Citation Nr: 21005932 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-43 361 DATE: February 2, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected disease or injury is denied. Entitlement to service connection for a right knee disability, as a separate ratable entity, is denied. Entitlement to service connection for a left knee disability, as a separate ratable entity, is denied. REMANDED Entitlement to service connection for allergic rhinitis is remanded. FINDINGS OF FACT 1. Sleep apnea is not currently manifest and did not manifest at any point during the appeal period. 2. Right and left knee pain has been attributed to fibromyalgia, a service-connected disability. 3. A right knee disability, other than fibromyalgia, manifested by functional impairment did not have its onset in service and is not attributable to service. 4. A left knee disability, other than fibromyalgia, manifested by functional impairment did not have its onset in service and is not attributable to service. CONCLUSIONS OF LAW 1. Sleep apnea was not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2019). 2. A separate right knee disability was not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2019). 3. A separate left knee disability was not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from May 2003 to October 2003 and active duty October 2004 to January 2006. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board in part denied the Veteran’s allergic rhinitis, right knee disability, and left knee disability claims. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In May 2020, the Court issued a Memorandum Decision that set aside the December 2018 Board decision as to the denial of the allergic rhinitis, right knee disability, and left knee disability claims and remanded the claims. The case has been returned to the Board for compliance with the directives contained in the May 2020 Memorandum Decision. The Board remanded the Veteran’s claim of service connection for sleep apnea in December 2018 and July 2019. The Veteran’s claims folder has returned to the Board for further appellate consideration. Service Connection Pertinent legal criteria Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran 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”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board notes that the Veteran has not claimed that her disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. Sleep apnea The Veteran contends that she has sleep apnea that is related to service or is alternatively secondary to service-connected posttraumatic stress disorder (PTSD). She has not contended, nor does the evidence otherwise show, that the sleep apnea is secondary to her service-connected fibromyalgia or tinnitus. The evidence of record establishes that the Veteran does not have a current sleep apnea disability. In this regard, a VA sleep study dated December 2019 did not reveal an assessment of sleep apnea. On the contrary, the examining provider noted that the results indicated normal findings. Also, a VA examiner reviewed the record to include the December 2019 sleep study and similarly concluded that the Veteran does not have a current sleep apnea disability. The Board finds the December 2019 VA evaluation and January 2020 VA examination report to be of great probative value as they were based on thorough examination of the Veteran to include a sleep study as well as review of the Veteran’s medical history. The Board acknowledges that a VA examiner opined in a February 2015 sinusitis, rhinitis, and other conditions of the nose, throat, larynx and pharynx report that the Veteran “appears to have a medical sleep disorder, a sleep apnea.” However, the examiner also noted that the sleep disorder needs to be properly evaluated and treated. Indeed, the examiner herself did not conduct any sleep apnea testing at that time. Moreover, such medical evidence which is speculative and inconclusive cannot support a claim. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Accordingly, the Board finds that the February 2015 VA examination report is of minimal probative value with regard to whether the Veteran has a current sleep apnea disability and is greatly outweighed by the December 2019 VA evaluation and January 2020 VA examination report. In this case, the Board finds that the most probative evidence weighs against finding that the criteria have been met for a current sleep apnea disability. In this regard, the Board finds it highly probative that the VA medical findings in December 2019 and January 2020 do not document any objective evidence of such and that such findings were based on thorough examination. The Board has considered the Veteran’s statements that she has sleep apnea. The Veteran is competent to provide evidence of that which she experiences, including her symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, 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)); Kahana v. Shinseki, 24 Vet. App. 428, 433, n.4 (2011). However, competence must be distinguished from probative weight. Although the Veteran is competent to relate what she experiences through the senses, the lay evidence is lacking in detail to support the conclusion that there is a current sleep apnea disability. The Veteran’s lay assertions are therefore afforded less probative weight, and less credibility than the VA medical findings. In this instance, the Board concludes that the most probative evidence establishes that the Veteran does not have a sleep apnea disability due to disease or injury. The existence of a current disability is the cornerstone of a claim for VA disability benefits. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Therefore, in the absence of current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, there is no disability that resulted from a disease or injury. Under the circumstances, the Veteran has not met the regulatory requirements to establish service connection for sleep apnea under any theory of entitlement and service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Here, however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Right and left knee disabilities With respect to the Veteran’s claims of service connection for right and left knee disabilities, the May 2020 Memorandum Decision noted that the Board, in denying the Veteran’s claims, failed to consider her lay statements regarding knee pain as evidence of functional impairment. In this regard, the Veteran reported during a February 2015 VA examination that her knees are “shot” and that she has trouble lifting. Although the Board noted that pain can be a disability where there is functional impairment and found that the Veteran’s knee pain does not result in functional impairment, the Board did not address any evidence beyond the February 2015 examiner’s opinion and did not specifically consider this lay statement. The Veteran contends that she has right and left knee disabilities that are related to service. The Board notes that the Veteran was treated for right knee pain in July 2003 and September 2003. Further, she was treated for bilateral knee pain in November 2004, and an X-ray report at that time revealed normal findings. Also, a November 2005 knee X-ray revealed a probable small suprapatellar right effusion but no fracture. The remainder of the Veteran’s service treatment records are absent complaints of or treatment for a right or left knee disability. The Board acknowledges the Veteran’s report that she has right and left knee pain that results in functional impairment, in particular impairment that results in the inability to lift objects. The Board has no reason to doubt the Veteran’s report that she experiences functional impairment due to her knee pain and finds that such statements are consistent with the record. The Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the competent and probative evidence of record is against a finding that the Veteran’s right and left knee disabilities, as separate ratable entities, are related to her service. Specifically, a VA medical opinion was obtained in February 2015 as to the etiology of the Veteran’s right and left knee disabilities. After review of the Veteran’s medical history, the VA examiner indicated that it is less likely than not that the Veteran has right or left knee disabilities that are due to service. The examiner’s rationale for her opinion was based on her finding that the knee pain resolved upon separation from service and there was no mention of knee pain following the Veteran’s separation from service until 2013. The examiner further opined that the Veteran’s knee pain is a symptom from her service-connected fibromyalgia. The February 2015 VA examiner’s opinion was based upon thorough analysis of the Veteran’s entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”]. Additionally, the VA examiner’s opinion is consistent with the Veteran’s documented medical history, which is absent any report of right or left knee disability for more than five years following the Veteran’s separation from service. The Veteran has not submitted a medical opinion to contradict the VA examiner’s opinion that her current right and left knee disabilities are not related to service or unrelated to fibromyalgia. The Veteran has been accorded ample opportunity to present competent medical evidence in support of her claims. She has not done so. See 38 U.S.C. § 5107(a) (2012) [it is the claimant’s responsibility to support a claim for VA benefits]. In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). “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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). The Board notes statements from the Veteran indicating she has right and left knee disabilities that are is related to service. To the extent the Veteran assert she has right and left knee disabilities that are related to his service, she is competent to report functional impairment of the knees. She is also competent to report that she has had symptoms since service. However, the Veteran’s December 2005 separation examination revealed normal findings of the knees. The Board also finds that the Veteran’s statements do not outweigh the opinion of the VA examiner who considered the Veteran’s medical history and thereafter indicated that the Veteran does not have current right and left knee disabilities that are related to service, other than service-connected fibromyalgia. Thus, these arguments do not outweigh the specific findings of the VA examiner who is a skilled neutral professional. Here, the evidence establishes that she has knee pain with use. However, underlying disease or injury, other than fibromyalgia, to account for the pain has not been established in the record. Therefore, in the absence of disease or injury, compensation under sections 1110 or 1131 is not assignable. The law requires more than evidence of disability. Such disability must be due to an identified disease or injury under Sections 1110 or 1131. Here, the only pathology identified is fibromyalgia. However, she has Persian Gulf Service and such fact must be considered under the law and regulations governing Gulf War cases. Here, the most probative evidence establishes that the knee pain is part and parcel of the fibromyalgia, an already service-connected disability. A regulation clearly establishes that the evaluation of the same disability under various diagnoses is to be avoided. Furthermore, the evaluation of the same manifestation under different diagnoses is to be avoided. 38 C.F.R. § 4.14. The Diagnostic Code for fibromyalgia contemplates wide-spread musculoskeletal pain. In this case, rating knee pain as distinct from the fibromyalgia would violate the rule against pyramiding. The most probative evidence establishes that she has knee pain and that the cause of the knee pain is already service-connected fibromyalgia. Other underlying disease or injury has not been identified and the impairment is not due to an undiagnosed illness. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection for right and left knee disabilities as a distinct ratable entity. The benefits sought on appeal are accordingly denied. REASONS FOR REMAND Service connection for allergic rhinitis As discussed above, the Veteran’s allergic rhinitis claim involves a Memorandum Decision from the Court dated May 2020. The May 2020 Memorandum Decision indicated that the Board relied on an inadequate VA examination in denying the Veteran’s allergic rhinitis claim. In this regard, a July 2016 VA examination was found inadequate as the examiner provided a broad generalization regarding allergic rhinitis rather than discussing the specific facts and circumstances regarding her condition. A February 2015 VA examiner did not offer a nexus opinion, and the July 2016 examiner merely discussed the typical presentation of allergic rhinitis before concluding that the Veteran’s condition was not likely related to service. Moreover, the February 2015 examiner diagnosed non-allergic, or vasomotor rhinitis and the July 2016 examiner did not address those specific conditions. Remand was therefore warranted to obtain a new medical opinion that adequately addresses the diagnoses of record and provides a fully supported medical opinion that adequately addresses the diagnoses of record and provides a fully supported medical opinion specific to the Veteran; A review of the record reveals that the Veteran has not been provided a VA examination for her allergic rhinitis disability since July 2016. In light of the foregoing, to include the May 2020 Memorandum Decision, the Board finds that remand of the allergic rhinitis claim is warranted to obtain a medical opinion that addresses the etiology of the allergic rhinitis. The matter is REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA examination by an appropriate examiner to determine the etiology of her allergic rhinitis. The claims file must be made available to the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran has allergic rhinitis that is related to her service. The underlying reasons for all opinions expressed must be provided. 2. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.