Citation Nr: 1300802 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 10-27 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a neck disability. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran, Veteran's spouse, Observer ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from August 1985 to January 1986 and from July 1986 to June 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which, in part, denied service connection for a neck disability, a back disability and sleep apnea. In July 2012, the Veteran presented testimony at a hearing before the undersigned Veterans Law Judge at the Seattle RO. A copy of the transcript has been associated with the claims folder The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The competent and credible evidence of record supports a finding that a relationship exists between the Veteran's arthritis of his cervical spine and his active duty military service. 2. The competent and credible evidence of record supports a finding that a relationship exists between the Veteran's lumbar spine strain and his active duty military service. 3. The competent and credible evidence of record supports a finding that a relationship exists between the Veteran's sleep apnea and his active duty military service. CONCLUSIONS OF LAW 1. Arthritis of the cervical spine was incurred in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. A lumbar spine strain was incurred in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. A sleep apnea disability was incurred in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Given the favorable disposition of the claims for service connection for neck, back and sleep apnea disabilities, the Board finds that all notification and development actions needed to fairly adjudicate these claims have been accomplished. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical 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 evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007) In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A disorder may be service connected if the evidence of record, regardless of its date, shows that the Veteran had a chronic disorder in service or during an applicable presumptive period, and that the Veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) . If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Neck and Back Disabilities The Veteran contends that he has current neck and back disabilities that are related to an in-service motor vehicle accident. Service treatment records demonstrate that the Veteran was involved in a motorcycle accident in January 1993. He presented with complaints of body aches. The remainder of his service treatment records contains multiple entries where the Veteran presented with complaints of ongoing neck and back pain that began after his motorcycle accident. Specifically, an October 2000 treatment note reported that the Veteran had a 6 year history of chronic neck and lower back pain after a motorcycle accident. The diagnosis was a chronic whiplash injury. A February 2001 treatment note indicated that the Veteran was receiving physical therapy for his neck pain which had continued since his motorcycle accident. In a July 2011 private treatment record, a private physician noted that x-rays demonstrated mild to moderate degenerative disc disease of the cervical spine and mild facet arthropathy of the lumbar spine. The diagnosis was arthritis of the cervical spine and a lumbar spine strain. Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection for a neck disability and a back disability, is warranted. There is a current diagnosis of a lumbar back strain and degenerative disc disease of the cervical spine; hence, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Having reviewed the record, the Board finds there is at least an approximate balance of evidence as to whether the Veteran has current back and neck disabilities that are related to service. As noted above, the Veteran's service treatment records demonstrate an in-service motorcycle accident that resulted in back and neck pain. Throughout his service, the Veteran received treatment for neck and back pain which was consistently attributed to the in-service motorcycle accident. The Board notes that the Veteran's service treatment records merely note that the Veteran had back and neck pain. Symptoms such as pain and swelling do not in and of themselves constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). However, while back and neck disabilities were not actually diagnosed until 5 years after service, the Board finds the Veteran's assertions of continuity of back and neck pain symptomatology since service both competent and credible. In fact, there is no contrary medical evidence of record that indicates that the Veteran's current neck and back disabilities were not a result of his in-service motorcycle accident as there is no objective evidence of record suggesting that the Veteran's current neck and back disabilities were caused by any other post-service event or occurrence. Resolving all doubt in the Veteran's favor, the Board therefore concludes that a nexus or relationship is satisfied by a showing of continuity of symptoms, and a grant of service connection for a lumbar strain and arthritis of the cervical spine is warranted. Additionally, a remand for a VA examination is not necessary because the evidence of record is sufficient to grant the Veteran's claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. In sum, for the reasons and bases discussed above, the Board has resolved doubt in favor of the Veteran, and service connection for cervical spine arthritis and a lumbar strain disability is granted. See 38 U.S.C.A. § 5107(b). II. Sleep Apnea The Veteran contends that he has a current sleep apnea disability that is related to his service. Specifically, the Veteran testified that in 2004 a fellow serviceman who he bunked with told him that he had stopped breathing during the night. Additionally, the Veteran's current wife asserted that there were times when he stopped breathing during his sleep while the Veteran reported that his ex-wife also noted that he had stopped breathing during his sleep. Service treatment records are negative for treatment or a diagnosis of sleep apnea. However, in a March 2004 Post-Deployment health assessment, the Veteran reported that he still felt tired after sleeping. The Veteran had an initial diagnostic study done for snoring and excessive daytime sleepiness in September 2008. The study demonstrated moderate sleep apnea that got severe when the Veteran was in a supine position. Subsequent private treatment notes demonstrate a continued diagnosis of sleep apnea. Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection for sleep apnea, is warranted. There is a current diagnosis of sleep apnea; hence, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer, supra; D'Amico, supra; Hibbard, supra. Having reviewed the record, the Board finds there is at least an approximate balance of evidence as to whether the Veteran has a current sleep apnea disability related to service. Upon review of the claims file, the Board acknowledges that the evidence of record does not reflect that the Veteran was diagnosed with sleep apnea on active duty. However, the Board notes that the Veteran reported that he was still tired after sleeping while he was on active duty in March 2004. Additionally, the Veteran and his wife have competently related that he had a long history of apnea, and the Veteran has consistently asserted that he had experienced sleep problems for years. Thus, although the Veteran's sleep apnea disability was not actually diagnosed until over 2 years after service, the Board finds the Veteran's assertions of continuity of sleep apnea symptomatology since service both competent and credible. There is no objective evidence of record suggesting that the Veteran's current sleep apnea disability was caused by any other post-service event or occurrence. Resolving all doubt in the Veteran's favor, the Board therefore concludes that element of a nexus or relationship, is satisfied by a showing of continuity of symptoms, and a grant of service connection for sleep apnea is warranted. Therefore, as the evidence of record does not reflect that the Veteran had sleep apnea prior to service, he noted sleep complaints during service, he reported a continuity of symptomatology, he was diagnosed with obstructive sleep apnea soon after service in 2008, he has a current diagnosis of sleep apnea, and there is no medical evidence of record indicating that he did not develop sleep apnea while on active duty, the Board concludes that there is at least an approximate balance of positive and negative evidence as to whether the Veteran's sleep apnea was caused by his active duty service. Thus, resolving doubt in favor of the Veteran, the Board concludes that service connection must be granted for the Veteran's sleep apnea. ORDER Entitlement to service connection for arthritis of the cervical spine is granted. Entitlement to service connection for a lumbar spine strain is granted. Entitlement to service connection for sleep apnea is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs