Citation Nr: 21021339 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 14-19 102 DATE: April 12, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability, is granted. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for right foot ingrown toenails is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for left foot numbness is remanded. Entitlement to service connection for right foot numbness is remanded. FINDINGS OF FACT 1. The Veteran’s obstructive sleep apnea is proximately due to/aggravated beyond its natural progression by his service-connected posttraumatic stress disorder (PTSD) and chronic sinusitis. 2. The most probative (competent and credible) evidence is against finding that the Veteran has or has had since the filing of his claims or contemporaneous to that a left knee disability or right foot ingrown toenails, much less because of his service or that was worsened by his service. CONCLUSIONS OF LAW 1. The criteria for secondary service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310(a). 2. The criteria for service connection a left knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection right foot ingrown toenails have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1998 to December 1998, from November 2003 to April 2005, from August 2008 to September 2009, and from October 2009 to April 2010, with additional periods of National Guard service, so presumably on active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This case comes to the Board of Veterans’ Appeals (Board) is from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a November 2014 Travel Board hearing. A transcript of the hearing is associated with the claims file. The Board remanded the claims on appeal to the RO for further development in November 2018, at which time the claims for service connection for right shoulder and sinus disabilities were also remanded. By a subsequent July 2020 rating decision, service connection was granted for rotator cuff tendonitis (claimed as right shoulder condition) and chronic sinusitis effective from June 21, 2010. As this constitutes a full grant of the benefits sought on appeal, those claims are no longer on appeal before the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) chronically aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for obstructive sleep apnea. June 2010 Army Medical Center treatment records note a diagnosis of obstructive sleep apnea (OSA) on sleep study, and in an August 2020 letter, a private physician assistant, P.D. PA-C provided an opinion that it is more likely than not that the Veteran’s obstructive sleep apnea is proximately due to, or the result of, his service-connected chronic sinusitis and PTSD. In support of this opinion, it was noted that the evidence clearly shows that psychiatric disorder such as depression and anxiety are associated with an increased incidence of OSA versus patients without these diagnoses, regardless of other OSA risk factors. As such, the Board finds that the criteria for secondary service connection for obstructive sleep apnea have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for right foot ingrown toenails. The Veteran contends that he has a left knee disability due to his service. He also claims he suffers from right foot ingrown toenails and this condition had onset during his deployment in Iraq due to boot wear. But the Board finds that there is no current diagnosis of a left-knee condition or right foot ingrown toenails upon which to predicate a claim for service connection. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (with the absence of proof of a present disability there can be no valid claim). A current disability means a disability shown by competent and credible (i.e., probative) evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). At the very least, the evidence must show that, at some point during the appeal period, the Veteran has the disabilities for which benefits are being claimed. McClain v. Nicholson, 21 Vet. App. 319 (2007) (a claim for service connection may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim). Here, the medical evidence shows that the Veteran complained of knee pain in May 2010, however, the assessment was acute bilateral knee pain. The Veteran complained of chronic knee pain in September 2017, but there was no ligamentous injury or reduced range of motion (ROM). Most recently, the Veteran was afforded a VA examination in November 2019, but the examiner rendered no left knee diagnosis. Rather, the examiner indicated that “there are no objective findings to support the diagnosis of a left knee condition on today’s exam.” The examination report also reflects the Veteran’s left knee ROM was all normal with no instability and no functional impairment was shown. Regarding the claimed right ingrown toenail condition, post-deployment evaluation records show right toe ingrown toenail in 2006. A November 2019 Foot Disability Benefits Questionnaire (DBQ) notes in the medical history that the Veteran developed a right big toe ingrown toenail in 2005 and underwent a resection in 2006; he has had several recurrences which were self-treated since. At the examination, the Veteran denied deformity of the toe-toenail. The examiner stated that the Veteran had an ingrown toenail which has not completely resolved following a resection procedure. Examination revealed that the Veteran’s toe remained asymptomatic and required no further treatment for the condition and that there were no residuals of the condition. To qualify for entitlement to compensation, a veteran must prove the existence of a disability and one that has resulted from a disease or an injury that occurred during active duty service. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001). Symptoms alone without any underlying malady are not a disability for which service connection may be granted. See id. A more recent Federal Circuit Court case held that a diagnosis is not required to meet the current disability requirement and that pain, alone, can constitute disability if it causes impairment in earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). This holding does away with the notion, including cited in Sanchez-Benitez, that “pain alone is not disability” in all circumstances, but this concept is still valid in that a Veteran still needs to show disability due to disease or injury in service to get service connection. Despite the claims for a left knee condition and right foot ingrown toenails, the Veteran has not offered any competent and credible medical evidence supporting his assertions to the contrary nor has he demonstrated that he has the knowledge, training, or education required to diagnose this type of medical disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The Board therefore finds that service connection for a left knee disability or right foot ingrown toenails is not warranted as there is no current diagnosis of a disability or required showing of impairment in earning capacity if equating the symptoms the Veteran claims to experience to the “pain” scenario discussed in Saunders. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a low back disability is remanded. The Veteran testified at his November 2014 Travel Board hearing that he injured his low back and knees during his deployment to Iraq while working as a mechanic on heavy equipment and vehicles. The Veteran has also submitted competent testimony from the medic who treated him during service and lay statements from other fellow service members that they witnessed his musculoskeletal injuries during deployment. Pursuant to the Board’s November 2018 remand, the Veteran was afforded VA examinations in connection with these claims in December 2019. The VA examiner provided unfavorable nexus opinions. The rationale was that there is no degenerative joint disease (DJD) on recent x-ray of the right knee and service treatment records (STRs) do not show a formal diagnosis despite knee joint complaints. The examiner concluded that there is overall insufficient evidence in the reviewed medical record to opine that the condition is more likely than not, therefore, the condition is less likely than not incurred in or due to service. With regard the low back and bilateral foot disabilities, the rationale for the unfavorable nexus was that, although there is evidence of lumbar strain and bilateral foot numbness on the current exam, service treatment records were negative for complaints, diagnosis or treatment for a back condition or bilateral foot numbness. The Board finds that the December 2019 VA examination and opinions are inadequate for several reasons. First, the examiner did not consider the lay statements attesting to the Veteran’s musculoskeletal injuries in service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006). Second, the examiner’s rationale as to the lack of service treatment records does not necessarily equate to a lack of disability. The primary reasoning for the negative nexus opinions was due to lack of service treatment records, and that reasoning alone does not address the nature and etiology of the Veteran’s right knee or low back condition. In this regard, the Board also recognizes that while the record does not show a diagnosis for a right knee disorder in service, the Veteran has complained of ongoing knee pain. While pain is not a disability, pain with functional impairment is a disability for VA compensation purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Lastly, contrary to the examiner’s statement, the Veteran did complain of low back pain in service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value); Swann v. Brown, 5 Vet. App. 229 (1993)) (holding that the Board is not bound to accept medical opinions that are based upon an inaccurate factual premise). To that effect, a March 4, 2010 Army Medical Center record shows an assessment of lumbago and notes the Veteran’s low back pain. The evidence also reflects that the Veteran had complained of low back pain at a post combat evaluation in September 2006 shortly after he returned from his deployment to Iraq and a lumbar x-ray showed minor degenerative changes in the lower dorsal spine in September 2006. Hence, supplemental comment is needed. 3. Entitlement to service connection for left foot numbness is remanded. 4. Entitlement to service connection for right foot numbness is remanded. As the medical evidence of record indicates that the Veteran’s bilateral lower extremity numbness may be associated with the remanded issue of service connection for a low back disability, the issues of service connection for left and right foot numbness must be remanded. See Harris v. Derwinski, 1Vet. App.180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records for the Veteran, dated from February 2021 to the present. All records and/or responses received should be associated with the claims file 2. After receiving all additional treatment or other relevant records, forward the Veteran’s claims file to a VA examiner with the appropriate expertise for medical comment (addendum opinion) regarding whether there is a relationship or correlation between his current right knee and low back disabilities and his service. *Schedule the Veteran for a VA examination if deemed necessary to provide this additional comment, meaning if it cannot be provided, instead, just by having a clinician review the relevant evidence in the file. Whatever means of providing this requested additional medical comment, an opinion is needed concerning whether it is at least as likely as not (50 percent or greater probability) that a) the Veteran’s current right knee or low back disability originated during his service from June 1998 to December 1998, November 2003 to April 2005, August 2008 to September 2009, and October 2009 to April 2010; b) if involving arthritis, initially manifested within a year of his discharge from service; or c) is otherwise related or attributable to his service – including especially to trauma he alleges sustaining to his right knee and low back during his deployment to Iraq from March 2004 to March 2005. In making these critical determinations, the examiner is advised that, for VA compensation purposes, a current disability exists when there is pain or other symptoms causing functional impairment of earning capacity, even absent an underlying diagnosis, and the Board already has conceded this threshold minimum requirement of current disability is met. Thus, more importantly, the examiner is asked to comment more comprehensively on whether this current right knee or low back disability is attributable to the Veteran’s service. In so deciding, the examiner must fully consider and specifically address the statements from the Veteran, his wife, and fellow service members regarding the onset and persistence of his right knee and low back symptoms, as well as the Veteran’s posited association between his current right knee and low back disabilities and the claimed overuse injury to right knee and low back during his deployment in Iraq from 2004 to 2005. Attention is also requested to the November 2011 testimony from the staff sergeant who served as a medic during the Veteran’s deployment to Iraq. *If, as the prior examiner intimated, the lack of documentation in the Veteran’s STRs is significant, there must be more explanation of why it is reasonable to have this expectation. In other words, this cannot be the sole reason for disassociating the now claimed disability from the Veteran’s service – although, again, it is permissible to consider this as one relevant factor, just not instead the only or exclusive factor. Thus, rationale for the opinion is essential, irrespective of whether favorable or unfavorable to the claims, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.