Citation Nr: 21022264 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-28 188 DATE: April 15, 2021 ISSUES 1. Entitlement to service connection for a deviated nasal septum. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for a neck disability. ORDER Entitlement to service connection for a deviated nasal septum is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a neck disability is denied. FINDINGS OF FACT 1. The preponderance of competent and credible evidence weighs against a finding that a deviated nasal septum was demonstrated in service or that there is a nexus between a deviated nasal septum and service. 2. The preponderance of competent and credible evidence weighs against a finding that sleep apnea was demonstrated in service; that there is a nexus between sleep apnea and service; or that obesity itself caused or aggravated the sleep apnea, or that obesity was as likely as not caused or aggravated by the service-connected residuals fractured right ribs T5 through T7 level. 3. The preponderance of competent and credible evidence weighs against a finding that a neck disability was demonstrated in service or that there is a nexus between a neck disability and service. CONCLUSIONS OF LAW 1. The criteria for service connection for a deviated nasal septum have not been met. 38 U.S.C. § 1131 (West 2014); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. § 1131 (West 2014); 38 C.F.R. § 3.303 (2017). 3. The criteria for service connection for a neck disability have not been met. 38 U.S.C. § 1131 (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1987 to September 1989. This case comes before the Board of Veterans’ Appeals (Board) from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified before the undersigned during a February 2019 videoconference hearing. A copy of the transcript is of record. When this case was previously before the Board in November 2020, 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, and the case has been properly returned to the Board for further appellate action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Duty to Notify and Assist 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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, 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 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 Veteran’s claimed disabilities are not chronic diseases listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Analysis The Veteran claims that service connection is warranted for deviated nasal septum, sleep apnea, and a neck disability as these disabilities are related to service. Specifically, the Veteran contends and testified before the undersigned that he injured his neck and caused his deviated nasal septum during a motor vehicle accident (MVA) in service. The Veteran also contends that his deviated nasal septum was caused by being kicked in the head repeatedly in a fight that he was trying to break up or, alternatively, as due to being hit with a tent stake during boot camp. The Veteran also asserts that his service-connected residuals fractured right ribs T5 through T7 level caused his obesity which lead to his claimed sleep apnea by generally causing an inability to exercise. In this case, the Veteran has diagnoses of a deviated nasal septum, sleep apnea, and a cervical strain. Hickson element (1) is therefore satisfied as to these claims. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, service treatment records show that the Veteran was in a MVA in August 1988. In August 1988 the Veteran complained of his neck on the right side being sore. In March 1989 the Veteran was injured in the face during a fight. In an August 1989 report of medical history, the Veteran reported having a head injury. As such, Hickson element (2) is at least arguably met for these claims. The Veteran was afforded a VA-contracted examination in February 2020 in which the examiner stated in pertinent part that there was no evidence of a deviated septum in the records until 2017, several years post discharge. The examiner stated that the service separation examination made no mention of sleep apnea, a neck condition, deviated septum, or their related symptoms. The examiner stated that there was no objective evidence of record to substantiate the Veteran’s claim that sleep apnea, a deviated septum, or neck strain were caused by or incurred during active duty to include as a result of a MVA or acute injury. The Board sought an addendum opinion in the November 2020 remand as private treatment records showed that in January 2007 the Veteran was seen for a deviated nasal septum. Septal deviation was also noted in January 2011 private treatment records. In response to the Board’s remand, an addendum VA opinion was obtained in February 2021 in which the examiner provided a detailed review of the pertinent medical evidence of record. The examiner opined that it was less likely as not that the Veteran’s claimed deviated nasal septum, sleep apnea, and neck disability had onset in service or were otherwise etiologically related to service, to include a MVA, fight, and any subsequently injury from a tent stake. The examiner noted review of the private treatment records in January 2007 that showed that the Veteran was seen for a deviated nasal septum and private treatment records in January 2011 that show septal deviation. The examiner also opined that it was less likely as not that the Veteran’s claimed sleep apnea was caused or aggravated by his obesity, and it was less likely as not that the Veteran’s claimed obesity was caused or aggravated by his residuals fractured right ribs T5 through T7 level. The examiner stated that while the Veteran was evaluated and treated for injuries due to a MVA and due to injuries due to a fight with another individual while visiting a bar, available in-service treatment records pertinent to those events were silent for the objective clinical diagnoses of any nasal deviation conditions, sleep apnea conditions, and/or neck conditions. The examiner stated that available treatment records were silent for any in-service medical attention sought, clinical diagnosis with, or treatment for any injuries sustained from a tent stake. The February 2021 VA examiner stated that while available post-service treatment records supported that the Veteran had a deviated nasal septum surgically corrected, the evidence of record did not support that the identified nasal septum deviation was incurred in or caused by any in-service exposures or claimed/service-connected condition(s). The examiner also stated that available service treatment records were silent for the objective diagnosis of sleep apnea via sleep study during active duty service. The Veteran’s lay statement(s) and the lay statement(s) in support of the Veteran’s claim were reviewed and considered by the examiner; although the examiner believed those experiences occurred, the examiner stated that the Veteran and his lay supporters were not qualified to make a medical diagnosis as the result of those experiences. The examiner stated that the diagnosis of sleep apnea was a medical diagnosis, diagnosed by objective testing. The examiner stated that the weight of the medical literature supported that obstructive sleep apnea was a condition in which loose, floppy tissues in the throat occluded the passage of air during the relaxation of sleep and was thus a biomechanical condition. The examiner stated that obstructive sleep apnea was correlated with but not caused by obesity and about half of the patients diagnosed with this condition were obese. The examiner stated that there could thus be a correlation or association between obesity and obstructive sleep apnea that was in no way causative. The examiner opined that the Veteran’s obesity was not caused by or aggravated by the residuals fractured right ribs T5 through T7 level. The examiner stated that musculoskeletal conditions to include residuals of fractured right ribs T5 through T7 level did not cause an individual to become obese as supported by the evidence of record and medical literature. The examiner stated that not all individuals with musculoskeletal conditions were obese and not all obese individuals had musculoskeletal conditions; in other words, obesity was a condition due to excessive intake of calories, not because of any limitation in exercise, as supported by the evidence of record and medical literature. The Board finds the VA examination reports and opinions to be of great probative value. Indeed, the examiners considered the Veteran’s contention, the claims file, and clinical medical evidence before providing negative etiological opinions. To this point, the Board notes that medical reports must be read, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). In this case, the examiners found that the deviated nasal septum, sleep apnea, and neck disability did not have onset in or were otherwise etiologically related to service. The examiners also did not find that obesity itself caused or aggravated the sleep apnea, or that obesity was as likely as not caused or aggravated by the service-connected residuals fractured right ribs T5 through T7 level. The examiners’ negative opinions were supported by a medical rationale and was consistent with the verifiable facts regarding the Veteran’s contentions. Based upon review of the evidence of record, with regard to Hickson element (3), evidence of a nexus between the claimed in-service disease or injury and the current disabilities, the Board finds that this element is not met for the claims of service connection for deviated nasal septum, sleep apnea, and a neck disability. The Board acknowledges that the Veteran is competent to testify as to his beliefs that his disabilities are related to service. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical 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 etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See 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 claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b) (West 2014). 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.