be denied. 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. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. VA's duty to obtain a medical examination regarding a claim for entitlement to service connection has a low bar. The duty is triggered when there is (1) evidence of a current disability, or recurrent symptoms of a disability, (2) evidence establishing an in-service event or injury occurred that would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). That a disability may be related to the in-service event or injury is a low threshold. Upon careful review of the evidence, the Board finds that the duty to obtain a VA examination has been triggered. The Veteran has a current diagnosis of sleep apnea. He contends that he has experienced symptoms of since active service, to include falling asleep frequently during the day and chronic snoring. He has submitted lay statements from family and fellow service members corroborating his claims. Unfortunately, a medical opinion discussing a possible link between the Veteran's sleep apnea and active service has not been obtained. Therefore, there is insufficient evidence to decide the case and remand for a VA examination is necessary. Because this is a predecisional duty to assist error, remand is appropriate. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of his sleep apnea. After record review and examination of the Veteran, the examiner is asked to respond to the following inquiry: (a.) Is it at least as likely as not that the Veteran's sleep apnea had its onset during or is otherwise related to active service? The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The complete rationale for all opinions should be set forth. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Daniel Ballinger, Associate Counsel