Citation Nr: 18160244 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 17-07 426 DATE: December 26, 2018 ORDER Entitlement to service connection for cervical spine degenerative disc disease (cervical spine disability) is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for hypertension (claimed as high blood pressure) is granted. FINDINGS OF FACT 1. The competent evidence of record is at least in equipoise as to whether the Veteran’s cervical spine degenerative disc disease (cervical spine disability) had its onset during active duty service. 2. The competent evidence of record is at least in equipoise as to whether the Veteran’s sleep apnea had its onset during active duty service. 3. The competent evidence of record is at least in equipoise as to whether the Veteran’s hypertension (claimed as high blood pressure) had its onset during active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for cervical spine degenerative disc disease (cervical spine disability) have been met. 38 U.S.C. §§ 1101, 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1101, 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection for hypertension (claimed as high blood pressure) have been met. 38 U.S.C. §§ 1101, 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on the United States Army on Active Duty For Training (ACDUTRA) from September 2000 to January 2001, and on active duty from November 2005 to August 2007, to include service in Iraq. The Veteran had additional Guard service. The Veteran submitted a VA Form 9 Substantive Appeal in connection with his claim in January 2017, at which time he requested a videoconference hearing. A subsequent VA Form 9 Substantive Appeal received in February 2017 indicated that the Veteran did not want a hearing in connection with his appeal. As the Veteran and his representative have not indicated a further desire for a videoconference hearing in additional correspondence, the Board will proceed to adjudication of the appeal on the merits. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. A veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C. § 1111, 1137. In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VA’s General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. With respect to first prong required to rebut the presumption of soundness, the disease or injury must be clearly specified or diagnosed on the induction examination; vague symptoms are not enough to rebut the presumption. The veteran is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b); Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for cervical spine degenerative disc disease (cervical spine disability) The Veteran and his representative have asserted that the Veteran is entitled to service connection for a cervical spine disability due to neck pain that the Veteran alleges he has experienced since active duty as a result of wearing heavy equipment for an extended period. A condition precedent for establishing service connection is the presence of a current disability. As an initial matter, the Board notes that the Veteran has been diagnosed with degenerative disc disease of the cervical spine. See, August 2014 VA examination. Accordingly, the Board finds that the first element necessary for establishing service connection has been met. With respect to the second element, which requires an in-service occurrence, the Board notes that the Veteran’s service treatment records are largely incomplete. However, the Veteran’s post-deployment health assessment is positive for back pain. See, June 2007 post-deployment health assessment. Additionally, the Board notes that the Veteran has been consistent in his statements that his cervical spine pain began while he was on serving on active duty and has continued since. A veteran or other lay person is competent to report that which he perceives through his symptoms, which in this case, would be neck pain. Layno v. Brown, 6 Vet. App. 465 (1994). Accordingly, the Board finds that the second element to establish service connection has been met. The record also contains competent medical evidence corroborating the Veteran’s assertion that his cervical spine disability was incurred in-service and has continued since. In this regard, the Board notes that the Veteran indicated that he was suffering from neck pain in September 2007, shortly after being discharged from active duty service. The Veteran was then seen again in October 2011 by his private physician for neck pain, at which time it was noted that the Veteran was suffering from “chronic neck and back pain.” See, private treatment records dated October 2011. Additionally, the Veteran’s private treating physician provided an opinion in July 2015 in which she opined that the Veteran’s current cervical spine disability was the result of his active duty service. With regards to the gap between September 2007 and October 2011 in which the Veteran did not receive treatment for any cervical spine disability, the Veteran’s private physician noted that the Veteran did not wish to pay for medical treatment that he felt was combat related. See, private medical opinion dated July 2015. This is consistent with the Veteran’s and his spouse’s submitted statements in regards to why he did not seek out treatment for his cervical spine disability until October 2011. As the July 2015 medical opinion was rendered following a review of the Veteran’s medical treatments, is supported by a rationale, and is by a physician who had been treating the Veteran for several years, the Board has afforded this opinion significant probative value. In coming to this conclusion, the Board has not overlooked the VA medical opinions which concluded that the Veteran’s cervical spine disability is not related to his active duty service. However, the Board has afforded the August 2014 VA medical examination with low probative value as it relies on an absence of documented in-service complaints of neck pain when the Veteran’s service-treatment records are considerably incomplete. Further, the examiner disregarded the Veteran’s complaint of neck pain in September 2007 and did not address the Veteran’s explanation for not seeking further treatment until October 2011. A December 2015 VA addendum medical opinion was obtained to address the July 2015 positive nexus opinion from the Veteran’s private physician, however, the addendum opinion continued to rely on the lack of documented in-service treatment for neck pain. Therefore, the Board has afforded the December 2015 VA addendum with low probative value. Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for a cervical spine disability is warranted. 38 U.S.C.§§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Entitlement to service connection for sleep apnea The Veteran and his representative have asserted that the Veteran is entitled to service connection for sleep apnea because he began suffering from symptoms of sleep apnea, such as daytime tiredness and snoring, while service on active duty. A condition precedent for establishing service connection is the presence of a current disability. As an initial matter, the Board notes that the Veteran has a current diagnosis of sleep apnea, as confirmed by a February 2014 sleep study. Accordingly, the Board finds that the first element required to establish service connection has been met. With respect to the second element, which requires an in-service occurrence, the Board notes that the Veteran’s service treatment records are largely incomplete. However, the Veteran’s post-deployment health assessment is positive for still feeling tired after sleeping. See, June 2007 post-deployment health assessment. Additionally, the Board notes that the Veteran has been consistent in his statements that his sleep related difficulties, such as daytime tiredness and snoring, began while he was on serving on active duty and has continued since. A veteran or other lay person is competent to report that which he perceives through his symptoms, which in this case, would be tiredness, waking up during the night, and snoring. Layno v. Brown, 6 Vet. App. 465 (1994). Accordingly, the Board finds that the second element to establish service connection has been met. The record also contains competent medical evidence corroborating the Veteran’s assertion that his current sleep apnea had its onset during his active duty service. Specifically, the Board notes that in addition to the Veteran’s consistent statements regarding the onset of his sleep apnea symptoms, he first complained of difficulty sleeping in September 2007, less than a month following his discharge from active duty. The Veteran subsequently sought treatment from his private physician in November 2012 and was later given a sleep study by VA in February 2014, at which time his sleep apnea was confirmed. Additionally, the Veteran’s private treating physician provided an opinion in July 2015 in which she opined that the Veteran’s current sleep apnea was the result of his active duty service, or alternatively, was the result of his service-connected lumbar spine disability and anxiety. See, July 2015 private medical opinion. As the July 2015 medical opinion was rendered following a review of the Veteran’s medical treatments, is supported by a rationale, and is by a physician who had been treating the Veteran for several years, the Board has afforded this opinion significant probative value. In coming to this conclusion, the Board has not overlooked the VA medical opinions which concluded that the Veteran’s cervical spine disability is not related to his active duty service. However, the Board has afforded the August 2014 VA medical examination with low probative value as it relies on an absence of documented in-service complaints of problems sleeping other than his post-deployment health assessment when the Veteran’s service-treatment records are considerably incomplete. Further, the examiner disregarded the Veteran’s complaint of trouble sleeping in September 2007 and did not address the Veteran’s explanation for not seeking further treatment until November 2012, which is that the Veteran did not know what sleep apnea was or that it could be treated. A December 2015 VA addendum medical opinion was obtained to address the July 2015 positive nexus opinion from the Veteran’s private physician, however, the addendum opinion continued to rely on the lack of documented in-service treatment for sleep apnea and stated that his post-deployment health assessment indicating fatigue could have been from other causes besides sleep apnea. Further, the examiner dismissed the lay statements of the Veteran and his spouse by saying that they are unable to diagnosis something such as sleep apnea without conceding that lay statements are appropriate to determine the onset of symptoms. Therefore, the Board has afforded the December 2015 VA addendum with low probative value. Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for a sleep apnea is also warranted. 38 U.S.C.§§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. Entitlement to service connection for hypertension (claimed as high blood pressure) The Veteran and his representative assert that the Veteran is entitled to service connection for hypertension because the Veteran’s hypertension manifested shortly after the Veteran was discharged from active duty service. A condition precedent for establishing service connection is the presence of a current disability. As an initial matter, the Board notes that the Veteran has a current diagnosis of hypertension. See, August 2014 VA examination. Accordingly, the Board finds that the first element required to establish service connection has been met. With respect to the second element, which requires an in-service occurrence, the Board notes that the Veteran’s service treatment records are largely incomplete. However, certain chronic diseases such as hypertension, are subject to presumptive service connection if manifest to compensable degree within one year from separation from active duty service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third 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). In this regard, the Board notes that the Veteran was formally diagnosed with hypertension in September 2007, approximately one month following his discharge from active duty service, and was put on medication at that time to control his high blood pressure and therefore, the Veteran is entitled to presumptive service connection for his hypertension. In coming to this conclusion, the Board has not overlooked a January 2005 Guard examination which stated that the Veteran had three blood pressure readings which were elevated and that the Veteran needed to follow-up with his primary care physician to begin medication for hypertension. However, as outlined above, unless there is clear and unmistakable evidence to the contrary, VA must presume that the veteran was in sound condition except as to those defects, infirmities, or disorders noted at the time of entrance into service. As stated above, where an examination that occurs before the Veteran’s entrance to active duty lists only symptoms or suggests a follow-up with a primary physician for medication that the Veteran was never put on and does not provide a clear diagnosis of a defect, infirmity, or disorder, the Board must accord the veteran the presumption of soundness at service entry, absent clear and unmistakable evidence to the contrary. In this case, as stated previously, the Veteran’s service-treatment records are largely incomplete and therefore, his induction examination is not of record. However, the Veteran’s June 2007 pre-deployment health assessment does not indicate that the Veteran had high blood pressure or a diagnosis of hypertension at that time and as the Veteran was cleared for deployment, the Board finds that the presumption of soundness applies. Further, while the Veteran’s private physician that the Veteran had an elevated blood pressure reading in 2005, the physician determined that the Veteran was not formally diagnosed and not put on any medication. See, July 2015 private medical opinion. There is no clear and unmistakable evidence that the Veteran was diagnosed with or treated hypertension prior to any period of active duty and accordingly, the Board finds that the Veteran’s hypertension is not clearly a pre-existing condition and that he is entitled to the presumption of soundness. In coming to this opinion, the Board has not overlooked the Veteran’s August 2014 VA examination in which the VA examiner concluded that the Veteran’s hypertension pre-existed service and was not aggravated by his active duty. However, the Board has afforded this opinion with low probative value as the August 2014 VA examiner relied on one January 2005 examination in the Veteran’s record to assume that the Veteran had a diagnosis of hypertension. The December 2015 addendum VA medical opinion is also assigned low probative value for the same reason. Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for hypertension is warranted on a presumptive basis. 38 U.S.C.§§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel