Citation Nr: 1614884 Decision Date: 04/12/16 Archive Date: 04/26/16 DOCKET NO. 09-32 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for cervical radiculopathy, claimed as chest pain with left arm pain. 2. Entitlement to service connection for hiatal hernia. 3. Entitlement to service connection for monoclonal gammopathy of undetermined significance (MGUS). 4. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Betty Lam, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1972 to August 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In November 2015, the Veteran testified before the undersigned Veterans Law Judge sitting in Washington, D.C. A copy of the transcript is associated with the evidentiary record. Prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he is withdrawing his pending appeal for the issues of entitlement to an initial compensable rating for service-connected mechanical low back pain, mild degenerative joint disease, and degenerative disc disease; moderate advanced degenerative joint disease involving the cervical spine; post-operative bilateral inguinal hernias; and service connection for granulomatous disease of the spleen; plantar spur; sinusitis; vertigo; residual fractures involving the second metatarsal of the left foot; and diverticulosis. Therefore, the issues before the Board are reflected on the title page. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2015). This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the evidence shows that a cervical radiculopathy disorder had its onset during service. 2. Resolving reasonable doubt in favor of the Veteran, the evidence shows that a hiatal hernia had its onset during service. 3. Resolving reasonable doubt in favor of the Veteran, the evidence shows that a monoclonal gammopathy of undetermined significance (MGUS) had its onset during service. 4. The Veteran had a diagnosis of sleep apnea, and symptoms were onset to a degree of 10 percent disabling within one year of service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for cervical radiculopathy have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2015). 2. The criteria for establishing entitlement to service connection for a hiatal hernia have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2015). 3. The criteria for establishing entitlement to service connection for a disability manifested by monoclonal gammopathy of undetermined significance (MGUS) have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2015). 4. The criteria for establishing entitlement to service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) redefined VA's duties to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014). In light of the favorable determination being reached, the Board finds that no further discussion of VCAA compliance is necessary as any error that was committed as to either the duties to notify or assist is harmless. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2014). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For the showing of certain chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptomatology after discharge is required to support a claim. 38 C.F.R. § 3.303(b). Only the diseases listed at 38 C.F.R. § 3.309(a) are considered chronic. Service connection for certain chronic diseases will be rebuttably presumed if manifested to a compensable degree within a year following active service. 38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. § 3.307, 3.309. Hearing loss and tinnitus are not such a disease. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Cervical Radiculopathy, Hiatal Hernia, MGUS The Veteran contends that his cervical radiculopathy, hiatal hernia, and MGUS disability had its onset in service and that he has experienced ongoing problems with these conditions since service. The Veteran's service treatment records reflect treatment for these claimed disabilities. For instance, the Veteran complained initially complained of chest and back pain beginning in March 1973, underwent treatment for hiatal hernia in June 1981, and was diagnosed with MGUS beginning in January 1996. The Veteran was also treated for symptoms of left chest and arm pain throughout service. A May 2000 radiology report of the cervical spine confirmed findings of "moderate advanced DJD at C4-5-6 associated with exuberant osteophyte formation and mild bilateral neuroforamin encroachment." Subsequent to service, a November 2015 opinion from Dr. A.H. at the Fort Belvoir Community Hospital provided that the Veteran continues to be diagnosed and treated for MGUS that was originally diagnosed in October 1996. Finally, a March 2016 opinion from Dr. P.E. at the Walter Reed National Military Medical Center also confirmed a diagnosis for bilateral C-6 radiculopathy that is likely accounting for the Veteran's bilateral extremity upper extremity pain with subjective weakness that was not confirmed on examination. At the November 2015 Board hearing, the Veteran testified that the onset of his cervical radiculopathy began in the 1980s as a result of physical activities involving "lugging and lifting." The Veteran also testified that he developed hiatal hernia and MGUS while in service. A threshold question that must be addressed here (as with any claim seeking service connection) is whether the Veteran actually has the disability for which service connection is sought. In denying the Veteran's claim for service connection for hiatal hernia, the RO found that although this condition was diagnosed in service, it has been shown to be asymptomatic as no evidence has been submitted to show that the condition became symptomatic, diagnosed, or treated since service. Therefore, the RO denied the Veteran's claim on the basis that he did not have a current disability. See August 2008 rating decision. However, recently submitted medical treatment records include an February 2016 esophagogastroduodenoscopy (EGD) that showed findings of hiatal hernia. The clinician also provided that the Veteran has reflux symptoms once over three week and is provided medication. Cf. Jones v. Shinseki, 26 Vet. App. 56 (2012) (holding that in the context of assigning disability ratings, the Board may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria). Thus, the record shows that the Veteran was given a diagnosis of his claimed disability in service as well as post service. Further, post-service treatment records from the Fort Belvoir Community Hospital confirmed that the Veteran has a current disability of cervical radiculopathy, hiatal hernia, and MGUS. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim); cf. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (noting that the Board must consider evidence of a "recent" diagnosis made prior to the filing of a claim). The Veteran has also provided statements to the effect that he has suffered from disabilities that are both chronic and recurrent in nature ever since service. In this regard, the Board notes that the Veteran separated from service in August 2002, after thirty years in the U.S. Air Force, and that he filed an original claim for service connection in February 2008, with medical evidence in support of continuity of symptomatology following his separation from service. He has also been prosecuting his claim continuously since that time. As a lay person, the Veteran is competent to describe symptoms related to his disabilities (although he is not competent to provide a diagnosis for those symptoms). Accordingly, the Board finds no reason to question the Veteran's statements describing his onset of symptoms during service and his recurrent/ongoing symptomatology after service, and deems them both competent and credible. See Layno v. Brown, 6 Vet. App. 465 (1994). Based on the foregoing, the Board finds that the Veteran developed cervical radiculopathy, hiatal hernia and MGUS in service, and that the record reasonably shows that he has suffered from these chronic disabilities since that time. Therefore, service connection for a cervical radiculopathy, hiatal hernia, and MGUS are warranted. Sleep Apnea The Veteran generally contends that his sleep apnea had its onset within one year of separation from service. Service personnel records provided that the Veteran separated from service in August 2002. In May 2003, the Veteran began treatment as a recently retired Veteran. The Veteran's wife reported a history of loud snoring. The Veteran reported a history of chronic snoring. The clinician provided a diagnosis of snoring and referred the Veteran to an ENT specialist. A February 2004 polysomnography report confirmed a diagnosis of severe obstructive sleep apnea and the Veteran was provided therapeutic options to include: CPAP, oral appliance, or surgery. A lay person is competent to report on the onset and reoccurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In rendering a decision on appeal the Board must 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. See 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. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 469; see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran and his wife are competent to report snoring symptoms because this required only personal knowledge through the senses. Layno, 6 Vet. App. at 470. Additionally, the Board finds the Veteran's statements regarding his symptomatology were competent and credible to report the onset of symptoms associated with sleep apnea, and the fact that the Veteran was diagnosed with sleep apnea by a February 2004 polysomnography report also weigh in support of a finding of service connection. Although sleep apnea is not a disability for which presumptive service connection can be granted, the proximity of the diagnosis to when the Veteran was released from service, combined with his testimony and his wife's statement, supports the Board's conclusion that his sleep apnea began in service. No post-service event, injury or disease between the Veteran's discharge in August 2002 and sleep study confirmation in August 2004 has been shown. In light of the above, when affording the Veteran the benefit-of-the-doubt, a finding of service connection is warranted. Therefore, for these reasons, and resolving reasonable doubt in the appellant's favor, the Board finds that the Veteran's diabetes was presumptively incurred in active service. 38 C.F.R. §§ 3.307 , 3.309. Therefore, the claim for service connection for the Veteran's cause of death is granted. 38 U.S.C.A. § 5107 ; 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Service connection for cervical radiculopathy, is granted. Service connection for hiatal hernia, is granted. Service connection for monoclonal gammopathy of undetermined significance (MGUS), is granted. Service connection for sleep apnea, is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs