Citation Nr: 21013744 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-39 858 DATE: March 10, 2021 ORDER Entitlement to service connection for a pulmonary disability, to include asthma, is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to an initial rating higher than 10 percent for a right wrist disability is denied. REMANDED Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence supports a finding that a pulmonary disorder, to include asthma, was not incurred in service and is not due to or the result of service. 2. The preponderance of the evidence supports a finding that sleep apnea was not incurred in service and is not due to or the result of service. 3. Throughout the period of appeal, the Veteran’s right wrist disability was manifested by complaints of pain and objective evidence of decreased range of motion. However, there was no evidence of favorable or unfavorable ankylosis. CONCLUSIONS OF LAW 1. A pulmonary disorder, claimed as asthma, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. Obstructive sleep apnea was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 3. The criteria for entitlement to an initial rating higher than 10 percent for a right wrist disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107A; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024-5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1970 to April 1974. The Veteran also served in the National Guard. In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In February 2020, the Board remanded these issues on appeal, and three others, to the Agency of Original Jurisdiction (AOJ) for further development. In October 2020, the AOJ issued a supplemental statement of the case. The Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA) for the issues of entitlement to a higher rating for a right inguinal hernia scar, entitlement to a higher rating for a left shoulder disability, and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, by submitting a November 2020 VA Form 10182, Decision Review Request: Board Appeal, identifying those specific issues from the October 2020 supplemental statement of the case. Therefore, those issues have been withdrawn from this legacy appeal and will be adjudicated in a separate decision under the AMA. In light of the treatment records that have been obtained and associated with the record, the obtaining of the requested medical opinions, and the further adjudicatory actions taken by the AOJ, the Board finds that there has been substantial compliance with the remand requests concerning the issues of entitlement to service connection for a pulmonary disability and sleep apnea, and entitlement to a higher rating for a right wrist disability. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical 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) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist 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. Furthermore, service incurrence will be presumed for certain chronic diseases if manifest to a compensable degree within the year after active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for a pulmonary disability, to include asthma The service medical records show no signs, symptoms, or diagnoses of any pulmonary disability. After service, the Veteran worked as a firefighter. Private treatment records show that in September 2008, the Veteran was treated for shortness of breath secondary to smoke inhalation. The record shows that the prior month, the Veteran was in an enclosed room fighting a fire when his oxygen mask came off two times. The Veteran had to remove the mask a third time to reach his radio. Since that time, the Veteran reported experiencing persistent shortness of breath. At an October 2020 VA examination, the examiner diagnosed chronic obstructive pulmonary disease. The Veteran told the examiner that he had asthma for the past ten years. The Veteran had never been a cigarette smoker. He had an inhaler that he used three times a day. The examiner noted that according to the Veteran’s treatment records, he had COPD and not asthma. The examiner also noted that the Veteran had retired after having been a firefighter for 20 years. The examiner opined that the Veteran’s pulmonary condition was less likely than not incurred in or caused by service. The examiner found no complaints of asthma or COPD during the Veteran’s active service. The examiner reiterated that the Veteran was a firefighter for 20 years, and smoke inhalation from environmental work exposure in the setting of a non-smoker is a known risk factor for developing COPD. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The October 2020 VA examiner opined that it was less likely as not that the Veteran’s pulmonary disorder was a result of or related to service. The VA examiner specifically identified and discussed the Veteran’s contentions and theory concerning service and his pulmonary disorder. In particular, the examiner specifically discussed the service medical records and post-service records. The Veteran’s lay statements were considered. The examiner provided an alternate etiology for the current respiratory disability. The VA examiner did not use speculative language in the opinion. Accordingly, the October 2020 VA examiner’s opinion is found to carry significant weight. The Board has considered the Veteran’s statements and acknowledges that as a layperson, he is competent to diagnose and report on simple conditions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to report wheezing and shortness of breath, as such is observable through lay observation. However, determining whether the Veteran’s shortness of breath is attributable to asthma, COPD, or exposure to smoke as a firefighter presents a complex medical question. As reviewed above, the October 2020 VA examiner attributed the Veteran’s current symptoms to smoke inhalation as a firefighter. The Board finds that the statements from the medical examiner outweigh the lay statements from the Veteran, as the medical examiner had the training and expertise necessary to make a medical determination. The evidence of record establishes that the Veteran has a current pulmonary disorder. However, the record does not show that disorder is medically related to any incident of service. None of the post-service medical records containing a diagnosis of a pulmonary disorder indicates that the pulmonary disorder is at least as likely as not a result of service, and neither the Veteran nor representative has presented or identified any such existing medical opinion. Without an etiology opinion, service connection cannot be established. Hickson v. West, 12 Vet. App. 247 (1999). The Board finds that the most persuasive evidence of record weighs against the claim for service connection for a pulmonary disorder. Accordingly, the Board finds that the claim for service connection for a pulmonary disorder must be denied because the preponderance of the evidence is against the claim. Therefore, 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). 2. Entitlement to service connection for sleep apnea The service medical records show no signs, symptoms, or diagnoses of sleep apnea. At an October 2020 VA examination, the examiner diagnosed sleep apnea. The Veteran reported that he was diagnosed with sleep apnea about ten years previously. The examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by service. The examiner noted that there was no documentation of sleep apnea symptoms during active service. The examiner explained that obstructive sleep apnea is related to anatomical variances from narrowing of the hard palate, small jaw, large tonsils, adenoids, and nasal abnormalities, and relaxation of the muscles in the back of the throat. The examiner stated that obesity, family history, age, sex, medical conditions, and anatomical neck and airway abnormalities were common risk factors. Concerning the Veteran’s obstructive sleep apnea, the Board concludes that the preponderance of the evidence is against a finding of a relationship to service. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran’s statements. Laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The lay statements describing the Veteran’s snoring and breathing difficulties are competent and credible. However, as the evidence shows the presence of more than one risk factor for sleep apnea as reported by the VA examiner, to include obesity, age, and sex, the Board finds that an opinion as to the etiology of the obstructive sleep apnea is a medical issue that requires medical training. Here, the VA examiner opined that it was less likely than not that the Veteran’s sleep apnea was caused by his service. The Board finds the VA examiner’s opinions to be more probative than the Veteran’s assertions, the lay statements. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The opinion of the VA examiner is highly probative because it was supported by detailed rationale and provided by a trained medical professional. The VA examiner specifically identified and discussed the Veteran’s contentions and theory concerning service and his obstructive sleep apnea. The examiner considered the lay statements. In particular, the VA examiner discussed the nature of sleep apnea and alternative risk factors. The VA examiner’s opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. No causal connection between the Veteran’s service and obstructive sleep apnea is shown by the most persuasive evidence of record. The Board finds that the VA examiner’s opinion is the most persuasive evidence in this case. The Board is appreciative of the Veteran’s faithful and honorable service. However, because the preponderance of the evidence is against the claim, the claim must be denied. As the preponderance of the evidence is against the claim of entitlement to service connection for obstructive sleep apnea, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 3. Entitlement to an initial rating higher than 10 percent for a right wrist disability On VA examination in July 2010, the Veteran reported experiencing pain, stiffness, and weakness of his right wrist. No flare-ups were reported. The examiner measured right wrist palmar flexion to 50 degrees. Right wrist dorsiflexion was to 45 degrees. Right wrist ulnar deviation was to 15 degrees. Right wrist radial deviation was to 15 degrees. There was pain following repetitive motion. There was no ankylosis. Left wrist palmar flexion was to 50 degrees. Left wrist dorsiflexion was to 60 degrees. Left wrist ulnar deviation was to 40 degrees. Left wrist radial deviation was to 20 degrees. On VA examination in December 2014, it was noted that the Veteran was right hand dominant. The examiner measured right wrist palmar flexion to 40 degrees. Right wrist dorsiflexion was to 65 degrees. Right wrist ulnar deviation was to 30 degrees. Right wrist radial deviation was to 10 degrees. The examiner stated that there was no pain on examination. There was no additional loss of function or range of motion after repetitive use testing. The examiner noted that the Veteran did not report experiencing flare-ups. There was no ankylosis. Left wrist palmar flexion was to 35 degrees. Left wrist dorsiflexion was to 60 degrees. Left wrist ulnar deviation was to 30 degrees. Left wrist radial deviation was to 10 degrees. On VA examination in October 2020, the Veteran reported experiencing constant right wrist pain. He said that his pain rated a 10 on a 1 (low) to 10 (high) pain scale. The weather increased the pain. The Veteran was right-handed. The examiner measured right wrist palmar flexion to 35 degrees. Right wrist dorsiflexion was to 50 degrees. Right wrist ulnar deviation was to 30 degrees. Right wrist radial deviation was to 10 degrees. Pain was noted on all ranges of motion. The examiner noted moderate diffuse tenderness or pain on palpation of the wrist. There was no additional loss of function or range of motion after repetitive use testing. The examiner opined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. Right wrist muscle strength testing revealed normal strength for flexion and extension. There was no reduction in muscle strength. The examiner found no ankylosis. There was no objective evidence of pain on passive range of motion testing or when the joint was used in non-weight bearing. Left wrist palmar flexion was to 60 degrees. Left wrist dorsiflexion was to 60 degrees. Left wrist ulnar deviation was to 30 degrees. Left wrist radial deviation was to 10 degrees. The Board first notes that no higher disability rating under Diagnostic Code 5215 may be assigned for the Veteran’s right wrist disability. Under Diagnostic Code 5215, a 10 percent rating for a wrist disability is warranted for either limitation of palmar flexion in line with the forearm or limitation of dorsiflexion to less than 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5215. The 10 percent rating is the maximum rating under Diagnostic Code 5215. A higher rating for limitation of dorsiflexion or palmar flexion is not warranted, as Diagnostic Code 5215 already contemplates the effects of limitation of motion. In rating musculoskeletal disabilities, VA must determine whether the joint in question exhibits weakened movement, painful motion, excess motion, fatigability, incoordination, and whether pain could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. However, where a musculoskeletal disability is currently evaluated at the maximum schedular rating based on limitation of motion, those provisions are not applicable. Johnston v. Brown, 10 Vet. App. 80 (1997). Therefore, no higher rating based on limitation of motion of the Veteran’s right wrist is possible. In order to warrant a higher rating, the medical evidence must demonstrate that the Veteran has no range of motion of the right wrist. Diagnostic Code 5214 offers a higher rating where there is medical evidence of ankylosis of the wrist. Ankylosis is defined as the immobility and consolidation of a joint due to disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). Under Diagnostic Code 5214, a 30 percent rating is warranted for favorable ankylosis of the major (dominant) wrist in 20 to 30 degrees of dorsiflexion. A 40 percent rating is warranted for any other position, except favorable of the major wrist; and a maximum 50 percent rating requires unfavorable ankylosis of the major wrist in any degree of palmar flexion or with ulnar or radial deviation. However, ankylosis of the right wrist has not been shown. The VA examination reports specify that there was no ankylosis of the right wrist. Therefore, a higher rating is not warranted under Diagnostic Code 5214. In conclusion, there are no higher or alternative ratings under different Diagnostic Codes which can be applied to the Veteran’s claim. The preponderance of the evidence is against the claim for a higher rating for a right wrist disability. The Board finds that the preponderance of the evidence is against the assignment of any higher rating and the claim must be denied. 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression, is remanded. In February 2020, the Board remanded the issue of entitlement to service connection for a psychiatric disability, to include PTSD and depression, to provide the Veteran with a VA examination to determine the nature of the Veteran’s psychiatric disabilities and any relationship to active service. The requested examination was performed in October 2020. The examiner diagnosed PTSD. The examiner opined that the Veteran’s PTSD was at least as likely as not incurred in or caused by service. The examiner stated that the Veteran’s PTSD was related to claimed stressors of coming across small bones while cleaning out boilers that the Veteran was told were the bones of stillborn babies, and the Veteran’s statement that he saw another soldier get decapitated by getting caught in a concertina wire and being dragged by a vehicle. However, the Veteran’s claimed stressors have not been verified, as detailed in a September 2010 VA memorandum. The February 2020 VA examiner did not provide a diagnosis of depression. However, VA treatment records from June 2016 through the present show diagnoses of depression in addition to PTSD. The presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). The VA examiner did not address the etiology of documented depression. Therefore, further VA examination is required. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. After obtaining any necessary releases, obtain all relevant VA and private treatment records not already associated with the claims file. All attempts to locate records must be documented in the claims file. 2. Then, schedule the Veteran for a VA examination with a psychiatrist or psychologist to determine the nature and etiology of any psychiatric disability, to specifically include depression. The examiner should elicit complete history from the Veteran. The examiner must review the claims file and should note that review in the report. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should identify any pertinent pathology found and should diagnose any current psychiatric disability, to include the depression mentioned in the VA treatment records. The examiner should specifically state whether or not each criterion for a diagnosis of PTSD is met. The examiner is to be informed that none of the Veteran’s claimed stressors have been verified. As to each pertinent disability identified on examination, the VA examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or greater) that each psychiatric disability, to specifically include depression, had its onset in service, was aggravated by service, or is otherwise related to any incident of service. If the diagnostic criteria to support a diagnosis of PTSD have been satisfied and a diagnosis of PTSD is deemed appropriate, the examiner must comment on any link between the current symptomatology and any of the in-service stressors reported by the Veteran. The examiner must specifically state whether PTSD is present due to the Veteran’s fear of hostile military or terrorist activity of the type contemplated by 38 C.F.R. § 3.304(f)(3). The rationale for all opinions expressed should be provided. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Layton, 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.