Citation Nr: 21022139 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 19-17 881 DATE: April 14, 2021 ORDER Entitlement to service connection for a bilateral foot disability, other than peripheral neuropathy, is denied. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for neuropathy of the right upper extremity is denied. Entitlement to service connection for neuropathy of the left upper extremity is denied. FINDINGS OF FACT 1. The probative evidence of record demonstrates that a bilateral foot disability, other than peripheral neuropathy, did not originate in service or for many years thereafter, and is not related to any incident during active service. 2. Resolving reasonable doubt in the Veteran’s favor, the probative evidence of record demonstrates that sleep apnea is related to his active service. 3. The preponderance of the evidence of record is against finding that the Veteran had neuropathy of the right upper extremity or any related disability of the right upper extremity at any time during or approximate to the pendency of the claim. 4. The preponderance of the evidence of record is against finding that the Veteran had neuropathy of the left upper extremity or any related disability of the left upper extremity at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral foot disability, other than peripheral neuropathy, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for neuropathy of the left upper extremity have not been 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 May 1961 to May 1964 and from June 1964 to June 1967. The Veteran died on November [REDACTED], 2020. His surviving spouse is the substitute Appellant. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge of the Board of Veterans’ Appeals (Board) in March 2020. A transcript of that hearing has been associated with the claims file. During the pendency of this appeal, service connection for diabetes mellitus, type 2, was granted by a March 2019 rating decision, and service connection for neuropathy of the right lower extremity and neuropathy of the left lower extremity was granted in a November 2020 rating decision, thereby constituting a full grant of these benefits sought on appeal and thus, these issues are no longer in appellate status 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). 1. Bilateral Foot Disability The Appellant asserts that service connection is warranted for the Veteran’s bilateral foot disability. The Board initially observes that service connection was granted for neuropathy of the right and left lower extremities, which included the bilateral feet. The question for the Board is whether the Veteran had a current disability of the feet other than neuropathy, that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, the preponderance of the evidence is against finding that a bilateral foot disability began during active service or was otherwise related to an in-service injury, event, or disease. Service treatment records (STRs) show that the Veteran was treated for tinea pedis of the left and right foot and blisters of the left heel, left great toe and right achilles area. A May 1967 separation examination demonstrated normal findings of the feet and skin. In the May 1967 Report of Medical History, the Veteran reported no history of skin diseases or foot trouble. The probative medical evidence of record reflects that the Veteran was diagnosed with peripheral neuropathy of the feet in an October 2020 VA examination; however, no other foot disabilities were identified in this examination or in an October 2020 VA examination of the skin. As noted above, service connection has been awarded for neuropathy of the lower extremities, including the feet. The probative evidence of record does not demonstrate a nexus between any currently identified foot disability and the Veteran’s active service or a service-connected disability. In an October 2020 Department of Veterans Affairs (VA) medical opinion, the VA examiner found the claimed condition was less likely than not incurred in or caused by an in-service injury, event, or disease. In her opinion, the VA examiner noted she reviewed the claims file including the in-service treatment of the foot. She also noted the Veteran’s report that tinea pedis lasted for approximately 10 years after leaving service and the blister of the foot and tinea pedis (what the Veteran called “jungle rot”) had currently resolved. The VA examiner explained that the October 2020 VA examinations demonstrated the bilateral feet and skin were normal without blisters or evidence of tinea pedis and the only abnormality found was bilateral peripheral neuropathy secondary to diabetes mellitus, type 2. She concluded that the Veteran no longer had tinea pedis (jungle rot) and the blisters of the left foot had resolved. The Veteran had reported a continuity of symptoms of jungle rot on his feet since his active service and he is competent to report these statements. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). While the statements of a continuity of symptoms are competent, they are not credible as they are in conflict with the Veteran’s own statements and the medical evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In this regard, the Veteran reported his health was “good” and checked “no” as to whether he had a history of skin diseases or foot trouble in his May 1967 Report of Medical History at separation. In addition, the May 1967 separation examination found no abnormalities of the feet or skin. In the October 2020 VA examination, the Veteran reported that tinea pedis lasted for 10 years after leaving service and this condition had resolved. Finally, the medical evidence of record, including VA outpatient treatment reports and VA examinations, do not reflect any findings of a foot disability, specifically a skin disability of the feet, until the October 2020 VA examination, which revealed a diagnosis of peripheral neuropathy of the feet. As noted above, peripheral neuropathy of the lower extremities is already-service connected. Consequently, the Board gives more probative weight to the evidence outlined above. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim for service connection for a bilateral foot disability, other than peripheral neuropathy, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b). Therefore, the Veteran’s claim for service connection for a bilateral foot disability, other than peripheral neuropathy, is denied. 2. Sleep Apnea The Appellant asserts that service connection is warranted for the Veteran’s sleep apnea. The Board concludes that the Veteran had a current sleep apnea disability that is related to the Veteran’s in-service sleep problems. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA and private medical records demonstrate the Veteran had a current diagnosis of obstructive sleep apnea, initially diagnosed in a May 2009 VA sleep lab consultation. STRs demonstrate that the Veteran was seen for complaints that he could not sleep in May 1965 and was treated with medication. Thus, the question becomes whether the current disability is related to service. In an October 2019 letter, a private physician, M.J.F., M.D., found that it was at least as likely as not that obstructive sleep apnea began during the Veteran’s active service, which was represented by his snoring in service. This opinion was based on a review of the Veteran’s STRs, VA treatment records and personnel records. In an August 2020 VA opinion, the VA examiner found that obstructive sleep apnea was less likely than not related to the claimed in-service injury, event, or disease. The VA examiner based her opinion on a review of the claims file, citing to evidence from the STRs and post-service medical records. However, she failed to address the October 2019 private physician’s opinion. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current sleep apnea is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Neuropathy of the Right Upper Extremity and Left Upper Extremity The Appellant asserts that service connection is warranted for the Veteran’s neuropathy of the right upper extremity and left upper extremity. The question for the Board is whether the Veteran had a current disability of the right and left upper extremities that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran did not have a current diagnosis of a right upper extremity disability or left upper extremity disability at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In an October 2020 VA examination of the peripheral nerves, the Veteran was diagnosed with peripheral neuropathy of the right and left lower extremities. The neurological evaluation did not reveal any abnormal findings in the upper extremities. The Veteran did not report any pain, paresthesias, dysthesias or numbness in the upper extremities. In accompanying October 2020 VA opinions for the left upper extremity and right upper extremity, the VA examiner determined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that there was no diagnosis of peripheral neuropathy of the left upper extremity or right upper extremity. While the Veteran was competent to testify to symptoms pain and numbness in the arms, legs, joints and back, he was not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and knowledge of the neurological system. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In addition, although pain may constitute a disability in some cases, the Veteran’s competent statements regarding the symptoms of pain and numbness in the arms do not constitute evidence of a disability in this case as they are not credible evidence. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board observes these statements are in conflict with the Veteran’s own statements and the medical evidence of record. In the October 2020 VA examination of the peripheral nerves, the Veteran reported having paresthesias and numbness in only the lower extremities and not the upper extremities. At that time, a diagnosis of peripheral neuropathy was only provided for the lower extremities. Finally, the post-service medical evidence of record, including VA outpatient treatment reports and VA examinations, do not reflect any findings of a disability of the upper extremities, specifically peripheral neuropathy. Consequently, the Board gives more probative weight to the medical evidence outlined above. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claims for service connection for neuropathy of the right upper extremity and neuropathy of the left upper extremity that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b). Therefore, the Veteran’s claims for service connection for neuropathy of the right upper extremity and neuropathy of the left upper extremity are denied. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saira Spicknall, 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.