Citation Nr: 21030569 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-44 011 DATE: May 19, 2021 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for multilevel degenerative change of the lumbar spine (back disability) is denied. Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for a right hip disability is denied. FINDINGS OF FACT 1. The Veteran's sleep apnea did not begin during active service, nor is otherwise related to an in-service injury, event, or disease. 2. The Veteran's back disability did not begin during active service, nor is otherwise related to an in-service injury, event, or disease. 3. The Veteran's right foot disability did not begin during active service, nor is otherwise related to an in-service injury, event, or disease. 4. The Veteran's left foot disability did not begin during active service, nor is otherwise related to an in-service injury, event, or disease. 5. The Veteran does not have a current diagnosis of a left or right hip disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for multilevel degenerative change of the lumbar spine (back disability) have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137,5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137,5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for a left foot disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137,5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137,5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for entitlement to service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137,5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the U.S. Army from May 1980 to July 1980 and from January 1987 to November 1990. This case comes before the Board of Veteran's Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran had a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. Subsequently, in November 2020, the Board remanded the matter for additional development. 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 2015. The RO associated the Veteran's service and VA and 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. Such includes the examinations ordered in the November 2020 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, VA has satisfied its duty to assist. 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 granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Arthritis is a listed disease, with a presumptive period of one year following separation from service. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Sleep Apnea The Veteran contends that obstructive sleep apnea (OSA) is related to military service. The Veteran's service treatment records (STRs) are silent for any treatment or diagnosis of sleep apnea, or symptoms such as daytime sleepiness or snoring. February 1983 periodic examination noted that he had a normal clinical evaluation. A November 1990 statement noted that the Veteran did not desire a separation medical examination, and review of his medical records did not indicate one was necessary. In August 2019, the Veteran testified that he was diagnosed about 8 years prior with OSA. He stated that he did not get much sleep while in-service. The Veteran indicated that he snored in-service, and still snores. He indicated that he was sleepy during the day. In January 2021, the Veteran was afforded a VA sleep apnea examination. He was diagnosed with OSA. The Veteran reported that he snored for several years. The examiner opined that the Veteran's sleep apnea was not likely caused or aggravated by his military service. The examiner noted that the medical records did not document treatment for sleep apnea symptoms. The Veteran did not provide a history of apnea or hypersomnolence symptoms or evaluation during service. He noted that the Veteran reported one episode of falling asleep at a stop light but no other episodes of hypersomnolence. His Epworth sleepiness score was normal. The Veteran AHI was consistent with mild sleep apnea. Therefore, he concluded that his OSA was not related to his active duty service. Upon review of the evidence of record, the Board finds that the weight of the competent and probative evidence does not demonstrate that entitlement to service connection is warranted for the Veteran's claimed sleep apnea disability. The VA examination found a diagnosis of sleep apnea condition, and thus the requirement for a current disability is met. However, there is no evidence in the record of a problem with sleep apnea until 2015, 25 years after active service. Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran's claimed sleep apnea was not incurred in service. 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; 38 C.F.R. § 3.102. Back Disability The Veteran contends that his back disability was related to his military service. Specifically, he contends that his condition was due to the general wear and tear of marching, the carrying of weights, and the equipment of military service. The Veteran's STRs documented that he complained of back pain during service. A March 1982 treatment record noted that the he fell off a ladder onto his back. He complained of pain on the left side of his back. A February 1983 periodic examination noted that he had a normal clinical evaluation. A November 1990 statement noted that the Veteran did not desire a separation medical examination, and review of his medical records did not indicate one was necessary. In August 2019, the Veteran testified that he was with a mortar company and they went on marches (20-mile marches) and would carry a 51 mortar on his back. He reported that he was receiving treatment for his back since being out of the service to the present. In January 2021, the Veteran was afforded a VA back examination. The Veteran was diagnosed with degenerative arthritis, posterior listhesis L5, and lumbar facet arthropathy. The Veteran reported that he fell down a hill while carrying a base plate for a motor in 1986. The examiner opined that the Veteran's back disability was not caused or aggravated by his military service. The examiner noted that there were no back problems noted on the March 1979, July 1980, February 1983, or October 1986 examination reports. However, the Veteran was evaluated on May 1987 after he fell while getting off a truck. The Veteran's examination was normal expect for a contusion. The examiner opined that the Veteran's back disabilities were not likely caused or aggravated by service. He indicated that there was no medical evidence of treatment for this condition during service. He noted that the Veteran was evaluated in May 1987 for low back pain after a fall. He had normal range of motion and no neurologic finding. Lumbar spine x-ray 28 years later revealed findings not related to trauma. He indicated that the Veteran's conditions were due to aging. He indicated that his back symptoms were consistent with the natural progression. The May 1987 treatment note did not document severe enough trauma to aggravate the Veteran's back disability. The examiner noted that the Veteran did not provide history of rapid progression of his back symptoms. The examiner concluded that his chronic symptoms were stable and were consistent with natural progression. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making a definitive clinical determination of the nature and etiology of the Veteran's back disability. See Kahuna v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran can describe that he experiences a back disability, he is not able to provide competent evidence as to the etiology of his disability. The Board finds the January 2021 opinion probative as it addressed the Veteran's contentions, reviewed the Veteran's file, and reviewed the Veteran's treatment as to his back disability. There is no competent and credible evidence linking the Veteran's back disability with service. No medical professional has rendered a nexus opinion, and in the absence of such, service connection is denied. The preponderance of the probative evidence of record weighs against the claim of service connection. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, at 1 Vet. App. 49 (1990). Bilateral Foot Disability The Veteran contends that his bilateral foot disability was related to his active duty service. Specifically, he contends that his condition was due to the general wear and tear of marching, carrying the weights, and the equipment of military service. STRs documented that the Veteran complained of foot pain. May 1981 treatment record documented complaints of left foot pain. February 1983 periodic examination documented he marked "yes" for foot trouble. The examiner noted that the Veteran had athletes' foot in his left foot. A November 1990 statement noted that the Veteran did not desire a separation medical examination, and review of his medical records did not indicate one was necessary. In August 2019, the Veteran testified that he climbed a lot of hills and jumped a lot of fences. He indicated during service he twisted his ankle. In January 2021, the Veteran was afforded a VA foot examination. The Veteran was diagnosed with planter fasciitis and calcaneal bone spur. The Veteran reported that he developed bilateral foot pain during training in service. The examiner opined that the Veteran's bilateral foot disability was not caused or aggravated by his military service. The examiner noted that the STRs did not document that his trauma in-service was severe enough to be aggravated by his active duty service. The examiner noted that the Veteran did not provide history of rapid progression of his foot symptoms. He concluded that his chronic symptoms were stable and were consistent with natural progression. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making a definitive clinical determination of the nature and etiology of the Veteran's bilateral foot disability. See Kahuna v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran can describe that he experiences a bilateral foot disability, he is not able to provide competent evidence as to the etiology of his disability. The Board finds the January 2021 opinion probative as it addressed the Veteran's contentions, reviewed the Veteran's file, and reviewed the Veteran's treatment as to his bilateral foot disability. There is no competent and credible evidence linking the Veteran's bilateral foot disability with service. No medical professional has rendered a nexus opinion, and in the absence of such, service connection is denied. The preponderance of the probative evidence of record weighs against the claim of service connection. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, at 1 Vet. App. 49 (1990). Bilateral Hip disability The Veteran contends that he has a bilateral hip disability was related to service. Specifically, he alleges that his condition is due to the general wear and tear of marching, the carrying of weights, and the equipment of military service. Post service treatment records demonstrated that the Veteran complained of hip pain. A February 2015 VA treatment note indicated that the Veteran was being referred for physical therapy related to his feet and ankles. In July 2015, he was seen for physical therapy, and the therapist reported cleared hip joints. Range of motion was full, and no impairment of those joints was noted; disability was related to the feet and ankles. In August 2019, the Veteran testified that he twisted his hip while in-service. He indicated that he was diagnosed with a strain or hyper-extension during service. In January 2021, the Veteran was afforded a VA hip examination. There was no evidence of edema, tenderness, instability, giving way, crepitus, deformity, or malunion of the hip joint. His range of motion was noted as: flexion 125/125 without pain, backward extension 30/30 without pain, adduction 25/25 without pain, abduction45/45 without pain, internal rotation 40/40 without pain, and external rotation 60/60 without pain. His range of motion and joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination following repetitive use. The examiner noted that the Veteran did not have a diagnosis of a hip condition. The Veteran reported that his back pain was sometimes associated with his hip pain. The examiner noted that the Veteran's hips condition was related to his back condition. He indicated that there was no evidence of a primary hip disease. In so much as the Veteran has attempted to establish a diagnosis of a bilateral hip disability through his own lay assertions, the Board finds that the Veteran is not competent to diagnose that he has a current diagnosis of a bilateral hip disability due to the medical complexity of the matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the disability where the disability is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Thus, the Veteran is not competent to render such a diagnosis. The record does not reflect chronic complaints or treatment of a bilateral hip disability. The current complaints of pain were not shown to cause a functional impairment, be clinically disabling, or preclude the Veteran from seeking or maintaining gainful employment. The current complaints of pain may not be service-connected, as they are not a disability. Furthermore, the January 2021 VA examiner indicated that the Veteran did not have a current diagnosis. Based on the lack of a current diagnosis for a bilateral hip disability or a showing of actual functional impairment due to pain at any time during the pendency of the appeal, service connection for a bilateral hip disability is denied. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.