Citation Nr: 21025891 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-37 533 DATE: April 29, 2021 ORDER Service connection for diabetic retinopathy is granted. Service connection for a sleep disorder, to include sleep apnea, is denied. Service connection for acid reflux is denied. Service connection for a skin disorder, claimed as secondary to service-connected type 2 diabetes mellitus, is denied. Service connection for a headache disorder is denied. Service connection for an acquired psychiatric disorder is denied. Service connection for peripheral neuropathy of the upper extremities is denied. FINDINGS OF FACT 1. The Veteran has diabetic retinopathy that is a complication of his service-connected type 2 diabetes mellitus. 2. The Veteran’s sleep disturbance, characterized as insomnia, is a symptom of his service-connected restless leg syndrome; the preponderance of the evidence of record is against a finding that he has had a separate sleep disability, to include sleep apnea, at any time during or proximate to the pendency of his claim. 3. The preponderance of the evidence of record is against a finding that the Veteran has had an acid reflux disability at any time during or proximate to the pendency of his claim. 4. The preponderance of the evidence of record is against a finding that the Veteran has had a skin disability at any time during or proximate to the pendency of his claim. 5. The preponderance of the evidence of record is against a finding that the Veteran has had a chronic headache disability at any time during or proximate to the pendency of his claim. 6. The preponderance of the evidence of record is against a finding that the Veteran has had an acquired psychiatric disorder at any time during or proximate to the pendency of his claim. 7. The preponderance of the evidence of record is against a finding that the Veteran has had peripheral neuropathy of the upper extremities at any time during or proximate to the pendency of his claim. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for diabetic retinopathy as secondary to service-connected type 2 diabetes mellitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for an award of service connection for a sleep disorder, to include sleep apnea, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an award of service connection for acid reflux have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for an award of service connection for a skin disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for an award of service connection for a headache disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for an award of service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for an award of service connection for peripheral neuropathy of the upper extremities have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 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 in the United States Army from April 1971 to May 1973, to include service in Vietnam. His decorations include the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In October 2015, the Veteran’s attorney withdrew from representation. The Veteran is currently proceeding pro se. In January 2019, the Board remanded the issues on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. See November 2020 supplemental statement of the case. The January 2019 Board decision also remanded the issue of entitlement to non-service-connected pension benefits. That issue will be addressed in a separate Board decision. Service Connection 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(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time of filing a claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The term “disability” as used for VA purposes generally contemplates functional impairment resulting in loss of earning capacity. See 38 C.F.R. § 4.1; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In the absence of proof of a current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328, 1333 (1997). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases, such as an organic disease of the nervous system, to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for diabetic retinopathy is granted. The Veteran seeks to establish service connection for an eye disorder. The evidence in favor of the Veteran’s claim includes a January 2017 VA examiner’s assessment that complications of the Veteran’s service-connected type 2 diabetes mellitus included diabetic retinopathy. The evidence against the Veteran’s claim includes a May 2017 VA examiner’s assessment that the Veteran did not have diabetic retinopathy at the time of the examination, but that symptoms of diabetic retinopathy had their onset in 2009 and he had been diagnosed with diabetic eye problems in 2014. Upon review of the record, the Board finds the evidence to be at least in equipoise as to whether the Veteran has had diabetic retinopathy during the pendency of his claim as a complication of his service-connected diabetes mellitus. Resolving all doubt in favor of the Veteran, the Board finds that service connection for diabetic retinopathy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The appeal of this issue is granted. 2. Service connection for a sleep disorder, to include sleep apnea, is denied. The Veteran seeks to establish service connection for a sleep disorder. He asserts that he has sleep problems due to neuropathy and cluster headaches. See, e.g., June 2012 VA Form 21-0820. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Following review of the record, the Board concludes that he does not have a current diagnosis of a sleep disability, to include sleep apnea, and has not had one at any time during the pendency 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). A January 2017 VA central nervous system and neuromuscular diseases examiner assessed that the Veteran’s sleep disturbance, characterized as insomnia, was a symptom of his service-connected restless leg syndrome. The examiner did not check the boxes on the examination report indicating that the Veteran had sleep apnea. Treatment records during or proximate to the pendency of the claim do not otherwise show that the Veteran has been diagnosed with a separate sleep disability, to include sleep apnea. Based on the foregoing, the Board finds that the Veteran’s sleep disturbance is a symptom of his service-connected restless leg syndrome rather than a separate disability for which service connection may be awarded. An award of service connection for a separate sleep disability based on the same symptom would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994); see also Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam) (the Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so, although the Board may not ignore such distinctions where they appear in the medical record). While the Veteran may believe that he suffers from a sleep disability that is related to service or to a service-connected disability, he is not competent to diagnose such disability, or to otherwise provide a nexus opinion in this case. As a lay person, he is not shown to have the requisite medical knowledge, training, or experience to be able to render a competent diagnosis of a sleep disability, to include sleep apnea, or to proffer a competent opinion regarding the matter of whether his sleep disturbance is a separate disability or a symptom of his restless leg syndrome. Jandreau, 492 F.3d at 1377 n.4; see also Kahana, 24. Vet. App. 428. In light of the above, and 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(b); Gilbert, supra. The appeal of this issue is denied. 3. Service connection for acid reflux is denied. The Veteran seeks to establish service connection for acid reflux. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Following review of the record, the Board concludes that he does not have a current diagnosis of acid reflux and has not had one at any time during the pendency or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. Treatment records during or proximate to the pendency of the claim do not show any complaints of, treatment for, or diagnoses of acid reflux. While a diagnosis is not always necessary to establish the presence of a current disability, which may be demonstrated by evidence of functional impairment of earning capacity (Saunders, 886 F.3d 1356), the Veteran has not provided such evidence. 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); Brammer, 3 Vet. App. at 225. Even assuming arguendo that the Veteran has acid reflux, none of the competent and probative evidence indicates that the disability may be associated with service. His service treatment records are completely devoid of any mention of acid reflux or gastrointestinal problems. The May 1973 service separation examination report shows a normal clinical evaluation of the abdomen and viscera, and the Veteran did not otherwise report any gastrointestinal problems at that time. While the Veteran may believe that he suffers from acid reflux that is related to service, he is not competent to diagnose such a disability, or to otherwise provide a nexus opinion in this case. As a lay person, he is not shown to have the requisite medical knowledge, training, or experience to be able to render a competent diagnosis of acid reflux, or to proffer a competent opinion regarding the matter of whether his claimed acid reflux may be related to service. Jandreau, at 1377 n.4; see also Kahana, 24. Vet. App. 428. The Board acknowledges that the Veteran has not been afforded a VA examination with respect to this claim. However, in the absence of any competent and probative evidence indicating that a gastrointestinal disorder may be associated with service, an examination is not required. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Because the preponderance of the evidence is against the claim for service connection for acid reflux, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); Gilbert, supra. The appeal of this issue is denied. 4. Service connection for a skin disorder, claimed as secondary to service-connected type 2 diabetes mellitus, is denied. The Veteran seeks to establish service connection for a skin disorder. He asserts that he has a skin condition and sores that do not heal due to his service-connected diabetes mellitus. See, e.g., June 2012 VA Form 21-0820. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Following review of the record, the Board concludes that he does not have a current diagnosis of a skin disorder and has not had one at any time during the pendency or recent to the filing of the claim. Romanowsky, at 294; McClain, at 321. A June 2015 VA skin examination report reflects that the Veteran reported that he had recurrent skin lesions on his chest, which resolved with topical medication. The Veteran did not have any current lesions at the time of the examination. Upon examination of the Veteran, the examiner assessed that the Veteran did not have or had ever had a skin disorder. See also January 2017 VA diabetes mellitus examination report (wherein the VA examiner checked the box indicating that the Veteran did not have a skin condition that was at least as likely as not due to diabetes mellitus). Treatment records during or proximate to the pendency of the claim do not show any complaints of, treatment for, or diagnoses of a skin disorder. While a diagnosis is not always necessary to establish a current disability, which may be demonstrated by evidence of functional impairment of earning capacity (Saunders, 886 F.3d 1356), the Veteran has not provided such evidence. 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, 155 F.3d 1353; Brammer, at 225. Because the preponderance of the evidence is against the claim for service connection for a skin disorder, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); Gilbert, supra. The appeal of this issue is denied. 5. Service connection for a headache disorder is denied. The Veteran seeks to establish service connection for a headache disorder. He asserts that he was diagnosed with trigeminal neuralgia in 2009. See, e.g., June 2012 VA Form 21-0820. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Following review of the record, the Board concludes that the Veteran does not have a current diagnosis of a chronic headache disorder and has not had one at any time during the pendency or recent to the filing of the claim. Romanowsky, at 294; McClain, at 321. The Veteran has not submitted medical evidence of the claimed 2009 diagnosis of trigeminal neuralgia. Treatment records during or proximate to the pendency of the claim do not show any complaints of, treatment for, or diagnoses of a headache disorder. While a diagnosis is not always necessary to establish a current disability, which may be demonstrated by evidence of functional impairment of earning capacity (Saunders, 886 F.3d 1356), the Veteran has not provided such evidence. 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); Brammer, 3 Vet. App. at 225. Even assuming arguendo that the Veteran has a headache disorder, none of the competent and probative evidence indicates that the disability may be associated with service or with an already service-connected disability. His service treatment records are completely devoid of complaints of, treatment for, or diagnoses of a headache disorder. The May 1973 service separation examination report shows a normal clinical evaluation of the head and face, as well as his neurologic system, and the Veteran did not otherwise report any history of headaches at that time. The Board acknowledges that the Veteran has not been afforded a VA examination with respect to this claim. However, in the absence of any competent and probative evidence indicating that a headache disorder may be associated with service or an already service-connected disability, an examination is not required. See Waters, 601 F.3d at 1278; McLendon, 20 Vet. App. 79. Because the preponderance of the evidence is against the claim for service connection for a headache disorder, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); Gilbert, supra. The appeal of this issue is denied. 6. Service connection for an acquired psychiatric disorder is denied. The Veteran seeks to establish service connection for an acquired psychiatric disorder. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Following review of the record, the Board concludes that the Veteran does not have a current diagnosis of an acquired psychiatric disorder and has not had one at any time during the pendency or recent to the filing of the claim. Romanowsky, at 294; McClain, at 321. Treatment records during or proximate to the pendency of the claim do not show any complaints of, treatment for, or diagnoses of an acquired psychiatric disorder. For psychiatric disorders, a diagnosis conforming to the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) is required. See 38 C.F.R. § 4.125(a); Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). 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, 155 F.3d 1353; Brammer, at 225. As such, the Board finds that the evidence weighs against a finding of a current disability. Even assuming arguendo that the Veteran had an acquired psychiatric disorder, none of the competent and probative evidence indicates that such a disability may be associated with service. His service treatment records are completely devoid of any mention of psychiatric or mental health problems. The May 1973 service separation examination report reflects a normal psychiatric evaluation, and the Veteran did not otherwise report any psychiatric or mental health problems at that time. While the Veteran may believe that he suffers from an acquired psychiatric disorder that is related to service, he is not competent to diagnose such disability, or to otherwise provide a nexus opinion in this case. As a lay person, he is not shown to have the requisite medical knowledge, training, or experience to be able to render a competent diagnosis of an acquired psychiatric disorder, or to proffer a competent opinion regarding the matter of whether his claimed acquired psychiatric disorder may be related to service. Jandreau, at 1377 n.4; see also Kahana, 24. Vet. App. 428. The Board acknowledges that the Veteran has not been afforded a VA examination with respect to this claim. However, in the absence of any competent and probative evidence indicating that an acquired psychiatric disorder may be associated with service, an examination is not required. See Waters, at 1278; McLendon, 20 Vet. App. 79. Because the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); Gilbert, supra. The appeal of this issue is denied. 7. Service connection for peripheral neuropathy of the upper extremities is denied. The Veteran seeks to establish service connection for peripheral neuropathy of the upper extremities. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Following review of the record, the Board concludes that he does not have a current diagnosis of peripheral neuropathy of the upper extremities and has not had one at any time during the pendency or recent to the filing of the claim. Romanowsky, at 294; McClain, at 321. The Veteran underwent a VA diabetic sensory-motor peripheral neuropathy examination in June 2015. The examiner diagnosed peripheral neuropathy of the lower extremities associated with type 2 diabetes mellitus, but did not diagnose peripheral neuropathy of the upper extremities. In this regard, the examiner noted that the Veteran had no pain (constant or intermittent), paresthesias, dysesthesias, or numbness in the upper extremities. Upon neurologic examination of the Veteran, the examiner assessed normal strength, deep tendon reflexes, light touch/monofilament, and vibration sensation of the upper extremities. The examiner further assessed that the nerves of the upper extremities were normal. A concurrent VA peripheral nerves examination report showed similar findings. See also January 2017 VA diabetic sensory-motor peripheral neuropathy examination report; January 2017 VA central nervous system and neuromuscular diseases examination report. Treatment records during the appeal period do not otherwise show a diagnosis of peripheral neuropathy of the upper extremities. While the Veteran believes that he has peripheral neuropathy of the upper extremities, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires knowledge of the neurologic system and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In any event, the Board gives more probative weight to the competent medical evidence. While a diagnosis is not always necessary to establish a current disability, which may be demonstrated by evidence of functional impairment of earning capacity (Saunders, 886 F.3d 1356), the Veteran has not provided such evidence. 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, 155 F.3d 1353; Brammer, at 225. For the reasons stated, the Board finds that the evidence weighs against a finding of a current disability, and that service connection for peripheral neuropathy of the upper extremities must therefore be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert, supra. The appeal of this issue is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Ragheb, 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.