Citation Nr: 19175348 Decision Date: 09/27/19 Archive Date: 09/27/19 DOCKET NO. 16-30 758 DATE: September 27, 2019 ORDER New or material evidence has been received to reopen a previously denied claim of entitlement to service connection for a cervical spine disability, to include as secondary to left retinal detachment residual of car accident, and to that extent only, the claim is granted. Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for a cervical spine disability, to include as secondary to left retinal detachment residual of car accident is denied. FINDINGS OF FACT 1. In an unappealed decision issued in April 1998, the RO denied the Veteran’s claim of entitlement to service connection for a cervical spine disability, to include as due to a left retinal detachment due to a motor vehicle accident. 2. Evidence added to the record since the final April 1998 decision is not cumulative or redundant of the evidence already of record, and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for a cervical spine disability, to include as due to a left retinal detachment due to a motor vehicle accident. 3. The Veteran’s current obstructive sleep apnea was not manifest in service and is unrelated to service. 4. The Veteran’s cervical spine disability is not causally or etiologically related to his active military service. 5. The Veteran’s cervical spine disability is not proximately due to left retinal detachment residual of car accident. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for a cervical spine disability, to include as secondary to left retinal detachment residual of car accident, have not been established. 38 U.S.C. §§ 1110, 1131, 1154; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from June 1965 to January 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2104 and September 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared during a Travel Board hearing before the undersigned Veterans’ Law Judge in July 2019. New and Material Regardless of the AOJ’s actions, given the previous unappealed denial of the claims on appeal, the Board has a legal duty under 38 U.S.C. § 5108 to address the question of whether new and material evidence has been received to reopen the claims for service connection. Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade, 24 Vet. App. at 117. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In an April 1998 rating decision, the RO denied service connection for a cervical spine disability (which was previously claimed as neck pain), to include as due to a left retinal detachment due to a motor vehicle accident because the Veteran’s service treatment records (STRs) were negative for complaints of, diagnosis or treatment of any chronic neck condition. The Veteran did not file a notice of disagreement (NOD), and therefore, the decision became final. 38 C.F.R. §§ 3.156(b), 20.1103. In January 2014, the Veteran submitted a claim of service connection for cervical spine disease as secondary to left retinal detachment/condition (residual of a car accident). A July 2014 rating decision continued the denial because the evidence submitted was not new and material. Specifically, the RO refused to reopen the Veteran’s claim based on new and material evidence because the Veteran’s statement, the letter from Dr. Bash and the treatment records submitted did not relate to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. The Veteran requested to re-open the previously denied claim in December 2016. In a March 2017 rating decision, the RO continued the denial because the evidence submitted was not new and material. The RO specified that the evidence from RISE Wellness Center, Renua-Medical and San Diego VAMC submitted in connection with the current claim did not constitute new and material evidence because it does not relate to an unestablished fact, in the instant case nexus, necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. The Veteran requested to re-open his claim a final time in July 2017. In a September 2017 rating decision, the RO reopened the Veteran’s claim of service connection for neck pain also claimed as cervical spine disease secondary to left retinal detachment residual of car accident but continued to deny the claim on substantive grounds. Since the Veteran’s April 1998 final denial, he submitted private treatment records and the results of a September 2017 VA examination which diagnosed the Veteran with degenerative arthritis of the spine. As the Veteran’s initial claim was denied, in part, based on the absence of a diagnosis for the claimed neck condition, the medical evidence provided relates to an unestablished fact necessary to substantiate the Veteran’s claim. Therefore, this evidence constitutes new and material evidence sufficient to reopen the Veteran’s claim of service connection for neck pain (also claimed as cervical spine disease secondary to left retinal detachment residual of car accident). Therefore, the claim for service connection for neck pain (also claimed as cervical spine disease secondary to left retinal detachment residual that caused a car accident) is considered reopened. Service Connection Generally, to establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Organic diseases of the nervous system are presumed to have been incurred in service if they manifested to a degree of 10 percent within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309. If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, when making credibility determinations, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for obstructive sleep apnea. The Veteran was diagnosed with moderate obstructive sleep apnea (OSA) in July 2013, following a sleep study. The Veteran reported during the July 2019 hearing that he felt tired while in service. The Veteran submitted two statements from his shipmates, F.S., E.M., and A.G., which report that while they were in the same barracks with the Veteran, they heard him gasping for air and snoring loudly. The Veteran’s claims file also contains a letter from his mother-in-law, A.C., who lived with the Veteran and his wife starting in 1979 to help them with child care. In the letter, the Veteran’s mother-in-law states that heard the Veteran snoring loudly and gasping for air at night. She also reported seeing the Veteran spray his nostrils with Nasal Spray while in service to get relief from his nasal/sinus congestion. The Veteran also provided a letter from his wife, G.B., who stated that she and the Veteran started living together in February 1978 and that the Veteran had been snoring since that time through the present. She noted that the snoring was loud and disruptive, and that on several occasions, she observed him gasping for air. She also reported that although the Veteran would sleep for 10 hours a day, he would tell her that he felt tired and needed a nap when he came home from work. A review of the Veteran’s STRs shows no documentation of any sleep disordered breathing or symptoms of OSA. The Veteran’s separation examination, dated January 1981, does not report morning headaches, daytime fatigue, enuresis or other common symptoms of sleep apnea. There is also no mention of the Veteran snoring is his STRs. During the July 2019 hearing, the Veteran stated that he did not report the symptoms of morning headaches and daytime fatigue on his separation examination because these symptoms were the result of his active duty or watch schedules. In other words, the Veteran believed that these symptoms were the result of his normal duties in service and not something that he should complain about. The Veteran provided two private medical opinions – one from Dr. N.B. and another from Dr. C.L.S. In his September 2013 letter, Dr. N.B. opined that the Veteran’s sinus disease in service caused his OSA. He noted that chronic sinus disease is a known cause of OSA. He also indicated that the Veteran’s “sinus and sleep apnea problems are due to his experience/trauma that the patient had during military service.” Dr. N.B. based his medical opinion the fact that the Veteran entered military service without any diagnosed illnesses, he had a sinus problem in service, his symptoms in 2013 were chronic, it is well known standard medical knowledge that sinusitis and snoring are root causes of sleep apnea, literature supports a link between sinusitis and nasal obstructions and sleep apnea, lay statements in the records show chronicity of sleep symptoms, no other physician has made a controverting opinion, and the Veteran’s records do not support a more plausible etiology. In Dr. C.L.S.’s initial medical opinion, dated August 2014, she stated that the Veteran had undiagnosed and untreated sleep apnea while on active duty. Dr. C.L.S. described herself as an expert in sleep medicine. She indicated that sleep apnea “slowly develops and worsens, usually over many years.” She opined that the Veteran’s sleep apnea had its onset in service based on reported symptoms of sleep apnea while on active duty including disruptive snoring, observed breathing difficulties, poor sleep quality, and daytime sleepiness. Dr. C.L.S. noted that the Veteran had developed other medical conditions that are associated with untreated sleep apnea such as hypertension, GERD, asthma, and elevated cholesterol levels as evidence that his sleep apnea began in service. Dr. C.L.S. also noted that the Veteran’s sleep apnea began 25 years ago. In her updated letter, dated June 2016, Dr. C.L.S. corrected her previous statement to read “It is her expert opinion that this individual’s sleep apnea took 35 years to develop.” The Veteran was afforded a VA examination for sleep apnea in January 2016. The examination noted that the Veteran has had snoring, occasional witnessed apnea, and poor sleep quality for many years. He also noted that the Veteran had been using treated with a CPAP machine since his diagnosis of sleep apnea in July 2013. The examiner provided a medical opinion in January 2016 in relation to the etiology of the Veteran’s sleep apnea. He opined that the Veteran’s sleep apnea was less likely as not incurred in or caused by an in-service injury, event or illness. The examiner’s opinion was based on lack of sleep complaints in the available STRs; his normal BMI at service exit; strong risk factors at time of diagnosis that are unrelated to active service, including older age (60 years) and male gender; and lesser risk factors that developed after leaving active service, including mildly overweight, allergic rhinitis, and mild obstructive pulmonary disease. Also, the examiner considered the Veteran’s buddy statements which note loud snoring in-service but stated that the loud snoring mentioned in the buddy statements can occur with sleep apnea, but is nonspecific and often present in people without sleep apnea. The Veteran was provided a VA medical opinion in December 2016 to reconcile the multiple conflicting medical opinions in the record. The examiner opined that the Veteran’s sleep apnea was less likely than not related to an in-service event, injury, or illness. The examiner based his opinion on the lengthy 35-year gap between discharge and diagnosis, lack of documented OSA symptoms in his STRs, mild weight gain after his discharge and advanced age at the time of diagnosis. The examiner also disagreed with the claims made by the private physicians, Dr. B. and Dr. S. that the Veteran’s sinusitis, hypertension, acid reflux and hyperlipidemia are evidence of his long standing OSA. The examiner indicated that while there are correlations between OSA and these conditions, the current medical evidence does not support a causal relationship and it’s not widely regarded in the medical community that these conditions are caused by or cause sleep apnea. The examiner also indicated that while sleep apnea can take many years to develop, this is not always the case and there is no evidence to support that in this particular case it took over three decades to develop. Although the Veteran’s shipmates and family, namely his wife and mother-in-law, are competent to report about observable symptomatology of an injury or illness, they are not competent, as lay persons, to provide a diagnosis associated with the observable symptoms. Barr v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board finds the statements of the Veteran’s shipmates and family members competent to the extent that they confirm that the Veteran snored and, on occasion, gasped for air while he slept at night. Also, as noted by the January 2016 VA examination, while snoring occurs with sleep apnea, it is nonspecific and often present in people without sleep apnea. The Veteran’s private medical opinions by Dr. N.B. and C.L.S. make several claims that the Veteran’s sinusitis, hypertension, acid reflux and hyperlipidemia are evidence of his long standing OSA in-service. Although there are correlations between OSA, the most recent December 2016 medical opinion confirmed that current medical evidence does not support a causal relationship between OSA and the aforementioned conditions, and it is not widely regarded in the medical community that these conditions are caused by or cause sleep apnea. The Board also notes that the Veteran filed service connection claims for some of these conditions, including hypertension and sinus disease, and has not been service connected for these conditions. Neither Dr. N.B. nor Dr. C.L.S. explained why the Veteran’s OSA was correlated with the other conditions that were reportedly noted in service, other than making general statements like “literature supports a link between sinusitis and nasal obstructions and sleep apnea” and that certain medical conditions, with which the Veteran was diagnosed, are associated with untreated sleep apnea. Also, neither of the private medical opinions addressed the primary risk factors for developing sleep apnea such as age and weight gain, and whether the Veteran was subject to those risk factors. While, Dr. C.L.S. opined that the Veteran’s sleep apnea started in-service, in her initial statement, she indicated that the Veteran’s OSA started 25 years ago, which would have been 7 years after the Veteran was discharged from service. Dr. C.L.S. also did not provide a reasoning for why, in the instant case, it took over three decades for the Veteran’s OSA to develop. Dr. N.B. opined that the Veteran’s OSA was caused by his “experience/trauma” during military service but did not clarify what that experience/trauma was and how it was related to the development of OSA. For the reasons stated above, the Board finds that the two private medical opinions are not probative and therefore, do not carry as much weight as the January and December 2016 VA medical opinions. As such, based on the two VA medical opinions in the record, the Board concludes that the evidence does not establish a nexus between the Veteran’s OSA disability and his military-service. Because a preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. at 49, 53 (1990). 2. Entitlement to service connection for a cervical spine disability, to include as secondary to left retinal detachment residual of car accident. The Veteran was service connected for a left retinal detachment in January 2014. The Veteran was diagnosed with retinal detachment of the left eye in February 1982. He had a retinal detachment operation three days later, along with treatment of peripheral retinal disease in the right eye. The Veteran was service connected for retinal detachment based on a medical opinion, which identified him of being at risk for a detached retina because of his high myopia, which was aggravated by the strenuous physical work he did in the military. He was subsequently involved in a motor vehicle accident in 1983. The Veteran was driving down a one lane road when he encountered a four-way-stop. The car perpendicular to the Veteran had a stop sign and the driver of the car ran the stop sign hitting the Veteran. The Veteran claims that he did not see the oncoming car due to his left eye retina surgery. The Veteran claims that but for his left eye problem, he would have been able to react to the oncoming car and done a defensive maneuver avoiding the collision. The Veteran sustained a neck injury during the motor vehicle accident. In other words, the Veteran has claimed that the 1983 car accident after service was caused by his service connected eye condition, and the car accident caused his current cervical spine condition. In a letter dated May 2016, Dr. B.M.S., who performed the surgery that repaired the Veteran’s retinal detachment, stated that following the surgery, the Veteran had improved to 20/200 vision in the left eye, which he has maintained at the 20/200 to 20/400 level. Dr. B.M.S. noted that the Veteran’s vision in the right eye was 20/20. The physician also reported that the results or the surgery left the with a permanently reduced and distorted vision in his left eye and with double vision due to the overlapping poor vision of his left eye with the better vision right eye. The Veteran was treated post-service for a postural neck condition in 1994. The Veteran was diagnosed with whiplash in 2012. In September 2017, the Veteran was diagnosed with degenerative arthritis of the spine. Because the Veteran is service-connected for retinal detachment of the right eye, and has a current diagnosis degenerative arthritis of the spine, the issue on appeal is whether or not the Veteran’s service-connected left eye disability had in any way contributed to the accident causing his cervical spine injury. During the July 2019 hearing, the Veteran reported that he may have filed a claim with the insurance company for his neck (cervical spine) injury but he could not recall for certain. He did receive a monetary settlement from the driver of the car that hit him. The Veteran also reported, during the Board hearing, that he passed an eye test, following his retinal detachment surgery, in order to obtain his driver’s license. The Veteran’s records show that at the September 1997 VA examination, the Veteran reported that he was involved in a car accident in 1983. He was later seen by a chiropractor. An x-ray showed straightening of the cervical spine with loss of the normal cervical curvature. Muscle spasms were in question. Physical examination showed essentially a full normal painless range of motion of the neck. There was no functional impairment of the neck. The diagnosis was normal cervical spine, no disease identified. In a September 2013 statement, Dr. C.N.B., a private physician, opined that “it is possible that the [Veteran’s] decreased vision in his left eye contributed to his post service auto-accident and resulting in neck injury.” Dr. C.N.B. also opined that a May 1992 clinical note shows “c-spine post trauma arthritis, all of which is likely secondary to his auto accident.” He also indicated that the May 1992 examination of the cervical spine showed advanced for age degenerative changes.” A September 2017 VA examination diagnosed the Veteran with degenerative arthritis of the spine. During the examination, the Veteran reported that he had chiropractic treatment several times from 1983 to 1984 for whiplash neck injury. He felt that this type of treatment helped. The Veteran denied any significant interval neck injury. He reported sometimes waking up with stiff neck. At the time of the examination, he reported sleeping on a unique pillow provided by the chiropractor. The Veteran’s symptoms included: constant posterior neck pain3/10­8/10 that was worse with repetitive movement or turning of head/neck, heavy lifting that is better with stretching. The Veteran stated that the pain can radiate to the shoulders or back of the head. The Veteran was being treated with shiatsu massager, TENS unit, hot and cold compresses, thera cane, naproxen, ibuprofen, cyclobenzaprine. The Veteran also reported having physical therapy and massage therapy. The examiner opined that the Veteran’s degenerative arthritis of the spine was less likely than not (less than 50% probability) incurred in or caused by the claimed event with the rationale that there is no documentation available to support a diagnosis or treatment of a neck condition shortly after the car accident in 1983. X-rays done in 1992 showed mild arthritis and the Veteran has been treated for neck strain since 2013. The examiner opined that it was likely that the Veteran’s mild cervical spine arthritis and spondylosis (noted in 2017) are due to the normal aging process. The Board does not give the private medical statement from Dr. C.N.B. much probative value because it is not definitive in conclusion; he notes it is possible that the Veteran’s decreased vision in his left eye contributed to his post service auto accident, but there is no indication how he came to this conclusion. Dr. C.N.B. also indicated in his statement that he would need to review the complete auto accident records, “I would be willing to provide a nexus opinion, if appropriate.” Although private treatment records and the Veteran’s recent VA examination show a diagnosis of degenerative arthritis of the cervical spine, the evidence still does not show this condition is related to a service connected condition, specifically the residuals of the Veteran’s service connected left retinal detachment. In fact, there is no evidence from the time of the accident to show that he suffered a cervical injury or what caused the accident. Although the Veteran reports having received chiropractic treatment from 1983 to 1984 for whiplash neck injury, the medical evidence shows that the Veteran’s cervical spine was normal following the 1983 car accident, and he was only diagnosed with whiplash in 2012, followed by degenerative arthritis of the spine and spondylosis in 2017. Also, the Veteran indicated during the July 2019 hearing that he was able to renew his driver’s license and was permitted to drive following the surgery to repair his retinal detachment, which presupposes that his eyesight was deemed sufficient for driving. Therefore, service connection on a secondary basis is not established because there is no evidence of a disability that is proximately due to, or aggravated by, a service-connected disease or injury. Service connection for this condition is also denied on a direct basis because there is no evidence of an in-service condition that has continued since service to the present time, nor an opinion linking the current condition to the Veteran’s military service. Specifically, the Veteran’s STRs do not report complains of or treatment for a neck injury. In addition, service connection on a presumptive basis is also denied as there is no evidence showing that this condition existed to a compensable degree within the specified timeframe. In fact, the Veteran was only diagnosed with degenerative arthritis of the spine and spondylosis in September 2017. Because a preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. at 49, 53 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. White, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.