Citation Nr: A25035007 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240417-433837 DATE: April 16, 2025 ORDER Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for peripheral neuropathy bilateral upper extremities is denied. Entitlement to service connection for peripheral neuropathy bilateral lower extremities is denied. Entitlement to service connection for bladder cancer is denied. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that obstructive sleep apnea began during active service or is otherwise related to an in-service injury or disease, or caused or aggravated by a service-connected disability. 2. The evidence of record persuasively weighs against finding that the Veteran has had upper extremity peripheral neuropathy at any time during or approximate to the pendency of the claim. 3. The evidence of record persuasively weighs against finding that the Veteran has had lower extremity neuropathy at any time during or approximate to the pendency of the claim. 4. The Veteran's bladder cancer was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for bilateral upper extremity neuropathy are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for bilateral lower extremity neuropathy are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for bladder cancer are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1981 to November 2007. This claim comes before the Board of Veterans' Appeals (Board) on appeal from an October 2023 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ), which, in pertinent part, denied the above claims for service connection. In April 2024, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), on which he identified the October 2023 rating decision, the issues as service connection for sleep apnea, bilateral upper and lower extremity neuropathy, and bladder cancer, and elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the October 2023 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence of (1) a current chronic disability for which service connection is sought; (2) an already service-connected disability; and (3) that the disability for which service connection is sought was either (a) caused or (b) aggravated by the already service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). As a preliminary matter, in an October 2023 memo, VA determined that the Veteran did not participate in a toxic exposure risk activity (TERA) while on active duty. As such, for all of these claimed disabilities, a TERA medical opinion was not warranted. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence must be persuasively against the claim for the benefit of the doubt to be inapplicable. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 1. Entitlement to service connection for obstructive sleep apnea In his initial claim for service connection, the Veteran did not offer any theory of entitlement to service connection for obstructive sleep apnea. No arguments were put forward by the Veteran in his April 2024 Notice of Disagreement. His representative offered no specific contentions in the May 2024 brief that was submitted to the Board. The Board notes that after filing this appeal, the Veteran filed a Supplemental Claim, arguing that his sleep apnea was secondary to his service-connected acquired psychiatric disability. As explained above, in this appeal, the Board may only consider the evidence of record at the time of the October 2023 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. The Board has, however, considered the Veteran's contentions. In the October 2023 rating decision on appeal, the RO made the favorable finding that the Veteran has been diagnosed with sleep apnea. VA treatment records appear to show sleep apnea was diagnosed in August 2017 or 2018. The Board is bound by this favorable finding absent clear and unmistakable error. 38 C.F.R. § 3.104(c). Finding no such error, the Board finds that the first element of a service connection claim has been met. The Veteran's service treatment records are silent for any complaints or diagnosis of sleep apnea. The Veteran did not, while on active duty, make any report of symptoms consistent with sleep apnea, such as daytime fatigue, difficulty sleeping while breathing, snoring, or cessation of breathing while sleeping. The record otherwise contains no indication, nor has the Veteran contended, that his current sleep apnea had its inception during active duty or is otherwise causally related to an in-service disease or injury. As noted above, VA treatment records note a diagnosis of sleep apnea in 2017 or 2018. There is nothing of record showing an earlier diagnosis of the disease. It is not clear from the record how long before his diagnosis the Veteran was experiencing symptoms, as he did not provide that information, but he has not claimed that symptoms began before separation from service. At the time of the October 2023 rating decision, there was no competent medical evidence of record which contained any indication that the Veteran's current sleep apnea may be associated with an established in-service disease, injury or event. Thus, service connection on a direct basis is not warranted. Additionally, at the time of the October 2023 rating decision, the record contained no evidence that the Veteran had been diagnosed as having a psychiatric disability nor was service connection in effect for a psychiatric disability. The Board notes that the RO subsequently granted service connection for depression in an April 2024 rating decision. Although this decision was issued well outside the evidentiary window of this appeal, it must be considered because, according to the U.S. Court of Appeals for Veterans Claims (Court), it is not evidence but rather an adjudicative determination. Green v. McDonough, 37 Vet. App. 127, 136 (2024). Nonetheless, because the record currently before the Board in this appeal contains no indication that the Veteran's sleep apnea is associated with depression, or indeed any service-connected disability, service connection on a secondary basis is not warranted. Additionally, as there was no indication of an association between the Veteran's disability and an established in-service disease or injury or a service-connected disability, to include depression, a VA examination or opinion was not necessary. 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran is competent to report signs and symptoms he has experienced. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, in this case, the Veteran has not reported that he experienced any symptoms of sleep apnea during active duty. Moreover, to the extent that the Veteran asserts that his disability is related to service or a service-connected disability, to include depression, the Board notes the evidence of record does not show the Veteran is, whether by training or experience, competent to offer an opinion as to the etiology of his obstructive sleep apnea. After considering all the evidence of record at the time of the October 2023 rating decision on appeal, the Board finds that it is persuasively against the Veteran's obstructive sleep apnea having begun while he was on active duty or being otherwise related to an in-service disease or injury. Further, the Board finds that the evidence is persuasively against the Veteran's obstructive sleep apnea being proximately due to, or aggravated beyond its natural progress by, a service-connected disability, to include depression. As such, the Board concludes that the criteria for entitlement to service connection, on a direct or secondary basis, are not met for this claim. 38 C.F.R. §§ 3.303, 3.310. As the evidence is persuasively against the claim, the benefit of the doubt rule is inapplicable. 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. Entitlement to service connection for peripheral neuropathy bilateral upper extremities 3. Entitlement to service connection for peripheral neuropathy bilateral lower extremities The Veteran contended on his initial form that he had bilateral peripheral neuropathy of both the upper and lower extremities, which was secondary to his service-connected diabetes mellitus. The first question for the Board is whether the Veteran has a current disability of peripheral neuropathy. After a review of the evidence of record, the Board concludes that the Veteran does not have a current diagnosis of bilateral upper or lower extremity peripheral neuropathy and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's service treatment records do not show any complaints of numbness, tingling, or loss of sensation in the extremities. The Veteran was not, at any point in service, diagnosed with neuropathy. At a May 2009 VA examination, the Veteran did not show any signs or symptoms of neuropathy. At an October 2023 VA examination related to the Veteran's diabetes, the Veteran responded negatively when asked about symptoms of neuropathy and denied any symptoms of nerve issues. He denied symptoms of constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness. Muscle strength testing in the extremities was normal with no signs of muscle atrophy. Reflex testing and sensation to light touch testing were both normal. There were no trophic changes and there was no evidence of abnormal gait patterns. The Veteran's VA treatment records show that he was being asked regularly about symptoms of neuropathy, as there was a concern it might develop as a side effect of chemotherapy he was receiving for his bladder cancer. The Veteran consistently denied any symptoms of neuropathy through this period. The Veteran did report an instance of symptoms in his hands while undergoing chemotherapy treatment in December 2022; however, the symptoms immediately resolved with oral hydration. On several instances following this isolated occurrence, the Veteran again reiterated that he did not have any symptoms of peripheral neuropathy. There is no indication the symptoms were more than an isolated occurrence that resolved after the Veteran drank some water. Considering the evidence of record, the Board finds it weighs persuasively against the Veteran having a peripheral neuropathy disability. The Board has considered the Veteran's claim for the disability, but has afforded more probative weight to the findings of the VA examination and the Veteran's repeated assertions, to include at his VA examination, that he did not have any symptoms related to peripheral neuropathy. The Board did consider the single report from December 2022 in which the Veteran reported symptoms in his hands. However, symptoms resolved by simply drinking water and did not return. The Veteran's VA examination occurred after that incident and he did not even report those isolated symptoms as part of his medical history. While pain alone without an accompanying diagnosis of a present disability can qualify as a disability if it reaches the level of functional impairment, in this case, there has been no evidence of any symptoms related to the claimed disabilities which cause functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). By virtue of his filing a claim, it can be inferred that the Veteran believes he has a peripheral neuropathy disability. The Board notes he is competent to report symptoms he has experienced, to include their severity, onset, and frequency. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case though, the Veteran has repeatedly denied any symptoms associated with this claimed disability, including after filing his claim. Peripheral neuropathy, in some instances, manifests by subjective symptoms alone and so a diagnosis could be made based solely on lay reports of symptoms. In this case, the Veteran does not even have those subjective symptoms which only he could have reported. The Board affords more probative weight to the Veteran's statements at his VA examination that he does not have any symptoms of neuropathy than to any inference that the Veteran had symptoms of neuropathy at the time he filed his claim 2 months prior. Absent evidence or allegation that the Veteran has manifestations of similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person, the Board finds that the criteria for a current disability are not met. Wait v. Wilkie, 33 Vet. App. 8, 15 (2020). Therefore, after consideration of all the evidence of record, the Board concludes that the criteria for entitlement to service connection for bilateral upper and bilateral lower peripheral neuropathy are not met. 38 C.F.R. §§ 3.303, 3.310. As the evidence is persuasively against the claim, the benefit of the doubt rule is inapplicable. 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 4. Entitlement to service connection for bladder cancer The Veteran has claimed service connection for bladder cancer. It is unclear under what theory of entitlement the Veteran is seeking service connection in this case, as he has not offered any arguments in support of his claim. His initial claim from August 2023 does not contain any specific contentions. His April 2024 Notice of Disagreement offers no specific disagreements with the October 2023 rating decision. The brief submitted by his representative in May 2024, likewise, contains no specific arguments for service connection. The Veteran's service treatment records do not contain any diagnosis of bladder cancer or the report of any sign or symptom of bladder cancer. There is evidence the Veteran was diagnosed with gallbladder and kidney stones while in service, but there is no indication anywhere in the record that these led to the development of bladder cancer and the Veteran has not raised that as a contention or theory of entitlement to service connection. The Veteran's bladder cancer was not diagnosed until many years after his separation from active duty. There is no indication in the record, and the Veteran has not argued, that bladder cancer developed within a year of his separation from active duty. There is no evidence of record indicating that any of the Veteran's service-connected disabilities proximately caused the Veteran's bladder cancer or aggravated it beyond its natural progress. The Veteran has not contended his bladder cancer was caused by a service-connected disability. As there is no indication that bladder cancer may be associated with an in-service disease, injury, or event or a service-connected disability, the Board finds the AOJ did not have a duty to assist in providing a VA examination in relation to this claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Given all the evidence of record, the Board finds it persuasively weighs against a finding that the Veteran's bladder cancer began in service or within a year of separation from service, is otherwise related to an in-service disease or injury or is caused or aggravated by a service-connected disability. As such, the Board concludes that the criteria for entitlement to service connection for bladder cancer are not met. 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. As the evidence is persuasively against the claim, the benefit of the doubt rule is inapplicable. 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kleponis, Kevin 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.