Citation Nr: 21010638 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-40 828A DATE: February 25, 2021 ISSUES 1. Entitlement to service connection for a back disability, claimed as a thoracolumbar and sacral disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for sleep apnea. 4. Entitlement to a disability rating in excess of 20 percent for the limitation of motion of the cervical spine with degenerative joint disease (neck disability). 5. Entitlement to a disability in excess of 50 percent for the headache disorder. 6. Entitlement to a total disability based upon individual unemployability (TDIU). ORDER Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for a back disability, claimed as a thoracolumbar and sacral disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to a disability rating in excess of 20 percent for the neck disability is remanded. Entitlement to a disability in excess of 50 percent for the headache disorder is remanded. Entitlement to a TDIU is remanded. FINDING OF FACT The Veteran does not have, nor has he had at any time during the pendency of the appeal, a current diagnosis of sleep apnea. CONCLUSION OF LAW The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303(2017). REASONS AND BASES FOR THE FINDING AND CONCLUSION The Veteran served on active duty from December 1980 to May 1981. The claim comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of September 2013 and December 2014 of the Department of Veterans Affairs (VA). The Veteran, through his attorney, has alleged clear and unmistakable error in the June 1985 rating decision, as seen in the attorney’s April 2018 letter. The Board does not have jurisdiction over this matter, so the undersigned is referring this issue to VA. When this case was previously before the Board in November 2018, it was decided in part and remanded in part for additional evidentiary development. It has since been returned to the Board for further appellate action. The Board finds that there has been substantial compliance with the remand directives as related to the issue regarding service connection for sleep apnea decided below. See Stegall v. West, 11 Vet. App. 268, 271 (1998).  Subsequently, in a February 2020 rating decision, the evaluation of the headache disorder was increased to 50 percent effective September 16, 2011. Notably, this issue was not listed on the April 2020 supplemental statement of the case (SSOC) as will be addressed below. In the February 2020 rating decision, service connection for major depressive disorder with anxious distress, recurrent, moderate (claimed as insomnia) was granted with an evaluation of 70 percent effective January 26, 2012. As such, the issue of entitlement to service connection for an acquired psychiatric disorder, to include anxiety and insomnia is no longer before the Board. To this point, the issue of entitlement to an evaluation is excess of 70 percent disabling for major depressive disorder, with anxious distress, recurrent, moderate was listed on the April 2020 SSOC. However, review of the evidence of record does not show that this issue was appealed subsequent to the February 2020 rating decision. As such, this issue is not currently before the Board. Significantly, the Board also finds that the Veteran was not provided notice of the denial of his claim for service connection for low back pain with degenerative disease in a June 1988 rating decision. As such, the June 1988 rating decision is not final, and the issue regarding this claimed disability has been amended accordingly. See 38 U.S.C. § 7105 (c) (West 2014); 38 C.F.R. § 20.1103 (2017). The Board notes that subsequent to the April 2020 SSOC, the Veteran submitted additional evidence pertinent to the issues being remanded herein with waiver of initial RO consideration. As indicated below, this evidence should be reviewed by the RO on remand. Service Connection Claims 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) (2017). 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). Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). However, sleep apnea is not considered a chronic disability. In order to establish service connection for the claimed disorder, there must be (1) competent 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) competent 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Veteran has not been diagnosed with sleep apnea during the pendency of these claims; accordingly, the claims fail as Hickson element (1) is not met. Based upon review of the evidence above, the Board finds the Veteran’s claim for service connection for sleep apnea must fail because the most recent medical evidence does not indicate a current diagnosis of this condition. Where the medical evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statues governing Veterans’ benefits. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The Board acknowledges that the Veteran is competent to testify as to his beliefs that he has sleep apnea. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical diagnosis or opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the diagnosis or etiology of any current condition, as such are not readily subject to lay observation. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit-of-the-doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran’s claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b) (West 2014). REASONS FOR REMAND The Board finds that additional evidentiary development is required before adjudication of the remaining issues on appeal. The Veteran contends that service connection is warranted for a back disability, claimed as a thoracolumbar and sacral disability, as related to a documented in-service fall in January 1981. The Veteran was afforded a VA examination in August 2013 in which he was diagnosed with lumbosacral strain. The Veteran reported that he injured his neck and back in service when he fell. The examiner opined that the claimed condition was not caused by or a result of an event, injury, or condition shown during active duty. The examiner stated that service treatment records documented a lumbar injury in service; otherwise, records were silent for the claimed condition. The examiner stated that there were no private records in the claims file, and VA records were silent for the claimed condition except for lumbar X-rays in 1992 and 1994 which were both reported as normal. The examiner stated that available medical records failed to document chronicity of the claimed condition during service or after discharge from service. In this case, the Board notes service treatment records show complaints of low back pain in January 1981 and pain reported from his neck down through his leg in February 1981. Moreover, post-service VA treatment records in May 1988 show a diagnosis of degenerative disc disease (DDD) of the lumbar spine. As such, the Board finds that an addendum opinion should be obtained on remand. See Reonal v. Brown, 5 Vet. App. 458,461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).  In regards to the claim for tinnitus, the Veteran was afforded a VA examination in November 2014 in which he reported constant, non-disabling tinnitus with onset while in active duty after his fall. The Veteran stated that when he regained consciousness after his fall, his ears were bleeding and he had the ringing. The examiner provided a negative etiological opinion for tinnitus as related to noise exposure in service. However, the Board finds that in this case, the Veteran is asserting that his tinnitus is related to his documented fall in January 1981 and not due to noise exposure. As such, the Board finds that an addendum opinion should be opined on remand to address such contention. As to the claim regarding the headache disorder, the Board notes again that this issue was not addressed in the April 2020 SSOC. Moreover, after the issuance of the April 2020 SSOC, additional, pertinent evidence was added to the record. Specifically, the Veteran underwent VA examinations in January 2021 for neck disability and headache disorder, and the reports of those examinations have since been associated with the claims file. However, this additional, pertinent evidence has not been considered by the RO in conjunction with the claims currently on appeal. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial RO review of evidence submitted to the RO or to the Board at the time of or subsequent to the submission of a substantive appeal filed on or after February 2, 2013, unless the claimant or claimant’s representative requests in writing that the RO initially review such evidence). Here, however, the VA examination reports were not submitted by the Veteran. Given the above, the evidence is not subject to automatic waiver and a SSOC is required. See 38 C.F.R. §§ 19.31, 19.37 (2017). Finally, the development requested in connection with the foregoing claims could have bearing on whether an award of TDIU is proper. Hence, this final issue is not yet ripe for appellate review and must be deferred pending readjudication of those other remanded claims. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if the disposition of one claim could have a significant impact on the outcome of another). The matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to the August 2013 examiner, or an appropriate substitute if this individual is not available, to provide an addendum opinion. An examination is only required if deemed necessary by the examiner.  The examiner should address the following: Opine whether it is at least as likely as not (50 percent probability or greater) that any back disability diagnosed during the pendency of this appeal had its onset in service or is otherwise etiologically related to service, to include the documented slip and fall in 1981 and aforenoted reports of pain in 1981. The examiner should also address the aforenoted May 1988 treatment note in which DDD of the lumbar spine was diagnosed. A full and complete rationale for all opinions expressed must be provided. 2. Provide the Veteran’s claims file to the November 2014 examiner, or an appropriate substitute if this individual is not available, to provide an addendum opinion. An examination is only required if deemed necessary by the examiner.  The examiner should address the following: Opine whether it is at least as likely as not (50 percent probability or greater) that any tinnitus diagnosed during the pendency of this appeal had its onset in service or is otherwise etiologically related to service, to include the documented slip and fall in 1981 in which the Veteran hit his neck. A full and complete rationale for all opinions expressed must be provided. 3. After considering any additional evidence received, to specifically include the January 2021 VA examinations, and undertaking any additional development deemed appropriate, readjudicate the issues on appeal. 4. If any benefit sought is not granted in full, the Veteran and his attorney should be furnished with an SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.