Citation Nr: 20072869 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 17-02 055 DATE: November 12, 2020 ORDER Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for a lumbosacral spine disorder is remanded. Entitlement to service connection for right lower extremity radiculopathy is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a jaw disorder, to include TMJ dysfunction, is remanded. FINDING OF FACT Sleep apnea is not related to service or to a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from September 1978 to March 1983, February 1990 to December 1990, May 1991 to April 1992, May 1992 to February 1993. The Veteran had additional periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) with the National Guard from September 1986 to February 2003. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2020 Order of the United States Court of Appeals for Veterans’ Claims (Veterans Court). The appeal originated from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In an April 2019 decision, the Board denied these issues. The Veteran appealed that decision to the Veterans Court. In a March 2020 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board’s decision in part, and remanded the issues of entitlement to service connection for a lumbar spine disorder, right lower extremity radiculopathy, GERD, a jaw disorder, and sleep apnea to the Board for additional development consistent with the Joint Motion. The remaining issues decided in the Board’s decision were not challenged. Service Connection—Law and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). National Guard service, as opposed active duty service, has certain restrictions on establishing entitlement to service connection. The term “active military, naval, or air service” includes (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty; or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24) (West 2014). The Board emphasizes the more restrictive requirements applicable to periods of ACDUTRA and INACDUTRA as compared to active duty service. The law applicable to active duty service establishes “veteran” status without further requirements. Moreover, it permits a grant of service connection simply by evidence establishing an etiological relationship between an injury or disease in service and a post-service disability. The law pertaining to periods of ACDUTRA and INACDUTRA requires that the claimant have become disabled “during” the period of ACDUTRA or INACDUTRA in which the injury or disease occurred, and specifically requires that the disease and/or injury have been incurred in the line of duty. Moreover, the claimant bears the burden of establishing that this sequence of events has occurred before “veteran” status is granted. 38 U.S.C. § 101(24). Certain presumptions are generally available to claimants to assist in substantiating various elements of a claim for service connection. The presumption of soundness (38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)) applies to “every veteran.” Therefore, establishing “veteran” status is a prerequisite. Smith v. Shinseki, 24 Vet. App. 40, 45–46 (2010). The presumption of aggravation (38 U.S.C. § 1153 (West 2014); 38 C.F.R. § 3.306(a) (2019)) and the presumption of service connection for specific chronic diseases (38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309), including arthritis, can never apply to periods of ACDUTRA and INACDUTRA. A period of ACDUTRA alone, even if longer than 90 days, does not qualify as “active miliary, naval, or air service” for the purpose of establishing eligibility for a presumption of service connection for ALS under 38 C.F.R. § 3.318(a). Bowers v. Shinseki, 26 Vet. App. 201 (2013), aff’d 748 F.3d 1351 (Fed. Cir. 2014); Hansen-Sorensen v. Wilkie, 909 F.3d 1379 (2018). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for sleep apnea. The Veteran is seeking service connection for sleep apnea. To substantiate this claim he must show that he has (1) a current disability; (2) that he has either an injury or disease in service, or a service-connected disability; and, (3) that there is a medical relationship between the current disability and service. Service treatment records reveal no pertinent findings to sleep apnea. The Veteran was separated from active duty in March 1983. Shortly thereafter, he joined the National Guard and had intermittent qualifying service, ACDUTRA and INACDUTRA. At discharge from active duty, the Veteran reported no history of, or current, shortness of breath (Record 02/10/2015 at 37). He was examined and found to have a clinically normal mouth and throat (Record 02/10/2015 at 23). A November 1998 National Guard examination reveals normal findings for mouth and throat and the Veteran’s report that he had no history of, or current, shortness of breath (Record 05/21/2010 at 2). He denied any medical or physical problems (Record 05/21/2010 at 10). It appears the first sleep study was in November 2014. That revealed a diagnosis of mild, supine, REM-related sleep-disordered breathing (Record 01/05/2015). A November 2015 VA Examination reveals the examiner’s opinion that it is less likely than not that the Veteran’s sleep apnea is a result of his service-connected TBI. The rationale was that there is no objective evidence that the Veteran had complaints of daytime fatigue, difficulty sleeping, or symptoms such as snoring, awakening gasping or choking, or witnessed apneic episodes, after the TBI reported in service, or post-military, prior to his Veteran’s 2009 reports of trouble with restful sleep. There are objective records (1983 service separation examination, 1985 National Guard re-enlistment examination, and 1989-1998 periodic health assessments) which noted the Veteran did not have any problems with sleep or psychiatric symptoms. The Veteran’s initial complaint of trouble falling and staying asleep was attributed primarily to chronic pain, then work-related stressors. It was not until 2014 that the Veteran was referred for polysomnogram. At that time, he also reported snoring, awakening gasping, and other symptoms associated with obstructive sleep apnea. The Veteran was diagnosed with a mild supine REM-related breathing disorder in November 2014. This diagnosis indicates that the Veteran met the criteria for obstructive sleep apnea only when he was in the supine position (lying flat versus on his side). The examiner did not find any credible peer-reviewed medical references which show a relationship between strictly positional obstructive sleep apnea and TBI. The Veteran underwent neuropsychological testing by a private doctor in March 2014. It was noted that the long-term history of TBI reported by this Veteran was not consistent with the usual course of TBI. Sequelae usually improve over time, instead of worsening. A second neuropsychologist reviewed the Veteran’s records electronically in March 2015, and also concluded the TBI history reported by the Veteran was inconsistent with the expected course of events. She indicated “while the Veteran clearly suffered significant musculoskeletal injury from the accident, records indicate that his traumatic brain injury was, at most, mild in nature and thus would not be expected to produce significant, long-term objective cognitive problems. Subjective cognitive complaints are very likely related to ongoing medical issues (e.g. pain) and psychosocial stressors” (Record 11/03/2015). The Board denied this issue in April 2019. In the March 2020 Joint Motion, the parties identified only one error in the Board’s reasoning, noting the Board’s finding that the Veteran had restricted his claim to the theory that sleep apnea was secondary to his service-connected TBI, and considered the claim solely on that basis. The parties agreed that the Board erred by not addressing whether the Veteran’s obstructive sleep apnea is related to his service-connected PTSD. The only supporting evidence of such a relationship identified by the parties was a February 2017 VA Mental Health examiner’s notation that sleep apnea was a diagnosis relevant to understanding the management of the Veteran’s mental health disorder. They agreed that, on remand, the Board should address whether sleep apnea is related to, and/or aggravated by, the Veteran’s service-connected Mental disability. After a review of all of the evidence, the Board finds that the Veteran’s sleep apnea is not related to service, and is not proximately due to, a result of, or aggravated by any service-connected disability. Regarding the February 2017 examination, a medical report must be read in its entire context. Lee v. Brown, 10 Vet. App. 336 (1997). Here, it is clear from the context of the report that the purpose of the examination and report, which was performed by a psychologist, was diagnosis and treatment of the Veteran’s mental disability. The purpose was clearly not to establish the etiology of his sleep apnea. Moreover, simple, logical interpretation of this report makes it clear that the only impact that was being described by the psychologist was the impact of other disorders, including sleep apnea, on the Veteran’s mental disability, and not the impact of the mental disability on sleep apnea. The cited statement is pre-printed on the examination form: “2B. Medical diagnoses relevant to the understanding or management of the Mental Health Disorder.” The VA psychologist noted “degenerative disc disease, ED, migraines, sleep apnea, TBI, ED [listed twice]” (Record 02/23/2017). The words “understanding or management of the Mental Health Disorder” are unambiguous. The impact of concern to the examiner is clearly one of the identified conditions upon the mental disability being evaluated during that examination. Accordingly, the Board finds that this reference does not assert, imply, or suggest any possible relationship of causation, aggravation, or exacerbation of the service-connected mental health disability on sleep apnea. The parties have identified no other issues with the Board’s discussion in April 2019, and have found no errors with the Board’s findings and conclusions regarding direct service connection, and secondary service connection due to medications taken to treat other service-connected disabilities. While the Veteran has reported having sleep apnea for years, he has not described onset of sleep apnea directly in service. The Veteran has consistently maintained that his sleep apnea is due to his service-connected disabilities. In February 2018, he stated that sleep apnea was “due to my injuries and medical condition” (Record 02/01/2018). In August 2018, he stated sleep apnea is “Due to my service-connected disabilities” (Record 08/08/2018). In written argument from the Veteran’s attorney, it was asserted that sleep apnea was potentially secondary to his cervical spine disability, through the mechanism of changes in the structure of the neck (Record 02/27/2019). While the Veteran is competent to describe lay-observable events in service, with respect to sleep apnea, he has not done so. There is certainly no record of complaint or diagnosis of, or treatment for, sleep apnea during the Veteran’s active duty service. Regarding the Veteran’s National Guard service, simply relating sleep apnea to the period during which the Veteran was a member of the National Guard is not sufficient. The Veteran would have to show that sleep apnea began during a specific period of ACDUTRA (annual training) or INACDUTRA (weekend drill), and that this incurrence was due to injury or disease incurred in the line of duty during such period. There are no line-of-duty investigations reflecting incurrence of sleep apnea in the line of duty during a period of ACDUTRA or INACDUTRA. Accordingly, the Board finds that the evidence does substantiate a grant of service connection for sleep apnea on a direct basis during any period of service. Sleep apnea is not a presumptive chronic disease under 38 C.F.R. § 3.303(b), 3.307(a), 3.309(a), so there is no presumption available, and the provisions regarding continuity of symptomatology are also not applicable. Regarding the assertion that sleep apnea is potentially secondary to his cervical spine disability, this comes from the Veteran’s attorney, who has identified no medical evidence in support of such an etiology. A conclusory generalized lay statement suggesting a nexus between a current disability and service or a service-connected disability does not suffice to meet the standard for a medical opinion expounded in McLendon v. Nicholson, 20 Vet. App. 79 (2006), as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010). Accordingly, a medical opinion addressing this theory is not necessary. To summarize the Board’s findings of fact. The Board finds that sleep apnea is not directly related to service, and is not secondarily related to a service-connected disability, to include his TBI, his mental disability, his cervical spine disability, his upper and lower extremity neurological disabilities, his tinnitus, his photophobia, or his scars. In light of these findings, the Board concludes that service connection for sleep apnea is not warranted on any basis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. REASONS FOR REMAND Entitlement to service connection for a lumbar spine disorder. Entitlement to service connection for right lower extremity radiculopathy. In the Board’s April 2019 decision, the Board denied entitlement to service connection for a lumbar spine disability, relying primarily on the findings from a September 2015 VA medical opinion, which concluded that the Veteran’s current lumbar spine disorder is not related to service, and providing the rationale that service treatment records do not reveal any information that would provide a causal link between a 1980 in-service motor vehicle accident and the Veteran’s current complaints of back pain. The parties to the March 2020 Joint Motion agreed that remand was required because the September 2015 VA medical opinion was inadequate for rating purposes. Specifically, the Veteran has asserted that he has had back pain continuously since the 1980 in-service motor vehicle accident. The parties agreed that neither the Board nor the September 2015 VA examiner addressed this contention. Moreover, the parties agreed that, contrary to the VA examiner’s finding, service medical records do not need to provide a causal link between the 1980 motor vehicle accident and current back pain to establish entitlement to service connection. Accordingly, the examiner’s rationale for finding no nexus between the Veteran’s current lumbar spine disability and service was found insufficient. The parties agreed that, on remand, the Board shall obtain a new medical opinion addressing whether the Veteran’s current lumbar spine disability is related to the in-service motor vehicle accident. Any new medical opinion should be supported by an adequate rationale. The parties agreed that the issue of entitlement to service connection for right lower extremity radiculopathy was inextricably intertwined with the lumbar spine claim and must also remanded for readjudication after a new medical opinion is obtained regarding the lumbar spine. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Entitlement to service connection for GERD. The parties to the Joint Motion agreed that, in denying service-connected for GERD, the Board erred in describing the contents of the service treatment records. The Board determined that there was no evidence of GERD in service. However, they agreed that service treatment records showing that the Veteran had stomach pain and symptoms of gastrointestinal distress, including spitting up blood, during service. The parties agreed that, on remand, the Board should address this evidence. In addition, the parties noted that the Board rejected the Veteran’s contentions that his GERD was related to medications he takes to treat his other service-connected disabilities because, as a lay person, he lacks medical knowledge to provide an opinion about medical etiology. The parties agreed that remand was required so that the Board could consider whether a VA medical opinion is necessary to address whether medications the Veteran takes to treat his service-connected conditions either cause or aggravate his currently diagnosed GERD. Entitlement to service connection for a jaw disorder. The parties to the March 2020 Joint Motion cited reliance on an August 2015 VA dental examination in denying entitlement to service connection for a jaw disability. Based on the findings from this examination, the Board concluded that the Veteran does not have a current diagnosis of a jaw disability. The parties agreed that remand was required because, contrary to the Board’s finding, the August 2015 VA examiner diagnosed “a disability: crepitus or clicking of the joints or soft tissue of the left TMJ.” The parties agreed that, on remand, the Board should consider this evidence and re-adjudicate the Veteran’s claim. While it may legitimately be questioned whether crepitus is “a disability” as opposed to a symptom, that determination is no longer within the province of the Board. The parties to the Joint Motion have agreed that it is a disability. The Board is bound by the findings contained in the Joint Motion, as adopted by the Veterans Court. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the “law of the case” doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court’s prior action with respect to the same claim). As there is now a current jaw disability, and as there is an established traumatic head injury in service, encompassing service connection for TBI and a neck injury, the Board finds that the evidence has attained the low threshold that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and the veteran’s service. McLendon, supra. Accordingly, these matters are REMANDED for the following action: 1. Obtain an opinion based on case file review to determine the nature and etiology of the Veteran’s lumbar spine (back) disorder. The relevant documents in the claims file should be made available to the VA examiner. If the reviewing clinician determines that an examination should be scheduled, follow current COVID-19 procedures for scheduling such an examination. The VA examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that any diagnosed lumbar spine disorder(s) (1) is/are causally or etiologically related to the Veteran’s active service, to include a head and neck injury sustained therein; or, (2) is/are causally or etiologically related to a service-connected disability; or (3) were worsened beyond natural progress by a service-connected disability. Please note the Veteran’s assertion that he has experienced back pain since service. 2. Obtain an opinion based on case file review to determine the nature and etiology of the Veteran’s GERD or other upper-GI disorder. The relevant documents in the claims file should be made available to the VA examiner. If the reviewing clinician determines that an examination should be scheduled, follow current COVID-19 procedures for scheduling such an examination. The VA examiner is requested to provide all appropriate diagnoses regarding the upper-GI, to include GERD, and offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the diagnosed disorder(s) (1) is/are causally or etiologically related to the Veteran’s active service, to include findings of stomach pain and a February 22, 1981, complaint of bleeding from the stomach and “spitting up blood”; or, (2) is/are causally or etiologically related to a service-connected disability, to include medications taken therefor; or (3) were worsened beyond natural progress by a service-connected disability. 3. Schedule an appropriate VA examination to determine the nature and etiology of the Veteran’s jaw disability. The relevant documents in the claims file should be made available to the VA examiner. The VA examiner is requested to provide all appropriate diagnoses regarding the jaw, to include crepitus and TMJ dysfunction, and offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the diagnosed disorder(s) (1) is/are causally or etiologically related to the Veteran’s active service, to include a head and neck injury sustained therein; or, (2) is/are causally or etiologically related to a service-connected disability, to include his TBI and cervical spine disability, and a May 7, 1979, complaint of jaw pain inside the mouth, which was attributed to abscess versus wisdom tooth; or (3) were worsened beyond natural progress by a service-connected disability. Note: The term “at least as likely as not” does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or worsening as it is to find against causation or worsening. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Readjudicate the remanded claims. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.