Citation Nr: 1412632 Decision Date: 03/26/14 Archive Date: 04/08/14 DOCKET NO. 08-06 806A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to restoration of a 30 percent disability rating (evaluation), effective May 1, 2007, for service-connected degenerative disc disease at the C5/C6 (hereinafter "cervical spine disability"), including whether the reduction in compensation from 30 percent disability to 20 percent disabling was proper. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected cervical spine disability and status post open reduction and internal fixation, right ankle (hereinafter "right ankle disability"). 3. Entitlement to service connection for lumbar stenosis (claimed as low back condition) (hereinafter "back disability"), to include as secondary to the service-connected cervical spine disability and right ankle disability. 4. Entitlement to service connection for bilateral upper extremity cervical radiculopathy, to include as secondary to the service-connected cervical spine disability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran (Appellant); Veteran's spouse ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from October 1979 to May 1985, and from March 2003 to February 2004. This appeal comes to the Board of Veterans' Appeals (Board) from July 2004, December 2004, January 2007, September 2007, September 2008, and June 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The July 2004 rating decision, in pertinent part, granted service connection for the cervical spine disability and assigned a noncompensable rating effective February 26, 2004 (the day following the Veteran's discharge from active service). The December 2004 rating decision, in pertinent part, assigned an initial 30 percent disability rating for the service-connected cervical spine disability effective February 26, 2004. The January 2007 rating decision decreased the disability rating for the service-connected cervical spine disability from 30 percent to 10 percent disabling effective May 1, 2007. The September 2007 rating decision denied service connection for bilateral upper extremity cervical radiculopathy. The September 2008 rating decision denied service connection for sleep apnea and lumbar stenosis. The June 2011 rating decision increased the disability evaluation for the service-connected cervical spine disability from 10 percent to 20 percent disabling effective May 1, 2007 (the date of the initial reduction). VA treatment records dated from March 2011 through December 2013 have been associated with the claims file. There is no waiver of RO initial consideration of this evidence. Generally, before considering the additional evidence, the Board would be required to remand the matter to the RO for initial consideration of the additional evidence; however, as discussed below, the Board is granting the appeal for restoration of the 30 percent disability rating for the service-connected cervical spine disability, which constitutes a full grant of the benefits sought on appeal with regard to this issue; therefore, the Veteran is not prejudiced by the decision below and the Board may consider this evidence in the first instance. In December 2013, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge in San Antonio, Texas. A copy of the transcript has been associated with the claims file. The Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. In a December 2004 rating decision, the RO assigned an initial 30 percent disability rating for cervical musculo-tendinous strain (formerly diagnosed as degenerative disc disease, cervical spine) effective February 24, 2004 (the day following the Veteran's separation from active service) based on limitation of flexion to 20 degrees and additional limitations due to fatigue on repetitive use. 2. Following a December 2005 VA examination, in a May 2006 proposed rating decision, the RO proposed to reduce the disability evaluation for the service-connected cervical spine disability from 30 percent to 10 percent disabling. 3. In a January 2007 rating decision, the RO implemented the reduction to 10 percent disabling for the service-connected cervical spine disability, effective May 1, 2007, on the basis of forward flexion of the cervical spine to 85 degrees. 4. The 30 percent disability rating for the service-connected cervical spine disability had not been in effect for more than five years. 5. In a June 2011 rating decision, the RO increased the disability evaluation for the service-connected cervical spine disability to 20 percent disabling effective May 1, 2007 (the date of the initial reduction). 6. An April 2011 VA examination report shows forward flexion of the cervical spine to 20 degrees. 7. The evidence of record does not show a permanent improvement in the service-connected cervical spine disability. 8. The Veteran's currently diagnosed obstructive sleep apnea had its onset during active service. 9. The Veteran has a current diagnosis of lumbar stenosis and degenerative disc disease of the lumbar spine. 10. Symptoms of a back disability have been continuous since service. 11. The Veteran's current disability of bilateral upper extremity cervical radiculopathy is causally related to the service-connected cervical spine disability. CONCLUSIONS OF LAW 1. The criteria for restoration of a 30 percent rating for the service-connected cervical spine disability, effective May 1, 2007, have been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.105(e), 3.344, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2013). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a back disability have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 4. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral upper extremity cervical radiculopathy as secondary to the service-connected cervical spine disability, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). In the present case, the Board is granting the claims for service connection for sleep apnea, a back disability, and bilateral upper extremity cervical radiculopathy as well as restoring the 30 percent disability rating for the service-connected cervical spine disability. This decision constitutes a full grant of the benefits sought on appeal; therefore, no further discussion regarding VCAA notice or assistance duties is required. Propriety of Reduction for Service-Connected Cervical Spine Disability In a July 2004 rating decision, the RO granted service connection for cervical spine degenerative disc disease and assigned a noncompensable evaluation, effective February 26, 2004 (the day following the Veteran's separation from active service). In a December 2004 rating decision, the RO assigned an initial 30 percent disability rating for the service-connected cervical spine disability, effective February 26, 2004. The rating was provided under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5237. The RO acknowledged that, while the Veteran only met the schedular criteria for a 20 percent disability rating for limitation of flexion to 20 degrees, a 30 percent disability rating was being assigned based on additional limitations due to fatigue on repetitive use. In a May 2006 proposed rating decision, the RO proposed to reduce the rating for the cervical spine disability to 10 percent. The RO cited findings on a December 2005 VA examination report. The Veteran was informed of this proposed reduction on May 4, 2006, and given 60 days to respond. The evaluation was decreased to 10 percent in a January 2007 rating decision with an effective date of the reduction of May 1, 2007. The Veteran filed a timely notice of disagreement with the reduction in February 2007 and filed a substantive appeal (VA Form 9) in March 2008. During the pendency of the appeal, the RO, in a June 2011 rating decision, increased the service-connected cervical spine disability rating to 20 percent disabling effective May 1, 2007 (the effective date of the initial reduction). The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e) (2013). The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). The RO took final action to reduce the disability evaluation in a January 2007 rating decision, in which the disability evaluation was reduced from 30 to 10 percent disabling, effective May 1, 2007. The Veteran was notified of such action by letter dated March 2006. This action was more than 60 days from the time of notice of the proposed action. Thus, the RO properly carried out the procedural requirements under 38 C.F.R. § 3.105(e) for reduction of the schedular disability evaluation from 30 to 10 percent disability for the Veteran's service-connected cervical spine disability. The Veteran does not contend otherwise. Congress has provided that a veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155 (West 2002). A readjustment to VA's rating schedule shall not be grounds for reduction of a disability rating in effect on the date of the readjustment unless medical evidence establishes that the disability to be evaluated actually improved. 38 C.F.R. § 3.951(a) (2013). Specific requirements must be met in order for VA to reduce certain ratings assigned for service-connected disabilities. See 38 C.F.R. § 3.344 (2013); see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). In this case, the 30 percent disability rating for the service-connected cervical spine disability was in effect for less than five years. Accordingly, the provisions of 38 C.F.R. § 3.344(a) and (b) do not apply in this case. Rather, as regards disability ratings in effect for less than five years, adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344(c). The RO reduced the Veteran's disability rating based on the result of the December 2005 VA examination. In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer, 2 Vet. App. at 281-282. However, post-reduction evidence may not be used to justify an improper reduction. In considering the propriety of a reduction in this case, a review of the rules for establishing disability ratings is appropriate. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2013). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2013). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2013). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. For the entire appeal period, the Veteran has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243), unless Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a. Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. For cervical spine disabilities, under the General Rating Formula, a 10 percent rating is assigned for forward flexion of the cervical spine greater than 30 degrees, but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees, but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; or, combined range of motion of the cervical spine greater than 170 degrees; or, muscle spasm, guarding, or localized tenderness severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees; extension is zero to 45 degrees; left and right lateral flexion are zero to 45 degrees; and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The combined normal range of motion of the cervical spine is 340degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis). Id. For disabilities of the musculoskeletal system, the Board also considers whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). As noted above, the Veteran was originally assigned a 30 percent initial disability rating for the service-connected cervical spine disability, effective February 26, 2004. The 30 percent rating was assigned primarily based upon a September 2004 VA examination report. At the September 2004 VA examination, the Veteran reported complaints of pain in the upper shoulder that radiates down to the right arm often. The Veteran reported intermittent flare-ups approximately twice a day lasting for a few minutes manifested by aching pain. The Veteran reported that he had been recommended bedrest for the cervical spine disability twice in the previous year approximately for one month each time, but could not remember the physician who recommended this. Upon physical examination at the September 2004 VA examination, range of motion testing of the cervical spine reflected decreased forward flexion limited to 20 degrees, extension to 30 degrees, bilateral lateral flexion to 30 degrees, and bilateral rotation to 45 degrees. The VA examiner noted that the Veteran did not experience pain on additional motion, but noted major functional impact secondary to fatigue of the cervical spine. The VA examiner noted some favorable ankylosis present with limitation of movement in all directions. The VA examination report notes that intervertebral disc syndrome with nerve root involvement was present, but that, upon examination, the examiner could not elicit abnormal sensation or pain in the nerves in the brachial plexus or any nerve roots going down the left arm. In the January 2007 reduction to a 10 percent disability rating appears to be based primarily on findings reported after a December 2005 VA examination. At the December 2005 VA examination, the Veteran reported that medication does not totally reduce his pain. The Veteran reported constant pain in the posterior neck for the previous six months, arm weakness, and neck stiffness. The Veteran reported easy fatigability and lack of endurance of the neck. The Veteran denied flare-ups, incapacitating episodes, or use of a cane, crutch, or walker. Upon physical examination at the December 2005 VA examination, the posterior cervical spine region was noted as normal without abnormality and that the Veteran had a normal gait without ambulatory aids or braces. Range of motion testing reflected forward flexion to 85 degrees, extension to 60 degrees, side bending bilaterally to 30 degrees, right rotation to 35 degrees, and left rotation to 45 degrees. In April 2006 correspondence, the RO asked the VA examiner to furnish range of motion results for the cervical spine as the numbers reported appeared to be in regard to the lumbar spine, but received an addendum response that the range of motion numbers were correct. The VA examiner noted that the Veteran's range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use or during flare-ups. In April 2011, the Veteran underwent another VA examination. The Veteran reported that the cervical spine disability had progressively worsened. The Veteran reported a history of fatigue, decreased motion, stiffness, weakness, spasm and, spine pain. The VA examiner noted the Veteran's gait was abnormal being very slow and stiff with bilateral guarding. Upon physical examination, decreased range of motion was reflected with flexion to 20 degrees, extension to 0 degrees, bilateral lateral flexion to 15 degrees, left lateral rotation to 20 degrees, and right lateral rotation to 25 degrees. Objective evidence of pain on active range of motion was not noted. The VA examiner noted that there was no objective evidence of pain following repetitive motion as well as no additional limitations upon repetition. Following the April 2011, the RO increased the disability rating for the service-connected cervical spine disorder to 20 percent effective May 1, 2007, the date of the original reduction. Based on the above, while the Veteran may not currently meet the criteria for a 30 percent disability rating, the Board finds that improvement in the cervical spine disability has not been shown to have occurred. 38 U.S.C.A. § 1155. The Veteran was originally assigned the 30 percent disability rating based on forward flexion to 20 degrees and additional limitations due to fatigue on repetitive use. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 204-07. The evidence does not show sustained improvement in the disability, which is required before a disability rating can be reduced. 38 U.S.C.A. § 1155. While the December 2005 VA examination report (the evidence available to the RO at the time the reduction was effectuated) shows improvement of the Veteran's service-connected cervical spine disability, the Board finds the April 2011 VA examination report to be highly probative, post-reduction evidence that the cervical spine disability has not actually improved based on the Veteran's continued reports of fatigue on use and range of motion resting reflecting forward flexion of the cervical spine to 20 degrees. In sum, resolving reasonable doubt in favor of the Veteran, the overall evidence reflects that no improvement in the Veteran's service-connected cervical spine disability has occurred. Under these circumstances, the Board cannot conclude that the weight of the evidence shows a material improvement in the Veteran's service-connected cervical spine disability that is reasonably certain to be maintained under the ordinary conditions of life. See 38 C.F.R. § 3.344; Brown, 5 Vet. App. at 413. Accordingly, the Veteran is entitled to restoration of the 30 percent rating for the service-connected cervical spine disability. Service Connection Laws and Regulations Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In this case, the Veteran has been diagnosed with cervical radiculopathy, lumbar spine degenerative disc disease, lumbar stenosis, and obstructive sleep apnea. "Degenerative joint disease, or osteoarthritis, is defined as 'arthritis of middle age characterized by degenerative and sometimes hypertrophic changes in the bone and cartilage of one or more joints and a progressive wearing down of opposing joint surfaces with consequent distortion of joint position usually without bony stiffening.'" Giglio v. Derwinski, 2 Vet. App. 560, 561 (1992) (nonprecedential single judge decision citing Webster's Desk Dictionary 501 (1986)). Radiculopathy is a disease of the nerve roots. Fleshman v. Brown, No. 94-902, slip op. at 2 (U.S. Vet. App. Nov. 22, 1996); see also Bierman v. Brown, 6 Vet. App. 125, 126 (1994) (intervertebral disc syndrome). Arthritis is listed as a "chronic disease" under 38 C.F.R. § 3.309(a) and cervical radiculopathy falls under the category of organic diseases of the nervous symptom; therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) apply to the claims for service connection for bilateral upper extremity cervical radiculopathy and a back disability. Sleep apnea is not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303(b) do not apply with regard to this claim. For chronic disease such as arthritis, service connection may be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The presumptive service connection provisions based on "chronic" in-service symptoms and "continuity of symptomatology" after service under 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). Service connection may also be established with certain chronic diseases, including degenerative joint disease (arthritis) and cervical myelopathy (organic disease of the nervous system), based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Service Connection for Sleep Apnea The Veteran contends he currently suffers from sleep apnea that either began during service or was caused by service-connected cervical spine and right ankle disabilities. In a July 2011 substantive appeal (VA Form 9), the Veteran contended that his sleep disorder manifested in its worst state upon treatment of injuries sustained during military service. The Veteran asserted that he has experienced symptoms of sleep apnea since the early years of active duty, but never thought it could be a treatable body dysfunction. The Veteran contended that fellow service members had witnessed his loud snoring and appearance of fatigue during the day. At the December 2013 Board hearing, the Veteran testified that he was always tired during service, but that he initially thought it was just from working long hours. The Veteran testified that one of his roommates during service complained about his loud snoring. The Veteran testified that he would take short naps instead of lunch because of his fatigue. The Veteran's spouse testified that she observed the Veteran stop breathing during his sleep in service stating that she would physical turn the Veteran causing him to let out a sigh and start breathing again. The Veteran's spouse testified that she first noticed the Veteran stop breathing in 1980 or 1981 and that it had continued until present. The Veteran indicated that the reason he did not seek treatment in service was because he had never heard of sleep apnea before and did not know it was treatable. The Veteran further testified that the pain medication, specifically hydrocodone, which he takes for the service-connected cervical spine and right ankle disabilities, has caused or worsened the sleep apnea. The Veteran submitted articles with regard to the pain medication he is currently taking and indicated that one of the published side effects is trouble sleeping and trouble breathing. The Board finds that the Veteran has currently diagnosed sleep apnea syndrome. A June 2007 private sleep treatment record indicates that the Veteran underwent a sleep study and notes diagnoses of obstructive sleep apnea, possibly pain medication-exacerbated, and possible restless legs syndrome by clinical history. As the Board is granting service connection based on direct service connection (adjudicated below) under 38 C.F.R. § 3.303(d), the theory of secondary service connection (38 C.F.R. § 3.310) pursuant to the same benefit is rendered moot and there remain no questions of law or fact as to the fully granted service connection issue; therefore, the secondary service connection theory will not be further discussed. See 38 U.S.C.A. § 7104 (West 2002) (stating that the Board decides questions of law or fact). After reviewing all the lay and medical evidence, including the Veteran's statements, the Board finds that the weight of the evidence is in equipoise as to whether the Veteran's currently diagnosed sleep apnea syndrome was incurred in active service. There is both unfavorable and favorable evidence regarding the question of whether the Veteran's current sleep apnea was incurred in active service. The unfavorable evidence includes the silence in the service treatment records with regard to complaints, symptoms, diagnosis, or treatment for sleep apnea. However, the absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The assertion by the Veteran's spouse at the December 2013 Board hearing that she observed that the Veteran had frequent periods during which it would appear that he stopped breathing and that she would have to turn the Veteran during the night to get him to take a breath is found to be competent and credible evidence that the Veteran's sleep apnea began during active service. As noted above, the Veteran has also provided credible testimony about the onset of sleep apnea symptoms including snoring and daytime tiredness. For these reasons, and resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran's sleep apnea was incurred in active service; thus, the criteria for service connection for sleep apnea have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for a Back Disability The Veteran contends that he currently suffers from a back disability that either was caused by an in-service injury or by service-connected cervical spine and right ankle disabilities. In a July 2011 substantive appeal (VA Form 9), the Veteran contended that he initially felt low back pain when undergoing treatment for the right ankle fracture in service, but gave it little attention since he was taking a significant amount of pain medication along with continuous physical therapy. At the December 2013 Board hearing, the Veteran testified that, when moving a box into a Conex during service in 2003, his foot caught and he fell back and broke his right ankle. The Veteran testified that he fell straight back onto his lower back, upper back, and neck. The Veteran testified that the pain medication he was provided for the fractured right ankle hid the effects the fall caused on his back. The Veteran's spouse testified that the Veteran had daily back pain since the 2003 ankle injury and that the Veteran did not have back pain prior to this incident. As the Board is granting service connection for a back disability based on presumptive service connection based on continuity of symptomatology (adjudicated below) under 38 C.F.R. § 3.303(b), the theories of direct service connection (38 C.F.R. § 3.303(d)), presumptive service connection for a "chronic" disease in service (also 38 C.F.R. § 3.303(b)), and secondary service connection (38 C.F.R. § 3.310) pursuant to the same benefit are rendered moot and there remain no questions of law or fact as to the fully granted service connection issue; therefore, the direct service connection, presumptive service connection for a "chronic" disease in service, and secondary service connection theories will not be further discussed. See 38 U.S.C.A. § 7104 (stating that the Board decides questions of law or fact). The competent lay and medical evidence of record demonstrates that the Veteran has a currently diagnosed back disability. The August 2008 VA examination report notes a diagnosis of lumbar stenosis. An August 2008 x-ray report of the lumbar spine noted small degenerative osteophytes at the L4 and L5 level. The April 2011 VA examination report notes minimal degenerative disc disease of the lumbar spine and formanial stenosis at L4-L5. Next, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran sustained an in-service back injury. Service treatment records reflect that the Veteran caught his foot, fell, and fractured his right ankle in February 2003, that required surgery. At the August 2008 VA examination, the Veteran reported that he sustained a fracture to his right ankle in April 2003 and that he recalled his back pain starting following the injury to his ankle. At the April 2011 VA examination, the Veteran reported that he injured his back and cervical spine at the same time as when he fractured his right ankle in service. The Veteran reported his back has progressively worsened. With regard to the silence in the Veteran's service treatment records of any back disorder, the Board notes that, in cases involving combat, VA is prohibited from drawing an inference from silence in the service treatment records. VA's General Counsel has interpreted that the ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran "have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." VAOPGCPREC 12-99. The determination of whether a veteran engaged in combat with the enemy necessarily must be made on a case-by-case basis, and that absence from a veteran's service records of any ordinary indicators of combat service may, in appropriate cases, support a reasonable inference that he did not engage in combat; such absence may properly be considered "negative evidence" even though it does not affirmatively show that he did not engage in combat. Id. Here, there is no indication that the Veteran's back disability occurred while in combat, nor did the Veteran contend otherwise. In cases where this inference is not permitted, i.e., non-combat scenarios, the Board may use silence in the service treatment records as contradictory evidence, if the service treatment records are complete in relevant part and the Board makes a finding that the injury, disease, or related symptoms ordinarily would have been recorded had they occurred. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (holding that "the Board erred by treating the absence of evidence as negative evidence that a veteran's skin condition was not exceptionally repugnant, because this is not a situation where silence in the records tends to disprove the fact"); AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred); see also Fed. R. Evid. 803(7) (absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded) (cited in Buczynski). In this case, while the service treatment records appear to be complete in relevant part, the Board finds that the Veteran's back disorder would not necessarily have been recorded had it occurred, as the symptoms of back pain could easily have been masked by the pain medication the Veteran was taking for the right ankle fracture. See Buczynski, 24 Vet. App. at 224. The Board finds that the Veteran has credibly reported a back injury in service. Back pain is subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan , 451 F.3d at 1336 (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). As such the Board finds that the Veteran's statements regarding an in-service back injury is credible because the statements are internally consistent and consistent with the other evidence of record. The Board further finds that the evidence is at least in equipoise on the question of whether symptoms of the Veteran's back disability have been continuous since service. At the August 2008 VA examination, the Veteran reported that his back pain had started, and continued, since the right ankle injury in 2003. At the April 2011 VA examination, the Veteran reported that his back had progressively worsened since he injured it in 2003. At the December 2013 Board hearing, the Veteran and his spouse testified that the Veteran had not experienced back pain prior to the in-service fall in 2003 and had experienced almost daily back pain since the fall. The Board finds that the Veteran has made credible statements, testimony, and lay histories provided to medical personnel that his back disability symptoms have been continuous since service. The Veteran's spouse has also provided credible testimony with regard to the onset and continuous nature of the Veteran's back symptoms. Additionally, post service treatment records demonstrate that the Veteran's back disorder continued to worsen after service separation. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that, based on continuous post-service symptoms of a back disorder, presumptive service connection for a back disability is warranted under 38 C.F.R. § 3.303(b). 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Bilateral Upper Extremity Cervical Radiculopathy The Veteran contends that he currently suffers from bilateral upper extremity cervical radiculopathy caused by the service-connected cervical spine disability. In a February 2007 claim, the Veteran contended that he experiences chronic pain and numbness of the upper extremities. In a July 2011 substantive appeal (VA Form 9), the Veteran asserted that he experiences persistent pain and numbness to both of his arms that originates from the neck/shoulders area. At the December 2013 Board hearing, the Veteran testified that he has pain coming down his arms from his neck. The Board finds that the Veteran has currently diagnosed bilateral upper extremity cervical radiculopathy. A May 2013 VA treatment record indicates that, based on EMG findings and nerve conduction studies, the Veteran has bilateral C6 radiculopathy (biceps weakness, absent biceps reflex). As the Board is granting service connection based on secondary service connection (adjudicated below) under 38 C.F.R. § 3.310, the theories of direct service connection (38 C.F.R. § 3.303(d)) and presumptive service connection based on continuity of symptomatology and a "chronic" disease in service (38 C.F.R. § 3.303(b)) pursuant to the same benefit are rendered moot and there remain no questions of law or fact as to the fully granted service connection issue; therefore, the direct service connection and presumptive service connection theories will not be further discussed. See 38 U.S.C.A. § 7104 (stating that the Board decides questions of law or fact). The May 2013 VA treatment record notes that the Veteran has cervical spine spondylosis complicated by spinal canal stenosis at C4-C5, C5-C6, and C6-C7 levels with mild cord flattening present at C4-C5 and C5-C6 with encroachment upon the exiting nerve roots at each respective level being most pronounced at C5-C6. The VA treatment record notes an assessment of bilateral C6 radiculopathy (biceps weakness, absent biceps reflex). The Veteran is service connected for degenerative disc disease at the C5-C6 of the cervical spine. December 2005 and November 2006 VA examination reports note no electrodiagnostic evidence of cervical radiculopathy. An April 2011 VA examination report notes no cervical radiculopathy and associates the Veteran's bilateral arm numbness and pain with other non-service-connected causes. The weight of a medical opinion is diminished where that opinion is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). Based on the evidence of record, the Board finds there is a now a currently diagnosed disability of bilateral upper extremity radiculopathy, the December 2005, November 2006, and April 2011 VA examination reports are of no probative value. The evidence shows that a current disability of upper extremity bilateral radiculopathy exists. There is also probative medical evidence that demonstrates that the bilateral upper extremity radiculopathy is caused by the service-connected cervical spine disability through encroachment upon the exiting nerve roots at C5-C6. Resolving reasonable doubt in favor of the Veteran, service connection for bilateral upper extremity cervical radiculopathy as secondary to the service-connected cervical spine disability is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER The reduction of a 30 percent disability rating for the service-connected cervical spine disability was not proper, and restoration of the 30 percent rating from May 1, 2007 is granted. Service connection for sleep apnea is granted. Service connection for a back disability is granted. Service connection for bilateral upper extremity cervical radiculopathy, as secondary to the service-connected cervical spine disability, is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs