Citation Nr: 20046650 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 14-38 679 DATE: July 13, 2020 ORDER Service connection for a low back disorder, for substitution purposes, is denied. Service connection for obstructive sleep apnea (OSA), to include as secondary to a service-connected disability, for substitution purposes, is denied. FINDINGS OF FACT 1. The Veteran’s low back disorder was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran’s OSA did not have its onset in active service or for many years thereafter, and it is not related to active service or proximately due to, the result of, or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder, for substitution purposes, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for OSA, to include as secondary to a service-connected disability, for substitution purposes, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from October 1968 to February 1979 and from February 1990 to May 1991, and had subsequent service in the Air Force Reserve from May 1991 to March 1996. The Veteran died during the pendency of this appeal. The surviving spouse has been substituted as the appellant. A May 2020 rating decision granted service connection for posttraumatic stress disorder (PTSD). Thus, that issue is no longer before the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where a veteran served for 90 days or more of active service, service incurrence shall be presumed for certain chronic diseases, including arthritis, if the disease manifested to a compensable degree within one year from the date of separation from active service. While the disease need not be diagnosed within the presumption period, it must be shown by acceptable lay or medical evidence that there were characteristic manifestations of the disease to the required degree during that time. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected disease or injury, will be service connected. 38 C.F.R. § 3.310(b). Thus, service connection is permitted not only for disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation by a service-connected disability. Low Back Disorder The Veteran filed an original claim for service connection for chronic back pain in June 1995. That claim was denied in a September 1998 rating decision. He filed an application to reopen the claim for low back pain in September 2008. A February 2010 rating decision denied reopening of the claim, and the current appeal ensued. On a July 2010 notice of disagreement, the Veteran attributed the herniated disc in his low back to an incident during his initial period of active duty service when he fell down the stairs in his home while assigned to Goodfellow Air Force base. He stated that he went to see a doctor, but no X rays were taken. On an October 2014 VA Form 9, he asserted that the fall in February 1979 and the automobile accident during Reserve service contributed to the herniated disc in his low back. Service treatment records show complaints of back pain that were attributed to prostatitis. A February 1974 record shows a history of chronic prostatitis of long-standing duration. At a July 1975 examination, the Veteran reported that he had recurrent back pain. Examination revealed a normal spine. The examiner noted that the Veteran had recurrent back pain in the mid to lower back which he relayed was due to prostatitis. A February 1979 record shows complaints of back pain, on the sides, that were attributed to prostatitis. The Veteran left his initial period of active duty service in February 1979. At a November 1980 examination for enlistment in the Air Force Reserve, the Veteran denied having recurrent back pain, and examination revealed a normal spine. He denied having recurrent back pain at a December 1982 examination. He denied having recurrent back pain at a September 1990 examination and again examination revealed a normal spine. A May 1991 examination of the spine was also normal. At an August 1995 examination, the Veteran reported having had back pain once per month since 1971 for which he has not seen a doctor but takes over-the-counter medications. Examination of the spine was again normal. The examiner noted that the Veteran had a herniated disc in the cervical spine that was exacerbated by an October 1994 motor vehicle accident. As noted above, service treatment records show that the Veteran was in a car accident in October 1994 and sustained a whiplash injury. Subsequent treatment records show that he injured his neck but not his low back. He was placed on a profile due to the resultant neck problem, but with no mention of a low back problem. VA medical records show that in April 2007 the Veteran reported a history of a herniated disc of the lumbar spine due to a work-related injury for which he was receiving workman’s compensation. A March 2008 MRI was interpreted as showing a disc herniation at L5-S1. In a February 2019 opinion, a VA examiner stated that a review of the service treatment records showed that the Veteran was noted to have back pain associated with prostatitis in 1979. The examiner noted that all later examinations show no evidence of chronic back pain. The examiner concluded that the Veteran’s low back disorder is not related to service, to include complaints of back pain in 1979. In a December 2019 opinion, a VA examiner noted that the July 1975 examination revealed no back complaints but rather complaints due to prostatitis. The examiner noted that the November 1980, December 1982, September 1990 and May 1991 examinations revealed no orthopedic complaints regarding the back. The examiner noted the Veteran’s report of recurrent back pain at the August 1995 examination, but stated that the examination revealed a normal spine and the physician only noted herniated discs in the cervical spine but no low back disorder. The examiner stated that after discharge from active service the Veteran was seen in June 2007 for complaints of low back pain with a history of disc herniation but that was with a podiatrist and there was no back examination. The examiner observed that the competent medical evidence in the service treatment records fails to identify a musculoskeletal condition involving the back. The examiner noted the Veteran’s reported in-service history of falling down some stairs and being in a car accident but stated that the service treatment records are silent with respect to any residuals from either of those events. The examiner stated that the Veteran denied having back problems in multiple subsequent examinations, and the only time he reported back pain was in association with prostatitis. The examiner concluded that the Veteran’s low back disorder is not related to service. In an April 2020 opinion, a VA examiner expressed agreement with both February 2019 and December 2019 opinions. The examiner stated that the rationales given are consistent with the objective medical records and reputable medical literature. The examiner concluded that the Veteran’s disc herniation at L5-S1 as documented by the March 2008 MRI was not incurred in or caused by service, to include the February 1979 complaints of back pain, but rather was caused by the post-service workman’s compensation injury. The examiner stated that there is no link between the Veteran’s in-service injury and March 2008 diagnosis of disc herniation, and no objective medical record or reputable medical literature to indicate otherwise was found. The examiner stated that a strain is not the same as and did not cause or progress to the disc herniation. The examiner observed that the objective medical records indicate that the claimed February 1979 in-service injury resolved without residuals and there is no evidence of a lumbar spine disorder or pathology at the time of separation or immediately following separation to indicate a chronic or ongoing lumbar spine disorder. Given the above, while the Veteran complained of back pain during service, the record indicates that it was due to chronic prostatitis, not a low back disorder. The Board notes the Veteran’s report of having had back pain on a monthly basis since 1971 at the August 1995 examination. However, given his prior history of chronic prostatitis with associated back pain, that report appears to refer to the same back pain associated with prostatitis, especially as the pain had been ongoing since 1971 which is prior to both the reported fall down the stairs in February 1979 and motor vehicle accident in October 1994. Moreover, examination at that time revealed a normal spine and the examiner did not note a back disorder. Specific to the car accident, the examiner only noted a herniated disc in the cervical spine that was exacerbated by the accident. The examiner did not indicate that the Veteran injured his low back in the accident and there is no indication otherwise in the service treatment records. After discharge from service, there is no evidence of a low back disorder until April 2007 when the Veteran reported a history of a herniated disc due to a work-related injury. Thus, the evidence indicates that the Veteran’s low back disorder is attributable to an intercurrent cause. Regardless, that dates the onset of symptoms to over 15 years after discharge from service. While not dispositive, the passage of so many years between discharge from service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, all of the medical opinion evidence indicates that the Veteran’s low back disorder, diagnosed as disc herniation at L5-S1, is not related to active service. Of note, the December 2019 examiner acknowledged the in-service back complaints but attributed them to prostatitis rather than a musculoskeletal condition, and the April 2020 examiner attributed the disc herniation to the post-service work-related injury as the record indicated that any in-service injury to the low back resolved prior to discharge from service. Here, the Board notes the Veteran’s assertion that the herniated disc was due to a fall down the stairs. However, the fact that he went to a doctor who determined that X rays were not needed indicates that the injury was not very severe and further supports the finding that the injury resolved prior to discharge from service. Similarly, while the Veteran asserted that his disc herniation was due to the car accident, service treatment records only show that he suffered a whiplash injury to the neck. Given the above, the Board finds that the Veteran’s low back disorder was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. The record also indicates that his current low back disorder is attributable to an intercurrent cause—the work-related injury noted in April 2007. The Board notes that a lay person is competent to give evidence about observable symptoms such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also notes that a lay person is competent to address the etiology of a disability in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the record dates the onset of symptoms to 15 years after separation from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. Moreover, the evidence indicates that the Veteran’s current low back disorder is attributable to a post-service injury. As such, the Veteran is not competent to address the etiology of his disability. In conclusion, service connection for a low back disorder is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Obstructive Sleep Apnea (OSA) The Veteran asserted that his OSA was secondary to his diabetes and PTSD. Initially, as the Veteran was not service-connected for diabetes, service connection for OSA as secondary to diabetes is simply not warranted. The remaining question is whether his OSA is secondary to his now service-connected PTSD. In a February 2019 opinion, a VA examiner noted that the risk factors for OSA are advancing age, male gender, obesity and craniofacial morphology or upper airway soft tissue abnormalities, with additional factors identified in some studies such as smoking, nasal congestion, menopause and family history. The examiner observed that rates of OSA are also increased in association with certain medical conditions such as congestive heart failure, lung disease, PTSD and stroke. The examiner noted that the Veteran was obese, which is one of the most important risk factors for OSA. The examiner stated that to attribute the Veteran’s OSA to a psychiatric disorder over obesity would be speculation. The examiner then concluded that the Veteran’s OSA is not related to a psychiatric disorder. The examiner further noted that there is no evidence of aggravation of the Veteran’s OSA by any psychiatric disorder and nothing mentioned by any examiner. The examiner then concluded that the Veteran’s OSA was not aggravated by a psychiatric disorder. In an April 2020 opinion, another VA examiner expressed agreement with the February 2019 opinion. The examiner stated that there is no objective medical record or reputable medical literature evidence to indicate that the Veteran’s OSA was proximately due to, the result of, or aggravated by a psychiatric disorder. The examiner noted that there was no mechanism of action for cause or aggravation of the Veteran’s OSA by his service-connected disabilities to include PTSD or the medications used to treat such. The examiner stated that a review of the current medical literature shows that the Veteran had multiple risk factors for OSA to include age, male gender, history of tobacco abuse and obesity, but that PTSD is not listed. The examiner pointed out that a risk factor is not the same as a cause, and the cause of OSA is well documented—apneas and hypopneas are caused by the airway being sucked closed on inspiration during sleep. The examiner then concluded that the Veteran’s OSA is not proximately due to, the result of, or aggravated by a service-connected disability. Given the above, the Board finds that the Veteran’s OSA is not proximately due to, the result of, or aggravated by his service-connected PTSD, or any other service-connected disability. Lastly, the Veteran did not assert, and the record does not show, that his OSA had its onset in active service or is otherwise related to such service. Service treatment records contain no evidence of OSA, and the first evidence of OSA is found in a May 2007 VA medical record showing his report of having sleep apnea symptoms and soon undergoing a sleep study. That dates the onset of symptoms to 16 years after his discharge from his second period of active service and 28 years after his initial period of active duty service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, the Board finds that the Veteran’s OSA did not have its onset in active service or for many years thereafter. Moreover, in a February 2019 opinion, a VA examiner opined that the Veteran’s OSA was not incurred in or caused by active service. The examiner stated that the service treatment records showed no evidence of any direct causes of OSA. The examiner reiterated the risk factors of advancing age, male gender, obesity and craniofacial morphology or upper airway soft tissue abnormalities, with additional factors such as smoking, nasal congestion, menopause and family history. The examiner further opined that the Veteran’s OSA was not aggravated by active service. The examiner stated that there is no evidence in the service treatment records of an aggravation of OSA by anything during service, with no mention during the examinations over a 10-year period. Thus, the Board finds that the Veteran’s OSA is not related to active service. The Board notes that a lay person is competent to give evidence about observable symptoms such as snoring and apneas. Layno, 6 Vet. App. 465. The Board also notes that a lay person is competent to address the etiology of a disability in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau, 492 F.3d 1372. In this case, however, the record dates the onset of symptoms to over 15 years after separation from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his disability. (CONTINUED ON NEXT PAGE) In conclusion, service connection for OSA, to include as secondary to a service-connected disability, is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, 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.