Citation Nr: 21027793 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-15 743A DATE: May 6, 2021 ORDER Service connection for a bilateral hand disability is denied. REMANDED Service connection for a low back disability is remanded. Service connection for chronic sinusitis is remanded. Service connection for obstructive sleep apnea, to include as secondary to sinusitis, is remanded. FINDING OF FACT The evidence of record is silent for any bilateral hand conditions or injuries other than a right wrist condition for which the Veteran has already been service connected. CONCLUSION OF LAW The criteria for service connection for bilateral hand disability have not been met. 38 U.S.C. § 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1974 to June 1990. These matters are before the Board of Veterans Appeals (Board) on appeal from March 2014 and January 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Board denied the Veteran's claim for service connection for a bilateral hand disability, a low back disability, chronic sinusitis and obstructive sleep apnea. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Veterans Court). In September 2020, a Joint Motion for Partial Remand (JMPR) was granted. Service connection for a bilateral hand disability is denied Legal Criteria Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a), (d). Factual Background In his May 2013 claim, the Veteran reported that he had trouble holding things with his hands and that he experienced swelling of his arms. The Board notes that the Veteran was been granted service connection for residuals of a right wrist fracture since June 1990. The Veteran's service and post-service treatment records are silent for a medical diagnosis of a left-hand condition or a left-hand injury. Analysis The Board concludes that the Veteran does not have a current bilateral hand disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim, other than his already service connected right wrist disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board has reviewed the Veteran's VA outpatient treatment records for the period both before and during the pendency of the appeal and is unable to find any disability of the hands diagnosed by the Veteran's treatment providers. To the extent the Veteran has referenced a past fracture of the right wrist which affects his ability to grasp objects, as well as upper extremity swelling, these conditions are already service connected. The Veteran is competent to report objective signs of left-hand weakness and aspects of his medical treatment but is not competent to diagnose his symptoms. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77, n.4 (Fed. Cir. 2007). The Veteran's statements are not based on medical training and/or experience and thus his statements regarding a left-hand disability. do not constitute competent evidence. In the absence of any other current bilateral hand disability, entitlement to service connection must be denied. It is noted that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To the extent that the Veteran has not been provided an examination for a bilateral hand condition, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and, the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low for the purposes of obtaining a medical opinion. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. To date, the Veteran has not been afforded a VA examination for his claimed bilateral hand condition. While the Veteran has stated that this condition is related to service, there is no competent (that is, qualified) medical or lay evidence establishing that an event, injury, or disease occurred in service. Moreover, there is no current diagnosis of a bilateral hand condition. Thus, a VA examination under the standards of McLendon is not warranted at this time. For the foregoing reasons, the preponderance of evidence is against the claim of service connection for a bilateral hand condition. Consequently, the benefit of the doubt doctrine does not apply, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for a low back disability is remanded. VA treatment records, as well as records from the Social Security Administration (SSA), show that the Veteran has been diagnosed with lumbar spondylosis and lumbar degenerative disc disease during the period on appeal. Service treatment records (STRs) show that the Veteran was seen once in February 1977 with reports of low back pain, diagnosed as a muscle spasm, and twice in June 1977 for lumbar strain. The Veteran did not report any specific injury to the back, although in June 1977, he did report that he had been doing heavy lifting. In September 1979, he was treated for reports of left shoulder and back pain following a motor vehicle accident. An August 1990 VA examination report reflects subjective symptoms of low back pain. An August 2012 private treatment record reflects, by history, that the Veteran was thrown out of a truck while on active duty in Korea in 1976. The Board finds that additionally development is necessary prior to the adjudication of the Veteran's claim of service connection for a low back disability. There is a least an indication that the Veteran's current low back disability is related to his in-service back injuries. Accordingly, a remand for a medical examination is warranted. See McLendon supra. 2. Service connection for chronic sinusitis is remanded The Veteran reported that he was treated for sinus issues during service. See July 2014 statement. At a September 2007 medical examination, the conducting physician noted that the Veteran had runny drippy nose, nasal congestion or postnasal drip. Medical records reflect a problem list of disorder, which shows an episode of acute sinusitis in November 2010. A September 2013 VA treatment note shows that the Veteran reported chronic sinus/allergy issues and that he requested "something for sinus." He was advised to continue loratadine and add Flonase nasal spray daily to minimize nasal passage swelling. VA outpatient treatment records show that the Veteran was treated at a private hospital for sinusitis in March 2016. The Veteran is competent to report sinus symptoms during service because they are readily observable. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Because there is at least an indication that the Veteran's sinusitis is causally related to his in-service sinus issues, the Board finds that a remand is warranted for a VA examination. See McLendon supra. 3. Service connection for obstructive sleep apnea, as secondary to chronic sinusitis is remanded. The Veteran reported in a July 2014 statement that his sinus condition is directly related to his sinus condition. Accordingly, adjudication of obstructive sleep apnea is inextricably intertwined with the remanded claim of service connection for chronic sinusitis. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Arrange for a medical examination from an appropriate examiner to assess whether the Veteran's low back disability was causally related to his service. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner is requested to provide the following opinion: Is it at least as likely as not (a 50 percent probability or greater) that any of the Veteran's reported symptoms are results of an in-service back injury? The examiner should also opine as to the following: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's sinusitis is causally related to his reported in-service sinus issues? Finally, the examiner should opine as to the following: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's obstructive sleep apnea is causally related to his service or chronic sinusitis? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.