Citation Nr: 21029459 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-40 583 DATE: May 13, 2021 ORDER Entitlement to service connection for pseudofolliculitis barbae is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected lumbar spine disorder, is remanded. Entitlement to a compensable evaluation for hypertension is remanded. Entitlement to service connection for chest pain is remanded. Entitlement to service connection for high cholesterol is remanded. FINDING OF FACT The Veteran does not have a current diagnosis for pseudofolliculitis barbae. CONCLUSION OF LAW Pseudofolliculitis barbae was not incurred in active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Air Force from February 1986 to June 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes the Veteran requested a Board hearing in his August 2016 VA Form 9. However, in a January 2020 correspondence, the Veteran withdrew his hearing request. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings liberally does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 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 weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection for pseudofolliculitis barbae is denied. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for pseudofolliculitis barbae. Initially, the Board notes that the Veteran is currently service connected for dermatitis. The Veteran's service treatment records do not document any complaints, treatment, or diagnosis of pseudofolliculitis barbae. In addition to the lack of evidence showing that pseudofolliculitis barbae manifested during service, there is no evidence that shows that the Veteran currently has pseudofolliculitis barbae. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Because the evidence does not show that the Veteran currently has pseudofolliculitis barbae, the service connection claim is denied. REASONS FOR REMAND Entitlement to service connection for sleep apnea, to include as secondary to service-connected lumbar spine disorder, is granted. The Veteran seeks entitlement to service connection for sleep apnea, which he contends is proximately due to or aggravated by his service-connected lumbar spine disorder. The Veteran has argued that he developed sleep apnea because his service-connected lumbar spine disorder prevents him from exercise, resulting in weight gain. An April 2016 VA treatment record reveals the Veteran has been diagnosed with sleep apnea. See also January 2015 VA treatment record. Thus, the issue before the Board is whether the Veteran's sleep apnea was incurred in or caused by active duty service, to include as due to any of his service-connected disabilities. In a January 2020 private medical opinion and following a review of the Veteran's claims file, a nurse practitioner, Gina G. Uribe, opined that it is at least as likely as not the Veteran's weight gain and obesity is due to or related to his service-connected lumbar spine disorder. She also opined that the Veteran's sleep apnea is secondary to or related to and aggravated by the weight gain and obesity from his service-connected disability. However, an improper legal standard was used in the opinion provided. Under the law, obesity can qualify as an "intermediate step" between a service-connected disability and a current disorder. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). The Court issued a decision in Walsh v. Wilkie, holding that obesity as an intermediate step in a causal chain for service connection can be established on either a causal or aggravation basis. 32 Vet. App. 300 (2020). Currently, there is no opinion in the record that addresses this standard. Therefore, remand is necessary for a VA examination and medical opinion. With regard to the remaining claims on appeal, additional relevant treatment records have been associated with the claims file since the Agency of Original Jurisdiction's (AOJ) last adjudication of the claims in a June 2016 statement of the case. There is no waiver of the AOJ's initial consideration of the evidence. Additionally, the provisions of automatic waiver do not apply. See 38 U.S.C. § 7105(e) (automatic waiver provisions). Therefore, the remaining claims must be remanded for the RO's consideration of the new evidence. Id. Upon consideration, the AOJ should issue the Veteran a supplemental statement of the case. The matters are REMANDED for the following action: 1. The Veteran should be afforded a VA examination to determine the nature and etiology of any sleep apnea that may be present, including as secondary to the Veteran's service-connected lumbar spine disorder. The examiner should be provided with a copy of this REMAND. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. a) The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected back disability caused or aggravated his obesity. b) The examiner should also opine whether it is as least as likely as not that the Veteran's obesity was a substantial factor in the development of his sleep apnea. c) The examiner should also opine whether it is at least as likely as not that the Veteran's sleep apnea, would not have occurred but for the obesity that was caused or aggravated by a service-connected disability, to include his back disability. d) If it is determined that there is another likely etiology for the Veteran's sleep apnea, that should be stated. 2. The AOJ should review the case on the basis of any additional evidence obtained since the last adjudication. 3. If any benefit sought is not granted, furnish the Veteran and his representative a SSOC and a reasonable opportunity to respond before the appeal is returned to the Board for further review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.