Citation Nr: 1817063 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 10-26 025 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for low back disability. 2. Entitlement to service connection for obstructive sleep apnea, including as secondary to the Veteran's service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from April 1972 to October 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in October 2016, and a transcript of the hearing is associated with his claims folder. This matter was then remanded in May 2017 for further development. FINDINGS OF FACT 1. The Veteran's current low back disability was not manifest in service or, for arthritis, to a degree of 10 percent within 1 year of separation; and is unrelated to service. 2. The Veteran's obstructive sleep apnea was not manifest in service, is unrelated to service, and was not caused or aggravated by his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for low back disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 2. The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an 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 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Arthritis is listed as a chronic disease. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496-97(1997)); see 38 C.F.R. § 3.303(b). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. Service treatment records are silent for reference to sleep apnea. Service treatment records show that in August 1973, the Veteran reported a lower back problem with pain starting 3 months prior. There was no history of trauma, and the assessment was strained muscle. In a May 1974 report of medical history, the Veteran reported feeling fine and denied having or having had symptomatology then and in April 1976, when his spine, mouth, and throat were normal. On service discharge examination in June 1976, his low back, mouth and throat were normal. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current low back disability, degenerative disc disease with facet arthritis of his lumbar spine, as the preponderance of the evidence indicates that it was not manifest in service or, for arthritis, to a degree of 10 percent within 1 year of separation and that it is unrelated to any incident of service. There is one documented episode of lower back pain in service, in August 1973, without neurological involvement, and it was reported that there had not been an antecedent injury. It was assessed as muscle strain, whereas the Veteran now has degenerative disc disease and arthritis. The first indication of the Veteran's current low back disability was in or after about 2001, when, as reported in the May 2014 VA examination report, the Veteran was diagnosed with a disc problem, with a subsequent evaluation showing progressive deterioration with the onset of spinal stenosis and radiculopathy, as well as facet arthrosis. The examiner at that time indicated that the X-ray changes were compatible with the Veteran's age and senescence. The examiner indicated that degeneration of the Veteran's spine began with degeneration of the intervertebral discs. As this progresses, facet joints are malaligned and arthritis can develop in them. This is a normal age-related progression, and not the result of an injury in the majority of patients. However, the Board remanded the claim in May 2017, as the examiner in May 2014 did not specifically address whether the Veteran's current back complaints are a result of hard autorotation helicopter landing drills in service. The VA opinion provider in July 2017 opined in the negative, after reviewing facts about autorotation landings, noting that the Veteran's service discharge examination in June 1976 showed no back complaints, and noting that degenerative changes of the thoracolumbar spine occur as a chronic process from wear and tear are also part of the normal aging process of the spine. The main cause is aging, and degenerative changes of the spine are seen in up to 95 percent of people by age 50. For these reasons, the examiner opined, the Veteran's current low back disability is less likely than not related to hard landings in service. The Board notes that in June 2010, the Veteran reported that there were times in service when he could hardly stand up because his lower back and spine hurt from the impact/trauma of hard helicopter landings. However, the only problem shown in service was a muscle strain and the Veteran's denial of back trouble and the normal service discharge examination is probative evidence showing that he did not have his current low back disability in service. Also, when he was seen post-service in October 2004, he reported only a 2-year history of low back pain with paresthesias. This undercuts any argument that he had his current low back disability earlier. Next, based on the evidence, the Board finds that service connection is not warranted for the Veteran's current obstructive sleep apnea, as the preponderance of the evidence indicates that it was not manifest in service, is unrelated to any incident of service, and was not caused or aggravated by a service-connected disability. Sleep apnea is not shown in service and no evidence relates it to service. As reported by the VA examiner in August 2008, it had been recently diagnosed. On the question of causation or aggravation by the Veteran's service-connected PTSD, the preponderance of the evidence is against the claim. The VA examiner in August 2008 indicated that the psychological effects of PTSD would not impact mechanically on the muscles in the airway. The Board remanded the matter in May 2017, finding that this VA examination was inadequate as the examiner did not fully consider the Veteran's lay statements and medical record. The VA opinion provider in July 2017 noted that the service treatment records were silent for evidence of sleep apnea, that the Veteran was service-connected for PTSD, and that he was contending that due to it, he developed sleep apnea. The opinion provider indicated that there had been a study published in May 2015 on the relationship between PTSD and sleep apnea. The paper came to no conclusions regarding the relationship between sleep apnea and PTSD, indicating that longitudinal studies are needed for further conclusions to be drawn on whether there was a relationship between the 2 entities. Another article suggested a protective effect against the development of obstructive sleep apnea in Veterans with comorbid psychiatric disorders. A third article reported what appeared to be an association between PTSD and pain syndromes and insomnia, but did not conclude that a relationship exists between PTSD and sleep apnea. The 2017 opinion provider noted that an UpToDate review in June 2016 showed 6 main risk factors for the development of sleep apnea: age, gender, obesity, craniofacial and upper airway abnormalities, and other risk factors and medical conditions (not including PTSD). The review notes that the prevalence of obstructive sleep apnea increases with age. Obesity is the strongest risk factor for it (and the Veteran is morbidly obese according to an August 2009 VA medical record). Since the opinion provider was unable to find a peer-reviewed study or reference even suggesting a cause and effect relationship between PTSD, since the opinion provider noted the Veteran has risk factors for the development of sleep apnea that are clearly unrelated to service, since the examiner noted that PTSD, by causing a sleep disturbance (and awakening the individual), would actually tend to make sleep apnea better on a physiologic basis, and since the opinion provider found that the second reference above indicated a lower incidence of sleep apnea in Veterans Benefit Administration beneficiaries with mental disorders than in the general population, the clinician concluded that the Veteran's obstructive sleep apnea is less likely than not proximately due to or the result of PTSD, and less likely than not aggravated by it also. This evidence persuasively shows that the Veteran's sleep apnea was less likely than not caused or aggravated by the Veteran's service-connected PTSD. Additionally, the information mentioned in the Board's May 2017 remand, that the Veteran hit and kicked his wife during her sleep, that he sometimes found his CPAP mask not in place in the morning, etc., does not show an increase in the severity of the Veteran's sleep apnea due to PTSD or that his PTSD was causing it. The VA opinion provider in July 2017 noted that sleep disturbances caused by PTSD would actually tend to make the Veteran's sleep apnea better. The Veteran's representative cited to a 2001 Board decision in June 2014, finding that the Veteran's sleep apnea was linked to his PTSD. However, Board decisions are not precedential and each decision is made based on the evidence in the Veteran's record. While the Veteran argued in June 2010 that PTSD and sleep apnea can go hand in hand, this does not show a causal relationship. The Veteran asserted in April 2008 that his sleep apnea is secondary to his service-connected PTSD, but he is not competent, as a layperson, to indicate the cause of his sleep apnea. Medical expertise is required. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). The Board regrets that its decision must be unfavorable to the Veteran, and would like to thank him for his 4 1/2 years of honorable service starting in the Vietnam Era. ORDER Service connection for low back disability is denied. Service connection for obstructive sleep apnea is denied. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs