Citation Nr: 21026188 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 19-15 750A DATE: April 30, 2021 ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for a skin disorder. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a right shoulder disorder is denied. Entitlement to service connection for residuals of a cerebrovascular disease (CVA) is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a skin disorder is remanded. Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a low back disorder is remanded. FINDINGS OF FACT 1. The RO previously denied the Veteran’s claim of entitlement to service connection for a skin disorder in a May 1985 rating decision. The Veteran was notified of the decision, but he did not appeal, and that claim is final. 2. Evidence obtained since the May 1985 rating decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a skin disorder. 3. The preponderance of the evidence is against finding that the Veteran has sleep apnea due to a disease or injury in service. 4. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a right shoulder disorder, to include a disability manifested by pain. 5. The preponderance of the evidence is against finding that the Veteran’s residuals of a CVA is due to a disease or injury in service. CONCLUSIONS OF LAW 1. The May 1985 rating decision which denied entitlement to service connection for a skin disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received in order to reopen the claim of entitlement to service connection for a skin disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for a right shoulder disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for residuals of a CVA are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to February 1978. A review of the record reveals that in January 2020, the Veteran’s representative requested a hearing before a Veterans Law Judge of the Board. See June 2019 VA Form 9. However, in an April 2021 correspondence, the Veteran withdrew this hearing request. Further, the Board notes that correspondence dated in April 2021 indicates that the Veteran is seriously ill and has requested his claim be advanced on the Board’s docket. As the Board finds good cause has been submitted, the request is granted. The Board notes that the Veteran perfected claims for skin, sleep apnea, right shoulder, left shoulder, CVA, hypertension, skin, and a back disorder in the Legacy system. He also submitted claims under the Appeals Modernization Act (modernized system) for the same issues. Given, however, that the claims under the Legacy system were perfected on the same day as the VA From 10182 was submitted, and where the Veteran did not check the box on his VA Form 10182, requesting withdrawal of the claims from the Legacy system, the Board addressed the claims under the Legacy system. REFERRAL Finally, the Board notes that the Veteran filed a claim of entitlement to a total disability based on individual unemployability (TDIU) in June 2014. However, to date, the RO has not adjudicated the claim and therefore, the Board does not have jurisdiction over it. Thus, the claim of entitlement to a TDIU is referred to the Agency of Original Jurisdiction (AOJ) for adjudication in the first instance. New and Material Evidence Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of background, the RO previously considered and denied the Veteran’s claim for service connection for a skin disorder in a March 1985 rating decision on the basis that the pre-existing skin disorder was not aggravated by service. The Veteran did not file a notice of disagreement with this determination. As no further action was pursued, the March 1985 decision is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2020). The Veteran filed a petition to reopen this claim in November 2018. Since the Mach 1985 denial, the Veteran has provided private treatment records showing a continuation of skin rashes. See March 2001 Private Treatment Record. Moreover, in a June 2019 statement, the Veteran has attested to the fact that the rash as worsened since his service. The Board finds that this evidence addresses an unestablished fact, and the claim is reopened. Reopening of the claim for service connection for a skin disorder is accordingly warranted. To this extent only, the claim is granted. Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). 1. Sleep apnea The Veteran contends that he suffers from sleep apnea that is attributable to his military service. 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. The Board concludes that, while the Veteran has a current diagnosis of sleep apnea (see February 2018 private treatment record), the preponderance of the evidence weighs against finding that the Veteran’s current sleep apnea is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records are negative for complaints of, treatment for, or a diagnosis of sleep apnea. In fact, the evidence does not indicate the Veteran was diagnosed with sleep apnea until February 2018. Given this, the second prong of service connection has not been satisfied. As to the third prong of service connection, this has not been satisfied either. Although the Veteran is competent to describe the symptoms he observed, he is not competent to medically relate those symptoms to a specific diagnosis of sleep apnea or to his service, as that requires complex medical knowledge. Such a conclusion regarding causation requires specific, highly specialized, medical knowledge and training regarding the unseen and complex processes of the respiratory system, and the Veteran is not shown to possess such medical training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, while the claims folder does show he has sought treatment for his sleep apnea throughout the appeals period, the claims file does not contain any medical records or etiological opinions linking the Veteran’s disorder to his active service. In sum, there is no evidence, medical or otherwise, to support the Veteran’s assertions. The Board notes that VA has not provided the Veteran with an examination to determine the nature and etiology of his diagnosed sleep apnea. However, there is no competent and credible evidence that he had the claimed disorder during service or even for approximately 40 years after his discharge. Therefore, the Board is not required to have him undergo a VA compensation examination for a medical nexus opinion concerning this determinative issue. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). In fact, the only evidence in support of this claim is the Veteran’s own lay allegation concerning this purported correlation. However, the Court in Waters v. Shinseki, has held that a veteran’s “conclusory generalized statement” that an in-service event caused his current medical problems was not “enough to entitle him to a medical examination.” 601 F.3d 1274 (Fed. Cir. 2010). In sum, while the Veteran’s claim satisfies prong (1) requiring a current disability, it fails at prongs (2) and (3), as there is no in-service incurrence and there is no nexus between the Veteran’s currently diagnosed sleep apnea and his active service. Accordingly, the criteria for service connection are not met and the claim must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (West 2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter, where the evidence does not support such a finding. 2. Right shoulder disorder The Veteran contends that he suffers from a right shoulder disorder that is due to his military service. The question for the Board is whether the Veteran has a current diagnosis of a right shoulder disorder that is at least as likely as not related to an in-service injury, event, or disease. For the reasons discussed below, the Board concludes that the Veteran does not have a current diagnosis of a right shoulder disorder, to include complaints of pain, and has not received a diagnosis at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In this respect, the Board notes that the Veteran’s VA and private treatment records are silent regarding complaints of, treatment for, or a diagnosis of a right shoulder disorder. The Board also specifically notes there are no complaints of pain in the upper extremities. The Board has also reviewed the record for statements from the Veteran submitted in support of his claim. However, the Veteran has not put forth any arguments for the advancement of the right shoulder disorder. Additionally, the Board acknowledges that the Veteran has not been provided with A VA compensation examination addressing his service connection claim for this disorder. Regulations provide that VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to decide on the claim. 38 C.F.R. § 3.159(c)(4). In service-connection claims, such as is the case here, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). In this case, examinations are not necessary to adjudicate the Veteran’s service-connection claim as there is no evidence of a current diagnosis for the claimed disorder. Therefore, a remand requesting an examination is not required. 38 C.F.R. § 3.159(c)(4); McLendon, supra. As noted above, the threshold requirement for service connection is competent medical evidence of the existence of the claimed disability at some point during the course of the appeal or in proximity to the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In this respect, the Board is cognizant of the holding in Saunders v. Wilkie which states that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). In sum, pain alone resulting in functional impairment is in fact a disability and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. However, with respect to the right shoulder disorder claim, the Veteran does not claim, nor do his medical records show that he experiences pain, much less any functional impairment, due to a right shoulder disorder. As such, Saunders is not applicable in this case. The Board finds that the Veteran’s claim fails as he has not met the first element of service connection, the requirement of a current diagnosis for the claimed disorder. As the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 (b). As such, the claim must be denied. The Board wishes a more favorable determination was possible, however, in the present appeal, the evidence does not support such a finding. 3. Residuals of a CVA The Veteran contends that he suffered from a stroke, claimed as residuals of CVA, that is attributable to his military service. 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. The Board concludes that, while the Veteran suffered from a CVA in 2000 and currently experiences some residuals including weakness on the right side and dizziness (see October 2004 VA treatment record and May 2008 Private Treatment Record), the preponderance of the evidence weighs against finding any current residuals associated with the prior CVA are related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records are negative for complaints of, treatment for, or a diagnosis of a CVA or any symptomology associated with a CVA. In fact, the evidence does not indicate the Veteran was diagnosed with a CVA until 2000. Given this, the second prong of service connection has not been satisfied. As to the third prong of service connection, this has not been satisfied either. Although the Veteran is competent to describe the symptoms he observed, such as weakness on the right side, he is not competent to medically relate those symptoms to a specific diagnosis of CVA or to his service, as that requires complex medical knowledge. Such a conclusion regarding causation requires specific, highly specialized, medical knowledge and training regarding the unseen and complex processes of the neurological system, and the Veteran is not shown to possess such medical training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, while the claims folder does show he has sought treatment for his CVA and any associated residuals throughout the appeal period, the claims file does not contain any medical records or etiological opinions linking the Veteran’s disorder to his active service. In sum, there is no evidence, medical or otherwise, to support the Veteran’s assertions. The Board notes that VA has not provided the Veteran with an examination to determine the nature and etiology of this disorder. However, there is no competent and credible evidence that he had the claimed disorder during service or even for over 22 years after his discharge. Therefore, the Board is not required to have him undergo a VA compensation examination for a medical nexus opinion concerning this determinative issue. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). In fact, the only evidence in support of this claim is the Veteran’s own unsubstantiated lay allegation concerning this purported correlation. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (the Federal Circuit held that a veteran’s “conclusory generalized statement” that an in-service event caused his current medical problems was not “enough to entitle him to a medical examination.”) In sum, while the Veteran’s claim satisfies prong (1) requiring a current disability, it fails at prongs (2) and (3), as there is no in-service incurrence and there is no nexus between the Veteran’s currently diagnosed residuals of a CVA and his active service. Accordingly, the criteria for service connection are not met and the claim must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (West 2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Board wishes a more favorable determination was possible, however, in the present appeal, the evidence does not support such a finding. REASONS FOR REMAND 1. Hypertension and Residuals of a CVA The Veteran is seeking entitlement to service connection for hypertension that he contends is due to his military service. The Board notes the Veteran’s January 1974 entrance examination includes a notation of hypertension prior to service entrance. Moreover, a letter from the Veteran’s treating physician confirmed that the he was receiving treatment for hypertension. Following service, the record reflects the Veteran has continued to receive treatment for hypertension. See October 2004 VA Treatment Record. Therefore, the Board finds an examination is necessary prior to adjudication of this claim. Notably, the Board also finds that the residuals of a CVA should be remanded as inextricable with the Veteran’s hypertension claim, where 2. Skin Disorder The Veteran is seeking entitlement to service connection for a skin disorder. The Board notes the Veteran’s January 1974 entrance examination includes a notation of a skin rash on the chest and back prior to service entrance. Following service, in March 1985, the Veteran was treated for a skin rash, diagnosed as dermatitis, on his fingers, feet, and chest. See March 1985 Treatment Record. Moreover, the record reflects the Veteran has continued to receive intermittent treatment for a skin disorder. See March 2001 Private Treatment Record. Therefore, the Board finds an examination is necessary prior to adjudication of this claim. 3. Left Shoulder Disorder The Veteran is seeking entitlement to service connection for a left shoulder disorder that he contends is due to his military service. The Veteran’s post-service treatment records do reveal sporadic notations of left shoulder pain since service separation, but no specific diagnosis has been provided. See February 2005 VA Treatment Record and September 2016 Private Treatment Records. Therefore, the Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the Veteran current suffers from a left shoulder disorder that may be etiologically attributed to his military service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, the Board finds an examination is necessary prior to adjudication of this claim. 4. Low Back Disorder The Veteran is seeking entitlement to service connection for a low back disorder that he contends is due to his military service. Specifically, the Veteran reports that he has experienced chronic low back pain intermittently since his military service. See July 2019 Correspondence. The Veteran’s post-service treatment records do reveal sporadic notations of low back pain since his service separation, but no specific diagnosis has been provided. See July 1995 and March 2001 Private Treatment Records. Therefore, the Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the Veteran current suffers from a low back disorder that may be etiologically attributed to his military service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, the Board finds an examination is necessary prior to adjudication of this claim. The matters are REMANDED for the following action: 1. Obtain any additional private or VA treatment records not currently associated with the claims file. 2. The AOJ should schedule examinations as requested below. Any examination scheduled should be documented in the record. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. Given such, if the Veteran is unable to attend the examinations in person, whether due to COVID-19 or due to his disability/ies, exploration of telehealth examinations should be explored. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the diagnosed hypertension. The examiner is asked to address the following: (a.) Whether the diagnosed hypertension, which clearly and unmistakably existed prior to the Veteran’s entrance onto active duty, clearly and unmistakably did not undergo an increase in severity during service or, if there was an increase, whether it was in the natural progression of the disease. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” (38 C.F.R. § 4.1), copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed skin disorder. The examiner is asked to address the following: (a.) Whether the diagnosed skin disorder, which clearly and unmistakably existed prior to the Veteran’s entrance onto active duty, clearly and unmistakably did not undergo an increase in severity during service or, if there was an increase, whether it was in the natural progression of the disease. The AOJ is reminded that the examination should take place during an active stage of the skin disorder. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” (38 C.F.R. § 4.1), copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. Schedule the Veteran for an examination with an appropriate examiner to determine the nature and etiology of any diagnosed left shoulder disorder, to include pain. The examiner should review the claims file in conjunction with the examination, giving attention to lay assertions and pertinent medical evidence. After examining the Veteran and reviewing the claims file, the examiner should respond to the following: (a.) Perform diagnostic testing, to include x-rays. Then list all diagnoses pertaining to the Veteran’s left shoulder. (b.) If the examiner does not find a current left shoulder disability, he/she must specifically indicate whether there is any functional impairment of earning capacity due to complaints/symptoms related to the left shoulder. (c.) For each diagnosis or functional impairment identified, state whether it is as least as likely as not (50 percent probability or greater) that the Veteran’s left shoulder disorder (or functional impairment) was incurred in service or is related to service. In providing the requested opinion, the examiner must address the Veteran’s lay statements regarding onset, in-service injury, and continuity of symptomatology since service. Additionally, while the absence of in-service complaints or treatment may be considered, the absence of such should not form the sole basis of a negative opinion. 6. Schedule the Veteran for an examination with an appropriate examiner to determine the nature and etiology of any diagnosed low back disorder, to include pain. The examiner should review the claims file in conjunction with the examination, giving attention to lay assertions and pertinent medical evidence. After examining the Veteran and reviewing the claims file, the examiner should respond to the following: (a.) Perform diagnostic testing, to include x-rays. Then list all diagnoses pertaining to the Veteran’s low back/ lumbar spine. (b.) If the examiner does not find a current low back/lumbar spine disability, he/she must specifically indicate whether there is any functional impairment of earning capacity due to complaints/symptoms related to the low back. (c.) For each diagnosis or functional impairment identified, state whether it is as least as likely as not (50 percent probability or greater) that the Veteran’s low back disorder (or functional impairment) was incurred in service or is related to service. In providing the requested opinion, the examiner must address the Veteran’s lay statements regarding onset, in-service injury, and continuity of symptomatology since service. Additionally, while the absence of in-service complaints or treatment may be considered, the absence of such should not form the sole basis of a negative opinion. 7. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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.