Citation Nr: 20028097 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 16-57 599 DATE: April 22, 2020 ORDER Service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected post-traumatic stress disorder (PTSD), is granted. Service connection for a lumbar strain (back condition) is granted. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, his OSA is at least as likely as not secondary to his service-connected PTSD. 2. Resolving all doubt in favor of the Veteran, his back condition is at least as likely as not related to his in-service injury. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA, to include as secondary to service-connected PTSD, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a back condition have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 2000 to November 2006, to include service in Iraq and in Afghanistan. The matter is on appeal before the Board from a January 2014 rating decision and a July 2014 rating decision. The Veteran provided testimony at a Board hearing before the undersigned Veterans Law Judge in January 2020. A transcript of the hearing is of record. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases, based upon a legal presumption, which occurs by showing that the disorder manifested itself to a degree of 10 percent disabling or more 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(a). Additionally, service connection may be established under 38 C.F.R. § 3.303(b), when a symptom or symptoms of a chronic disease are noted in service, or within a year of the date of separation from service, and when chronicity is established through a continuity of symptomatology after service. The continuity of symptomatology provision is an alternative method to establishing service connection for the specific chronic diseases listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). OSA The Veteran asserts that he has OSA that either began during his active military service or was otherwise caused by his service-connected PTSD. A review of the Veteran’s service treatment records (STRs) does not show a diagnosis for OSA, nor any complaints or treatments for sleeping problems that may be attributable to OSA during service. The Board notes that during the January 2020 Board hearing, the Veteran’s representative stated that the Veteran’s STRs contain a post-deployment health assessment from 2006, in which it is noted that the Veteran complains of sleep problems, as well as feeling tired afterwards. However, the post-deployment health assessment from May 2006 does not contain a notation of problems sleeping or still feeling tired after sleeping. Rather, the Veteran specifically answered “no” to the question of still feeling tired after sleeping. The Veteran underwent a VA examination in June 2014, at which the VA examiner noted the Veteran to have a diagnosis of OSA from 2013. The examiner found that the Veteran’s OSA was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran’s STRs were absent for the Veteran being seen for sleep apnea or any sleep related problems while on active duty, and that while the Veteran was given a CPAP machine in 2013, it was years after his separation from the military. Additionally, the examiner reported that medical literature does not show any causational links or associations between exposures in the Persian Gulf and sleep apnea. The Board finds probative value in the VA examiner’s opinion. The Veteran submitted a private medical opinion in January 2020, in which the physician noted that the Veteran was diagnosed with OSA in November 2013. The physician reported the Veteran’s self-reports and those in the VA examination to be consistent with chronic symptoms of sleep apnea, which were reported to have begun while in Iraq with difficulties with breathing and trouble sleeping. It was noted that the Veteran’s roommate told him that he snored loudly and that at times he would stop breathing, which was confirmed by the Veteran’s wife. Additionally, the Veteran complained of excessive daytime sleepiness and fatigue, which was still present at the time of the VA examination despite the use of CPAP. The physician reported that the relationship between PTSD related sleep disorders and OSA, particularly in Veterans, was well described in medical literature, and cited that the “comorbidity of PTSD and insomnia, nightmares, and OSA is high.” Thus, the physician opined that it was more likely than not that the Veteran’s OSA was secondary to the Veteran’s service-connected PTSD. The Board finds probative value in the physician’s opinion. The Veteran also submitted a medical opinion in January 2020 from his VA psychologist, in which it is noted that the Veteran has been diagnosed with both OSA and PTSD, and that those conditions interacted to exacerbate the Veteran’s sleep problems. The Board finds probative value in the opinion, to the extent that it reflects that the Veteran’s OSA and PTSD are interacting together with the Veteran’s sleep. During the Board hearing in January 2020, the Veteran provided testimony that while overseas other service members in his company would wake him up and tell him that he was either snoring really loud or had stopped breathing. In addition, he reported that he had woken himself up gasping for air. He noted that he had not been told by anyone before he had been deployed that he had any issues while sleeping. Rather, it was something that had occurred during deployment. He also testified that his ex-wife had noticed a difference in the Veteran’s sleeping post-deployment, and had been the one to urge him to have a sleep study done at VA in 2013. The Board finds probative value in the Veteran’s report of symptoms. A statement from the Veteran’s ex-wife was submitted in January 2020, in which she stated that prior to the Veteran’s deployment to Afghanistan in 2005, she did not notice the Veteran to have any sleep problems or other symptoms. After his return from Afghanistan in 2006, she reported that the Veteran had problems with snoring, would stop breathing while he was sleeping, and would wake up gasping for air. She also noted that the Veteran was noticeably fatigued during the day, which had not been present before his deployment. In addition, she stated that she had witnessed these symptoms throughout her marriage to the Veteran until their divorce in 2018. The Board finds probative value in the Veteran’s ex-wife’s statement as pertains to her report of visible symptoms along with her account of continuity of symptomatology. Lay testimony may be used as evidence to establish symptoms which are capable of perception through the use of a person’s senses. Here, the letter from the Veteran’s ex-wife about observations of his post-deployment sleep issues, as well as reported witnessing of the symptoms in the years that followed the Veteran’s service bolster the Veteran’s credible testimony about the same, and these statements add weight to the private medical opinion. Thus, the Board finds that the evidence of record is at least in relative equipoise, and by resolving all reasonable doubt in favor of the Veteran, service connection for OSA is granted. Back Condition The Veteran asserts that he has a back condition that is related to his active military service. A review of the Veteran’s STRs reflects a complaint of lower back pain from August 2005, in which the Veteran reported he was lifting a heavy object when he hurt his back. The examiner noted that the Veteran appeared to be in great pain as he was taking baby steps to walk and standing straight and stiff. In addition, it was recorded that the Veteran had sharp pain during all range of motion, pain when lying down and standing-up, and that the lower right side of the Veteran’s back was tender during palpation with evident muscle tightness. The Veteran reported that he did not have a history of back pain or injury. The examiner noted an assessment of muscle spasm. The Veteran’s STRs reflect that he was seen two more times in August 2005, and once in September 2005 for lower back pain. Findings from a December 2005 MRI showed a small disc bulge at L5-S1 without canal or neural foraminal narrowing. The Veteran also had two temporary profiles, one from December 2005 and one from June 2006 pertaining to his back. Additionally, during the May 2006 post deployment health assessment, the Veteran reported having back pain that he felt was related to his deployment and that he was seeing a primary care physician for his back pain. The Veteran underwent a VA examination in December 2013, at which the examiner noted the Veteran to have a diagnosis of lumbar strain. The Veteran reported that his back condition began in 2005 when he was moving equipment, and that the condition had stayed the same. The examiner found that the Veteran’s lumbar strain was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted the evidence from the Veteran’s STRs, and reported that they indicated the Veteran’s conditions were acute and transitory. It was noted that the Veteran’s last profile for his back from June 2006 was temporary, and that the timeframe from the 2006 profile to the date of the VA exam in 2013 represented a seven-year gap, which did not establish a longitudinal trend. The Board finds probative value in the VA examiners opinion, as it provides a reasoned rationale. The Veteran submitted a medical opinion from a private physician in January 2020, in which the physician provided a description of the STRs pertaining to the Veteran’s injury to his back during service. The physician also noted the profiles pertaining to the Veteran’s back, the MRI from December 2005, the post-deployment health assessment from May 2006, as well as the Veteran’s reports from the December 2013 VA examinations. In addition, the X-ray from December 2013 was noted to reflect findings of mild upper thoracic spine left convex scoliosis. The physician found the Veteran to have chronic low back pain that began with a lifting injury while on active duty with evidence of Intervertebral Disc Disease (IVDS) by MRI going back to December 2005, and therefore opined that the Veteran’s IVDS was primarily related to his injury while in active duty military service. The Board finds probative value in the physician’s opinion, as it provided a reasoned rationale. During the January 2020 Board hearing, the Veteran provided testimony that there had been a rocket attack on the base, and that afterwards he had been trying to move the equipment that he utilized to fix aircraft and ended up hurting his back. He noted that the injury was bad enough that his Platoon Sergeant had to pick him up and carry him to the medical facility. The Veteran reported that after the incident he visited the medical facility numerous times, and that since then he has been continually going to chiropractors and has had a couple of MRIs done. He noted that his back has not been the same since the incident. The Board finds probative value in the Veteran’s testimony, as it pertains to the Veteran’s symptoms and continuity of symptomatology. A lay statement was submitted in January 2020 from a fellow service member who had served overseas with the Veteran and had witnessed the Veteran’s back injury. The statement reflects that the two were on the airfield when a rocket attack occurred on the base sounding the alarms, at which point they began to secure their equipment. The Veteran was reported to have hurt his back while moving a heavy piece of ground support equipment and to have been taken to the medical facility by their Platoon Sergeant. The fellow service member noted that he had checked on the Veteran after the injury and that he had made several trips to the medical facility where he had been prescribed pain medication for the injury and had been assigned to light duty. Additionally, it was noted that the Veteran had been restricted to light physical training where he had not been allowed to run or do any exercise that may have caused further injury. The Board finds probative value in the lay statement, in so far as the recounting of the incident. Lay testimony may be used as evidence to establish symptoms which are capable of perception through the use of a person’s senses. Here, the fellow service member’s lay statement recounting the incident in which the Veteran injured his back, as well as his testimony pertaining to the Veteran in the days following the injury, offers credence to the Veteran’s personal testimony. The Veteran’s credible testimony of the incident and continuity of symptomatology provide additional weight to the private medical opinion. (Continued on the next page)   Thus, the Board finds that the evidence of record is at least in relative equipoise, and by resolving all reasonable doubt in favor of the Veteran, service connection for a back condition is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, 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.