Citation Nr: 18131194
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-30 739
DATE:	August 31, 2018
ORDER
Entitlement to service connection for a sleep disorder, to include sleep apnea is denied.
Entitlement to service connection for cold injury residuals of the left hand is denied.
Entitlement to service connection for cold injury residuals of the right hand is denied.
REMANDED
Entitlement to service connection for a low back disability is remanded.
Entitlement to service connection for a bilateral hearing loss disability is remanded.
Entitlement to service connection for tinnitus, to include as secondary to a bilateral hearing loss disability is remanded.
Entitlement to service connection for residuals of a stroke, brain aneurysm or hemorrhage is remanded.
Entitlement to service connection for residuals of craniotomy, to include memory problems is remanded.
Entitlement to service connection for a disability characterized by headaches is remanded.
FINDINGS OF FACT
1.  A sleep disorder, to include sleep apnea is not etiologically related to active service and may not be presumed to have been incurred in service.
2.  Cold injury residuals of the left hand are not etiologically related to active service and may not be presumed to have been incurred in service.
3.  Cold injury residuals of the right hand are not etiologically related to active service and may not be presumed to have been incurred in service.
CONCLUSIONS OF LAW
1. The criteria for service connection for a sleep disorder, to include sleep apnea are not met.  38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
2.  The criteria for service connection for cold injury residuals of the left hand are not met.  38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
3. The criteria for service connection for cold injury residuals of the right hand are not met.  38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from March  1971 to January 1974, and additional United States Army Reserve duty.
The Board observes that at the time of the May 1982 rating decision, the Veteran’s complete service treatment records (STR) and personnel records (SPR) were not associated with the file.  As a substantial and relevant portion of the STR’s and SPR’s have been added to the record, the Board will adjudicate the claims of service connection for residuals of stroke and brain hemorrhage on a de novo basis, without the need for new and material evidence.
In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that that the scope of a disability claim includes any disability which may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record.  In consideration of the Clemons case, the Board considers the issue of entitlement to service connection for residuals of a brain hemorrhage, aneurysm to be subsumed by the issue of entitlement to service connection for residuals of a stroke.  Indeed, based on the Veteran’s contentions and medical evidence of record, and considering Clemons, the Board has characterized the issue as one for entitlement to service connection for residuals of a stroke, brain aneurysm or hemorrhage.

Service Connection
1.  Entitlement to service connection for a sleep disorder, to include sleep apnea 
The Veteran contends that he has a sleep disorder due to his active service.
To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.
Service treatment records do not show any sleep disorder, sleep apnea, or residual complaints or issues regarding sleep.
Post-service VA and private treatment records do not show a current diagnosis of or treatment for any sleep disorder, sleep apnea, or residuals thereof.  Indeed, a September 2014 treatment note regarding sleep symptoms/disorders indicated “none.” 
A medical examination is necessary when there is (1) “competent evidence of a current disability or persistent or recurrent symptoms of a disability,” (2) evidence establishing an in-service “event, injury, or disease,” and (3) an “indication” that the disability or symptoms may be associated with service, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A (d)(2).
Here, the Board finds the threshold requirement to determine whether a medical examination is warranted, that there is competent evidence of a current disability or persistent or recurrent symptoms of a disability has not been demonstrated as to the Veteran’s claim.  Therefore, VA has no duty to obtain a medical examination in this regard.  See Wells v. Principi, 326 F. 3d 1381 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512, 516 (2004).  Consequently, the “low” threshold for purposes of triggering VA’s duty to provide an examination is not met.  McLendon, 20 Vet. App. at 81.
As such, the Veteran’s claims for entitlement to service connection for a sleep disorder fails.  He did not have a diagnosis of or treatment for the claimed disorder either in active service or after it.  And, the best evidence of record shows that the Veteran does not have a current diagnosis of sleep disorder.  In the absence of proof of a present disorder (and, if so, of a nexus between that disorder and the active military service), there can be no valid claims for service connection.  Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that “a Veteran seeking disability benefits must establish... the existence of a disability [and] a connection between the Veteran’s service and the disability.”  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).
The Board concludes that the Veteran does not have a current diagnosis or persistent or recurring symptoms of sleep apnea or other sleep disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d).
Accordingly, service connection for a sleep disorder is not warranted because the Veteran has not satisfied the first requirement of service connection, i.e., a current disability.  See 38 C.F.R. § 3.303; see again Gilpin, 155 F.3d at 1353; Brammer, 3 Vet. App. at 225.  In reaching the above conclusion, the Board has considered the benefit-of- the-doubt doctrine.  However, as the preponderance of the evidence is against the claim of entitlement to service connection for a sleep disorder, that doctrine does not apply.  38 U.S.C. § 5107(b) (2012).  The claim of entitlement to service connection for a sleep disorder is denied.
2. and 3. Entitlement to service connection for cold injury residuals of the left hand, and of the right hand
The Veteran contends that he has cold injury residuals to his left and right hands due to his service, to include service in Germany.
To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.
Service treatment records do not show any treatment for, complaint of, or diagnosis for cold injury residuals.
Post-service VA and private treatment records do not show a current diagnosis of or treatment for any cold injury residuals of the hands.  A December 2015 medical record indicates that the musculoskeletal exam of the right and left hands was normal.  
A medical examination is necessary when there is (1) “competent evidence of a current disability or persistent or recurrent symptoms of a disability,” (2) evidence establishing an in-service “event, injury, or disease,” and (3) an “indication” that the disability or symptoms may be associated with service, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A (d)(2).
Here, the Board finds the threshold requirement to determine whether a medical examination is warranted, that there is competent evidence of a current disability or persistent or recurrent symptoms of a disability has not been demonstrated as to the Veteran’s claim.  Therefore, VA has no duty to obtain a medical examination in this regard.  See Wells v. Principi, 326 F. 3d 1381 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512, 516 (2004).  Consequently, the “low” threshold for purposes of triggering VA’s duty to provide an examination is not met.  McLendon, 20 Vet. App. at 81.
As such, the Veteran’s claims for entitlement to service connection for cold injury residuals to the left and right hands fails.  He did not have a diagnosis of or treatment for the claimed disorder either in active service or after it.  And the best evidence of record shows that the Veteran does not have a current diagnosis of cold injury residuals of the hands.  In the absence of proof of a present disorder (and, if so, of a nexus between that disorder and the active military service), there can be no valid claims for service connection.  Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that “a Veteran seeking disability benefits must establish... the existence of a disability [and] a connection between the Veteran’s service and the disability.”  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).
The Board concludes that the Veteran does not have a current diagnosis or persistent or recurring symptoms of cold injury residuals of the left or right hands and has not had one at any time during the pendency of the claim or recent to the filing of the claim.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d).
Accordingly, service connection for cold injury residuals of the left and right hands is not warranted because the Veteran has not satisfied the first requirement of service connection, i.e., a current disability.  See 38 C.F.R. § 3.303; see again Gilpin, 155 F.3d at 1353; Brammer, 3 Vet. App. at 225.  In reaching the above conclusion, the Board has considered the benefit-of- the-doubt doctrine.  However, as the preponderance of the evidence is against the claim of entitlement to service connection for cold injury residuals of the left and right hands, that doctrine does not apply.  38 U.S.C. § 5107(b) (2012).  The claim of entitlement to service connection cold injury residuals of the left and of the right hand is denied.
REASONS FOR REMAND
1. Entitlement to service connection for a low back disability is remanded.
The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a low back disability because no VA examiner has opined whether the Veteran’s low back pain could be related to his service related back incidents.  For instance, service treatment records show that in January 1972 the Veteran fell in a locker resulting in a tender lumbar spine and bruised musculature, and in April 1973 the Veteran sought treatment for low back pain, and was advised to use a heating pad.  The Board observes that the lay evidence indicates an association between the Veteran’s current, persistent symptoms of back disability and evidence of an event in service related to the back.  As such, the low threshold standard that it “may be associated” with service for purposes of requiring an examination is met.  See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
2. Entitlement to service connection for a bilateral hearing loss disability is remanded.
The Board cannot make a fully-informed decision on the issue of entitlement to service connection for bilateral hearing loss disability because the May 2018 VA examination addressing the issue is inadequate, where, as the representative contended, the examiner failed to address the Veteran’s lay contentions or article regarding accelerated hearing loss from early noise exposure.
3. Entitlement to service connection for tinnitus, to include as secondary to a bilateral hearing loss disability is remanded.
The Board cannot make a fully-informed decision on the issue of entitlement to service connection for tinnitus because the May 2018 VA examination addressing the issue is inadequate, where, as the representative contended, the examiner failed to address the Veteran’s lay contentions.  Further, the issue of entitlement to service connection for tinnitus is intertwined with that for service connection for bilateral hearing loss where a VA audiologist had indicated that it is interrelated.
4. Entitlement to service connection for residuals of a stroke, brain aneurysm or hemorrhage is remanded.
The Veteran indicated that his cerebrovascular accident occurred during his Reserve service.  The AOJ should verify the Veteran’s period of active duty for training or inactive duty for training to determine whether he is entitled to service connection for residuals of cerebrovascular accident.  
5. Entitlement to service connection for residuals of craniotomy, to include memory problems is remanded.
The AOJ should attempt to verify the Veteran’s period of active duty for training or inactive duty for training to determine whether he is entitled to service connection for residuals of craniotomy, to include memory problems.  
The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a disability characterized by residuals of craniotomy because no VA examiner has opined whether the Veteran has residuals of craniotomy, to include memory problems that could be related to his service.  For instance, Barnes Hospital records show that in 1982 the Veteran underwent a partial craniotomy, and the Veteran’s claim qualifies as a lay statement in regards to his current reported memory problems.  The Board observes that the lay evidence indicates an association between the Veteran’s current, memory problems and craniotomy.  As such, the low threshold standard that it “may be associated” with service for purposes of requiring an examination is met.  See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
6.  Entitlement to service connection for a disability characterized by headaches is remanded.
The AOJ should attempt to verify the Veteran’s period of active duty for training or inactive duty for training to determine whether he is entitled to service connection for a disability characterized by headaches.  
The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a disability characterized by headaches because no VA examiner has opined whether the Veteran has a current headache disability that could be related to his service.  For instance, service records show that in the 1980s the Veteran experienced headaches, and current private treatment records also show that the Veteran experiences headaches.  The Board observes that the lay evidence indicates an association between the Veteran’s current, persistent symptoms of headaches and events or injuries in service.  As such, the low threshold standard that it “may be associated” with service for purposes of requiring an examination is met.  See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The matters are REMANDED for the following action:
1.  Contact all appropriate resources to verify the specific dates when the Veteran was on active duty, ACDUTRA and/or INACDUTRA.  Document for the claims file what repositories were contacted and why.  If necessary, the Veteran should be requested to provide any assistance in obtaining this clarifying information.  All verified dates of service and all responses received should be documented in the claims file. 
2.  Attach a memorandum to the claims file that delineates the Veteran’s verified periods of active duty, active duty for training, and inactive duty for training.
3.  Schedule the Veteran for an examination by an appropriate clinician(s) to determine the nature and etiology of any (i) low back; (ii) bilateral hearing loss; (iii) tinnitus; (iv) headache and (v) any residual of craniotomy, to include memory problems disabilities.  The examiner must be provided with a copy of the memorandum that outlines the Veteran’s verified periods of active duty, ACDUTRA, and INACDUTRA.  The examiner must opine whether any disability (i)-(v) is at least as likely as not related to an in-service injury, event, or disease.  
(a) The examiner should state whether there is clear and unmistakable (undebatable) evidence that the (i) low back; (ii) bilateral hearing loss; (iii) tinnitus; (iv) headache and (v) any residual of craniotomy, to include memory problems disabilities preexisted any of the Veteran’s verified periods of active duty.
(b) If the answer to question (a) is yes, is there clear and unmistakable (undebatable) evidence that the (i) low back; (ii) bilateral hearing loss; (iii) tinnitus; (iv) headache and (v) any residual of craniotomy, to include memory problems disabilities did NOT undergo an increase in severity beyond the natural scope of the disability during the Veteran’s active duty?
(c) If the answer to question (a) is no, is it at least as likely as not (a 50 percent or greater probability) that the (i) low back; (ii) bilateral hearing loss; (iii) tinnitus; (iv) headache and (v) any residual of craniotomy, to include memory problems disabilities first manifested during, or is otherwise related to, the period of active duty?
The examiner should also indicate whether it at least as likely as not any degenerative arthritis of the low back (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service.
(d) The examiner should state whether the (i) low back; (ii) bilateral hearing loss; (iii) tinnitus; (iv) headache and (v) any residual of craniotomy, to include memory problems disabilities preexisted any of the Veteran’s verified periods of active duty for training (ACDUTRA) and/or inactive duty for training (INACDTRA).
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(e) For each period of ACDUTRA and/or INACDUTRA that the (i) low back; (ii) bilateral hearing loss; (iii) tinnitus; (iv) headache and (v) any residual of craniotomy, to include memory problems disabilities preexisted, did the disorder worsen in severity during the period of service?  If so, the examiner should indicate whether the increase in severity was consistent with the natural progression of the disorder or whether the increase represented an “aggravation” of the disorder beyond its natural progression.  In responding to this question, the examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service,” unless the underlying condition, as contrasted with symptoms, has worsened.
(f) For each period of ACDUTRA and/or INACDUTRA that the (i) low back; (ii) bilateral hearing loss; (iii) tinnitus; (iv) headache and (v) any residual of craniotomy, to include memory problems disabilities did not preexist, is it at least as likely as not (a 50 percent or greater probability), that the disorder is due to a disease or injury incurred during any period of ACDUTRA; or an injury incurred during any period of INACDUTRA?
 
YVETTE R. WHITE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Barner, Counsel 

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