Citation Nr: 1309370 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 06-08 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for bilateral upper extremity radiculopathy and/or neuropathy, to include as due to type II diabetes mellitus. 4. Entitlement to service connection for bilateral lower extremity radiculopathy and/or neuropathy, to include as due to type II diabetes mellitus. 5. Entitlement to service connection for sleep apnea, to include as due to type II diabetes mellitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty in the military from February 2004 to November 2004. He also had periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) in the National Guard, including from June 1980 to October 1980, and from April 1999 to May 1999. It is noted that in a document received on June 14, 2006, the Veteran stated that he was on active duty from March 2003-November 11, 2004, and indicated that his DD-214 was attached. However, the Board has reviewed the Veteran's DD-214 that is contained in the claims file which shows that the Veteran entered active duty on February 15, 2004 and was separated on November 10, 2004. No prior active duty service was noted. The Veteran's representative also indicated that the Veteran's active duty service was from February-November 2004 in a March 2010 brief presentation. As such, the Board finds that the evidence does not show active duty service prior to February 15, 2004. If the Veteran has evidence showing establishing earlier active duty service he should submit it. This appeal to the Board of Veterans' Appeals (Board) is from an April 2005 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Montgomery, Alabama. On several occasions, the Veteran requested a Travel Board hearing, but he subsequently withdrew this hearing request in May 2009, and therefore no hearing request remains pending. 38 C.F.R. § 20.704(e). These matters were remanded in August 2010, and again in March 2012, for further development. They have been returned to the Board for further appellate action. In a January 2013 rating decision, the RO denied a claim for service connection for bilateral neuropathy of the arms, hands, feet, and legs as secondary to the service-connected disability of diabetes mellitus type II, on the basis that new and material evidence had not been submitted. However, an appeal of the issues of entitlement to service connection for bilateral upper and lower extremity radiculopathy and/or neuropathy, to include as due to type II diabetes mellitus, was already in the process of being appealed to the Board at the time of the rating decision, and the appeal was subsequently perfected. Therefore, the Board has jurisdiction over these issues, and they are properly before the Board at this time. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's pre-existing lumbar and cervical spine disabilities, upper and lower extremity radiculopathy, and sleep apnea were clearly noted at the time of examination, acceptance, and enrollment for active duty service in February 2004. 2. The weight of the evidence is against a finding that the Veteran's lumbar and cervical spine disabilities, upper and lower extremity radiculopathy and/or neuropathy disabilities, and sleep apnea were either incurred in, or aggravated by, either active duty service or ACDUTRA. 3. The weight of the evidence is against a finding that either upper/lower extremity radiculopathy and/or neuropathy, or sleep apnea, is due to or has been aggravated by the Veteran's service-connected type II diabetes. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 101(22), (24), 1110, 1111, 1132, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012). 2. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C.A. §§ 101(22), (24), 1110, 1111, 1132, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012). 3. The criteria for service connection for bilateral upper extremity radiculopathy and/or neuropathy, to include as secondary to type II diabetes mellitus, have not been met. 38 U.S.C.A. §§ 101(22), (24), 1110, 1111, 1132, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.310 (2012). 4. The criteria for service connection for bilateral lower extremity radiculopathy and/or neuropathy, to include as secondary to type II diabetes mellitus, have not been met. 38 U.S.C.A. §§ 101(22), (24), 1110, 1111, 1132, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.310 (2012). 5. The criteria for service connection for sleep apnea, to include as secondary to type II diabetes mellitus, have not been met. 38 U.S.C.A. §§ 101(22), (24), 1110, 1111, 1132, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in February 2005, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. A November 2006 letter also informed the Veteran how disability ratings and effective dates were established. While the November 2006 notice letter was provided subsequent to the initial RO determination in April 2005, after issuance of the letter and opportunity for the Veteran to respond, an April 2008 statement of the case (SOC) readjudicated the claims. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC, is sufficient to cure a timing defect). As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment and personnel records, VA treatment records, identified private treatment records, and Social Security Administration (SSA) records have been obtained. The Veteran was also offered the opportunity to testify at a hearing before the Board, but he withdrew his hearing request. Furthermore, the Veteran was provided VA examinations of his claimed disabilities in December 2004, January 2007, and October 2010, and an addendum opinion to the October 2010 examination was provided in August 2011. These examinations, reports, and opinions were adequate because, along with the other evidence of record, they provided sufficient information to decide the Veteran's appeal and a sound basis for making such a decision. The examination reports were based on examination of the Veteran by examiners with appropriate expertise, and the pertinent opinions were based on review of the claims file and the Veteran's own reported history. 38 C.F.R. § 3.159(c)(4) (2012); Barr v Nicholson, 21 Vet. App. 303 (2007). It is noted that the Veteran's representative did assert that the Board had ordered the VA examiner to produce clear and unmistakable evidence to establish that the Veteran's disabilities which existed prior to service were permanently worsened beyond the natural progression of the condition. However, a review of the August 2010 remand instructions shows that the Board did not order such a standard. Moreover, such a standard is not applicable in this instance. "[A]ggravated in the line of duty" as used in § 101(24)(B), means that in order for an ACDUTRA claimant to establish his status as a "[V]eteran," he must demonstrate both elements of aggravation - namely, (1) that the pre-existing disability worsened in service, and that (2) such worsening was beyond the natural progression of the disease. Donnellan v. Shinseki, 24 Vet. App. 167 (2010). The Court noted that the placement of the burden of proof on the Veteran was consistent with the distinction made in § 101(24) between an ACDUTRA claimant and an active duty claimant. See id. Moreover, the when the presumption of soundness does not attach, as here, it is the Veteran who has the burden of establishing a disability that existed prior to service was permanently worsened by his military service, and that such worsening was beyond the natural progression of the condition. The ordered VA medical opinion was obtained in an effort to assist him in establishing that aggravation had occurred. As such, the fact that the examiner's opinion did not use "clear and unmistakable" language does not render it inadequate. Furthermore, the RO has at the very least substantially complied with the Board's August 2010 and March 2012 remand instructions. The RO obtained the Veteran's SSA records and associated them with the claims file, and the Veteran was provided an adequate VA examination of his claimed back, neck, and sleep apnea disabilities in October 2010. The October 2010 examination report and August 2011 addendum adequately answered the Board's questions and, as noted above, along with the other evidence of record, provided sufficient information to decide the appeal. Under these circumstances, the Board finds that there has been at the very least substantial compliance with the August 2010 and March 2012 remand instructions, and an additional remand to comply with the Board's directives is not required. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a prescribed period following discharge from service; the presumptive period for arthritis is one year. 38 C.F.R. §§ 3.307, 3.309(a). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. §§ 3.303(b); see Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). A veteran who served after December 31, 1946, is presumed to be in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1132. A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Service connection may be also granted only for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or injury incurred or aggravated while performing INACDUTRA. See 38 U.S.C.A. § 101(22), (24); 38 C.F.R. § 3.6. However, the presumption provisions of 38 C.F.R. §§ 3.307 and 3.309, as well as the presumptions of soundness and aggravation, are inapplicable to periods of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010); Donnellan v. Shinseki, 24 Vet. App. 167 (2010). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, the Veteran enlisted in the Alabama National Guard in April 1980, and he was discharged in December 2004. His service included INACDUTRA, ACDUTRA on several occasions (including from April 2, 1999 to May 1, 1999 in the Dominican Republic) and active duty from February 2004 until November 2004. The Veteran asserts that service connection is warranted for each of his claimed disabilities. In his December 2005 notice of disagreement, a June 2006 statement, and his June 2008 substantive appeal, the Veteran asserted that each of his claimed conditions besides sleep apnea originally occurred while on active duty in the Dominican Republic in 1999, and that each condition had been aggravated by military active duty service performed in preparation for going to Iraq (although the Veteran was never actually deployed to Iraq on account of his medical conditions). He further asserted that his sleep apnea worsened as a result of his active duty military service. The Veteran has also asserted that his claimed bilateral upper and lower extremity radiculopathy and/or neuropathy, as well as his sleep apnea, was either caused or aggravated by his service-connected type II diabetes mellitus. On his enlistment physical in April 1980, the Veteran had a normal evaluation of the spine and musculoskeletal system, and he denied experiencing or having experienced any recurrent back pain. However, the medical officer noted that the Veteran had twice had back strains previously. In December 1984 the Veteran complained of recurrent back pain on a service medical history survey, but his spine was found to be normal on examination. His spine and musculoskeletal system was also found to be normal on examinations in February 1989, August 1993, and April 1998, and the Veteran denied having any history of recurrent back pain in conjunction with each examination. An April 1999 service treatment record reflects that, while on ACDUTRA in the Dominican Republic, the Veteran was laying concrete blocks at a school construction site when he began experiencing lower back pain as a result of the strain of lifting the blocks, and he was told to seek medical treatment and was treated and evaluated. The Veteran was diagnosed with a back strain and placed on quarters and bedrest. It was noted that that temporary, rather than permanent partial or permanent total, disability may result. Each month from July 2002 to November 2002, the Veteran was treated by a private physician, Dr. M., for neck, shoulder, and arm pain, with tingling and numbness in the arm and hand. In July 2002, the Veteran reported that he had been having trouble for quite a while with his neck, shoulder, and primarily left arm. The Veteran was diagnosed with degenerative disc disease of the cervical spine with bulging disc and primarily left C5, C6, and C7 radicular pain. Beginning in September 2002 facet joint arthropathy of the cervical spine, left greater than right, was diagnosed after it was noted that the Veteran had struck his head on the top of a bulldozer cage, causing some facet problems. It was noted in November 2002 that the Veteran's radicular pain had improved after epidural treatment. In August 2002, the Veteran completed a medical history survey, on which he denied having any recurrent back pain, back problem, or frequent difficulty sleeping and the Veteran's spine was noted to be normal on examination. In January 2003, it was concluded that the Veteran met retention standards. However, on an examination in February 2003, the Veteran was noted to have an abnormal examination of the spine and degenerative disc disease, although he denied any recurrent back pain. Also, in February 2003, the Veteran again denied any sleep problems. In April 2003, the Veteran presented for treatment complaining of newly onset back and neck pain when he awoke, without any acute trauma and with no radicular component. The radiology report showed tiny marginal spurs in the Veteran's cervical spine at the C4, C5, and C6 levels and marginal spurs in his lumbar spine at the L3-L5 levels. April 2003 treatment records also reflect that the Veteran admitted to having been diagnosed with obstructive sleep apnea the previous fall and having been treated with a CPAP since that time, but he had reportedly withheld the diagnosis for fear of being "kicked out" of the National Guard. The Veteran was given a temporary profile for a year, and it was noted that he required CPAP use. April 2003 Physical Evaluation Board proceedings reflect that the Veteran was assessed with obstructive sleep apnea, CPAP required, and chronic neck and back pain due to degenerative disc disease. Based on a review of the objective medical evidence, the Physical Evaluation Board concluded that the Veteran's medical and physical impairments prevented reasonable performance of duties required by grade and military specialty, and that there was compelling evidence to support a finding that the current conditions existed prior to service, had been diagnosed in 2002, were not permanently aggravated beyond natural progression by such service, and had no relation to military service. In June 2003, the Veteran was treated for complaints of pain between the shoulder blades radiating up the neck and down the lower back, with numbness intermittently in all limbs, for a duration of 4 days. It was noted that he had had a previous diagnosis of arthritis, and that he had taken Vioxx until 4 weeks prior. It was further noted that he had been experiencing recurrent lower back pain for approximately 6 years. In July 2003, the Veteran was evaluated for his obstructive sleep apnea and his temporary profile was renewed. It was noted that he was using a CPAP machine most nights. A January 2004 Army Hospital note reflects diagnoses of degenerative disc disease of the cervical and lumbar sacral spine. Magnetic resonance imaging (MRI) showed degenerative disc desiccation of the cervical spine with minimal posterior protrusion at C3-4, 4-5, and 5-6, and hard disc and uncovertebral joint arthrosis bilaterally at C5-6. MRI also showed negative disc desiccation of the lumbar spine, and left greater than right posterior protruding half disc and compression of the left S1 nerve root area. It was noted that the Veteran reported some intermittent tingling and numbness of both upper arms and hands and into the legs and feet. In early February 2004, prior to his entry onto active duty in the military from February 2004 to November 2004, the Veteran was evaluated by a medical officer who indicated that he had degenerative disc disease in his cervical and lumbosacral spine. The Veteran was precluded from running, jumping, stooping, or heavy lifting, and was assigned U3 and L3 on his PULHES profile, a military evaluation that reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of medical fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in military service). The designations U3 and L3 indicate that the Veteran had defects or impairments that required significant restriction of use in his upper and lower extremities. The medical officer also indicated that the Veteran required a power source for his CPAP and needed a continuous CPAP when sleeping, and he was assigned a P3 on his military physical profile. The "P" stands for physical capacity or stamina; and P3 means that the Veteran was unable to perform full effort except for brief or moderate periods. A February 2004 Letter of Intent for Medical Evaluation Board Processing for a Physical Evaluation Board Liaison Officer, also dated prior to the Veteran's entrance into active duty in the military from February 2004 to November 2004, reflects a finding that the Veteran did not meet retention standards and would be processed by a Medical Evaluation Board to determine fitness for further military service in the National Guard. The disqualifying diagnoses included obstructive sleep apnea with CPAP, and degenerative disc disease of the cervical and lumbar spine, multilevel, with chronic pain and limitation of function. The status of the Veteran's condition was noted to be "Existed Prior to service (EPTS)-Service Aggravated," but there was no actual explanation given as to how the conditions were "service aggravated" and the space in which the physician was to note how any EPTS condition had been service-aggravated was left blank. It is noted that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998). A March 2004 Narrative Summary of a Medical Evaluation Board reflects that the Veteran had the problems of obstructive sleep apnea, with treatment of CPAP since October 2002, and back and neck pain with degenerative arthritis since 2002, intermittent, but with increasing symptoms and discomfort since mobilization and increased physical activity over the past year, and some numbness in the hands and fingers at times. Regarding his sleep apnea, it was noted that the Veteran was not deployed to Iraq with his unit due to the disorder, that he had snored for years with worsening and occurrence of apneic spells at night, and that he was evaluated in September 2002 and put on a CPAP in October 2002. It was further noted that the Veteran had reported problems with fatigue, lethargy and somnolence prior to CPAP, that he had done well with CPAP, and that he recently noted some increased symptoms, got claustrophobic and had to sit up, and had noted some increase with his sleepiness, fatigue, and dysfunction. Regarding his back and neck, it was noted that he had some degenerative arthritis of the back and neck and a lot of numbness in his hands and fingers, and that he reported that his symptoms had increased in the past year. It was further noted that the Veteran failed to meet retention criteria, and should be referred to the Physical Evaluation Board for further adjudication. The April 2004 Medical Evaluation Board Proceedings noted that the Veteran's military occupational specialty was as a heavy equipment operator, and that his diagnoses were obstructive sleep apnea, and degenerative disc disease of the cervical and lumbosacral spine, which existed prior to service, was not incurred while enlisted to base pay, and was not permanently aggravated by service. The report of a December 2004 VA examination reflects that he Veteran reported having diagnosed obstructive sleep apnea since 2002, and doing fairly well with the CPAP until the past year, when he had more difficulty with getting dyspneic when wearing the CPAP mask. He reported that he had not been wearing it for the past few months. He also reported that he would get a smothering-like feeling when he was wearing the mask, that this had been worsening over the past year, and that he had not been able to wear the CPAP mask over the past several months. He reported falling asleep easily during the day. He further reported initially injuring his back when in the Dominican Republic in 1999, when he strained his back while laying concrete block. He reported that he had had occasional minor pain in his back that was infrequent prior to the event, but that, after 1999, they were more frequent. He also reported neck pain, and that in 2002 he was operating a bulldozer when it went over a dip, which caused him to hit his head on the top of the cage, and that he had had immediate pain in his neck with this. The Veteran reported numbness and tingling in the hands, feet and legs, more associated with his back and neck pain, and noted that if he positioned his neck a certain way he would get a tingling sensation to the hands. The diagnoses included obstructive sleep apnea, degenerative disc disease of the lumbar and cervical spine with intermittent radiculopathy into both legs and the right arm, and numbness and tingling in the arms, hands, feet and legs, which was noted to be radicular paresthesias from his degenerative disc disease of the spine. The report of a September 2006 SSA disability determination examination reflects that the Veteran reported that his he had back pain in the lumbar and lower thoracic area that had started many years earlier, and that he thought it was injured in the military while he was lifting some concrete blocks. The diagnoses included back pain, lumbar and thoracic, degenerative disc disease, neck pain, reported history of degenerative disc disease, and sleep apnea. An SSA work history report reflects that between November 1980 and April 2006 the Veteran worked as a deputy sheriff, police officer, heavy equipment operator, security guard, and truck driver. The report of a January 2007 VA examination reflects the examiner's impression that there was no evidence of diabetic peripheral neuropathy. The examiner explained that the Veteran had evidence of radicular symptoms in his upper extremity as well as in his lower extremity and well-documented, significant, multilevel-level degenerative joint disease of the cervical and lumbar spine. The examiner expressed the opinion that the Veteran's intermittent numbness and paresthesias in his upper and lower extremities were secondary to radicular symptoms from his degenerative joint disease, and that they clearly did not follow a pattern that would be expected of a diabetic peripheral neuropathy. The examiner further stated that the Veteran had sleep apnea and difficulty using the CPAP mask, from review of the claims file as well as direct questioning of the Veteran. The examiner stated that diabetes mellitus was not a recognized contributor or cause of sleep apnea and, therefore, it was his opinion that the Veteran's sleep apnea was not secondary to diabetes mellitus. The report of an October 2010 VA examination reflects that the Veteran reported injuring his back in the Dominican Republic while laying concrete block in 1999, and beginning to have progressive pain at that time. He further reported injuring his neck in 2001 when he hit his head after falling over into a hole. He also reported radiating pain, numbness, and tingling to the bilateral legs. X-rays showed mild to moderate degenerative changes in the cervical spine, and mild degenerative disc disease in the mid and lower lumbar spine. His former occupation was noted to have been heavy equipment operator. After reviewing the record and examining the Veteran, the VA examiner opined that the Veteran had a history of pre-existing recurrent back pain which continued along a normal course of progression, and that there was no evidence of permanent aggravation of this condition during military service. The examiner noted the April 1980 service treatment record noting that the Veteran had been hospitalized for six days for back trouble as reflecting evidence that the Veteran's back trouble had pre-existed his ACDUTRA in 1999. The examiner also reviewed the April 1999 service treatment records showing that the Veteran had strained his back, found but stated that the evidence did not establish that this incident of back strain while lifting blocks worsened his pre-existing back pain beyond its normal progression. The examiner also stated that there was no evidence of a neck injury during active duty service, or evidence of permanent aggravation of a neck condition during service. The examiner further noted that the Veteran had reported having sleep apnea since 2002, and that while CPAP treatment was ordered in April 2003, the evidence did not support the conclusion that the Veteran's sleep apnea was aggravated during his time on active duty, and that the CPAP treatment was simply ordered for his previously diagnosed sleep apnea. In an August 2011 addendum, the October 2010 VA examiner stated that the Veteran's back condition predated his April 1999 ACDUTRA, and that, while in 1999 the Veteran had back pain while lifting concrete blocks, this was an expected course or progression of the condition, and that no further hospitalizations were noted at the time. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the Veteran's service connection claims must be denied. Initially, while noting the provisions of 38 U.S.C.A. §§ 1111 and 1132, the Board finds that the presumption of soundness is not applicable to any of the Veteran's periods of service. The presumption of soundness does not apply to the Veteran's periods of ACDUTRA from 1980 to 2004. See Smith, 24 Vet. App. 40; Donnellan, 24 Vet. App. 167. Regarding the Veteran's period of active duty from February 2004 to November 2004, the Board finds that the Veteran's pre-existing lumbar and cervical spine disabilities, upper and lower extremity radiculopathy, and sleep apnea were clearly noted at the time of the examination, acceptance, and enrollment for such service. Based, in part, on the January 2004 Army Hospital notes of MRI findings revealing multilevel degenerative disc disease of the cervical and lumbar spines, and intermittent tingling and numbness of both upper arms and hands and into the legs and feet, the February 2004 service evaluation, dated less than two weeks prior to the Veteran's first date of service in February 2004, indicated that the Veteran had degenerative disc disease in his cervical and lumbosacral spine and was precluded from running, jumping, stooping, or heavy lifting, and assigned a military physical profile designation indicating defects or impairments that require significant restriction of use in his upper and lower extremities. This February 2004 evaluation also reflects a diagnosis of obstructive sleep apnea and indicates that the Veteran needed a continuous CPAP when sleeping, and that he was assigned a military physical profile designation indicating inability to perform full effort except for brief or moderate periods. Also, less than two weeks prior to the Veteran's February 2004 entry into service, the Letter of Intent for Medical Evaluation Board Processing for a Physical Evaluation Board Liaison Officer reflects that the Veteran did not meet retention standards and would be processed by a Medical Evaluation Board to determine fitness for further military service in the National Guard, noting the disqualifying diagnoses of obstructive sleep apnea with CPAP and multilevel degenerative disc disease of the cervical and lumbar spine with chronic pain and limitation of function. Moreover, the March 2004 Narrative Summary of a Medical Evaluation Board, dated less than 20 days after the Veteran's entry into service in February 2004, reflects that Veteran had the problems of obstructive sleep apnea, with treatment of CPAP since October 2002, noting that the Veteran was not deployed to Iraq with his unit due to his sleep apnea, and that the Veteran failed to meet retention criteria and should be referred to the Physical Evaluation Board. While the record contains no report of a formal examination for entry into service in February 2004, the presumption of soundness only attaches where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225 (1991). Moreover, given the extensive medical evaluation and detailed description of the Veteran's pre-existing disabilities and their resulting functional restrictions noted at the time of the Veteran's entry into service in February 2004, as discussed above, the Board finds that, regarding the Veteran's period of active duty from February 2004 to November 2004, the Veteran's pre-existing disabilities were clearly noted at the time of the examination, acceptance, and enrollment for such service. As such, neither the presumption of soundness, nor the presumptive service connection provisions of 38 C.F.R. §§ 3.307 and 3.309(a), are applicable. Regarding the Veteran's lumbar and cervical spine disabilities, upper or lower extremity radiculopathy and/or neuropathy disabilities, and sleep apnea, the Board finds that the evidence weighs against the Veteran's contentions that any such disabilities were incurred or aggravated in active service or ACDUTRA. The Veteran has asserted at various times that his back, neck, and radiculopathy/neuropathy problems either began or were permanently aggravated during his April 1999 ACDUTRA. The record does establish that Veteran was treated for a back strain during his April 1999 ACDUTRA in the Dominican Republic, when he reportedly began experiencing lower back pain as a result of the strain of lifting concrete blocks. However, the weight of the evidence reflects that such incident did not result in the incurrence or aggravation of any chronic disability. Initially, the record reflects that the Veteran had had back problems that pre-existed this period of ACDUTRA. For example, at the time of his entry into service in April 1980, he reported having twice had previous back strains, and in December 1984 the Veteran complained of recurrent back pain on a medical history survey. Also, the record does not reflect the aggravation of any back problems, or the incurrence of any neck or radiculopathy or neuropathy problems in April 1999. Even at the time of treatment in April 1999, the Veteran's back strain was thought to present only the possibility of a temporary disability, not a permanent total disability. The record reflects no follow-up treatment stemming from this back injury, and no back pain or neck or radicular pain until July 2002, when he was treated by Dr. M., for neck, shoulder, and arm pain, with tingling and numbness in the arm and hand, and was diagnosed with degenerative disc disease of the cervical spine with bulging disc and radicular pain and facet joint arthropathy of the cervical spine. At the time of treatment from July 2002 to November 2002, the Veteran never mentioned the April 1999 incident, or any in-service injury; rather, he reported that he had been having trouble for quite a while with his neck, shoulder, and primarily left arm, and that he had struck his head on the top of a bulldozer cage. Also, in August 2002, the Veteran completed a medical history survey on which he specifically denied having any recurrent back pain or any back problem. Degenerative disc disease of the lumbar spine was not noted until February 2003, and in April 2003, the Veteran complained of new onset back and neck pain, and radiology report showed tiny marginal spurs in his cervical spine at the C4, C5, and C6 levels in his lumbar spine at the L3-L5 levels. Furthermore, the April 2003 Physical Evaluation Board proceedings reflecting the assessment of obstructive chronic neck and back pain due to degenerative disc disease also reflect that there was compelling evidence to support a finding that those conditions existed prior to service, were not permanently aggravated beyond natural progression beyond such service, and had no relation to service. Moreover, the only medical opinion evidence on the question of whether any disability was incurred or aggravated during the Veteran's April 1999 period of ACDUTRA is the October 2010 opinion and August 2011 addendum of the VA examiner. The examiner, while acknowledging the April 1999 records of the incident, opined that the Veteran had a history of pre-existing recurrent back pain, pointing to the records prior to April 1999, which continued along a normal course of progression, and that the evidence did not support the conclusion that the Veteran's conditions were permanently aggravated during this period of ACDUTRA. The examiner explained that there was no evidence that the incident of back strain while lifting blocks worsened his pre-existing back pain beyond its normal progression as the pain following the lifting concrete blocks was an expected course or progression of the condition, and no further hospitalizations were noted at the time. The Board finds these opinions to be persuasive, as they were made by a medical expert who examined the Veteran and reviewed the claims file. Moreover, the rationale is consistent with the facts of record, as discussed above. Also the record does not contain, and neither the Veteran nor his representative has identified, any medical opinion supporting the Veteran's claims. The Veteran has also asserted that his back, neck, and radiculopathy/neuropathy problems were permanently aggravated during his period of active duty from February 2004 to November 2004. Furthermore, while the record reflects, and the Veteran had not contended otherwise, that sleep apnea was first diagnosed in 2002, and not during a period of service or ACDUTRA, the Veteran has asserted that such sleep apnea was also permanently aggravated during his period of active duty from February 2004 to November 2004. However, the Board finds that the evidence weighs against a finding of aggravation of any disability during this period as well. The only medical opinion regarding whether any of the Veteran's claimed disabilities were incurred or aggravated in service is that of the October 2010 VA examiner, who determined that there was no evidence of permanent aggravation of the Veteran's back condition during military service, no evidence of a neck injury or permanent aggravation of his cervical spine condition during service, and no evidence of aggravation of sleep apnea during military service. While the examiner noted treatment during service, including with CPAP, the examiner noted that such treatment was simply for already existing disorders, and did not indicate aggravation. The Board finds these opinions to be persuasive as well. They were made by a medical expert who examined the Veteran and reviewed the claims file. Also, the examiner's opinions and rationale are consistent with the record. At the time of the Veteran's entrance onto active duty, he had recently been assessed as having multilevel degenerative disc disease of the cervical and lumbar spine, intermittent tingling and numbness of the arms, hands, legs and feet, and obstructive sleep apnea with continuous CPAP needed. At the time, he was also precluded from running, jumping, stooping, or heavy lifting, and assigned a military physical profile designation indicating defects/impairments that required significant restriction of use in his upper and lower extremities and an inability to perform full effort except for brief or moderate periods. He was further assessed as not meeting retention standards due to these disabilities. The Board notes the March 2004 Narrative Summary of a Medical Evaluation Board reflecting the Veteran's reports of increasing symptoms of his neck and back arthritis and discomfort since mobilization and increased physical activity over the past year. He also reported worsening of sleep apnea with occurrence of apneic spells at night, recently noting some increased symptoms, getting claustrophobic and having to sit up, and noting some increase with his sleepiness, fatigue, and dysfunction. However, while the Veteran appeared to report worsening symptoms, he reported worsening symptoms over the past year, and the March 2004 Narrative Summary was dated less than 20 days after the Veteran's first day of active service in February 2004. Given the medical findings and reports in January and February 2004, shortly prior to the Veteran's entry onto active duty, and considering the opinion of the October 2010 VA examiner, the Board finds that such reports fewer than 20 days into the Veteran's service do not reflect any increase in disability during his period of service. Furthermore, service records do not reflect further injury or exacerbation of the Veteran's claimed disabilities during his service from February 2004 to November 2004, and the April 2004 Medical Evaluation Board Proceedings concluded that the Veteran's obstructive sleep apnea, and degenerative disc disease of the cervical and lumbosacral spine existed prior to service, were not incurred in service, and were not permanently aggravated by service. Thus, the Board finds that, regarding each of the Veteran's claimed disabilities, the weight of the evidence shows that there was not an increase in disability during service. Furthermore, again, the record does not contain, and neither the Veteran nor his representative has identified, any medical opinion supporting the Veteran's claims or otherwise contradicting the October 2010 VA examiner's opinions. Finally, the Veteran has further asserted that his upper and lower extremity radiculopathy and/or neuropathy and his sleep apnea are due to or have been aggravated by his service-connected type II diabetes. However, the weight of the evidence of record is against his contentions. The competent evidence of record has repeatedly related the Veteran's upper and lower extremity numbness, tingling, and radicular and neuropathic symptoms to his cervical and lumbar spine conditions. On December 2004 VA examination, the Veteran himself reported numbness and tingling in the hands, feet and legs, more associated with his back and neck pain, and noted that if he positioned his neck a certain way he would get a tingling sensation to the hands; the diagnoses were degenerative disc disease of the lumbar and cervical spine with intermittent radiculopathy into both legs and the right arm, and numbness and tingling in the arms, hands, feet and legs, which was noted to be radicular paresthesias from his degenerative disc disease of the spine. Also, the January 2007 VA examiner specifically stated that there was no evidence of diabetic peripheral neuropathy, as the Veteran had evidence of radicular symptoms in his upper extremity as well as in his lower extremity and well-documented, significant, multilevel-level degenerative joint disease of the cervical and lumbar spine. The examiner stated that the Veteran's intermittent numbness and paresthesias in his upper and lower extremities were secondary to radicular symptoms from his degenerative joint disease, and that they clearly did not follow a pattern that would be expected of a diabetic peripheral neuropathy. Furthermore, the only competent and probative evidence regarding whether sleep apnea might be caused or aggravated by the Veteran's diabetes is that of the January 2007 VA examiner, which was that the Veteran's sleep apnea was not secondary to diabetes mellitus, as diabetes mellitus was not a recognized contributor or cause of sleep apnea. Again, the Board finds this medical evidence, including the VA examiners' assessments and opinions, to be persuasive. They were made by medical experts who examined the Veteran and, in the case of the January 2007 VA examiner, reviewed the claims file, and neither the Veteran nor his representative has identified any medical opinion supporting the Veteran's assertions that his disabilities are related to his diabetes. The Board acknowledges Jandreau, 492 F.3d 1372, in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. However, while the Veteran might believe that his lumbar or cervical spine disability, upper or lower extremity radiculopathy and/or neuropathy, or sleep apnea is medically related to service, including his April 1999 period of ACDUTRA and active service from February 2004 to November 2004, or that his radiculopathy and/or neuropathy or sleep apnea has been caused or aggravated by his diabetes, these questions extend beyond an immediately observable cause-and-effect relationship, and require medical expertise to answer. The Veteran is competent to report matters within his own personal knowledge, such as his back or neck pain or sleepiness seeming to worsen during service. See Layno, 6 Vet. App. at 469. However, the question of whether there was an increase in any disability beyond such disability's natural progression is one that is medical in nature, in that it requires a more advanced understanding of human physiology and anatomy. As such, the Veteran is not competent to address etiology in the present case. The Board also acknowledges the assertions of the Veteran's representative, made in a March 2010 written brief presentation, that the October 2010 VA examiner did not produce clear and unmistakable evidence that the Veteran's back condition had not been aggravated in service, as was ordered by the Board, and that the examiner did not provide an adequate basis for finding that the Veteran's back condition had not been permanently aggravated beyond natural progression, given his treatment in April 1999 after lifting concrete blocks. However, the Board did not, in its August 2010 remand, order the VA examiner to produce clear and unmistakable evidence that the Veteran's back condition had not been aggravated in service, and as discussed in the VCAA section, such a standard would not have been appropriate in this case. Also, for the reasons discussed above, the Board finds that the October 2010 VA examiner provided an adequate basis for finding that the Veteran's back condition had not been permanently aggravated beyond natural progression during either active duty or ACDUTRA, even given his treatment in April 1999 after lifting concrete blocks. Accordingly, the Board finds that the claims for service connection for lumbar and cervical spine disabilities, upper and lower extremity radiculopathy and/or neuropathy disabilities, and sleep apnea must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for a lumbar spine disability is denied. Service connection for a cervical spine disability is denied. Service connection for bilateral upper extremity radiculopathy and/or neuropathy, to include as due to type II diabetes mellitus, is denied. Service connection for bilateral lower extremity radiculopathy and/or neuropathy, to include as due to type II diabetes mellitus, is denied. Service connection for sleep apnea, to include as due to type II diabetes mellitus, is denied. ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs