Citation Nr: 20004167 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 16-48 420 DATE: January 16, 2020 ORDER Entitlement to service connection for degenerative disc disease (DDD), lumbar spine, is denied. Entitlement to service connection for bilateral leg condition is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected gastroesophageal reflux disease and hypertension, is remanded. FINDINGS OF FACT 1. The Veteran’s DJD, lumbar spine disability was not incurred in service and is not related to such service. 2. The Veteran does not have a current disability of either leg. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for DJD, lumbar spine disability have not all been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral leg condition have not all been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1982 to December 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the February 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for DDD, lumbar spine disability, bilateral leg condition, and sleep apnea disability. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, 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” the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis, may also be established based upon a legal “presumption” by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for degenerative disc disease (DDD), lumbar spine, is denied. The Veteran contends that she is entitled to service connection for her DDD of the lumbar spine disability. A review of the Veteran’s service treatment records (STRs) reveals that the Veteran complained of a back strain in August 1996, after moving, lifting, and cleaning. The clinician noted the assessment as back pain and prescribed the Veteran with Robaxin. The STRs also reflect that in July 2000 the Veteran reported bone, joint, back or muscle problem. However other reports, for entry into report of medical histories, show that in 1996 to 2000 the Veteran denied having any chronic back or joint problems. The Veteran underwent x-ray imaging for her spine in June 2002. The report reflects that the lumbar spine bone mineral density measurement was in normal range. The October 2004 VA treatment records reflect that the received treatment for recurrent low back spasm and pain. The examination was notable for pain and spasm in lumbar paraspinous muscles and in cervical paraspinous muscles. The examiner noted that there were no neurologic findings and that range of motion was limited. The December 2011 Back Conditions Disability Benefits Questionnaire (DBQ) reflects that the Veteran has lumbar degenerative joint disease (DJD) and the examiner stated that arthritis is documented. The medical history reflects that the Veteran is unable to pinpoint when the problem of her low back began, but that she was confident that her low back problems began while on active duty. The examiner noted that the problem involved back pain with radiation down both legs and a feeling of weakness in the legs in the morning and had a prescription for Naprosyn or Motrin and does her physical therapy stretches and strengthening. The examiner noted that the problem is episodic, lasting for several weeks at a time and then disappearing for anywhere from one week to a couple of months. VA afforded the Veteran a Compensation and Pension (C&P) examination in July 2016. The examiner noted that the Veteran has degenerative arthritis of the spine. The examiner opined that the Veteran’s back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, explaining that there is no evidence of continuity of treatment for a chronic back condition in the STRs. The examiner stated that “[t]here is a medical clinic note dated April 23, 1983 at which time the chief complaint was frequent urination and dysuria associated with low back pain and the diagnosis was urinary tract infection. A primary back condition was not diagnosed. There is a second brief medical clinic note dated August 22, 1996 at which time the chief complaint was back strain moving lifting and cleaning, an examination was deferred, the assessment was back pain and the [Veteran] was prescribed [R]obaxin 500 mg BID. There is no evidence of follow-up or chronicity of a back condition established in the STRs after this acute back strain (exertional muscle strain).” The examiner also noted that on the September 2002 discharge physical, lower back pain or lower back condition was not indicated. The examiner further noted that two years after the Veteran’s discharge from active duty in December 2004, the Veteran was evaluated for chronic low back pain and left leg paresthesia and that imaging studies showed mild degenerative disc disease of the low back. The examiner concluded that given the fact that a back-condition diagnosis with associated symptoms cannot be established during active duty service or within one year of discharge, the back condition diagnosed in December 2004, two years after discharge from active duty service, was less likely than not incurred in service. The current disability element is met in this case and the Veteran did have back symptoms during service. The nexus element is not met. The most probative evidence as to the nexus element is the July 2016 opinion. Furthermore, as the degenerative arthritis of the spine did not manifest itself to a degree of 10 percent or more within one year from the date of separation from service nor was it noted in service, the chronic disease presumption, to include arthritis is not applicable. In conclusion, the July 2016 VA C&P opinion is found to be the most probative evidence in this case as the VA examiner has reviewed the case file and has provided a thorough rationale as to the lack of in-service incurrence and a nexus. For the foregoing reasons, the Board must find that service connection cannot be awarded on that basis. In summation, the preponderance of evidence is against a finding that the Veteran’s current degenerative arthritis of the spine was incurred in or otherwise the direct result of military service. Service connection for degenerative disc disease, lumbar spine must therefore be denied; there is no reasonable doubt to be resolved in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for bilateral leg condition is denied. The Veteran contends that she is entitled to service connection for bilateral leg disability. The STRs dated June 1984 reflect that the Veteran complained of right knee pain that radiates. The examiner noted that the right knee was tender. As discussed above, the STRs reflect that in July 2000 the Veteran reported bone, joint, back or muscle problem, but in other entries from 1996 to 2000, she reported that she had no chronic back or joint problems. The October 2004 VA treatment records reflect that the Veteran received treatment for complaints of pressure in her left leg. The Veteran’s October 2011 private treatment records document the Veteran’s report of intermittent cramping of her legs and left leg muscle pain. In March 2012 it was noted that she had normal gait and station. The December 2011 Back Conditions DBQ reflects that an examination of the Veteran’s legs show muscle strength is normal with no evidence of atrophy. Sensory exam, and straight leg raising is normal. The DBQ also reflects that there is no evidence of radiculopathy or any other neurological abnormalities identified. The examiner noted that reflexes are normal, and gait is normal. The examiner further noted that all nerves in the lower extremities are reported as normal. This examination does not reveal that the Veteran has a leg disability. The May 2012 private treatment record reflects that a straight-leg test was negative. The examiner noted that there was no decreased response to tactile stimulation of both entire legs. The July 2016 VA C&P examination also reflects that an examination of the Veteran’s legs show muscle strength is normal with no evidence of atrophy. Sensory exam, and straight leg raising is normal. The VA C&P examination reflects that there is no evidence of radiculopathy or any other neurological abnormalities identified. The examiner noted that reflexes are normal, and gait is normal. The examiner further noted that all nerves in the lower extremities are reported as normal. This examination also does not reveal that the Veteran has a leg disability. With respect to a current disability, the competent medical evidence of record is highly probative of a finding that the Veteran does not have disability of either leg. Specifically, as discussed above, the Veteran’s private treatment records reflect that the Veteran had normal gait and station. Highly probative is that she has reported her symptoms to medical professionals, but no medical professional has attributed the symptoms to a disability or medical condition of either leg. With regard to lay statements made by the Veteran in connection with her claim, in relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran, while competent to report her symptoms both current and past, as a lay person she is not competent to associate any of her claimed symptoms to a bilateral leg disability. The question of whether she has a bilateral leg disability is a complex medical question the answer to which requires medical expertise. Her reports of symptoms do not rise to the level of functional impairment. Because the weight of the evidence is against a finding that the Veteran has a current bilateral leg disability, service connection must be denied. There is no reasonable doubt to be resolved in this matter. REASONS FOR REMAND Entitlement to service connection for sleep apnea, to include as secondary to service-connected gastroesophageal reflux disease and hypertension, is remanded. A remand is necessary in this case to ensure that VA meets its duty to assist the Veteran in substantiating her claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that she is entitled to service connection for sleep apnea, to include as secondary to service-connected gastroesophageal reflux disease and hypertension. The record reflects that the Veteran was afforded a VA examination for sleep apnea in July 2016, at which time the examiner opined that the Veteran’s sleep apnea is less likely than not proximately due to or the result of the Veteran’s service-connected gastroesophageal reflux disease and hypertension. The examiner stated, “[t]he veteran was diagnosed with moderate obstructive sleep apnea in 2011 (9 years after discharge from active duty). She has co-morbid service-connected GERD on Nexium and Zantac. Both sleep apnea and GERD are two common conditions. So the question is are we simply looking at two common conditions that may coexist in an individual. Do they commonly coexist because of shared risk factors? Or does a causal relationship exist between GERD and OSA? Conclusions of Morse et al in Clin Gastroenterol Hepatol 2004; 2(9) 761-768 is that GERD and OSA are common entities that share similar risk factors without being causally linked. Both populations tend to be overweight or obese for example.” However, the VA examiner did not provide an opinion as to whether the Veteran’s sleep apnea is aggravated by her service-connected gastroesophageal reflux disease and hypertension. In that regard, the Board notes that an opinion to the effect that one disability “is not caused by or a result of” another disability does not answer the question of aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Because the July 2016 VA examination opinion is inadequate for decision-making purposes, the issues must be remanded for a further VA opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that the Court recently held that causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018). As such, on remand, the VA examiner must provide separate findings and rationales relating to causation and aggravation. Additionally, the VA examiner did not provide an opinion as to whether the Veteran’s sleep apnea is directly related to her active service. As such, on remand, the VA examiner must also provide a direct incurrence opinion. The matters are REMANDED for the following action: 1. Forward the record and a copy of this remand to the examiner who conducted the July 2016 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion, supported by rationale as to: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea disability had its onset during her active service or is otherwise etiologically related to the Veteran’s active service. (b.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea disability was aggravated by her service-connected gastroesophageal reflux disease and hypertension.   “Aggravation” is defined as a worsening beyond the natural progression of the disease. 2. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for sleep apnea may be granted. If any benefit sought remains denied, furnish the Veteran and her representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, 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.