Citation Nr: 1327214 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 11-10 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a lumbosacral spine disability. 2. Entitlement to service connection obstructive sleep apnea (OSA). ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1985 to September 1996, to include active duty as a cadet at West Point Military Academy, with additional service in the United States Army Reserve from September 1996 to January 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal of October 2009 and November 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for obstructive sleep apnea and a lumbosacral spine disability, respectively. FINDINGS OF FACT 1. The evidence is in relative equipoise on the question of whether a lumbosacral spine disability is related to service. 2. The evidence is in relative equipoise on the question of whether OSA is secondary to the Veteran's to service-connected deviated septum. CONCLUSION OF LAW 1. The criteria for service connection for a lumbosacral spine disability have been met. 38 U.S.C.A. §§ 1101, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for OSA have been met. 38 U.S.C.A. §§ 1101, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks service connection for a lumbosacral spine disability which he believes was caused by his military service. He also seeks service connection for OSA which he believes was caused by his service-connected deviated septum. Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) 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 or other competent evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For secondary service connection to be granted, generally there must be (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2012); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). 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 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lumbosacral Spine Disability STRs reflect an SI strain of the low back in January 1989, and sprain and contusion of the low back in January 1994. An August 2009 VA medical opinion diagnosed a lumbosacral spine strain. In September 2009, private medical opinions from S. Q., M.D., the Veteran's primary care physician, and J. T. B., M.D., of Elizabethtown Diagnostic Imaging, diagnosed degenerative disc disease of the lumbosacral spine. The Veteran contends that his current disability was caused by his military service; namely a January 1994 low back injury, Army Ranger school, and Army Airborne school. The Veteran reported recurrent low back pain on a June 1996 separation examination, and has reported experiencing back pain since the January 1994 back injury. He is competent to report the onset and continuous symptoms of low back pain. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). July and August 2009 statements from three of the Veteran's close friends note his complaints of back pain since service. In an October 2010 medical opinion, Dr. S. Q. opined that it is more likely than not that the Veteran's current lumbosacral spine disability was caused by repeated insults to the low back during service. The opinion was based on a review of the Veteran's service treatment records, full physical examination, CT scan, and interviews with the Veteran from September 2009 to September 2010. In a November 2009 VA examination report, the examiner opined that the Veteran's lumbosacral spine condition is less likely as not caused by service. The rationale provided was: 1) there was no objective evidence of degenerative disc disease in service; and 2) the Veteran was not diagnosed with degenerative disc disease until 2009. The examiner attributed the Veteran's current lumbosacral disability to his job as a senior analyst at General Dynamics, Orlando, Florida, since separation, and normal age related degenerative changes. In a February 2011 VA examination report, the examiner opined that the Veteran's lumbosacral spine condition is less likely as not caused by service. The rationale provided was: 1) the in-service back injuries resolved; and 2) there is a 13 year period where the patient "could have acquired" DDD LS spine. Although the VA medical opinions are at odds with that of Dr. S. Q., each physician is competent to render a medical opinion, and a rationale was provided for each opinion. At worst, the evidence with respect to the association between the Veteran's current lumbosacral spine disability and his active service is in equipoise. Service connection is warranted. Obstructive Sleep Apnea The evidence of record, including August 2009 and February 2011 VA examination reports; private medical records from the Sleep Telemedicine Services between November 2003 and June 2009; and private medical records from Dr. S. Q., from September 2009 to October 2010, all reflect diagnoses of OSA. There is no evidence of OSA during the Veteran's active service between July 1985 and September 1996, or any period of active duty for training. Accordingly, direct service connection is not warranted. The Veteran is service-connected for a deviated septum, however, and believes such is the cause of his OSA. An October 2010 medical opinion from Dr. S. Q., opines that it is more likely than not that the Veteran's deviated septum significantly contributed to his OSA. His rationale was that the development of OSA is associated with several risk factors, namely nasal congestion and occlusion of the nasal passages. While in service, the Veteran developed a deviated septum as a result of a boxing injury in January 1989 and, but for the deviated septum, the Veteran probably would not experience OSA. At a June 1996 separation examination, the Veteran reported having a runny nose since the January 1989 boxing injury that caused his deviated septum. In July and August 2009 statements, two of the Veteran's close friends said they have witnessed the Veteran experience symptoms of OSA since service. In an August 2009 VA examination report, the examiner found sleep apnea likely due to the Veteran's overweight size and his oropharyngeal passage. He found it less likely as not the Veteran's OSA is caused by or a result of non-displaced nasal fracture. In a February 2011 VA examination report noted that sleep apnea was not diagnosed until 2003, some seven years following discharge; that the Veteran was obese, with a BMI of 37.2, and obesity was the best documented risk factor for OSA; and, if the Veteran's septal deviation were severe enough to be responsible for his OSA, he would have been referred to an ENT doctor by his sleep specialist doctor for consultation for repair of the abnormality. He found OSA less likely as not related to, aggravated by, or caused by his broken nose in January 1989. Although the VA medical opinions are at odds with that of Dr. S. Q., each examiner is competent to render a medical opinion, and a rationale was provided for each opinion. At worst, the evidence with respect to whether the Veteran's OSA is caused by his service-connected deviated septum is in equipoise. Service connection for OSA is warranted. ORDER 1. Service connection for a lumbosacral spine disability is granted. 2. Service connection for obstructive sleep apnea is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs