Citation Nr: 21025771 Decision Date: 04/29/21 Archive Date: 04/28/21 DOCKET NO. 14-36 831 DATE: April 29, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for nail fungus on fingernails and toes (skin disorder) is denied. FINDINGS OF FACT 1. The Veteran’s sleep apnea disorder first developed after the Veteran’s initial period of active service and was not caused or aggravated by the Veteran’s initial period of active service. 2. The Veteran’s sleep apnea disorder clearly and unmistakably pre-existed the Veteran’s second period of active service and clearly and unmistakably was not aggravated by this period of service. 3. The Veteran’s skin disorder first developed after the Veteran’s initial period of active service and was not caused or aggravated by the Veteran’s initial period of active service. 4. The Veteran’s skin disorder clearly and unmistakably pre-existed the Veteran’s second period of active service and clearly and unmistakably was not aggravated by this period of service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2019). 2. The criteria for entitlement to service connection for nail fungus on fingernails and toes (skin disorder) have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1975 to November 1979 and from July 2006 to May 2007. In March 2018, he testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In June 2018 and August 2020, and in pertinent part, the Board remanded the Veteran’s appeal with respect to these issues. It has since been returned to the Board for further consideration. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in-service; and, (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). A veteran is presumed to have been in sound condition at service entrance except as to defects, infirmities, or disorders noted, or where clear and unmistakable evidence demonstrates that the injury or disease existed before service. 38 U.S.C. § 1111. The implementing regulation, 38 C.F.R. § 3.304(b), similarly provides that “[t]he veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted.” 38 C.F.R. § 3.304(b). A veteran thus enjoys an initial presumption of sound condition upon service entry if the enlistment records do not reflect that the veteran has a disease or injury that subsequently becomes manifest during service. Wagner v. Principi, 370 F.3d 1089, 1096 (2004) (noting that “[w]hen no preexisting condition is noted upon entry to service, the veteran is presumed to have been sound upon entry,” but that “if a preexisting disorder is noted upon entry to service, the veteran cannot bring a claim for service connection for that disorder”); see 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). To rebut the presumption of soundness under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003; Wagner, supra. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for obstructive sleep apnea The Veteran seeks entitlement to service connection for obstructive sleep apnea. Essentially, he contends that his sleep apnea onset in-service and he currently suffers from sleeping problems. He has also included several lay statements from his fellow service members that attest to his sleeping problems and snoring during service. Initially, the Board notes that his service records are silent as to any complaints of or treatment for any matter of sleep disturbances. The Board notes that the Veteran’s private treatment records from Kaiser Permanente reflect a diagnosis of sleep apnea. A sleep consultation note indicates that the Veteran uses a Continuous Positive Airway Pressure (CPAP) machine to treat his sleep apnea. In March 2018, the Veteran testified that while in-service, his shipmates would complain that he snored loudly and several persons said that when he was snoring, he would also stop breathing. He has also included several lay statements from his fellow service members that attest to his sleeping problems and snoring during service. During remand development, the Veteran received a VA examination in January 2020, which confirmed a diagnosis of obstructive sleep apnea. After a review of the Veteran’s claim file and summary of his treatment records, the examiner determined that the Veteran’s condition is less likely than not attributable to service. The examiner reasoned that the Veteran’s first sleep study was conducted in 2012 and that his sleep score of 25 suggested that his sleep apnea was severe and had onset at least 10-20 years prior to the sleep study. The examiner also stated that based on one of the lay statements in support of his claim, “it is likely that the veteran had sleep apnea during his 2006/7 [deployment]. However, it is also likely that he had it for many years before that.” Pursuant to the Board’s August 2020 remand, an addendum opinion was obtained later that month. The examiner stated that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. The examiner provided the following rationale: The exact cause of sleep apnea remains elusive. There are many risk factors identified for sleep apnea, chief among them are age and overweight/obesity. Veteran weight at second period of service: 3 Nov 06 188; 7 Jan 07 186; Weight at diagnosis: unknown. Weight at C&P exam: 9 Jan 2020 235. There was only a one year increase in age during the second period of service and no significant weight gain. According to the literature, there are no known risk factors for sleep apnea that can be attributed to a specific event or exposure. Therefore, it is my opinion that the veteran's sleep apnea is clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The Board assigns little probative value to the Veteran’s assertions that he developed sleep apnea during his first period of active duty. The records for this period of service are silent to any sleep apnea disorder and the record indicates that a sleep apnea disorder was first diagnosed in 2012. More probative is the opinion of the VA examiner and opinion of record, who examined the Veteran and reviewed the record, and then opined that the Veteran’s sleep apnea was not incurred in or caused by the Veteran’s first period of active service. The Board notes that the contemporaneous STRs from the Veteran’s second period of service show no complaints or treatment for a sleep apnea disorder. The Board finds that this, along with the August 2020 VA medical opinion that the Veteran’s sleep disorder did not permanently worsen during the Veteran’s second period of service, comprises clear and unmistakable evidence that the Veteran’s sleep apnea disorder was not permanently aggravated by the Veteran’s second period of active service. The examiner also pointed to several risk factors common for those with sleep apnea, including obesity. In making this decision the Board notes that the Veteran is competent to report his experience during service. The Board also acknowledges the lay evidence asserting that the Veteran’s obstructive sleep apnea is related to service. Although lay persons are competent to provide opinions on some medical issues, the specific issues in this case, the etiology of the Veteran’s claimed sleep apnea, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). For the above reasons, the Veteran’s claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. 2. Entitlement to service connection for nail fungus on fingernails and toes The Veteran seeks entitlement to service connection nail fungus on fingernails and toes. His service treatment records reveal several reports of a skin or nail fungus. In March 2018, he testified that his skin began to itch around 1979, and he has treated his condition with creams. During remand development, the Veteran underwent a VA examination in January 2020, wherein he was diagnosed with onychomycosis. The Board acknowledges that the same examiner that performed his sleep apnea examination conducted his skin examination. That examiner concluded that the Veteran’s condition is less likely than not attributable to service. The examiner explained that “The veteran’s STRs contain a note from 15 Nov 06 documenting nail fungus present for ‘one [year].’ That would date the onset in late 2005, while the veteran was not on active status.” Pursuant to the Board’s August 2020 remand, an addendum opinion was provided later that same month. The examiner stated that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner provided the following rationale: The veteran's STR contains a single note dated 15 Nov 06 documenting finger and toenail fungus as well as treatment. The veteran reported to me that the condition improved with treatment. The STR does not contain any further entries on the subject. The veteran himself stated to me that his condition is better than when is presented for care while in-service. Therefore, it is my opinion that the veteran's nail fungus condition is clearly and unmistakably not aggravated by an in-service injury, event, or illness. The Board assigns little probative value to the Veteran’s assertions that he developed sleep apnea during his first period of active duty. The records for this period of service are silent to any skin condition and the record indicates that a skin condition was not present until approximately 2005. More probative is the opinion of the VA examiners and opinions of record, who examined the Veteran and reviewed the record, and then opined that the Veteran’s skin disorder was not incurred in or caused by the Veteran’s first period of active service. The Board observes that the contemporaneous STRs from the Veteran’s second period of service show a single notation for fungus in November 2006. The Board finds that this, along with the August 2020 VA medical opinion that the Veteran’s skin disorder did not permanently worsen during the Veteran’s second period of service, comprises clear and unmistakable evidence that the Veteran’s sleep apnea disorder was not permanently aggravated by the Veteran’s second period of active service. Moreover, the Veteran stated to the examiner that his condition is presently better compared to when he was in the military. Again, the Board notes that the Veteran is competent to report his experience during service. The Board also acknowledges the lay evidence asserting that the Veteran’s skin disorder is related to service. However, he is not competent to provide an opinion as to a complex medical question such as the one at hand.   For the above reasons, the Veteran’s claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Miller, 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.