Citation Nr: 21042029 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 18-42 743A DATE: July 11, 2021 ORDER New and material evidence having been received, reopening of the claim of service connection for sleep apnea is granted. Entitlement to service connection for left wrist chronic nerve disability secondary to postoperative residuals of left wrist lump excision is granted. Entitlement to service connection for a prostate disability is denied. Entitlement to service connection for right testicle epididymitis is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In a final rating decision dated in December 2009, the agency of original jurisdiction (AOJ) denied the Veteran's claim of entitlement to service connection for sleep apnea. 2. The evidence received since the AOJ's December 2009 rating decision is not cumulative and redundant of the evidence of record at the time of the last prior final denial raises a reasonable possibility of substantiating the claim. 3. The Veteran's chronic left wrist nerve disability is reasonably shown to be secondary to his service-connected postoperative residuals of left wrist lump excision. 4. The preponderance of the evidence is against finding that the Veteran has a prostate disability due to an event, injury, or disease in service, to include as due to prostatitis shown in service. 5. The preponderance of the evidence is against finding that the Veteran has a right testicle epididymitis due to an event, injury, or disease in service, to include as due to epididymitis shown in service. 6. Resolving reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not related to his military service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the AOJ's December 2009 rating decision, which denied the claim of entitlement to service connection for sleep apnea, and the claim for service connection is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for left wrist nerve disability secondary to postoperative residuals of left wrist lump excision have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a prostate disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for right testicle epididymitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1988 to January 1992. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) AOJ. In October 2020, the Veteran testified before the undersigned Veterans Law Judge at a Virtual Board hearing. New and Material Evidence 1. New and material evidence for reopening the claim of service connection for sleep apnea 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 that 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 decisionmakers. 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). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what new and material evidence is, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. 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. The Board finds additional evidence shows current sleep apnea possibly related to active service. Such relates to the open medical question as to whether the Veteran's sleep apnea related to his military service. The evidence is new, material, and serves to reopen the claim. To this extent only, the appeal is granted. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established for a current disability based on a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. § §§ 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. A disability that is proximately due to or the result of a service-connected disability shall be service-connected. When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In that instance, the Veteran is compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Although a claimant is competent in certain situations to identify a simple condition such as a fall leading to a broken leg, a lay person is generally not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.§ 5107(b). 2. Entitlement to service connection for left wrist nerve disability secondary to postoperative residuals of left wrist lump excision The Veteran asserts that he has a left wrist nerve disability due to service-connected postoperative residuals of left wrist lump excision. Turning to the evidence of record, the Veteran has a current diagnosis of left cubital tunnel syndrome and left ulnar neuropathy as evidenced by the April 2018 VA examination. Additionally, the Veteran was granted service connection for postoperative residuals of left wrist lump excision by way of a July 2006 rating decision. Therefore, the Veteran's claim turns on whether his currently diagnosed left wrist nerve disability is related to his service-connected postoperative residuals of left wrist lump excision. During the April 2018 VA examination, the examiner indicated that the Veteran's cubital tunnel syndrome is less likely as not related to his left wrist operative residuals excision of the lump left wrist neuritis cubital tunnel syndrome. She indicated that ulnar nerve entrapment is a condition where the ulnar nerve becomes physically trapped or pinched, resulting in pain, numbness, or weakness. In general, ulnar neuropathy will result in symptoms in a specific anatomic distribution, affecting the little finger, the ulnar half of the ring finger, as well as the intrinsic muscles of the hand. Usually ulnar nerve in cubital tunnel syndrome is physically trapped in elbow area whereas the Veteran had surgery in his wrist area. The examiner concluded that since the Veteran's left wrist MRI done a few years ago was negative for any significant scar tissue or abnormalities that would compress the left ulnar nerve and x-ray of his wrist did not show any degenerative changes in his wrist it is less likely that his symptoms are related to his current wrist condition. She did note, however, the Veteran could still have local ulnar nerve irritation after his previous surgery with lump removal. The examiner indicated that she was not able to state whether the Veteran's current left ulnar neuropathy is secondary to cubital tunnel syndrome without mere speculation. Given that the examiner indicated that the Veteran could still have a local ulnar nerve irritation due to his previous surgery with lump removal, and could not resolve the likely etiology of the Veteran's left wrist nerve disability without resort to speculation, the evidence is at least in equipoise as to whether the Veteran's current left wrist nerve disability is related to service-connected postoperative left wrist lump excision. Accordingly, resolving reasonable doubt in the Veteran's favor, service connection for left wrist nerve disability is warranted. 3. Entitlement to service connection for a prostate disability 4. Entitlement to service connection for right testicle epididymitis The Veteran asserts that these disabilities are due to his military service. Indeed, he reports that his current disabilities are due to the prostatitis and epididymitis shown in service. The Veteran's service treatment records (STRs) show that he was seen and treated in service in 1988 for prostatitis and epididymitis. The Board observes that the conditions resolved as it was shown the Veteran did not require a separation examination as there were no pressing medical issues. Post-service treatment records include a February 2013 private record that shows physical examination of genitalia, i.e., penis, scrotum, testes, epididymis all normal. A March 2013 private treatment record documents BPH with urinary obstruction. During an April 2018 VA male reproductive examination, the examiner indicated that the Veteran does not have a current diagnosis of epididymitis. That condition in 1988 had resolved. The Veteran does not carry diagnosis of prostatitis either. The Veteran has benign prostate hypertrophy (BPH) that is common condition in aging men. According to current medical knowledge BPH does not cause ED, nor does it cause problems with ejaculation. The Veteran was able to conceive children, he denied ED or chronic infection in his genitals. The examiner indicated that there was no physical examination done during the evaluation since his physical exams in the past of his genital organs were normal, including one done in March 2013. During an April 2018 VA genitourinary (GU) examination, physical examination revealed the Veteran's abdomen was soft, nontender, nondistended. There is no inguinal hernia. GU examination revealed normal circumcised phallus without any obvious lesions, ulcerations, indurations. The meatal opening was patent without any evidence of stenosis. There was no discharge seen. Both testes were descended and both normal in size and even in caliber. There was no evidence of spermatocele, hydrocele, hematocele, hernia or varicocele felt. Digital rectal examination revealed normal 20-gram prostate without any nodules, nontender, no masses. This examiner also indicated that the Veteran was diagnosed with BPH, which is a frequent condition in men with aging, many years after military service. The examiner opined that the Veteran's current urinary problems are most likely related to detrusor instability and BPH. The examiner noted that both conditions did occur many years after his military service and they are not related to his history of epididymitis or prostatitis during military service. Epididymitis and or prostatitis in young age is a transient condition due to infection, inflammation, or trauma and within short period of time approximately one month it usually resolves. The Veteran's medical records were silent for any genitourinary problems until 2013. The Board has considered the Veteran and his wife's statements that his prostate and epididymitis disabilities are due to his military service. He is competent in this case to report his symptoms, further the Board acknowledges his wife's background as a Registered Nurse, and she is also competent to report her observations with regard to the Veteran. The Board notes, however, nothing in the record demonstrates that either have received any special training or acquired any medical expertise in evaluating and determining the etiology of the claimed conditions. A determination as to the etiology of a prostate disability or epididymitis is a medical matter beyond the knowledge of a non-expert, thus their allegations as to the cause of his prostate disability and epididymitis are not competent evidence. Because the record does not indicate that neither the Veteran nor his wife have medical expertise, the lay opinions that these disabilities are due to an in-service injury, event, or disease are of little probative value. The opinions of the Veteran and his wife are outweighed by the more probative findings to the contrary by the April 2018 VA examiners' opinions. The VA medical professionals considered the pertinent evidence of record and found, with adequate rationale, against such a relationship between the Veteran's claimed prostate disability, epididymitis and an in-service injury, illness, or event. The Board finds the VA examiners' opinions highly probative, as it is based on accurate facts and supported by an articulated rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no competent opinion on the contrary. Based on a careful review of the subjective and clinical evidence, the preponderance of the evidence weighs against the Veteran's service connection claims for a prostate disability and epididymitis. 5. Entitlement to service connection for tinnitus The Veteran seeks service connection for his tinnitus, which he contends began in service and has been recurrent since that time. All three elements of service connection are established by the competent and credible lay and medical evidence of record. The Veteran has current tinnitus. See September 2018 VA examination report. The Veteran reported he experienced the onset of tinnitus many years ago during service. He is competent to report noise exposure in service. The Board observes the AOJ has indicated that in-service noise exposure has been conceded. The Board notes that the VA examiner offered an opinion in September in which she concluded, in part, that tinnitus was not due to service, as the STRs show no treatment for, or complaints of, tinnitus. The Board finds that the evidence is at least in equipoise on the question of whether tinnitus is related to service. Although the VA examiner opined that the Veteran's tinnitus disability was not related to service, she based her opinion essentially on the fact that STRs are silent for such disability. Lack of contemporaneous treatment records is not fatal to the Veteran's claim. Throughout the course of this appeal, he has consistently asserted that he has experienced tinnitus since his military service. The positive and negative evidence as to the etiology of the Veteran's tinnitus is in equipoise. Resolving reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran testified that his obstructive sleep apnea symptoms began in service. Further, he submitted buddy statements from colleagues that noticed he was snoring while on active duty. The Board observes, no examination has been performed or opinion rendered regarding the etiology of the Veteran's obstructive sleep apnea. As such, remand is warranted for an examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of obstructive sleep apnea. The examiner is asked to opine whether it is at least as likely as not related to an in-service injury or disease. The examiner is asked to provide a detailed rationale for all opinions rendered. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.