Citation Nr: 21025111 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-32 677 DATE: April 27, 2021 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for asthma is denied. Entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The weight of the evidence is against finding that the currently diagnosed low back disability was caused or aggravated by the service-connected left knee disability. 2. The weight of the evidence is against finding that the currently diagnosed right knee disability was caused or aggravated by the service-connected left knee disability. 3. The Veteran is not currently diagnosed with asthma. 4. Resolving any reasonable doubt in the Veteran’s favor, he had symptoms of obstructive sleep apnea during service and since service separation. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for asthma have not been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 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 1986 to May 1990. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The case was last before the Board in November 2018 and has returned to the Board for further appellate review. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a) (2019). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (b) (2019); Allen v. Brown, 8 Vet. App. 374 (1995). Low Back and Right Knee Disabilities The Veteran seeks service connection for a low back disability and right knee disability, which he asserts are a result of an altered gait related to his service-connected left knee disability. As an initial matter, the Veteran has dextroscoliosis of the lumbar spine and degenerative arthritis of the right knee. Thus, the question for the Board is whether the Veteran’s current low back and right knee disabilities are to his service-connected left knee disability. With respect to the Veteran’s low back disability, the Veteran underwent a VA examination in September 2020, during which he reported that his lower back began to bother him without a specific injury that he can remember and that it has gotten worse since the onset. The examiner indicated the Veteran had a diagnosis of dextroscoliosis of the lumbar spine. After review of the record and examination of the Veteran, the examiner opined that the Veteran’s low back disability is less likely than not proximately due to or aggravated by his service-connected left knee disability. The examiner reasoned that the Veteran’s thoracolumbar spine was normal except for radiographic evidence of slight dextroscoliosis. The examiner indicated that the Veteran has full and painless range of motion and his reported symptoms are subjective only. Citing the Mayo Clinic, the examiner explained that scoliosis most often occurs during the growth spurt just before puberty and there was no evidence to suggest that scoliosis was caused by a knee pathology. Moreover, the examiner explained that since there are no abnormal findings other than slight dextroscoliosis and no objective signs of decreased range of motion, radiculopathy, or pain with movement, there was no evidence of an aggravation of a low back disability. Regarding the Veteran’s right knee disability, during a September 2020 VA examination, the Veteran reported that his right knee gradually began to bother him after his left knee disability worsened. The Veteran also reported the pain in his right knee to be worse than his left knee. The examiner noted that the Veteran was diagnosed with bilateral knee osteoarthritis in February 2015. The examiner also explained that it is not unusual for two joints to share properties in the same person, but arthritis in one joint does not cause arthritis in another. As such, the examiner opined that the Veteran’s right knee disability was less likely than not proximately due to or the result of his service-connected left knee disability. The examiner also opined that the Veteran’s right knee disability was not aggravated beyond its natural progression by the service-connected left knee disability. The examiner reasoned that the Veteran’s left knee does not bother him all that much at this time and he was not walking with an antalgic gait. Thus, the examiner concluded that there was no evidence to suggest that the osteoarthritis in the Veteran’s right knee was aggravated by the osteoarthritis in the left knee. Although the Veteran believes that his current low back and right knee disabilities are related to service, as a lay person, he has not been shown to have the specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of back and knee disabilities are matters not capable of lay observation and require medical expertise to determine. Accordingly, the Veteran’s opinion is not competent medical evidence. In sum, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection for a low back disability and right knee disability, and the claims are denied. In reaching the above conclusion, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Asthma The Veteran seeks service connection for asthma, which he asserts is related to service. Specifically, the Veteran asserts that he was exposed to asbestos during service at Camp Lejeune and has asthma as a result. However, on review, the Board finds that the Veteran does not have a current diagnosis of asthma. Initially, regarding the Veteran’s claimed in-service exposure to asbestos, the Veteran denied exposure to asbestos in an August 1987 service treatment record. Moreover, the Veteran has not responded to requests for information pertaining to asbestos exposure in service. As such, asbestos exposure is not conceded. The Veteran’s service treatment records and VA treatment records do not reveal treatment for or a diagnosis of asthma. During a November 2020 VA examination, the Veteran reported that he probably had asthma as a child, and it worsened during service while he was stationed in Japan in 1988. The examiner indicated that there was no evidence of any respiratory difficulty, to include asthma during service, and that since service, there was no evidence of any treatment or diagnosis of asthma. The Board notes that Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, without the presence of a current asthma disability, the Veteran’s claim must be denied. Although the Veteran is competent to report observable symptoms, he is not competent to diagnose a medical disability because he is not shown to possess the necessary medical knowledge and expertise to do so. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007). On the contrary, the Board assigns a high probative value to the VA examination reports and opinion that determined the Veteran does not have a current diagnosis of asthma. There is no medical opinion to the contrary. For these reasons, the Board finds that a preponderance of the evidence is against the claim and it must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Sleep Apnea The Veteran asserts that his sleep apnea symptoms were present during service. The Veteran has a current diagnosis of sleep apnea. See e.g., March 2015 sleep study. Service treatment records are silent for complaints of or a diagnosis of sleep apnea. Post-service treatment records do not reveal treatment for or a diagnosis of sleep apnea until March 2015, when the Veteran underwent a sleep study and was diagnosed with obstructive sleep apnea. In his April 2016 notice of disagreement (NOD), the Veteran reported that while on active duty he suffered from constant daytime sleepiness and was told that he would fall asleep quickly and stop breathing while he slept. A VA medical opinion was obtained in July 2020, during which the examiner opined that the diagnosed sleep apnea was less likely than not related to service. The examiner explained that the Veteran had underlying risk factors for obstructive sleep apnea at the time of diagnosis that were unrelated to service, such as being a middle-aged obese male, and that service treatment records showed no treatment or diagnosis for sleep apnea. While the Veteran is not shown to possess the necessary medical expertise to diagnose sleep apnea or render an opinion regarding the etiology of the current sleep apnea, he is competent to report what he observed firsthand, such as having daytime sleepiness. See Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds no reason to doubt the credibility of his lay assertions. Significantly, the Veteran reported symptoms of sleep apnea during service and since separation from service. For these reasons, the Board finds the examiner’s opinion inadequate since it disregarded these credible statements. Proof of symptoms in service that are later diagnosed may be evidence of service “incurrence.” See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a), (d); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). In this case, the finding that the Veteran has had sleep apnea symptoms, particularly in service and since separation from service, is supportive of the claim overall, because it tends to show that the same symptoms that began in service were the basis for the later diagnosed sleep apnea. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements are competent on in-service and post-service symptoms - dizziness, loss of balance, hearing trouble, stumble and fall, and tinnitus - that were later diagnosed as Meniere’s disease). Accordingly, based on the competent and credible lay and medical evidence on record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that his sleep apnea had its onset during active service. REASONS FOR REMAND A remand is necessary to attempt to verify the Veteran’s reported stressors and to obtain legible copies of his military personnel records. Notably, the Veteran asserts that he had psychiatric symptoms such as anger outbursts in service, which led to some disciplinary actions. However, while the private physician related the current diagnosis to service based on review of the military personnel records, the Board finds these records illegible. An attempt to obtain/upload a legible copy of the Veteran’s military personnel records should be made. Additionally, during the July 2020 telehealth VA examination, the examiner confirmed a diagnosis of PTSD and opined that it was at least as likely as not related to the Veteran’s reported stressor. Specifically, the Veteran reported that during a deployment in Istanbul there was always uncertainty and fear of terrorist activity. From the available records, neither the Veteran’s deployment nor the nature of his service can be verified. On remand, the RO must attempt to verify the Veteran’s deployment and nature of his service at the time. The matters are REMANDED for the following action: 1. Attempt to locate and upload a legible copy of the Veteran’s military personnel records. 2. Contact the appropriate department, agency, or records repository and research/attempt to verify the Veteran’s reported stressor of fear of terrorist activity during a deployment in Istanbul, Turkey. All attempts to secure this evidence must be documented in the record by the AOJ. If no additional records are available, a formal documentation showing unavailability should be attached to the Veteran’s file. 3. After Directives 1 and 2 above are fulfilled, but regardless of whether new evidence is received, provide the Veteran with a VA examination to help determine the likely etiology of the claimed acquired psychiatric disorder. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify any currently diagnosed acquired psychiatric disorders, to include PTSD. (b) If the examiner concludes that no psychiatric disorder is shown, he or she must reconcile prior diagnoses of PTSD, and explain how they have resolved. (c) For each currently diagnosed acquired psychiatric disorder, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) related to the Veteran’s active duty service. In doing so, please address the Veteran’s competent reports of in-service anger outbursts that resulted in disciplinary actions against him as well as any verified stressor related to fear of terrorist activity. A complete rationale should be provided for all opinions. (Continued on the next page)   4. Thereafter, readjudicate the remanded claim. A. Yaffe Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lance, Associate 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.