Citation Nr: 24004818 Decision Date: 01/31/24 Archive Date: 01/31/24 DOCKET NO. 20-27 029 DATE: January 31, 2024 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. Entitlement to service connection for bilateral ear infections, to include as due to service-connected sinusitis or rhinitis, is denied. Entitlement to service connection for a kidney disorder, to include kidney cancer, is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. Entitlement to service connection for neurological signs and symptoms, to include muscle twitches, is denied. Entitlement to an initial rating in excess of 50 percent for obstructive sleep apnea (OSA) with asthma is denied. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of COPD during the period on appeal. 2. The evidence persuasively weight against finding the Veteran's chronic ear infections are related to service or are secondary to service-connected sinusitis or rhinitis. 3. The evidence persuasively weight against finding any kidney disorder is related to service. 4. Affording the Veteran the benefit of reasonable doubt, his GERD symptoms had onset during service. 5. The evidence does not show that the Veteran had a diagnosis of peripheral nerve disorder defined by muscle twitches during the period on appeal. 6. The evidence does not show that the Veteran had at least monthly visits to a physician for required care of asthma exacerbations; or, FEV-1 to forced vital capacity (FEV-1/FVC) of 40 to 55 percent; or, at least monthly visits to a physician for required care of exacerbations, or, forced expiratory volume in one second (FEV-1) of 40 to 55 percent of predicted; or, intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids or; sleep apnea with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or that required a tracheostomy. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1110, 1132, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for service connection for bilateral ear infections, to include as due to service-connected sinusitis or rhinitis, have not been met. 38 U.S.C. §§ 1110, 1132, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 3. The criteria for service connection for a kidney disorder, to include kidney cancer, have not been met. 38 U.S.C. §§ 1110, 1132, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309. 4. The criteria for service connection of GERD have been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 5. The criteria for service connection for neurologic signs and symptoms, to include muscle twitch, have not been met. 38 U.S.C. §§ 1110, 1132, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309. 6. The criteria for an initial rating in excess of 50 percent for OSA with asthma have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.97, Diagnostic Codes 6847, 6602. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from November 2004 to March 2005 and from August 2008 to April 2009, including service in Iraq and Kuwait. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was last before the Board in June 2023 at which time the claims on appeal were remanded for additional development and a current Supplemental Statement of the Case. Upon return of the claims, the Board notes that there been substantial compliance with its remand directives such that the remaining claims are now appropriate for adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of the continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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). To establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In addition, certain chronic diseases, including calculi of the kidney and organic diseases of the nervous system, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Service connection may be established under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 because the Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War. During Gulf War General Medical Examination Disability Benefits Questionnaires (DBQs) of 2016 and 2022, the examiners determined that COPD, GERD, calculi of the kidney, and ear infections are diagnosable illnesses with known etiologies. As such, the Gulf War presumption is not applicable for these diseases. In addition, pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), a Veteran having had qualifying deployments to the Southwest Asia theater of operations constitutes presumptive toxic exposure per 38 U.S.C. § 1119. Veterans who were exposed to burn pits or toxic substances specifically during the Gulf War and post 9/11 eras are eligible for presumptive service connection if they have a current disability diagnosed as brain cancer, glioblastoma, respiratory cancer of any type, gastrointestinal cancer of any type, head cancer of any type, lymphoma of any type, lymphatic cancer of any type, neck cancer, pancreatic cancer, reproductive cancer of any type, kidney cancer, melanoma, asthma (diagnosed after service), chronic rhinitis, chronic sinusitis, constrictive bronchiolitis or obliterative bronchiolitis, emphysema, granulomatous disease, interstitial lung disease (ILD), pleuritis, pulmonary fibrosis, sarcoidosis, chronic bronchitis, and chronic obstructive pulmonary disease (COPD). See Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), Pub. L. 117-168, 136 Stat. 1759 (2022). The evidence of record shows that the Veteran had service in Iraq and Kuwait. February and March 2023 Toxic Exposure Risk Activity (TERA) Memoranda confirms that the Veteran participated in a TERA during active military service in Iraq and Kuwait. As such, the Veteran is deemed involved in a TERA during his deployment. Thus, adequate TERA examinations and opinions for are required as provided for under the PACT Act. Nonetheless, although entitlement to service connection on any of the presumptive bases noted above may not be established, a veteran is not precluded from establishing service connection on a direct basis. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied when a veteran has a disability at the time he or she files a service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Evidence of recent diagnoses that predate the veteran's claim is also relevant to the claim. See McKinney v. McDonald, 28 Vet. App. 15 (2016); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Pain alone, however, can serve as a disability for VA compensation purposes if the pain results in functional impairment that affects earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b). Entitlement to service connection for chronic obstructive pulmonary disease (COPD) The Veteran contends that he has COPD that had onset in or is otherwise related to his periods of active service. The Veteran's service treatment records are silent for respiratory complaints. In an August 2010 report of medical history, the Veteran indicated that he had been diagnosed with asthma. In a December 2016 Gulf War respiratory conditions examination. The Veteran indicated that he had been diagnosed with asthma by a private physician in 2010, had been a smoker since 2006, and had been seen twice in the past 12 months for asthma exacerbations which were treated with oral antibiotics and prednisone. The examiner noted the pulmonary function test (PFT) results of 81 percent for forced expiratory volume (FEV) pre-bronchodilator and 89 percent post-bronchodilator were the most accurate reflection of his condition. The examiner concluded that the Veteran's asthma was caused by environmental irritants including cigarette smoke and that the Veteran's asthma symptoms were related to Gulf War environmental exposures as the Veteran first reported his symptoms in 2010. The Veteran was service connected for asthma effective August 1, 2016. In a July 2019 respiratory conditions examination, the examiner endorsed the diagnosis of asthma but did not endorse a diagnosis of COPD. The Veteran discussed an overnight hospitalization, not found in the evidence of record, for breathing difficulty and panic attack. He acknowledged that he had not had an asthma exacerbation in the last year. The examiner concluded that although the PFT was normal that the Veteran's asthma was likely induced by seasonal allergens. A July 2021 chest x-ray showed normal lungs with no active disease. In July 2021 a VA examiner again diagnosed only asthma in regard to respiratory conditions. The examiner specifically noted the Veteran "does not have a diagnosis of any other lung disease to include chronic obstructive pulmonary disease." In a January 2022 respiratory conditions examination, the VA examiner was unable to confirm a current diagnosis of COPD for the Veteran after a review of all treatment records, examination, and interview of the Veteran. The prior diagnosis of asthma treated with intermittent inhalation bronchodilator therapy, but no oral bronchodilators, was confirmed. The Veteran had not experienced an asthma exacerbation or asthma attack in the last 12 months, and his chest x-ray was negative. In December 2022 respiratory conditions examination, the examiner only diagnosed asthma with the examiner again specifically noting a diagnosis of COPD was not merited. In a September 2023 respiratory conditions examination, the Veteran discussed the onset of wheezing and dyspnea during his deployment to Iraq for which he did not receive any treatment. He mentioned exposure to burn pits, smoke, dust, sand, depleted uranium, and possible chemical weapons. He was evaluated on return to the states and was diagnosed with asthma related to these exposures. He had been prescribed medication via inhaler and nebulizer as needed. His symptoms were worse in the winter and spring. He had been prescribed Advair in the past but was not currently prescribed this treatment. He smoked less than a pack a day since 2006. He reported seeing a pulmonary physician yearly who told him to continue to use his inhaler and to call if he needed more treatment for his COPD. The Veteran noted that he had not used any prescribed medication on a regular basis other than albuterol for over three years. In a November 2023 addendum opinion, the September 2023 VA examiner again noted a diagnosis of COPD was not merited. The Board observes that each of the medical examiners adequately addressed the evidence of record regarding the Veteran's respiratory condition. Accordingly, each of the examiners' opinions are highly persuasive as they are clear, unequivocal, and based on the relevant evidence, including the Veteran's medical records. Nieves-Rodriguez, 22 Vet. App. at 295. For purposes of service connection, the requirement of a current disability is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal, even if evidence suggests that the disorder has currently resolved itself. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board may consider evidence of a diagnosis prior to the filing of a claim. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In the instant claim, the treatment records in evidence do not show and the VA medical examiners were unable to confirm a diagnosis of COPD during the period on appeal or immediately prior thereto. Accordingly, the Board concludes that the Veteran does not have a current diagnosis of COPD and has not had one at any time during the pendency of the claim or recent to the filing of the claim. The Veteran, as a layperson, is competent to report respiratory symptoms that he has experienced. See Layno v. Brown, 6 Vet. App. 465 (1994). The VA examiners have considered the Veteran's lay statements as of part their examination and medical opinions. As the Veteran has not shown that he has the specialized training and experience in diagnosing respiratory conditions and determining an etiology, he is not competent to diagnosis his respiratory disorder or to attribute his symptoms to an injury of service. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the provisions of the PACT Act provide for presumptive service connection for a diagnosis of COPD, given that the Veteran has not been diagnosed with COPD, the PACT Act provisions are not applicable to his claim. Accordingly, as the Board finds that the evidence weighs against entitlement to service connection, there are no doubts to be resolved. The claim for service connection for COPD is denied. Entitlement to service connection for bilateral ear infections, to include as due to service-connected sinusitis or rhinitis The Veteran contends that he has bilateral ear infections due to his periods of active service or, in the alternative, secondary to his service-connected sinusitis or rhinitis. A review of the Veteran's service treatment records does not show complaints, treatment, or diagnosis of an acute or chronic ear condition. The Veteran's post-service medical records do not show any complaints, treatment, or a diagnosis of bilateral ear infections. Notably VA treatment records reflect a physical examination in April 2010 in which the Veteran did not complain of any ear symptoms and his ear examination was normal. In a 2011 treatment note the Veteran described bleeding from his ears associated with a rocket blast that knocked him unconscious for seconds and caused ringing in his ears for hours. In private primary care treatment records, sinusitis was not endorsed by the Veteran in visits from 2015 to 2016. The Veteran was afforded a Gulf War examination in December 2016 for bilateral ear conditions. While he complained of bilateral ear infections, he had not been prescribed medication, and indicated that he washed his ears out with water and hydrogen peroxide. The examiner concluded that there was no ear condition diagnosis. In numerous visits to the Veteran's private primary care physician between March 2019 and July 2020, the Veteran's head, eyes, ears, nose, and throat (HEENT) examinations were normal without any signs of sinus drainage or congestion. In a July 2021 VA ear conditions examination, the VA examiner confirmed a diagnosis of chronic otitis externa with 2021 onset and offered an opinion that the condition was unrelated to the Veteran's period of service. The Veteran stated that he had the onset of ear pain with drainage from the ears while he was deployed to Iraq attributing the symptoms to the water that they were using. He was given ear drops to use during deployment and stated that he now has "ear infections all the time." The Veteran discussed build-up of cerumen for which he has had his ears flushed on a regular basis and that he uses peroxide ear drops once a week which helps. He noted that he would develop an ear infection if he swam in the lake or missed his weekly ear flush routine. Upon physical examination, the ear was normal in all respects. The examiner concluded that the Veteran's reported bilateral chronic otitis externa was due to irritation and moisture in the ear canals from swimming that was unrelated to service or to any of his service-connected conditions. The Veteran was afforded a VA ear conditions examination as well as a VA sinusitis examination in December 2022. For the ear examination, the Veteran provided a history of bilateral ear infections since 2010 that continued to recur every few months that was treated with amoxicillin and unknown ear drops. He noted pain in the affected ear and bloody drainage that occurred intermittently. No symptoms of a neoplasm or an inflammatory, infectious, or vestibular condition were evident in the treatment records and there had been no surgical treatment for the ears. Physical examination, including the auricle, ear canal, tympanic membrane and assessment of gait was normal. The examiner concluded that there was no objective evidence to support a diagnosis of bilateral ear infections. For the sinusitis examination conducted on the same day, the examiner reported no change in the Veteran's existing diagnosis of sinusitis; the Veteran reported recurrent sinusitis with headaches, sinus pain, and purulent drainage for which he saw a doctor every four to six months. He did not report ear symptoms or any other signs and symptoms due to his sinusitis. Upon remand of the claim, the Veteran was afforded another VA ear conditions examination in September 2023. Symptoms of intermittent ear pressure had been present since 2008, which had worsened according to the Veteran. The Veteran reported he uses ear drops as needed, but not continuously prescribed medication for these symptoms. No symptoms of an inflammatory, infectious, vestibular condition or neoplasm were evident and there had been no surgical treatment for the ears. Physical examination, including the auricle, ear canal, tympanic membrane and assessment of gait was normal. No other pertinent physical findings, or complications were noted during the review and examination. The examiner concluded that there was no objective evidence to support a diagnosis of bilateral ear infections. In a November 2023 addendum opinion, the September 2023 examiner was requested to address the conflict between the July 2021 examiner's diagnosis of chronic otitis externa and the absence of an ear diagnosis in the December 2016, December 2022, and September 2023 examination and examiner opinions. The examiner first noted that there was no objective evidence available to support a diagnosis of ear infections at the time of each of the examinations. Infections are not an enumerated condition for which presumptive service connection is permitted under the Pact Act. However, the examiner opined that it was less likely than not (likelihood is less than approximately balanced or nearly equal) that an ear condition was caused by the indicated toxic exposure risk activities, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. As for the alternative theory of bilateral ear infections secondary to sinusitis or rhinitis, the July 2021 examiner documented a normal ear examination and concluded that the otitis externa with onset in 2021 was not secondary to any service-connected conditions. Accordingly, while the Veteran is service connected for sinusitis and rhinitis, there is no medical evidence that the sinusitis or rhinitis conditions caused or aggravated the Veteran's otitis externa. After a careful review of the evidence, the Board determines the Veteran's ear infection did not have onset in service and was not caused by or aggravated by his service-connected disorders. As such, service connection for his ear infection is denied. In reaching this conclusion, the Board accords probative weight to all the VA ear condition examinations and opinions. The examiners adequately addressed the evidence of record, to include the onset and etiology of the Veteran's ear condition. In addition, the Board recognizes that the July 2021 examiner's diagnosis of otitis externa conflicts with the other examiner's conclusions that there was no diagnosable ear condition. However, the July 2021 examiner's conclusion was consistent with the other three examiners that the otitis externa ear condition was unrelated to service or to the Veteran's service-connected conditions. Accordingly, such opinions are highly persuasive as they are clear, unequivocal, and based on the relevant evidence, including the Veteran's medical records. Nieves-Rodriguez, 22 Vet. App. at 295. The Board has considered the lay evidence of record, including the consistent statements submitted by the Veteran related to his ear condition. The diagnosis of such disabilities requires clinical testing and medical expertise and cannot be determined by lay observation alone. As the Veteran has not shown that he is competent by virtue of specialized medical training or experience to diagnose an ear condition or relate an ear condition to any incident during his active service or other service-connected condition, his statements are afforded less probative weight than the medical examiners. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the most probative medical evidence of record weighs persuasively against the claim for service connection. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for bilateral ear infections is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the criteria for service connection for bilateral ear infections have not been met, and the claim is denied. Entitlement to service connection for a kidney disorder, to include kidney cancer The Veteran contends that he has a kidney disorder, to include kidney cancer, that was caused by or is otherwise related to his periods of service. The Veteran's STRs do not show any complaints or treatment for a urological or kidney disorder in service. In an August 2010 report of medical history, the Veteran did not endorse the option of kidney problems. VA and private treatment records spanning August 2016 to October 2019 reflect follow-up on urological complaints after the Veteran presented with flank pain. Urinalysis showed microscopic hematuria. A small right renal cyst was visualized on September 2016 abdominal and pelvic CT scans which did show any kidney stones. The urologist continued a diagnosis of hematuria of undetermined etiology after performing cystoscopy, retrograde pyelography and ureteroscopy later in September 2016. Repeat CT scan in June 2017 showed a tiny nonobstructive left renal calculi and a small simple right renal cyst. June 2018 abdominal ultrasound showed no significant change in the right renal cyst. Private primary care records note that the Veteran underwent lithotripsy and placement of a stent for kidney stones in the left kidney and excision of the renal cyst from the right kidney in October 2019. The Veteran underwent a VA urological examination in July 2021 in which a diagnosis of nephrolithiasis (kidney stones) was confirmed. The Veteran denied being diagnosed with kidney cancer but reported a history of a kidney stone. The examiner noted that the Veteran did not have renal dysfunction, urinary tract or kidney infections, a kidney tumor or neoplasm, or any other pertinent findings. The examiner concluded that the medical records did not support that a kidney disorder, to include kidney cancer, was at least as likely as not incurred in or caused by your military service. As rationale, the examiner noted that there was no evidence of kidney disease in the March and June 2009 post-deployment health assessments, and the Veteran sought treatment for urological complaints more than seven years after separation from service. The Veteran was subsequently treated for a cyst and renal calyx, and that the Veteran currently had normal renal function without evidence of kidney stones or cancer. The examiner further opined that the Veteran's renal cyst, which was ablated was caused by a developmental defect. His nephrolithiasis was due to stone formation from calcium in the kidney related to dietary and metabolic factors. In summary, neither the renal cyst nor nephrolithiasis was due to any specific exposure event in Southwest Asia. In December 2022 the Veteran underwent a second VA urological examination. The diagnosis of nephrolithiasis (kidney stone) was continued with an onset in 2016 noted. The Veteran indicated that had undergone three surgeries on his kidneys for "a mass that continue[d] to grow." He reported symptoms of lower back pain and cold sweats. According to the Veteran his physicians continued to operate on this area and didn't know exactly what was causing the mass. The Veteran indicated that if the mass reoccurred, he would require surgery; he was being monitored by a private urology center with ultrasounds every six months. The examiner noted that the Veteran did not have renal dysfunction including attacks of renal colic, urinary tract or kidney infections, a kidney tumor or neoplasm, or any other pertinent findings. Finally, the examiner noted that there was no objective evidence of kidney cancer. As noted above, calculi of the kidney are a diagnosis subject to presumptive service connection if manifested to a compensable degree within one year of separation from service. The Board notes that the examiner's observation of the first complaints or symptoms related to the kidney were evident more than seven years after the Veteran's separation from service. In addition, the Veteran has not stated and there are no treatment records that indicate that he complained of symptoms related to kidney calculi, or the kidney continuously since service. Accordingly, presumptive service connection for the Veteran's calculi of the kidney is not applicable. As noted above, under the provisions of the PACT Act, kidney cancer is a presumptively service-connected for Veterans with service in SW Asia. In this instance, however, no diagnosis of kidney cancer was confirmed, and the Veteran has acknowledged that he does not have kidney cancer. Although presumptive service connection is not applicable, the Board will consider whether the criteria for direct service connection are met. The Veteran's left kidney stones and right kidney renal cyst satisfy the first requirement of a current diagnosis for service connection. However, the July 2021 examiner indicated that the Veteran's right renal cyst was a developmental defect with no connection between the renal cyst and service. The examiner also noted that the record does not support that the Veteran's claimed kidney disorder was incurred in or caused by service. The Board finds that that the opinions of both VA examiners are medically competent and highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In the absence of a medical connection between the Veteran's current diagnosis and his period of service, service connection is not warranted. In reaching the above conclusions, the Board has not overlooked the Veteran's competent statements regarding his understanding of his kidney complaints. The Veteran is competent to report on factual matters of which he has firsthand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence through VA examinations, VA treatment, and private treatment throughout the course of his appeal with respect to the presence of his symptoms. However, the Veteran's understanding of his kidney complaints lacks probative value because he has not been shown to possess the specialized medical training and expertise needed to diagnose a kidney condition or to attribute it to military service. See Jones v. West, 12 Vet. App. 383, 385 (1999) (holding that where the determinative issue is one of medical causation or diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Accordingly, as the weight of the probative evidence of record is against a grant of service connection for a kidney disorder, including kidney cancer, there are no doubts to be resolved and the claim is denied. Entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD) The Veteran contends that he has a gastrointestinal disorder, to include GERD, that had onset in or is otherwise related to service. The Veteran is service connected for irritable bowel syndrome. The Veteran's STRs are silent for treatment or complaints referrable to a gastrointestinal disorder in service. In an August 2010 dental screening note, the Veteran wrote that he had heartburn and a hiatal hernia. In a July 2021 VA esophageal conditions examination, the Veteran advised the examiner that his acid reflux symptoms began while he was deployed in SW Asia. Initially Nexium helped with his symptoms. The Veteran reported that upper GI endoscopy was performed in 2009, which is not included in the evidence of record, confirmed a diagnosis of hiatal hernia and esophagitis. The examiner concluded that the Veteran had GERD and a hiatal hernia, which was unrelated to any specific exposure event in SW Asia. Instead, GERD is known to be caused by incompetence of the lower esophageal sphincter allowing reflux of acidic stomach contents into the lower esophagus causing irritation which was unrelated to any specific exposure event in SW Asia. A VA stomach conditions examination was also conducted in July 2021. After review of the claims, file, interview with the Veteran, the examiner determined that the Veteran did not have a stomach or duodenal condition. In a September 2021 private physician treatment note, GERD without esophagitis and treated with a proton pump inhibitor medication was noted. In a December 2022 VA gastrointestinal disorders examination, the Veteran reported that since 2009 he woke up twice a month with indigestion, a burning sensation and regurgitation even while taking the prescribed Protonix. He had no stricture or spasm of the esophagus. Upper GI endoscopy performed in 2009 found a hiatal hernia and esophagitis. The examiner confirmed a diagnosis of GERD and hiatal hernia with onset in 2021. In a March 2023 addendum opinion, the physician examiner concluded that it is less likely than not that the Veteran had any diagnosed gastrointestinal condition, including GERD, that is due to or incurred in service, including toxic exposures. As rationale, the examiner noted that any direct effect on the esophagus due to any exposure would have represented irritation and inflammation such as esophagitis and there is no evidence of GERD in service. The examiner noted that there have been no epidemiologic studies establishing the exposures encountered in service or in general are a cause of GERD. GERD is due to the relaxation of the gastroesophageal sphincter/junction and there is no pathophysiologic mechanism by which toxic exposures encountered in service could induce GERD or a hiatal hernia. Therefore, it is less likely than not that the Veteran's GERD was due to or incurred in service, including as due to single, combination, or synergistic toxic exposures. The Board has considered whether presumptive service connection is permitted for the Veteran's diagnosis for GERD and hiatal hernia that he referenced in an August 2010 dental visit. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the diagnosis was arguably confirmed within a year of the Veteran's separation from service in April 2009. However, neither GERD nor hiatal hernias are identified as diseases for which presumptive service connection is permitted. The Board notes that both examiners have confirmed a current diagnosis of GERD. However, regarding the second requirement for service connection, an in-service onset, the examiners did not address the Veteran's consistent statements that his GERD symptoms had onset during his deployment and a 2010 treatment record discussing heartburn and hiatal hernia. Accordingly, both of the examiner's negative nexus opinions are inadequate to the extent that the Veteran's lay statements regarding service onset and the 2010 entry in his treatment records were not addressed. Nieves-Rodriguez, 22 Vet. App. at 295. The Board is reluctant to remand for an adequate opinion after repeated remands. Under the circumstances, the Board finds that to attempt to acquire a medical opinion would further contribute to "the hamster-wheel reputation of Veterans law." Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). As such, the Board will assess service connection based on the available evidence. The Board has considered the lay and medical evidence of record and finds that the evidence approximates an even balance in favor or and against service connection for GERD. In these instances, the benefit of the doubt is afforded the Veteran. Accordingly, service connection is granted for GERD. 38 U.S.C. § 5107(b). Entitlement to service connection for neurological signs and symptoms, to include muscle twitches In the July 2021 VA peripheral nerves examination, the examiner found no evidence of a current peripheral nerve condition. The Veteran complained of "constant muscle twitches," which were involuntary and would occur sporadically, which were worse with stress or when he tried to relax to go to sleep. He mentioned referral to a neurologist, prior to the COVID pandemic, during which he had multiple tests done which did not reveal a neurological disorder. The examiner noted that the neurological assessment was not found in the records. Upon examination, no peripheral nerve symptoms were elicited, and the Veteran had normal muscle strength, reflexes, and sensation. All peripheral nerve tests were normal, and the examiner concluded that there was no peripheral nerve diagnosis. In a December 2022 peripheral nerves examination, the Veteran reported that he has "twitches" that occur around his eyes and facial muscles that seemed to be related to stress. He noted that a physician diagnosed him with this after he had a TBI. He also reported that he had numerous other muscles in his arms and legs "flutter" and "twitch" regularly. Upon examination, all peripheral nerves tests were normal, including muscle strength, reflexes, and sensation. The examiner concluded that there was no objective evidence to warrant a diagnosis for a peripheral nerve disorder. In a July 2023 letter from the Veteran, he stated that he experienced constant involuntary muscle twitches in neck, face, shoulders, and throughout his body and that he had been advised to consult with a neurologist. For purposes of service connection, the requirement of a current disability is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal, even if evidence suggests that the disorder has currently resolved itself. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board may consider evidence of a diagnosis prior to the filing of a claim. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In the instant claim, the treatment records in evidence do not show and both VA medical examiners were unable to confirm a diagnosis of a peripheral nerve disorder during the period on appeal. Accordingly, the Board concludes that the Veteran does not have a current diagnosis of a peripheral nerve disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. In the absence of a current disability, service connection is not warranted. Id. The Veteran, as a layperson, is competent to report nerve symptoms that he has experienced. See Layno v. Brown, 6 Vet. App. 465 (1994). The VA examiners have considered the Veteran's lay statements as of part their examination and medical opinions. As the Veteran has not shown that he has the specialized training and experience in diagnosing neurological conditions and determining an etiology, he is not competent to diagnosis his neurological disorder or to attribute his symptoms to service. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Accordingly, the Board finds that the most probative evidence of record weighs against a grant of service connection for a peripheral nerve condition. The claim is denied. Increased Ratings Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2021). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2018). Given the nature of the present claim for higher initial evaluations, the Board has considered all evidence of severity since the effective date for the award of service connection for sleep apnea in August 2016. Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2021). Entitlement to an initial rating in excess of 50 percent for obstructive sleep apnea (OSA) with asthma The Veteran contends that his symptoms of OSA with asthma are more severe than contemplated by his 50 percent disability rating, which granted in the July 2018 rating decision effective August 1, 2016. The Veteran's sleep apnea is rated 50 percent disabling under Diagnostic Codes 6602-6847. 38 C.F.R. § 4.97. Hyphenated diagnostic codes are used when a rating under one code requires the use of an additional diagnostic code to identify the basis for the rating, with the first code representing the underlying condition and the second code representing the residuals. 38 C.F.R. § 4.27. In this instance, the hyphenated diagnostic codes first identifies the Veteran's bronchial asthma (Diagnostic Code 6602) and the second code identifies the residual condition of sleep apnea syndromes (Diagnostic Code 6847). Under Diagnostic Code 6602, an evaluation of 60 percent is warranted where there are at least monthly visits to a physician for required care of exacerbations; or, FEV-1 to Forced Vital Capacity (FEV-1/FVC) is 40 to 55 percent; or, Forced Expiratory Volume in One Second (FEV-1) is 40 to 55 percent of predicted; or, at least monthly visits to a physician for required care of exacerbations; or, intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. (38 C.F.R. § 4.96, 38 C.F.R. § 4.97). Under this Diagnostic Code 6847, a 50 percent rating is warranted when the disability requires use of breathing assistance device such as continuous airway pressure (CPAP) machine. A 100 percent rating is warranted when the disability results in chronic respiratory failure with carbon dioxide retention or cor pulmonale; or requires a tracheostomy. A VA mental health note in December 2018 noted that the Veteran was using a CPAP machine and had two private and one military sleep study. Private treatment records reflect a January 2020 visit note in which the Veteran was not using his CPAP machine. He denied hypersomnolence, snoring or any significant apneic episodes. A sleep study at VA was pending. In a July 2020 VA treatment record note, the negative sleep apnea results of the VA sleep study which showed 2.7 episodes of pauses in breathing were provided to the Veteran. The Veteran underwent VA sleep apnea examinations in July 2021 and September 2023 which included a review of the claims file, an in-person examination and consideration of the Veteran's lay statements. Both examiners concluded that the condition was stable with no change in the Veteran's established diagnosis of sleep apnea. As rationale, a July 2020 home sleep study which showed no evidence of OSA with 2.7 apneic-hypoxic incidents (AHI). An unidentified sleep disorder with onset in 2010 was confirmed. The Veteran reported that he had not used his CPAP machine since 2012 due to issues with his PTSD and night terrors. The Veteran's wife noted occasional apneic episodes. The Veteran noted that his condition had remained the same and complained of daily fatigue, lack of refreshing sleep and daytime napping. The September 2023 examiner confirmed the diagnosis of obstructive sleep apnea, persistent daytime somnolence, and the use of a CPAP machine. Both examiners noted that the Veteran did not have chronic respiratory failure with carbon dioxide retention or cor pulmonale, or that he required a tracheostomy. The Veteran was also underwent a VA respiratory conditions examinations for evaluation of his asthma in December 2022 and September 2023. In both examinations, it was reported that the Veteran's asthma was treated with intermittent inhalation bronchodilator therapy but no oral bronchodilators. He had not experienced an asthma attack in the last 12 months, and his chest x-ray was negative. Pulmonary function test performed in September 2023 noted that the FEV-1/FVC ratio most accurately depicted the severity of the disability. Pre-bronchodilator FVC was 80, FEV-1 was 81, and FEV-1/FVC was 78; post-bronchodilator FVC was 87, FEV-1 was 88, and FEV-1/FVC was 80, all of which indicate normal respiratory function. The September 2023 examiner concluded that there was no change in the severity of the Veteran's asthma and no additional diagnoses. The Board finds an increased rating for asthma/OSA is not warranted. The medical and lay evidence does not show that the Veteran's disability had increased in severity or resulted in chronic respiratory failure with carbon dioxide retention or cor pulmonale, or that it required a tracheostomy which is required for the higher 100 percent disability rating for sleep apnea. In addition, the Veteran's asthma did not show abnormalities on his chest x-ray, asthma exacerbations during the prior year, or an abnormal pulmonary function test. The Board finds that the Veteran's asthma/OSA disability, at the worst, approximates the 50 percent rating. Accordingly, an increased disability rating to 100 percent is denied. DUSTIN L. WARE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adams Hill, Denise 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.