Citation Nr: 21041108 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-57 437 DATE: July 8, 2021 ORDER Service connection for right thumb condition is denied. Service connection for sleep apnea is denied. Service connection for upper respiratory condition, to include asthma, sinusitis, and/or rhinitis, is denied. FINDINGS OF FACT 1. A right thumb condition was not incurred in, aggravated by, or otherwise attributable to, active duty service. A right thumb condition was not diagnosed within one year of the Veteran's separation from active duty service. 2. The Veteran does not have sleep apnea. 3. An upper respiratory condition was not incurred in, aggravated by, or otherwise attributable to, active duty service. 4. The evidence of record fails to show that the Veteran's preexistent asthma increased in severity and was aggravated beyond its natural progression. CONCLUSIONS OF LAW 1. The criteria for service connection for a right thumb condition have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. § 1101, 1110, 1131, 1137, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for an upper respiratory condition have not been met. 38 U.S.C. § 1101, 1110, 1131, 1137, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1993 to January 1994, November 1996 to February 1997 and May 2001 to June 2006. The Veteran's service included active duty in Saudi Arabia. In February 2019, the Board remand the issues on appeal for additional evidentiary development. There has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) SERVICE CONNECTION The Veteran asserts that a right thumb condition, sleep apnea, and an upper respiratory condition were incurred in aggravated by, or otherwise attributable to, active duty service. Service connection will be granted if it is shown that the veteran suffers from a 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 the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection on a direct basis, the record must contain competent evidence of: (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. 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). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Certain chronic diseases, including degenerative or osteoarthritis, will be presumed related to service if they were shown as chronic in service (or within a presumptive period) and there are subsequent manifestations of the same chronic diseases; or if they manifested to a compensable degree within a presumptive period following separation from service (in this case, one year); or if they were noted in service, with continuity of symptomatology since service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 38 C.F.R. § 3.317(a) provides that VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that becomes manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021. A "qualifying chronic disability" is defined as: (A) an undiagnosed illness; or (B) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; or (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). Id. Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, as follows: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; and (12) abnormal weight loss. 38 C.F.R. § 3.317(b). For purposes of this section, the term medically unexplained chronic multisymptom illness (MUCMI) means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). For purposes of this section, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Evidence and Analysis In a September 1993 induction screening, a screening clinician noted that the Veteran had childhood asthma that had not been symptomatic since the Veteran was 6 or 7 years old. In an October 1995 emergency record (ER) in the Veteran's service treatment records (STRs), a clinician indicated that the Veteran complained of asthma with wheezing. This clinician indicated that the Veteran had a history of childhood asthma. At this time, the Veteran was not in respiratory distress. A clinician reported that the Veteran sought treatment for mild asthma exacerbation in November 1995. The Veteran complained of sinus tenderness in February 1997. In an adult preventative and chronic care flowsheet of September 1998, a clinician noted that the Veteran had chronic bronchitis. The clinician also indicated that the Veteran broke the tip of a finger in June 1993, which required a 4-day splint. In a February 1997 post-deployment medical screening (after deployment in Saudi Arabia), the Veteran reported that he had been exposed to excessive dust, flames, insecticides, or other chemicals. In the screening report, the Veteran indicated that he did not experience difficulty sleeping; breathing problems; or a persistent cough. The Veteran complained of sinus tenderness in February 1997. In a September 1998 report of medical examination, a clinician indicated a normal evaluation of the Veteran's sinuses; lungs and chest; upper extremities; and mouth and throat. In December 2000, the Veteran reported that he took an antibiotic for a sinus infection. In a December 2000 report of medical examination, a clinician indicated normal evaluations of the Veteran's sinuses; nose; mouth and throat; lungs and chest; and upper extremities. In commentary, the clinician reported that there had been no significant medical history. A clinician reported that the Veteran complained of sinus congestion, rhinorrhea, and sneezing in March 2001. The clinician indicated that the Veteran had a history of asthma in childhood as well as a history of hay fever. The clinician prescribed a decongestant. Upon October 2005 VA x-ray imaging, a clinician reported evidence of questionable slight deformity of the distal filing of the right index finger. This clinician also indicated that the right-hand small joints were well preserved. In a July 2006 treatment record, a clinician indicated that the Veteran's sinus problems had an onset date of July 2006. In October 2005, the Veteran sought VA treatment for right thumb pain. The Veteran reported that he received "buckshot" in the right thumb in 2001. A VA clinician indicated that x-ray imaging disclosed the presence of right thumb arthralgia. In November 2005, the Veteran conveyed that he sustained a right thumb "buckshot" injury two years earlier (2003). Upon review of the Veteran's VA treatment records and progress notes, clinicians reported that the Veteran conveyed that he experienced sleep disturbances and irregular sleep patterns. In December 2013, the Veteran reported that he was born with asthma. Other treatment records reflect on-going reporting of histories of asthma, hand arthralgia, and rhinitis. In December 2013, a VA radiologist rendered a fluoroscopic impression of right thumb mild nonspecific soft tissue swelling without acute process. This same month, the Veteran indicated that he sustained a right thumb buckshot injury in the course of duty. A March 2014 VA physical therapy note showed that the Veteran endorsed that he had experienced right thumb pain for some time. In a September 2014 VA hand consultation report, a clinician rendered a diagnosis of early carpometacarpal arthritis of the right thumb. The clinician indicated that the he did not think that carpometacarpal arthritis could explain all of the Veteran's symptoms. Nevertheless, x-ray imaging did not disclose the presence of a foreign body. The clinician treated the injured thumb with a corticosteroid injection. The Veteran conveyed that in the mid-2000's, he was shot with some buckshot and injured his thumb. In a January 2015 VA hand clinic note, a clinician indicated that the Veteran had a current diagnosis of right thumb extensor tendonitis. Treatment included right thumb splinting. In his May 2015 notice of disagreement (NOD), the Veteran reported that he sustained his right-thumb buckshot injury during training. The Veteran also conveyed that his right-thumb symptoms were severe. And, the Veteran also indicated that he experienced sleep apnea during service. In an August 2016 VA respiratory therapy note, a clinician indicated that the Veteran had been diagnosed with mild obstructive sleep apnea (OSA). At this time, the Veteran received training and fitting for a continuous positive airway pressure device (CPAP). In November 2016, the Veteran reported to the VA pulmonary sleep clinic for a follow up appointment. A clinician reiterated the diagnosis of mild OSA. The Veteran reported that his OSA was caused by his military service. In January 2017 the Veteran reported for both a VA respiratory conditions examination and a VA sleep apnea examination. A clinician reviewed the claims file; considered the Veteran's lay accounts of his medical history; and conducted an appropriate evaluation (hereinafter "VA exam protocols"). The clinician reported present diagnoses of allergic rhinitis, sinusitis, asthma, and chronic obstructive pulmonary disease (COPD). The clinician noted that the Veteran conveyed that his respiratory condition(s) is/are due to or aggravated by his military service, to include environmental hazards during his deployment to Southwest Asia. Upon evaluation, the clinician indicated that Veteran's asthma, which clearly and unmistakably existed prior to active duty, was not caused by, nor the result of, nor permanently aggravated by burn pit or other environmental exposures during his deployment to Southwest Asia. As to OSA, the clinician indicated that the Veteran had not received a diagnosis with of OSA. At the time of the Veteran's nocturnal polysomnogram (PSG) in July 2016, the Veteran's Epworth Sleepiness Scale score was 23/24. The clinician reported that this PSG did not reveal significant obstructive sleep apnea; however, given supine and REM aggravation, the clinician noted a trial of auto-CPAP. This same month, the Veteran received a VA Gulf War examination. The clinician followed VA exam protocols. Upon consideration of the totality of evidence, this clinician indicated that the Veteran did not evince a medically unexplained chronic multisymptom illness that might be attributed to Gulf War syndrome. At a November 2017 RO hearing, the Veteran reiterated his lay accounts concerning his right thumb and sinusitis. In correspondence April 2018 and September 2019, the RO requested that the Veteran furnish releases to obtain private treatment records. Upon review of the record the Veteran only submitted one executed release form to obtain treatment records from Counselor L.J. Counselor L.J. did submit records. However, the Veteran did not sign a release for records from Dr. D., a claimed private treatment provider, despite the RO's repeated attempts to obtain releases for the records. Thus, the Board finds that the RO fulfilled VA's duty to assist in obtaining private treatment records according to 38 U.S.C. § 5103A(b)(2)(B). The Veteran's VA problem list as of 2018 and 2019 included, among other issues, OSA; asthma; hand arthralgia; and rhinitis. Progress notes and treatment records show that the Veteran continued to avail himself of VA consultation services and clinical services through the respiratory and hand clinics. In January 2020, a VA clinician prepared an addendum report pursuant to the Board's February 2019 remand directives. Upon thorough disquisition of the medical and lay evidence of record, the clinician rendered the following opinion: [A]ll medical records were reviewed including all lay statements. The literature [on Southwest Asia burn pits] shows that many of the substances that may [have been] released into the smoke from burning trash and waste are irritants and may cause short-term symptoms such as nausea, headaches and/or irritation of the eyes, respiratory tract, nose, and throat. This may result in burning, dry or tearing eyes, nasal congestion, sneezing, sore throat, etc. For the majority of healthy service members, these symptoms tend to go away or resolve soon after the exposure ends. Service members with pre-existing asthma or a natural tendency for asthma, chronic lung problems, or allergies may have respiratory symptoms for a longer period of time and/or worsening of their pre-existing symptoms and lung problems from these exposures. [...] [Upon a] review of the Veteran's [claims] file, [his] asthma condition is stable with intermittent (as needed) use of a rescue inhaler, no recent hospitalizations for [his] asthma condition [,] including [neither] intensive care unit (ICU) admission [nor] recent intubations. [...] Temporary aggravation of the pre-existing asthma condition by the environment hazards during [the Veteran's] deployment to Southwest Asia is plausible [;] however, there is no evidence of permanent aggravation beyond natural progression of the condition identified. See January 6, 2020 C&P Exam, p. 3. (emphasis added). In another January 2020 addendum, upon comprehensive disquisition of the evidence, a clinician opined that the Veteran's claimed OSA was less likely than not incurred in or caused by an in-service event, injury, or illness. As a rationale for this negative nexus opinion, the clinician noted that the Veteran endorsed that he has experienced sleeping issues for over two decades. However, the Veteran cannot recall either complaints or moments of seeking medical attention for sleep symptoms during active duty service. Also, the available records fail to disclose complaints, diagnosis, or treatment for any sleep disorder whatsoever during service. Moreover, the extant records did and do not confirm a diagnosis of OSAaccording to applicable VA diagnostic criteria. The Veteran's AHI score was 4.0 and the RDI score was not included in the July 2016 polysomnogram. Consequently, VA diagnostic criteria for an OSA diagnosis have not been met. Moreover, according to the evidence of record, the Veteran did not have significant sleep apneic symptoms; the Veteran was fitted for a trial auto CPAP because of his supine and REM aggravation. Hence, due to this lack of a present diagnosis of OSA for VA purposes, a nexus cannot be established. In August 2020, the Veteran reported for a VA hand and finger conditions examination. The clinician followed VA exam protocols. Upon a comprehensive recapitulation of the Veteran's lay accounts, the clinician provided present diagnoses of degenerative arthritis of the right hand and extensor tendonitis of the right thumb. Upon contemplation of the totality of evidence, to include findings from the instant examination, the clinician reported that the Veteran's right thumb condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As a rationale for this negative nexus opinion, the clinician opined that an October 2005 STR showed a right thumb complaint of pain, related to a 2001 right thumb buckshot wound. However, x-ray imaging did not disclose any right thumb abnormalities. Moreover, this October 2005 STR did not provide guidance when the injury occurred in 2001 and STRs provide no direct guidance as to the buckshot injury to the right thumb. In 2014 medical records, the claimed date of the right thumb buckshot wound was 2005; however, x-ray imaging did not confirm this. 2014 x-ray imaging of the right thumb disclosed degenerative arthritis of the right hand. However, this 2014 x-ray imaging did not disclose the location of the arthritis in the right hand. A clinician diagnosed extensor tendonitis of the right thumb in 2015. The only extant records relating to the right thumb date from 2005 and these records point to a claimed 2001 injury. Nevertheless, even though the Veteran was on active duty for part of 2001, there are absolutely no records which confirm a right thumb injury. And, there is no x-ray evidence of injury. Consequently, there is not enough evidence to support that the Veteran's present extensor tendonitis of the right thumb or present degenerative arthritis of the right hand were caused by an event, illness, or injury in service. In supplemental commentary, the clinician indicated that upon review of the 2005 and 2013 x-ray reports, there was no evidence of carpometacarpal arthritis. Both x-ray reports showed neither joint abnormality nor arthritis. Whereas, the 2014 x-ray report showed degenerative arthritis of the right hand. As noted above, a January 2017 VA clinician indicated that upon disquisition of the entirety of evidence, Veteran did not evince a medically unexplained chronic multisymptom illness that might be attributed to Gulf War syndrome. As such, the provisions of 38 C.F.R. § 3.317 are not for application in this case. The Veteran believes that a right thumb condition, sleep apnea, and an upper respiratory condition were incurred in, aggravated by, or otherwise attributable to, active duty service. The Veteran also advances that his childhood asthma, which clearly and unmistakably existed prior to active duty, was permanently aggravated by service (to include burn pit exposure in Southwest Asia). The Board recognizes these lay beliefs; however, the rendering of complex medical opinions, as to both etiology, aggravation, and causation, require highly specialized education and prowess in the fields of traumatic medicine, orthopedics, sleep medicine, pulmonology, and environmental medicine. A review of the evidence of record fails to disclose that the Veteran possesses such specialized knowledge or expertisein any of the aforementioned fields. Consequently, the Veteran's lay contentions do not constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1). Other than lay statements and testimony at the RO hearing, the Veteran has not produced any competent evidence to support his lay contentions. The evidence is summarized above, the competent medical evidence of record discloses a history of childhood asthma and current diagnoses of asthma; rhinitis; sinusitis; COPD; degenerative arthritis of the right hand; and extensor tendonitis of the right thumb. Consequently, the current disability prongs of establishing service connection for right thumb condition and an upper respiratory condition are present. Shedden, 381 F. 3d 1163. However, the weight of evidence fails to establish in-service incurrences or predicates from which nexuses can be drawn for these two conditions; without such nexuses, service connection cannot be established on a direct basis for either a right thumb condition or an upper respiratory condition. Id. The competent evidence is summarized above. The Board assigns especially significant probative weight to the January 2020 and August 2020 VA opinions. In the instance of each opinion, a clinical professional exhaustively reviewed the evidence of record; considered the Veteran's lay accounts of his medical history; and supported negative nexus opinions with evidence-infused and medical literature-informed rationales. Moreover, both clinicians reconciled all of the discrepant findings that the Board pointed out in its February 2019 remand. These comprehensive opinions address each and every contention thoroughly and sufficiently. While the Veteran has a current diagnosis of degenerative arthritis of the right hand, the evidence of record, as noted above, fails to disclose that this disease entity manifested to a compensable degree within one year of the Veteran's separation from service. Consequently, service connection is not possible on a presumptive basis. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In the absence of proof of a present disability there can be no valid claim. See Brammer, 3 Vet. App. 223. The Board recognizes that the evidence contains discrepant findings as to whether the Veteran has mild OSA. Of all of the VA notes and opinions of record, the Board assigns more probative weight to the January 2020 clinician's opinion. This expert, unlike the other clinicians of record, explained the basis of his opinion. Simply stated, the VA diagnostic criteria for an OSA diagnosis have not been met. Unlike the other clinicians of record, this one clinician indicated that the VA criteria for a mild OSA diagnosis cannot be met with an AHI score of 4.0 and no RDI score. And explained that a fitting for trial auto CPAP because of supine and REM aggravation does not constitute a current diagnosis. See Sklar v. Brown, 5 Vet. App, 140 (2003). As the weight of evidence is against a finding of a present disability of sleep apnea (mild OSA or OSA), the possibility of establishing service connection on any basis is not possible. Brammer, 3 Vet. App. 223. Therefore, the preponderance of evidence is against the Veteran's service connection service claims for a right thumb condition, sleep apnea, and an upper respiratory condition; there are no doubts to be resolved. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.