Citation Nr: 18151337 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-41 462 DATE: November 16, 2018 ORDER Entitlement to service connection of obstructive sleep apnea is denied. REMANDED The issue of entitlement to service connection for a cervical strain is remanded. The issue of entitlement to service connection for a lumbar strain is remanded. The issue of entitlement to service connection for varicella zoster is remanded. FINDING OF FACT The Veteran does not have a present diagnosis of obstructive sleep apnea; his service treatment records are void of any symptoms, illness, or injury to which sleep apnea could be etiologically linked. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.304 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1986 to December 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Entitlement to service connection of obstructive sleep apnea The Veteran has claimed service connection for obstructive sleep apnea. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A direct service connection finding is warranted with medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). At the outset, the Board has carefully reviewed all evidence of record, to include all private treatment records submitted by the Veteran in support of his claim. After such review, the Board has not found any evidence of a present diagnosis of obstructive sleep apnea in the record. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). Further, the Board has also carefully reviewed the Veteran’s service treatment records. While those records do make reference to the other disabilities remaining on appeal, as addressed in the below remand, there is no evidence that the Veteran was ever diagnosed with sleep apnea during active service or treated for any symptoms which might indicate sleep apnea at that time. Moreover, there is no evidence of an injury or illness to which present sleep apnea, presuming the record showed it exists, could be linked. With the exception of his claim for sleep apnea, the Veteran has not provided further detail as to why he believes such a disability should be granted service connection. In light of the above, the Board must deny the claim. The claim does not meet the first and second criteria of service connection, namely, a present illness and an in-service incident, illness, or injury to which it may be etiologically linked. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection of a cervical strain is remanded. 2. Entitlement to service connection of a lumbar strain is remanded. In November 2014, the Veteran underwent VA examination in connection with his lumbar and cervical strain claims. The examiner opined that neither was related to any incident of active service. The examiner noted an in-service basketball injury, as documented in service treatment records, but indicated the injury was transitory in nature. The examiner also noted that the Veteran did not have treatment for many years after service for either a neck or low back disability. Since the November 2014 examination, the Veteran has submitted additional private treatment records, as well as two statements, one from a fellow soldier and another from a commanding officer, attesting to his symptoms in service and thereafter. Further, the Veteran has testified that he did not seek treatment for his pain despite experiencing it since service. The Veteran is competent to provide testimony regarding observable symptomatology, such as pain. In light of this, an addendum medical opinion commenting on lay evidence should be included in the record. 3. Entitlement to service connection of varicella zoster is remanded. The Veteran seeks service connection for a skin disability. The record indicates that the Veteran was diagnosed with varicella zoster during active service. Varicella zoster is a local recurrence of the chicken pox rash which stems from the initial infection rather than a new exposure. Only persons who have had chickenpox develop a recurrence. At the time of his diagnosis during service, the Veteran noted that he had chicken pox during adolescence. To date, the Veteran’s claim has been denied under the premise that varicella zoster is a congenital defect, and therefore not subject to service connection. Generally, service connection may be granted for diseases, but not defects, of congenital, developmental, or familial origin. VAOGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). In differentiating the two categories, VA’s Office of General Counsel has stated that, when viewed in the context of 38 C.F.R. § 3.303 (c), the term “defects” would be definable “as structural or inherent abnormalities or conditions which are more or less stationary in nature.” VAOPGCPREC 82-90. In contrast, a “disease” is referred to a condition considered capable of improving or deteriorating. Id. Varicella zoster is a recurrent episode of the herpes zoster virus. It appears, in this case, that the disorder is not a congenital defect but an acquired one subject to relapses. Although the service treatment records indicate that he first contracted the virus prior to active service, a medical opinion has yet to be obtained which addresses whether the in-service manifestation of varicella zoster was evidence that his preexisting infection was permanently worsened or aggravated by his active service. As such, an examination should be conducted. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims. Include in the record any outstanding VA treatment records. 2. Invite the Veteran to submit additional evidence in support of his claims. 3. Obtain an addendum opinion addressing whether the Veteran’s cervical strain and lumbar strain are at least as likely as not (i.e., probability of 50 percent or greater) related to active service, to include his reported pain in service and his documented basketball injury during active service. The examiner should discuss the Veteran’s reported history of pain since that time, as well as the lay statements submitted by his former commanding officer and fellow service member. 4. Schedule an examination to determine the nature and etiology of the Veteran’s varicella zoster. After reviewing the claims file, the examiner should answer the following questions: (a). Has the Veteran had, since March 2014, any manifestations of varicella zoster? (b). If so, did varicella zoster clearly and unmistakably (undebatable) preexist the Veteran’s service? (c). If so, was the disorder clearly and unmistakably not aggravated (non-temporary increase in severity) during service? In other words, was any increase in severity clearly and unmistakably (undebatable) due to its natural progress? (d). If you find under (a) that the Veteran has had manifestations of the disorder since March 2014, but find under (b) that the disorder did not clearly and unmistakably preexist service – is it at least as likely as not (i.e., probability of 50 percent or greater) that the in-service varicella zoster relates to the varicella zoster since March 2014? CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel