Citation Nr: 18154489 Decision Date: 11/30/18 Archive Date: 11/29/18 DOCKET NO. 16-51 079 DATE: November 30, 2018 ORDER Service connection for an upper back disorder is granted. Service connection for rhinitis is granted. Service connection for sleep apnea is granted. FINDINGS OF FACT 1. The Veteran’s thoracic spine spondylosis, a form of arthritis, was diagnosed in service and is not attributable to intercurrent causes. 2. Rhinitis clearly and unmistakably existed prior to service entrance. Clear and unmistakable evidence that it was not aggravated by service is not present. 3. Sleep apnea is shown by the competent evidence of record to be related to the Veteran’s active military service. CONCLUSIONS OF LAW 1. Thoracic spine spondylosis was incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. Rhinitis was aggravated during service. 38 U.S.C. §§ 1101, 1111, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. § 3.303 (2017). 3. Sleep apnea was incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1986 to June 1995, from October 2001 to July 2002, and from April 2003 to October 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Additional evidence has been associated with the claims file since the last RO adjudication in April 2017. This evidence is either duplicative of the evidence already of record, or it is not pertinent to the issues on appeal. Therefore, RO consideration of the evidence in the first instance is not necessary and the Board can proceed with adjudication of the case on the merits. In his February 2015 notice of disagreement, the Veteran disagreed with the ratings assigned for disabilities in the January 2015 rating decision. The issues were addressed in the September 2016 Statement of the Case. In his October 2016 substantive appeal, he specifically stated that he only wished to appeal his claims for his upper spine disability, rhinitis, and sleep apnea. Therefore, the other issues are no longer on appeal. Service Connection 1. Service connection for an upper back disorder. The Veteran contends that he has an upper back disorder that manifest in service. The Veteran clarified in the Decision Review Officer hearing in February 2017 that he is referring to the thoracic spine. The Board concludes that the Veteran’s spondylotic changes of the lower thoracic spine were diagnosed via an MRI in September 2003. The December 2014 medical opinion against the claim did not consider this evidence. Spondylosis is a form of arthritis. See December 2014 VA thoracolumbar spine opinion (“Aging is the predominant cause of spondylosis, also known as spinal arthritis.”). Therefore, the chronic disease presumption applies and service connection is warranted. 2. Service connection for rhinitis. The Veteran seeks service connection for allergic rhinitis. The Veteran acknowledges that he entered service with hay fever, but contends that service aggravated the disorder beyond its normal progression. In general, every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012). To be “noted” within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304 (b); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C. § 1111. In this case, the November 1985 entrance examination did not note allergies or hay fever. It was only noted by the Veteran on his Report of Medical History at that time. Therefore, the Veteran is presumed to have been in sound condition at entrance. Nonetheless, the Veteran’s consistent acknowledgement that he had allergies all his life constitutes clear and unmistakable error that the Veteran’s allergic rhinitis pre-existed service. See e.g. December 2014 VA examination report; February 2017 Decision Review Officer hearing. Next, the Board evaluates whether clear and unmistakable evidence is present to show that the allergic rhinitis was not aggravated by service. The Board finds that clear and unmistakable evidence is not present. Although the December 2014 VA examiner opined that the Veteran’s allergies were not aggravated by service, the rationale for this opinion was weak, relying in part upon a lack of causation by exposures in Southwest Asia. When looking at the service treatment records for the Veteran’s first period of active service, there are numerous reports of sinusitis and treatment for allergic rhinitis. This calls into question the VA examiner’s opinion. Given there is a question, it cannot be unmistakable that aggravation did not occur. Accordingly, service connection for allergic rhinitis is warranted. 3. Service connection for sleep apnea. The Veteran was diagnosed with obstructive sleep apnea in December 2013, just two months after separation from service. The VA opinion rendered in December 2014 only addressed whether the disorder was due to exposures while serving in Southwest Asia and that it is not an undiagnosed illness. The opinion does not address whether sleep apnea manifested in service. Therefore, it is not afforded much probative weight. At his DRO hearing, the Veteran asserted that he requested sleep studies in service, and that he had problems sleeping while on active duty. The December 2014 VA examiner noted that prior to his sleep study, “he was tired all the time.” The Veteran’s credible lay statement and the examiner’s finding that symptoms of sleep apnea were present prior to the sleep study support a finding that sleep apnea was present during service. It is especially significant that the diagnosis was made only two months after separation. It is reasonable to conclude that the condition existed prior to the date of the sleep study. Service connection for sleep apnea is granted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Rocktashel, Counsel