Citation Nr: 18143405 Decision Date: 10/19/18 Archive Date: 10/18/18 DOCKET NO. 17-23 350 DATE: October 19, 2018 ORDER Entitlement to service connection for cervical strain is granted. REMANDED Entitlement to service connection for sleep apnea, claimed as secondary to service-connected disabilities is remanded. FINDING OF FACT Neck pain was reported in service in connection with a motor vehicle accident; post-service disability is attributable to the in-service complaints. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for cervical strain have been met. 38 U.S.C. §§ 1110, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1987 to November 1987 and from May 1989 to February 1997. This appeal to the Board of Veterans’ Appeals (Board) arose from an August 2015 rating decision. The Veteran filed a NOD with the October 2017 rating decision, which denied service connection for depressive disorder and left knee disability, and an increased rating for GERD. Although issuance of a statement of the case is required in response to a notice of disagreement, here, the evidence reflects that the AOJ is in the process of developing the claims in order to do so, and a remand for this action is, therefore, not required. Cf. 38 C.F.R. § 19.9(c), codifying Manlincon v. West, 12 Vet. App. 238 (1999). As the claims are still in the development stage, it is not in appellate status and will not be considered by the Board at this time. The Board also notes that the Veteran filed a NOD with the April 2017 rating decision, which granted an initial noncompensable rating for allergic rhinitis. The Veteran requested a 10 percent rating. The RO granted the requested 10 percent rating in July 2017, and indicated that such award represented a full grant of the benefit sought and explained that the Veteran may file an NOD if he disagreed with the decision; none was received and the appeal period is now expired. Service Connection The Veteran asserts that his cervical strain is related to service, specifically a motor vehicle accident in service. 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. §§ 1110, 1131 (2012). Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a); See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Moreover, even if a disability is not subject to presumptive service connection, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303 (a). In adjudicating a claim for VA benefits, 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. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). March 1990 service treatment records (STR) reflect that the Veteran reported neck and back pain following a car accident in which he was rear-ended. In the accident, the Veteran hit his head on the steering wheel. A cervical spine x -ray was normal. During that month, the Veteran had continued complaints of neck pain. An August 1993 STR notes the Veteran was treated for neck pain and he was diagnosed with a neck sprain. A master problem list notes the Veteran had back and neck problems in March, November, and December of 1990. An August 1993 STR notes continued pain and an x-ray of the cervical and lumbar spine was normal. A July 1996 medical evaluation board examination reflects the Veteran’s report of recurrent back pain due to the 1990 motor vehicle accident. There are two VA examinations addressing the etiology of the Veteran’s claimed neck disability in March 2015. The March 11, 2015, VA examiner diagnosed cervical strain and provided a negative nexus opinion based on rationale that the Veteran’s in-service neckache from a car accident resolved during service and is most probably due to post-service occupational activities working in the post-office. The March 13, 2015, VA examination report provides a diagnosis of a neck pain and opined that the neck pain was likely as not caused by the in-service accident because the accident and the recurrent of residuals was well-documented, establishing a clear nexus of causality. The examiner noted that the Veteran had constant headache and neck pain that waxes and wanes, as indicated in the STRs. Here, there are conflicting medical opinions, however, the Board finds these opinions are at least in relative equipoise on the question of etiology, which must be resolved in the Veteran’s favor. In light of the Veteran’s competent and credible report of continued neck pain during service, consistent with the record, and his diagnosis of cervical strain, and the positive medical opinion during the period on appeal, the evidence is at least evenly balanced as to whether the Veteran’s cervical strain had its onset in service, thus, the Board finds that service connection for cervical strain is warranted. REASONS FOR REMAND Entitlement to service connection for sleep apnea, claimed as secondary to service-connected disabilities is remanded. The Veteran asserts that his sleep apnea is secondary to his service-connected TBI, GERD, sinusitis, allergic rhinitis, and asthma, to include medications taken for his respiratory disabilities. The Board notes that opinions were obtained addressing whether the Veteran’s sleep apnea is related to his service-connected TBI, rhinitis, and sinusitis. The July 2015 VA examiner opined that the Veteran’s sleep apnea was not related to his TBI because the medical literature does not support any etiological link. The June 2017 examiner opined that there is no relationship between the Veteran’s sleep disturbance and rhinitis. The examiner noted the Veteran’s report that his rhinitis and post-nasal drip cause him to breathe through his mouth and therefore he does not sleep well, which the examiner noted was a normal symptom of sleep apnea. The October 2017 examiner opined that the Veteran’s sleep apnea is not secondary to his sinusitis. The examiner explained how sleep apnea occurs and noted the Veteran did not have obstructive sleep apnea in service. Here, the Board finds the opinions are inadequate because the examiners failed to address the Veteran’s contentions that his obstructive sleep apnea is related to his sinusitis, rhinitis, asthma, GERD, to include medications taken for his respiratory disabilities. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (examination inadequate where the examiner relied on the lack of evidence in service treatment records to provide negative opinion). See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). In addition, the Board points out that the Veteran submitted several articles, which indicate that respiratory disabilities including sinusitis, rhinitis, as well as medications taken for these disabilities, and asthma medications may be linked to sleep disorders, to include sleep apnea. Further, the examiners also did not offer an opinion as to whether any of his service-connected disorders aggravate his sleep apnea. Thus, on remand, an addendum opinion addressing the above is necessary. The matter is REMANDED for the following action: Request an opinion from an appropriate VA physician addressing the below. (A full VA examination should not be scheduled unless it is deemed necessary by the evaluator or otherwise required by the evidence.) The evaluator should review the electronic records contained in the electronic claims file, including a copy of this remand. Based on review of the record, the physician should determine: Whether it is as least as likely as not (50 percent probability or more) that the sleep apnea has been either (i) caused or (ii) aggravated by the Veteran’s allergic rhinitis, sinusitis, asthma, TBI, and GERD, to include medications taken for his respiratory disabilities? If the examiner finds that the sleep apnea is aggravated by any service-connected disability(ies), the examiner must determine the baseline level of severity of the sleep apnea disability before it was aggravated. In doing so, the examiner must look at medical records created before the onset of the aggravation. If no such records are available, the examiner must consider the earliest medical records created after the onset of aggravation. In addressing the above, the examiner should address the medical articles submitted in March 2014 (“Common asthma meds may raise sleep apnea risk”), April 2017 (“Surprising New Findings”), and June 2017 (“Hay Fever Linked to Sleep Disorders” and “Sleep and Allergic Rhinitis”), supporting his contentions. (Continued on the next page)   A complete rationale should accompany any opinion provided. The physician is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah Campbell