Citation Nr: 21026063 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-45 838 DATE: April 29, 2021 ORDER Entitlement to service connection for peripheral neuropathy, right upper extremity, to include as secondary to diabetes mellitus, type II is denied. Entitlement to service connection for peripheral neuropathy, left upper extremity, to include as secondary to diabetes mellitus, type II is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. There is no current diagnosis of peripheral neuropathy of the right upper extremity. 2. There is no current diagnosis of peripheral neuropathy of the left upper extremity. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy of the right upper extremity are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for service connection for peripheral neuropathy of the left upper extremity are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 1969 to July 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and September 2014 rating decisions by Regional Offices (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified at a February 28, 2019 hearing held before the undersigned Veterans Law Judge (VLJ) at the Montgomery, Alabama RO. A transcript of the hearing is associated with the claims file. These matters were previously before the Board in June 2019 at which time they were remanded for additional development. During the pendency of the appeal, July 2020 rating decision and December 2020 rating decisions granted service connection for posttraumatic stress disorder, and for peripheral neuropathy of the right and left lower extremities. These actions constitute a full grant of the benefits sought, and these issues are no longer on appeal. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in January 2014. The RO associated the Veteran’s service and VA private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also 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). In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence, the benefit of the doubt is afforded the claimant. Peripheral Neuropathy, Bilateral Upper Extremities The Veteran asserts he had peripheral neuropathy of the bilateral upper extremities due to his diabetes mellitus. At a VA diabetes mellitus examination in November 2015, no peripheral neuropathy of the bilateral upper extremities was reported or documented. The Veteran’s service treatment records (STRs) are negative for treatment for symptoms of peripheral neuropathy of the upper extremities and/or for a diagnosis of this condition in service. VA treatment records include an August 2018 electromyography report. The Veteran reported experiencing tingling in his upper extremities, left hand and wrist tingling more than the right. Nerve conduction studies of the left median and ulnar motor nerves were normal. Left median, radial, and ulnar sensory nerve conduction studies were normal. At his February 2019 hearing, the Veteran testified that he experiences numbness in his arms at night when he goes to bed. The Veteran underwent a VA peripheral nerves examination in November 2019. The VA examiner did not find that the Veteran has peripheral neuropathy of the bilateral upper extremities. All findings of the bilateral upper extremity nerves were normal. A December 2020 VA contract addendum opinion clarified that the Veteran had no left or right arm peripheral neuropathy by history or by the examination. As outlined above, the medical evidence does not reveal a diagnosis of peripheral neuropathy of the bilateral upper extremities. Although the Veteran reports neurological symptoms, his lay reports are outweighed by the repeated medical opinions and objective testing. 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 v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board finds that the evidence weighs against a finding of a current disability and service connection must therefore be denied. REASONS FOR REMAND The Veteran asserts that he has obstructive sleep apnea which is related to his time in service. His STRs are negative for treatment for complaints of snoring and/or a diagnosis of obstructive sleep apnea. VA treatment records show that is June 2013, the Veteran sought a sleep study after being told that during recent testing, his breathing was shallow; during that hospital stay, nurses noted he slept quietly, but was easily roused. He was diagnosed with obstructive sleep apnea in October 2013 based on testing the prior month, and uses a C-PAP machine. The Veteran testified at his February 2019 hearing that he experienced snoring in service. The Veteran’s wife, RC, submitted a statement in February 2019 in which she stated that she married the Veteran shortly after his return from Vietnam. She stated that the Veteran snores, and that his snoring is so severe that she sleeps in a separate room. The Veteran underwent a VA sleep apnea exam in November 2019. The VA examiner determined that it was less likely than not that the Veteran’s obstructive sleep apnea had its onset in service or is caused by an in-service injury, event, or illness. The VA examiner noted that there is no medical evidence to suggest that the Veteran’s obstructive sleep apnea diagnosed in 2013 was incurred in or was caused by active duty service. The Veteran’s separation physical examination was negative for a diagnosis of obstructive sleep apnea or use of a C-PAP machine during active duty service. The VA examiner stated that there is no medical evidence of record to suggest the Veteran suffered from obstructive sleep apnea during active military service. However, the examiner failed to consider the competent lay reports of snoring in service, and whether such might be an initial indicator of sleep apnea. This omission renders the opinion inadequate, and requires an addendum opinion. The appeal is remanded for the following action: 1. Return the claims file to the examiner who provided the November 2019 nexus opinion regarding sleep apnea for provision of an addendum opinion. If she is unavailable, another equally qualified clinician may be consulted. The claims file must be reviewed in conjunction with the opinion. The reviewer must opine as to whether it is at least as likely as not currently diagnosed obstructive sleep apnea is caused or aggravated by military service or a service-connected disability, or had its onset during active service. A full and complete rationale for all opinions expressed is required. In connection with that, the reviewer must discuss the competent reports of the Veteran and his wife of snoring during and after service, as well as the contribution, if any, of diabetes to excessive weight. 2. Then, readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the matter to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Margaret M. Lunger 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.