Citation Nr: A25041266 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 240905-470663 DATE: May 6, 2025 ORDER Service connection for obstructive sleep apnea (OSA) is denied. REMANDED Entitlement to service connection for left lower extremity neuropathy is remanded. Entitlement to service connection for right lower extremity neuropathy is remanded. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain, post-discectomy, is remanded. FINDING OF FACT The Veteran does not have a current diagnosis of OSA. CONCLUSION OF LAW The criteria for service connection for OSA are not met. 38 U.S.C. §§ 1110, 1117, 1168, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service from August 1998 to August 2001 and from January 2004 to December 2004. The rating decisions on appeal were issued in February and April 2024 and constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the September 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the February 2024 agency of original jurisdiction (AOJ) decision on appeal with respect to the issues of entitlement to service connection for OSA and entitlement to a higher initial rating for the Veteran's service-connected lumbosacral disability. With respect to the issues of entitlement to service connection for left and right lower extremity neuropathy, the Board may only consider the evidence of record at the time of the April 2024 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, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board notes that the Veteran included the additional issue of entitlement to service connection for neuropathy of the bilateral upper extremities in the September 2024 Notice of Disagreement. However, that issue was not addressed in either the February or April 2024 rating decision on appeal, or any other rating decision one year prior to the submission of the September 2024 Notice of Disagreement. Consequently, such issue is not on appeal and will not be addressed herein. 1. Entitlement to service connection for sleep apnea. The Veteran claims that he has OSA, which he attributes to his military service. Accordingly, he claims entitlement to service connection for such disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Here, a review of the record reveals no in-service or post-service treatment records evidencing symptoms or a diagnosis of OSA. The Board acknowledges an isolated report of difficulty sleeping in 2005; however, such was specifically reported during psychiatric treatment and identified as an occasional symptom of anxiety, corresponding directly with a rise in stress. Therefore, the only evidence of a diagnosis is the assertion from the Veteran that he believes he has OSA because he cannot fall asleep on his back and experiences what feels like "jumping" awake due to a blocked airway. See September 2023 VA Form 21-526EZ. Importantly, the Veteran himself has not reported receiving any formal diagnosis of OSA or provided records showing current symptoms even provisionally associated with OSA. In this regard, lay evidence is competent to report the presence of readily observable features or symptoms of a disease and to report a diagnosis of a disease when there is a contemporaneous medical diagnosis of the same. Unfortunately, here, we do not have a medical diagnosis of OSA, and the Veteran is not competent to make a self-diagnosis for his claimed disability because it can only be diagnosed after a sleep study is performed by a medical professional. Barr v. Nicholson, 21 Vet. App. 303, 307-310 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Finally, the Board acknowledges that the Veteran has not been provided with a VA examination addressing his service connection claim for OSA. In this regard, the Board finds that a remand to obtain a medical examination or opinion is not warranted here because the record at the time of the rating decision on appeal did not establish an in-service presence of an associated event, injury or disease or suggest a medical nexus. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, regulations provide that VA must afford a Veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 C.F.R. § 1168 (a). However, for a Persian Gulf War Veteran who participated in a toxic exposure risk activity (TERA) event in-service, an examination is only warranted when there is evidence of a disability. 38 C.F.R. § 1168 (a). While the Veteran did participate in a TERA event, there is no diagnosis of OSA in the record. See April 2024 Toxic Exposure Risk Activity (TERA) Memorandum. Thus, an examination is not necessary to adjudicate the Veteran's service-connection claim and a remand requesting an examination is not required. 38 C.F.R. § 1168 (a). The Board has carefully reviewed the evidence but finds that service connection for OSA is not warranted. In this regard, the Board points out that a key element in establishing service connection is to show that a veteran currently has a diagnosis of the disability for which service connection is sought. See 38 C.F.R. § 3.304. As such, the Board concludes that the reliable and/or probative evidence of record, on balance, does not show the Veteran has a diagnosis for OSA. In the absence of a diagnosis, there is no basis to grant the claim for service connection for OSA. 38 C.F.R. § 4.125; see Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The evidence is neither evenly balanced nor approximately so with regard to whether service connection for this disorder is warranted. Rather, the evidence persuasively weighs against the Veteran's claim. Thus, the benefit of the doubt doctrine does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). The appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for left lower extremity neuropathy. 2. Entitlement to service connection for right lower extremity neuropathy. The Veteran claims that he currently has left and right lower extremity peripheral neuropathy that is related to his military service, to include as secondary to his thoracolumbar spine disability. Accordingly, the Veteran underwent VA examination in March 2024, at which time bilateral lower extremity symptoms of severe paresthesias and/or dysesthesias and numbness were recorded. However, seemingly based on the lack of an EMG study available for review, the examiner concluded that there were no objective findings of peripheral neuropathy of either lower extremity. However, the Board finds that such opinion is conclusory and not supported by a sufficient rationale. Importantly, the examiner failed to address relevant evidence of record suggesting the presence of lower extremity peripheral neuropathy, to include evidence linking such symptoms to the Veteran's lower back disability. Specifically, private post-operative notes recorded after the Veteran's discectomy in 2017 described the Veteran's low back pain as radiating into the left leg. Further, an October 2023 private medical treatment note associated the Veteran's reports of tingling and numbness in his legs with flare-ups of low back pain and spasm following movement. The Board, therefore, finds that the failure to obtain an adequate opinion addressing the presence of any lower extremity peripheral neuropathy is a pre-decisional duty to assist error that warrants a remand for to obtain an opinion addressing such matters. 3. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain, post-discectomy. The February 2024 rating decision on appeal granted service connection for lumbosacral strain, post-discectomy, and assigned a 10 percent rating under DC 5237, effective September 24, 2023. The Veteran has appealed this initial rating assigned, arguing that such does not adequately reflect the severity of his back disability. The Board has, therefore, reviewed the record and finds that the February 2024 VA examination utilized by the AOJ when assigning the 10 percent rating was inadequate. Accordingly, the Board identifies a pre-decisional duty to assist error in the AOJ's reliance on this report. Specifically, the entirety of the medical evidence of record reflects at least some loss of range of motion (ROM) and functional limitation during flare-ups of low back pain, as well as spasms. However, this evidence was not recognized by the February 2024 examiner. Further, while the Veteran reported treating his back pain, to include during flare-ups, with multiple over-the-counter medications, the examiner did not indicate whether the ROM findings recorded at the examinations had taken into account the ameliorative effects of that pain medication. Accordingly, the matter must be remanded to correct this pre-decisional duty to assist error and obtain an adequate medical opinion addressing the Veteran's low back disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination and obtain an opinion regarding the current severity of his lumbar spine disability, to include the presence of any lower extremity radicular symptoms. The most up-to-date Disability Benefits Questionnaire should be utilized. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to degenerative joint disease of the lumbar spine and radiculopathy of the lower extremities and discuss the effect of the Veteran's disabilities on any occupational functioning and activities of daily living without the use of medication. If any medication is productive of ameliorative effects, clearly identify such effects and opine as to the severity of the condition absent the use of such medication. Specifically, the examiner must estimate the additional degrees of lost range of motion of the thoracolumbar spine if the Veteran's symptomatology was not ameliorated by his medication regimen for the entire period on appeal. To that end, the examiner must address the Veteran's use of pain medications and must also comment on the Veteran's lay testimony regarding his medication regimen. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A complete rationale should be given for all opinions and conclusions expressed. 2. If the Veteran's lower extremity symptoms have not been associated with his service-connected thoracolumbar spine disability, obtain an addendum opinion from a qualified VA clinician to determine the nature and etiology of the Veteran's claimed lower extremity peripheral neuropathy. The entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. The examiner should answer the following: (A) Identify all relevant conditions that the Veteran has had during the appellate period pertaining to his claimed left and/or right lower extremity peripheral neuropathy. If the examiner finds there to be no pathology to which to attribute the Veteran's symptomatology for each disability, to include pain, the examiner should address the functional effects or limitations of the Veteran's symptoms, to include whether pain results in functional impairment of earning capacity. (B) For any/each diagnosis, opine whether such was incurred in, or otherwise related to, his active service, to include his acknowledged participation in a toxic exposure risk activity or activities (TERA). In forming this opinion, the examiner must consider (i) the total potential exposure through all applicable military deployments; and (ii) the synergistic, combined effect of all toxic exposure risk activities. The examiner must set forth a complete rationale for any conclusions reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. Marcus N. Fulton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge 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.