Citation Nr: 18142964 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 13-25 079 DATE: October 17, 2018 ORDER Service connection for sleep apnea is denied. Service connection for a lumbar spine disability, to include degenerative disc disease, is denied. FINDINGS OF FACT 1. The Veteran had active service from November 1979 to June 1980. 2. Sleep apnea is not causally or etiologically related to service and was not caused or permanently worsened by a service-connected disability. 3. The in-service complaints of a back injury are not related to the current diagnosis of lumbar degenerative disc disease. CONCLUSIONS OF LAW 1. Sleep apnea was not incurred in or aggravated by active service nor is it proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, (2012); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2018). 2. A lumbar spine disability, to include degenerative disc disease, was not incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, the Veteran’s claim of service connection for sleep apnea was previously before the Board. In a November 2015 decision, the Board, in pertinent part, denied the claim of service connection for sleep apnea. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2016 Order, the Court vacated the Board’s decision with regard to his sleep apnea claim and returned the case to the Board for action consistent with the Order. In September 2017, the case was remanded for additional development. The case has now been returned to the Board for further appellate action. Service Connection Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Sleep Apnea As an initial matter, sleep apnea is not a chronic disease under 38 C.F.R. § 3.309(a); therefore, presumptive service connection is not for application. However, as the Veteran has asserted that his sleep apnea is caused or aggravated by his service-connected acquired psychiatric disability, secondary service connection will be addressed. Finally, direct service connection will be considered. Turning first to direct service connection, the Veteran has been diagnosed with obstructive sleep apnea. Specifically, a November 2017 VA examination diagnosed obstructive sleep apnea. Therefore, a current disorder has been shown and the first element of service connection has been met. A review of the service treatment records (STRs) shows that he reported in his June 1980 separation examination that he did not have and had never had frequent trouble sleeping. Sleep apnea was not otherwise noted in his STRs. Therefore, the second element of direct service connection- in-service incurrence- has not been met. Turning to secondary service connection, the evidence does not support the claim that his obstructive sleep apnea is secondary to his service-connected acquired psychiatric disability. While there is evidence of a current disability (obstructive sleep apnea) and evidence of a service-connected disability (an acquired psychiatric disability, to include PTSD), the medical evidence does not establish a sufficient nexus between the two. Specifically, in a November 2017 VA examination, the examiner opined that the Veteran’s obstructive sleep apnea was less likely than not caused or aggravated by his service-connected acquired psychiatric disability, to include PTSD. The examiner noted that while a direct connection between PTSD and obstructive sleep apnea had been hypothesized, current medical studies did not establish a direct relationship between the two conditions. The examiner asserted that there was no clear-cut evidence to support a finding that his obstructive sleep apnea was aggravated by his PTSD, explaining that sleep apnea had a clear and specific etiology, consisting of obstruction of the airways, that was predominantly found in overweight individuals and observing that the Veteran had been overweight since 2008. The examiner finally found that, while there was overlapping of symptoms between obstructive sleep apnea and PTSD, a causative link could not be made. In light of the above discussion, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As service connection is not warranted, the appeal is denied. Service Connection for a Lumbar Spine Disability As an initial matter, the Veteran has been diagnosed with degenerative disc disease rather than degenerative joint disease. The Board notes that while degenerative joint disease is listed as a chronic disease under 38 C.F.R. § 3.309(a), degenerative disc disease is not similarly considered a chronic disease under 38 C.F.R. § 3.309(a). Therefore, presumptive service connection is not for application. Additionally, the Veteran has not argued that his lumbar spine disability is caused or aggravated by a service-connected disability. Therefore, secondary service connection will not be considered. However, direct service connection will be addressed. The Veteran has been diagnosed with a current lumbar spine disability. Specifically, a June 2016 VA examination diagnosed lumbar degenerative disc disease. Therefore, a current disorder has been shown and the first element of service connection has been met. A review of the Veteran’s STRs reveals that in a March 1980 treatment note, the Veteran complained of experiencing lower back pain for 2 months and was diagnosed with a stress reaction. In multiple subsequent April and May 1980 treatment notes, the Veteran reported multiple incidents including falling out of his bunk and hitting the floor, being pushed out of his bunk and landing on his back, tripping over a wire and falling on his back, and experiencing back pain after carrying a heavy object from a tank. The Veteran reported back pain in each incident and was diagnosed with muscle trauma and mechanical back pain. Therefore, an in-service incident has been demonstrated and the second element of service connection has been met. However, as to nexus, the evidence fails to support a finding that the Veteran’s current lumbar degenerative disc disease is etiologically related to service. In a June 2016 VA examination, the Veteran reported having constant left lower back pain and upper left hip pressure. He noted that his pain was sometimes located in his entire left lower lumbar region. He stated that he experienced flare-ups of his lumbar spine condition 1 to 2 times per year, each lasting approximately two weeks. He explained that during flare-ups his pain was worse than usual and he had difficulty bending, walking, lying down, and sitting for long periods of time. He said that while his pain was aggravated by rain and humidity, he did not experience a functional limitation as a result of his lumbar spine condition. The examiner opined that the Veteran’s lumbar degenerative disc disease was less likely than not related to service, finding that the STRs did not diagnose a spinal abnormality as a result of his in-service injuries. The examiner further explained that while the Veteran was diagnosed in-service with muscle strains and mechanical low back pain, he was not diagnosed with degenerative disc disease until more than 30 years after discharge. The examiner finally noted that the Veteran reported experiencing multiple motor vehicle accidents, bicycle accidents, and fights after separation from service that caused back pain. In light of the above, the preponderance of the evidence is against the claim and there is no doubt to be otherwise resolved. As service connection is not warranted, the appeal is denied. The Board has considered lay statements offered by the Veteran regarding the etiology of the disabilities addressed above. He is competent to report symptoms and describe his observations because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer opinions as to the etiology of any current disorder due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Such competent evidence has been provided by the medical personnel who have examined the Veteran during his current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements that have been submitted. (Continued on the next page)   Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Spigelman, Associate Counsel