Citation Nr: 21014810 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-46 332 DATE: March 15, 2021 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for low back strain is granted. REMANDED Entitlement to service connection for bilateral wrist disability is remanded. Entitlement to service connection for nasal disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to an initial compensable rating for hypertension is remanded. Entitlement to a higher initial rating for dermatitis, rated noncompensable prior to November 16, 2017 and 10 percent disabling since that date, is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s current sleep apnea began during active service. 2. The evidence is at least evenly balanced as to whether the Veteran’s current low back strain began during active service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for low back strain are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to September 1994, which includes service in Southwest Asia. These matters come before the Board of Veterans’ Appeals (Board) from a May 2017 rating decision. In November 2017, the agency of original jurisdiction (AOJ) assigned a 10 percent rating for dermatitis, from November 16, 2017. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a July 2020 hearing and a transcript of the hearing has been associated with his claims file. As for characterization of the issues on appeal, in light of the Veteran’s reported symptoms and contentions and to encompass all disorders that are reasonably raised by the record, the Board has re-characterized the claim of service connection for deviated septum (also claimed as breathing problems, nasal congestion) as a claim of service connection for nasal disability. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran but must be characterized based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection for sleep apnea and low back strain The Veteran contends that he has current sleep apnea and back disability which had their onset in service. The Board finds, for the following reasons, that the Veteran has current diagnoses of sleep apnea and low back strain, and that the evidence is at least evenly balanced as to whether these disabilities began during active service. An April 2017 VA back examination report and a May 2020 VA sleep disorder clinic note show the Veteran experiences current sleep apnea and low back strain. Thus, current sleep apnea and back disability have been demonstrated. Additionally, there is evidence of sleep and back symptoms in service and evidence of continuous symptoms in the years since service. In this regard, the Veteran has reported that he began to experience sleep problems in service, that he strained his back while on temporary duty (TDY) in Alaska, and that he continued to experience back problems while performing physical activities throughout the rest of his active service. In support of his claim, he submitted a statement from a fellow service member (P.F.) in June 2020, in which P.F. reported that he observed the Veteran experience disrupted sleep due to snoring and gasping for air while in service. Moreover, the Veteran’s post-service medical records and lay statements from the Veteran and his wife indicate that he has experienced continuous sleep and back symptoms in the years since service. The Veteran is competent to report sleep and back symptoms in service and continuous symptoms in the years since service, and other individuals (e.g., his wife and P.F.) are competent to report their observations of the Veteran’s symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board acknowledges that the Veteran has provided some information which is inconsistent with a continuity of sleep and back symptomatology in the years since service. Specifically, he reported on a May 1994 report of medical history form completed for purposes of separation from service that he was neither experiencing, nor had he ever experienced, any frequent trouble sleeping or recurrent back pain. Nevertheless, the May 1994 report of medical history form is itself inaccurate because the Veteran reported on the form that he did not have a history of any medical problems other than defective vision, but his service treatment records document treatment for various problems during service. Moreover, there is competent evidence from P.F. that the Veteran exhibited sleep problems during service. Also, there is no other evidence to explicitly contradict the lay reports of record and they are generally consistent with the evidence of record. Thus, the Board finds that the lay reports of sleep and back problems in service and continuous sleep and back symptoms in the years since service are credible. In sum, the evidence reflects that the Veteran experienced sleep and back symptoms in service and that there have been continuous symptoms in the years since service. He also experiences current sleep apnea and low back strain. There is no medical opinion that is contrary to a conclusion that the current sleep apnea and low back strain had their onset in service. Thus, the evidence is at least evenly balanced as to whether these disabilities had their onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for sleep apnea and low back strain is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). REASONS FOR REMAND 1. Entitlement to service connection for bilateral wrist disability is remanded. The Veteran contends that he began to experience bilateral wrist pain during service and that he has experienced continuous wrist pain in the years since service. However, there is some evidence to the contrary. For instance, there is no evidence of any complaints of or treatment for wrist problems in his service treatment records, his May 1994 separation examination was normal, there is no clinical evidence of wrist problems for years following service, and the Veteran has provided inconsistent information concerning the history of his claimed wrist disability (e.g., he reported on an October 2017 “Notice of Disagreement” form (VA Form 21-0958) that his “wrist pain started after [he] left the service.” A VA wrist examination was conducted in April 2017 and the Veteran was diagnosed as having a bilateral wrist sprain. The physician assistant who conducted the examination did not provide any opinion as to whether the Veteran’s claimed bilateral wrist disability had its onset in service or was otherwise related to his reported wrist symptoms in service. Rather, he only suggested that the claimed wrist disability was not likely related to environmental hazards and/or toxins in Southwest Asia. Therefore, a remand is necessary to obtain an appropriate medical opinion as to whether the Veteran’s current bilateral wrist disability was incurred in or caused by service. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Western New York Healthcare System and are dated to May 2020. Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to service connection for nasal disability is remanded. The Veteran contends that he began to experience nasal symptoms in service and that they have continued in the years since service. He was afforded a VA examination in February 2018 and was diagnosed as having a deviated nasal septum. The examiner explained that although there was no history of ear, nose, or throat problems prior to service, there was no history of any nasal trauma. Therefore, the examiner concluded that the Veteran’s deviated septum was likely congenital and she opined that the deviated septum existed prior to service and was aggravated beyond its natural progression by service. Although the February 2018 examiner concluded that the Veteran’s deviated nasal septum was likely congenital because there was no evidence of any nasal trauma, the Veteran subsequently reported on a January 2020 VA Form 9 that he was struck in the face/nose with a volleyball during service and that his nose bled at the time, but that he did not seek treatment for this injury. The February 2018 examiner did not have an opportunity to consider this evidence of nasal trauma in service in determining whether the Veteran’s deviated septum is congenital. This determination is important because generally service connection cannot be granted for congenital defects. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (discussing VAOPGCPREC 82-90 (July 18, 1990)); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). Service connection for a congenital defect can only be established if the congenital defect was subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. VAOPGCPREC 82-90 (July 18, 1990). In light of the above, a remand is necessary to obtain a new medical opinion as to the nature of the Veteran’s claimed nasal disability and whether any such disability is related to service. Also, all outstanding VA treatment records should be secured upon remand. 3. Entitlement to service connection for bilateral hearing loss is remanded. As the record currently stands, there is no evidence of any current hearing loss disability as defined by VA. See 38 C.F.R. § 3.385. As additional treatment records are being sought upon remand which may document evidence of such disability, the claim of service connection for bilateral hearing loss is being remanded, as well. 4. Entitlement to an initial compensable rating for hypertension and entitlement to a higher initial rating for dermatitis (rated noncompensable prior to November 16, 2017 and 10 percent disabling since that date) are remanded. The evidence reflects that the Veteran’s service-connected skin disability may have worsened since he was last examined by VA in November 2017. For instance, the November 2017 examination report indicates that he had taken oral medications for his dermatitis for less than 6 weeks during the previous 12 months and that his skin disability involved between 5 and 20 percent of his total body area and less than 5 percent of his exposed areas. However, the treatment records and lay statements associated with the claims file since the November 2017 examination indicate that he has experienced increasingly frequent flare ups of his skin disability that involve his entire body, and which require the frequent and prolonged use of steroid medications. In light of this information and the fact that the issue of entitlement to a higher initial rating for dermatitis must otherwise be remanded, as explained below, the Veteran should be provided an opportunity to report for a new VA examination to ascertain the current severity and manifestations of his service-connected dermatitis. Also, all outstanding VA treatment records should be secured upon remand. Lastly, following a November 2017 supplemental statement of the case (SSOC), additional evidence has been associated with the Veteran’s claims file by the AOJ that is relevant to the issues of entitlement to higher initial ratings for hypertension and dermatitis. This evidence includes VA treatment records from the VA Western New York Healthcare System dated from November 2017 through May 2020. This relevant evidence has not been considered by the AOJ and no waiver of initial AOJ consideration of this evidence has been received. See 38 C.F.R. § 20.1305 (c). Hence, the Board is required to remand the hypertension and dermatitis issues for issuance of the necessary SSOC. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for hearing loss, wrist disability, nasal disability, hypertension, and skin disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for hearing loss, wrist disability, nasal disability, hypertension, and skin disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s outstanding VA treatment records from the VA Western New York Healthcare System for the period since May 2020; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an opinion from an appropriate clinician regarding whether any wrist disability experienced by the Veteran since approximately January 2017 at least as likely as not (1) began during active service; (2) manifested within one year after separation from service (in the case of any currently diagnosed arthritis; OR (3) is related to an in-service injury or disease, including his reported wrist problems in service and the physical activities he performed during service. The clinician must provide reasons for each opinion given. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an opinion from an appropriate clinician regarding whether any nasal disability experienced by the Veteran since approximately January 2017 at least as likely as not (1) began during active service; OR (2) is related to an in-service injury or disease, including his reported nasal problems in service, the nasal problems documented in his service treatment records, and his reported nasal injury in service when he was hit in the face/nose by a volleyball. The clinician should also provide an opinion as to whether it is at least as likely as not that the Veteran’s current deviated nasal septum is congenital, particularly in light of his reported nasal injury in service when he was hit in the face/nose by a volleyball. If the current deviated septum is congenital, the clinician should additionally indicate whether the congenital defect was subject to a superimposed disease or injury during service that resulted in a current nasal disability apart from the defect. The clinician must provide reasons for each opinion given. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, contact the Veteran and coordinate with him to schedule a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected dermatitis during a time in which he is experiencing a flare up of his dermatitis. All such efforts shall be documented in the claims file. If it is not possible to schedule the examination during a flare up, the reason must also be documented in the claims file. The clinician should provide a full description of the Veteran’s dermatitis and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In particular, the clinician should report the percentage of the Veteran’s entire body and the percentage of his exposed areas affected by the service-connected dermatitis (including during any periods of flare up if the examination is not conducted during such a period). The clinician should also note any systemic therapy that has been provided for the Veteran’s service-connected dermatitis during the past 12-month period and the frequency and duration of any such treatment. The clinician should note whether the Veteran experiences flare ups of his service-connected dermatitis and, if so, whether the examination is being conducted during a period of flare up. The clinician should also note whether there are any specific periods during which any such flare ups occur or whether they are intermittent/unpredictable. The clinician should also report the nature and severity of any scars associated with the service-connected dermatitis, to include whether any scar causes any loss of function. Each scar size (including both length and width) and whether any scar is superficial, deep, associated with underlying soft tissue damage, nonlinear, unstable, or painful should also be noted. The clinician must provide reasons for any opinion given. 6. After the above development, and any additionally indicated development, has been completed, readjudicate the remaining issues on appeal. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a supplemental statement of the case that considers all additional relevant evidence received since the November 2017 supplemental statement of the case (including, but not limited to, the treatment records from the VA Western New York Healthcare System dated from November 2017 through May 2020), and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.