Citation Nr: 18155648 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-40 101 DATE: December 4, 2018 ORDER Service connection for a lumbar spine disorder is denied. Service connection for a cervical spine disorder is denied. Service connection for a right hip disorder is denied. Service connection for a left knee disorder is denied. Service connection for a right knee disorder is denied. Service connection for obstructive sleep apnea is denied. Service connection for acid reflux with heartburn is denied. Service connection for headaches is denied. FINDINGS OF FACT 1. The Veteran does not have a current lumbar spine disability. 2. The Veteran has a cervical spine status post decompression, diskectomy, and fusion. 3. The current cervical spine status post decompression, diskectomy, and fusion did not have its onset during service and is not otherwise related to active duty service. 4. The Veteran has a right hip status post core decompression. 5. The current right hip status post core decompression did not have its onset during service and is not otherwise related to active duty service. 6. The Veteran does not have a current left knee disability and symptoms of a left knee disorder did not exist in service. 7. The Veteran does not have a current right knee disability and symptoms of a right knee disorder did not exist in service. 8. The Veteran has obstructive sleep apnea. 9. The current obstructive sleep apnea did not have its onset during service and is not otherwise related to active duty service. 10. The Veteran does not have a current disability of acid reflux with heartburn. 11. The Veteran does not have a current disability of headaches. 12. Symptoms of headaches were not chronic in service, were not continuous after service separation, and did not manifest to a compensable degree within one year of separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.326. 2. The criteria for service connection for the cervical spine status post decompression, diskectomy, and fusion have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.326. 3. The criteria for service connection for the right hip status post core decompression have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.326. 4. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.326. 5. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.326. 6. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.326. 7. The criteria for service connection for acid reflux with heartburn have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.326. 8. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1983 to October 1994. This matter is on appeal from a March 2012 rating decision issued by the Regional Office (RO) in Decatur, Georgia. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326. Neither the Veteran nor the representative has raised any issues regarding the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when a veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Based on the foregoing, the Board finds that all relevant documentation, including VA treatment records, VA examinations, and private treatment records, has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the issues on appeal. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.159, 3.326. The duties to notify and assist have been met. Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 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. See 38 C.F.R. § 3.303(d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). The claimed chronic pain in both knees is not a chronic disease under 38 C.F.R. § 3.303(b), and the presumptive service connection provisions are not applicable to those claims. However, the Veteran claims that he has headaches. Certain types of headaches, if caused by organic disease of the nervous system, may be considered a chronic disease under 38 C.F.R. § 3.309 as an organic disease of the nervous system, and the presumptive service connection provisions are applicable to this claim. 1. Service Connection for a Lumbar Spine Disorder The Veteran generally contends that the current lower back symptoms are related to the in-service treatment he received for the lower back. See April 2012 Statement in Support of Claim, June 2012 Notice of Disagreement. The Veteran further explains that he required post-service treatment to alleviate the lower back symptoms. Id. The Board finds that the weight of the evidence demonstrates that the Veteran does not have a current disability of the lumbar spine, and that symptoms of a lumbar spine disability did not begin in service and the claimed lumbar spine disability is not otherwise related to service. According to service treatment records, the Veteran reported back pain in July 1986. The service examiner recommended that the Veteran avoid physical activity and take over-the-counter medication for the pain. This is an isolated report. No additional complaints were made in service. Furthermore, the spine was noted to be in normal condition in the November 1987 and October 1992 annual service exams. Additionally, there is no post-service medical evidence of record showing a lumbar spine disability. While the Veteran claims that he has a current lumbar spine disability, under the specific facts of this case that include no in-service injury and no low back symptoms until years after service, the Veteran is not competent to diagnosis himself with a lumbar spine disability. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that a lay person does not have special training or any medical expertise in evaluating and determining causal connections for conditions related to the back). Diagnosis of a back disability requires medical expertise and knowledge of the musculoskeletal system and spine, including the ability to interpret complicated diagnostic medical testing such as x-ray and clinical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on the foregoing, the Veteran’s claim for service connection for the lumbar spine disorder must be denied. 2. Service Connection for a Cervical Spine Disorder The Veteran generally contends that the current neck and cervical spine symptoms are related to in-service treatment he received. See April 2012 Statement in Support of Claim, June 2012 Notice of Disagreement. The Veteran further explains that he required post-service treatment to alleviate these symptoms. Id. The Board finds that the Veteran has cervical spine status post decompression, diskectomy, and fusion. See July 2009 Private Treatment Records. The Board also finds that the preponderance of the evidence is against finding an in-service event and establishing a nexus between the cervical spine disorder and service. Service treatment records do not indicate any injury, disease, or complaint of or treatment for symptoms related to the cervical spine. The first report of cervical spine symptoms on the record is in January 2009 private treatment records, approximately 15 years after separation from service. In January 2009, the Veteran sought private medical treatment for neck pain. At that time, the Veteran denied a previous neck injury. The private examiner observed that the Veteran experienced tenderness of the mid-cervical spine and diagnosed the Veteran with cervical radiculopathy at C-5, C-6, and C-7, cervical spondylosis, and herniation. The private examiner did not offer an opinion as to the cause of this diagnosis. The Veteran received surgery from a private treatment facility in February 2009. After surgery, a private examiner gave the Veteran a post-operative diagnosis of cervical spondylosis, cervical spinal stenosis, and cervical radiculopathy at C-5 – C-6 and C-6 – C-7. See February 2009 Private Treatment Records. While the Veteran is competent to provide lay evidence about his symptoms, under the facts of this case that include no in-service cervical spine injury and post-service onset of cervical spine disorder 15 years after service, he is not competent to establish a nexus between the cervical spine disorder and service. The etiology and risk factors associated with the cervical spine disorder are too medically complex for a layperson to render a nexus opinion and requires medical expertise and knowledge of the spine. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (holding that ACL injury is too “medically complex” for lay diagnosis); King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the “requisite medical training, expertise, or credentials needed to render a diagnosis” and that their testimony “could not establish medical causation nor was it a competent opinion as to medical causation”); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or degenerative joint disease to the continuous post-service knee symptoms); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury). For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for the cervical spine disorder, and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Service Connection for a Right Hip Disorder The Veteran generally contends that the right hip disorder is related to in-service treatment he received. See April 2012 Statement in Support of Claim, June 2012 Notice of Disagreement. The Veteran contends that during service he was exempt from physical training, training deployments, and exercise because of pain in the right hip. See June 2012 Notice of Disagreement. The evidence shows a current disability of right hip status post core decompression. See April 2007 Private Treatment Records. While service treatment records contain one report of right leg discomfort, the Board concludes that the preponderance of the evidence is against establishing a nexus between the right hip disorder and service. Service treatment records indicate that the Veteran complained of right leg discomfort from the right hip to the right foot, brought on by physical activity. The Veteran reported no specific injury. See May 1994 Service Treatment Records. The service examiner opined that the discomfort was incurred by overuse. The service examiner did not attribute the discomfort to a disease. This isolated complaint is the only record associated with the right hip in service. Post-service medical treatment records do not indicate that the right hip disorder is connected to service. In August 2003 VA treatment records, the VA examiner assessed the Veteran’s musculoskeletal system and noted that the Veteran had normal range of motion in all joints and had no effusions. There is no evidence of record to suggest continuous symptoms since service. See Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran). The Veteran sought private medical treatment for the right hip in March 2007, which is the first post-service medical complaint of record associated with the right hip, approximately 13 years after discharge from service. In the March 2007 private treatment record, the Veteran reported hip pain but admitted that he did not know of any trauma to the area. See March 2007 Private Treatment Records. The private examiner diagnosed osteonecrosis in the right hip, which was treated with surgery. See April 2007 Private Treatment Records. None of the Veteran’s private examiners proffered an opinion as to the etiology of the right hip disorder. Osteonecrosis is defined as “the death of bone tissue due to a lack of blood supply,” which is commonly caused by joint or bone trauma, fatty deposits in blood vessels, and certain diseases such as sickle cell anemia. See Mayo Clinic Osteonecrosis (https://www.mayoclinic.org/diseases-conditions/avascular-necrosis/symptoms-causes/syc-20369859). The Veteran has denied trauma to the area, and there is no evidence to suggest an etiology connected to service. The Veteran does not provide any explanation of how the current disability is connected to service. The Veteran claims that the right hip disorder order is connected to service merely because of the existence of right leg pain in service. While the Board finds that the Veteran is competent to proffered lay evidence about symptoms associated with the right hip disorder that he experienced at any time, under the facts of this case that include leg pain into the hip but not pain emanating from the hip, and years after service before onset of current right hip symptoms, he is not competent to establish a nexus between current right hip disorder and service. Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005) (holding that the veteran is competent to report a hip disorder, pain, and treatment in service). The current right hip disorder of necrosis has multiple possible etiologies that are not related to service; thus, the Veteran’s lay statements cannot establish a nexus. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for the right hip disorder and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Service Connection for Left Knee Disorder and Right Knee Disorders The Veteran generally contends that the left knee disorder and right knee disorder are related to in-service treatment he received. See April 2012 Statement in Support of Claim, June 2012 Notice of Disagreement. The Veteran contends that he was exempt from physical training, training deployments, and exercise because of pain in both knees. See June 2012 Notice of Disagreement. Moreover, the Veteran claims that he required post-service treatment to alleviate the symptoms associated with the knee disorders. Id. The Board finds that the Veteran does not have a current disability of either the left knee or right knee. The Board also finds that there is insufficient evidence to establish an in-service event or a nexus. Service treatment records do not indicate an in-service injury, disease, or event for either the left knee or right knee. Service treatment records do not indicate any complaint of or treatment for symptoms associated with either knee. As mentioned above, the Veteran reported right leg pain (see the May 1992 service treatment records), but did not specifically report any trouble with the right knee; thus, there is no contemporaneous evidence documenting in-service treatment for a left knee disorder or right knee disorder. The Veteran submitted to a VA examination in March 1995 to examine the residuals of a broken right foot. In the March 1995 VA examination, the Veteran reported being able to engage in normal activities like jogging and tennis. The VA examiner opined that the Veteran’s extremities were normal except for the right foot. The VA examiner noted that the Veteran had full range of motion in both ankles and feet, and also noted that the Veteran completed several stretches, including deep knee bends, with “grace and ease.” The Veteran did not report any right knee or left knee symptoms. Upon review of VA treatment records, the Veteran reported for a VA annual exam in August 2003. At that time, the Veteran claimed that he received surgery on the left knee ligament in December 2002. See August 2003 VA Treatment Records. Neither a diagnosis nor a reason for the surgery is reported on the record. August 2003 VA treatment records show that the Veteran denied joint pain, denied pain in the left knee, and the VA examiner noted that the Veteran had normal range of motion in all joints and had no effusions. Once again, the Veteran did not report experiencing any symptoms associated with a left knee disorder or right knee disorder. The Veteran submitted to a second VA examination in March 2005 to examine the residuals of a broken right foot. In the March 2005 VA examination, the examiner tested the range of motion in both knees. The VA examiner noted that both knees were not limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The Veteran contends that he has pain in both knees. The Veteran also claims that the knee disorders are related to service, but does not proffer a specific explanation of an in-service event. Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See Allen v. Brown, 7 Vet. App. 439 (1995). The Federal Circuit recently held, however, that the term “disability” as used in 38 U.S.C. §1110 and § 1131 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Saunders v. Wilkie, 886 F.3d, 1356, 1368 (Fed. Cir. 2018). Treatment records relevant to the claim show subjective complaints in lay evidence of chronic pain in both knees. No impairment of normal functioning or reduction in earning capacity due to pain in either knee has been shown at any time. See Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018) (holding that, to establish the presence of a disability, the veteran will need to show that her pain reaches the level of functional impairment of earning capacity). The medical and lay evidence does not show that the pain in either knee amounts to functional impairment. The Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claims for service connection for the left knee disorder and the right knee disorder. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Service Connection for Obstructive Sleep Apnea The Veteran generally contends that he received in-service treatment for sleep apnea, has a current diagnosis of obstructive sleep apnea, and still experiences sleep apnea symptoms for which he should be compensated. See June 2012 Notice of Disagreement. The Veteran has obstructive sleep apnea. March 2015 Private Treatment Records. However, the Board also finds that the weight of the lay and medical evidence shows that the obstructive sleep apnea did not have its onset in service and is not otherwise related to service. Even though the Veteran claims he experienced symptoms of obstructive sleep apnea in service, the Veteran is not competent to provide lay evidence of symptoms that occur while he sleeps because he does not have personal knowledge of those symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (“Personal knowledge is that which comes to the witness through the use of his senses – that which is heard, felt, seen, smelled, or tasted.”). Only a third-party observer can report a veteran’s symptoms of sleep apnea while the veteran sleeps. In this case, the Veteran did not proffer any additional evidence from lay people who are competent to observe the claimed symptoms in service. Moreover, the Veteran provided no specific evidence of an in-service event. The weight of the evidence is against finding that the obstructive sleep apnea is connected to service. According to service treatment records, the Veteran did not report any trouble sleeping during active duty. Further, the Veteran did not report any sleep apnea symptoms during annual service exams. See November 1987 Annual Service Exam, October 1992 Annual Service Exam. There are no contemporaneous medical records that document symptoms in service respiratory injury, disease, or event. Pertinent to this case, the Veteran reported a history of smoking in service. See December 1991 Service Treatment Records, July 1992 Service Treatment Records, August 1992 Service Treatment Records, April 1993 Service Treatment Records, January 1994 Service Treatment Records. Additionally, post-service treatment records indicate that the Veteran continued to smoke cigarettes after service separation. See May 2002 VA Treatment Records, August 2003 VA Treatment Records, January 2004 VA Treatment Records, March 2007 Private Treatment Records (Veteran reported that he smoked 1 pack of cigarettes a day). The Veteran was first diagnosed with obstructive sleep apnea in March 2015, approximately 21 years after discharge from service. See March 2015 Private Treatment Records. The private examiner did not provide an etiology for the sleep apnea, but did provide several treatment recommendations to the Veteran, one of which was to avoid smoking. As the weight of the evidence shows no in-service injury, disease, or event, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the appeal of service connection for obstructive sleep apnea. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 6. Service Connection for Acid Reflux with Heartburn The Veteran generally contends that the current acid reflux symptoms are connected to service because he was treated for this condition during service. See June 2012 Notice of Disagreement. The Board finds that the weight of the evidence shows there is no in-service injury, disease, or event for the claim of acid reflux with heartburn. The Board also finds that the weight of the lay and medical evidence is against the claim for service connection for acid reflux with heartburn. Service treatment records do not indicate any complaint of or treatment for symptoms associated with acid reflux and heartburn. No complaints were made at the November 1987 and October 1992 annual service examinations. In addition, the post-service medical evidence of record does not describe relevant symptoms or establishing a diagnosis. The first complaint of acid reflux of record is in the Veteran’s December 2011 Application for Compensation or Pension, which was filed for the purposes of compensation. While the Veteran is competent to explain the symptoms associated with the acid reflux with heartburn, the Veteran has not provided a specific explanation of an in-service event and is not competent to establish a nexus to service. Based on the foregoing, the Veteran’s claim for service connection for the acid reflux with heartburn must be denied. 7. Service Connection for Headaches The Veteran generally contends that the current headache symptoms are connected to service because he was treated for this condition during service. See June 2012 Notice of Disagreement. The Board finds that the weight of the evidence shows no current diagnosis of headaches or in-service injury, disease, or event associated with the claimed headaches. The Board also finds that the provisions of the chronicity presumptions are inapplicable, namely, that the weight of the evidence shows no chronic symptoms of headache in service, or continuous symptoms of headache following service separation, or headaches manifesting to a degree of 10 percent within one year of service; therefore, the criteria are not met for presumptive service connection for headaches as a “chronic disease.” Upon review of the service treatment records, there is one complaint of headache symptoms in service. In April 1984, the Veteran reported headaches and a fever, among other symptoms, and was treated for viral syndrome. See April 1984 Service Treatment Records. This is an isolated report. The Veteran does not report any additional symptoms associated headaches in service. The Veteran did not report any headache symptoms during the November 1987 and October 1992 annual service examinations. (Continued on the next page)   In consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence of record weighs against the service connection claim for headaches on the basis of direct and presumptive service connection. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Danielle Costantino, Associate Counsel