Citation Nr: 20046786 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 15-08 554 DATE: July 13, 2020 ORDER Entitlement to service connection for degenerative joint disease of the lumbar spine is denied. Entitlement to service connection for obstructive sleep apnea to include insomnia and sleep-wake cycle disorder is denied. FINDINGS OF FACT 1. The preponderance of evidence is against finding that the Veteran’s mild degenerative joint disease of the lumbar spine had its onset in service, was manifest within the first post-service year, or is otherwise related to service. 2. The preponderance of evidence is against finding that the Veteran’s severe obstructive sleep apnea to include insomnia and sleep-wake cycle disorder had its onset in service or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative joint disease of the lumbar spine have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 2. The criteria for entitlement to service connection for severe obstructive sleep apnea to include insomnia and sleep-wake cycle disorder have not 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 during May 2004 to July 2011. He served honorably in the United States Army during the Gulf War Era, including two deployments to Iraq. He was awarded the Global War on Terrorism Service Medal, the Iraq Campaign Medal with Campaign Star, the National Defense Service Medal, the Defense Meritorious Service Medal, and the Air Medal. The Board thanks the Veteran and his family for his service to our country. This matter is before the Board of Veteran’s Appeals (Board) from a July 2014 rating decision (RD) by the Department of Veteran Affairs (VA) Regional Office (RO). In May 2018, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing. A transcript of the hearing is of record. The Veteran waived RO consideration of any and all new evidence added to his file. At the hearing, a 60-day extension was granted. In September 2018 the Board remanded these matters for further development, including VA examinations/opinions and outstanding medical records (VA and private treatment records). The record reflects that the Veteran underwent a couple of VA examinations in December 2019. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 289 (1998). Service Connection – Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. Establishing direct service connection generally requires competent evidence of three elements: (1) a current 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); 38 U.S.C. §§ 1131, 1110; 38 C.F.R. § 3.303. Alternatively, a veteran can receive compensation via secondary service connection, which can be established when a disability is shown to be proximately due to or the result of a service-connected disease or injury. To be awarded secondary service connection, there must be evidence sufficient to show: (1) that a current disability exists, and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may also be established for a chronic disability resulting from an undiagnosed illness that manifested either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1)(i). Service connection may also be established for a Persian Gulf veteran who exhibits objective indications of a “qualifying chronic disability,” a chronic disability resulting from an undiagnosed illness, or a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or any diagnosed illness that the Secretary determines warrants a presumption of service connection. 38 U.S.C. § 1117. An “undiagnosed illness” is one that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1)(ii). For purposes of the applicable statute, the term “medically unexplained chronic multi-symptom illness” means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). For purposes of this section, “objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Signs or symptoms that may be manifestations of an undiagnosed illness or a medically unexplained chronic multi-symptom illness include, but are not limited to, (in pertinent part): fatigue, headache, muscle pain, joint pain, neurological signs, neuropsychological signs, respiratory signs, gastrointestinal signs, and abnormal weight loss. 38 C.F.R. § 3.317 (b). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, and experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports and analyses. 38 C.F.R. § 3.159(a)(1). Medical opinions must contain conclusions with a reasoned medical explanation based on supporting data. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence pertinent to the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all contents of the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative 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(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for degenerative joint disease of the lumbar spine is denied. 2. Entitlement to service connection for obstructive sleep apnea to include insomnia and sleep-wake cycle disorder is denied. The Veteran contends that his degenerative joint disease of the lumbar spine (lower back) and obstructive sleep apnea (sleep disturbance) are related to his military service. See VA 21-526b dated November 2013. The Veteran has been diagnosed with multiple lower back and sleep disturbance disabilities. In April 2014, he was diagnosed with degenerative joint disease of the lumbar spine, left sacroiliac pain, mechanical low back pain and left lower extremity radicular features in an S1 pattern. Additionally, he was diagnosed with obstructive sleep apnea in November 2014; sleep-wake cycle disorder in August 2014; and insomnia in January 2015. Thus, the Veteran has met his initial burden of proving that current lower back and sleep disturbance disabilities exist. See Capri dated March 2016, Record dated March 2015 and Medical Treatment Record (Record) dated November 2014. The questions for the Board are whether the Veteran has an in-service incurrence or aggravation of a disease, injury or event and if so, whether a causal relationship or nexus exists between the Veteran’s current lower back and sleep disturbance disabilities and his active military service. The Board finds that the Veteran’s current degenerative joint disease of the lumbar spine and obstructive sleep apnea to include insomnia and sleep-wake cycle disorder disabilities were not incurred or caused by his active military service. Other than the Veteran’s own assertions, the evidence of record does not indicate that the Veteran experienced an onset of any back disability during service or within one year following separation from service. Notably, during his May 2018 hearing, the Veteran testified that sometime around 2005 or 2006, he began to notice tightness and pain in his lower back, especially on waking up and getting moving in the morning. However, to the extent the Veteran is asserting chronicity or continuity of symptomatology, these statements lack credibility as they are inconsistent with the contemporaneous STRs. The Veteran’s service treatment records (STRs) affirmatively show that the spine was clinically assessed as normal and the Veteran denied related symptomatology. Further, the Veteran has not presented any specific indication of onset of any sleep disturbance disability during service, including in his statements. He testified in his hearing that the first time he sought treatment for sleep disturbance was in 2014, several years post service. See Hearing Transcript dated May 2018. The Board has reviewed the Veteran’s post-service medical records with attention to the possibility that such records may present an indication of an etiological link between any back or sleep disturbance disabilities and the Veteran’s military service. Neither the Board’s review of the evidence nor the Veteran’s contentions in this case have identified any such indications in the medical evidence of record. The Board finds that the contents of the Veteran’s STRs weigh significantly against finding that the Veteran had any back or sleep disturbance disabilities during his military service. The evidence reflects that neither trained medical professionals nor the Veteran himself believed that he had any back or sleep disturbance disabilities during his military service. Furthermore, no competent medical evidence from service or post-service suggests that the Veteran had any back or sleep disturbance disabilities during service or for several years post service. Regarding the back disability, the Veteran’s STRs affirmatively found no abnormalities of the spine on several occasions. In a November 2008 report of medical examination, the clinical evaluation noted the spine as normal. Also, in April 2009, during an aviation medicine clinic visit (clinic visit), the examiner noted no abnormalities for the thoracolumbar and lumbar/lumbosacral spine during a physical assessment. In September 2009, during another clinic visit, the examiner’s review of systems specifically stated “[n]o musculoskeletal symptoms, no back pain” and “[n]o neurological symptoms.” For the Veteran’s separation examination in March 2011, the spine was noted as normal and the Veteran specifically denied having or ever having had recurrent back pain or any back problem. See STR dated November 2013 and STR dated October 2012. Additionally, for sleep disturbance, there are affirmative indications in the STRs that the Veteran did not have symptoms of any sleep disturbance. Specifically, in August 2006, during a post-deployment health assessment, the Veteran indicated that he did not still feel tired after sleeping. In an October 2009 clinic visit, the examiner’s review of systems indicated that the Veteran had no sleep disturbances. Moreover, months after separation from service, in an October 2011 VA examination (general), the Veteran denied symptoms of sudden shortness of breath while sleeping or other respiratory conditions such as sleep apnea. Of note, the record shows that the Veteran’s sleep disturbance complaints first manifested in 2014, when he sought VA treatment for his sleeping problems and was diagnosed with sleep-wake cycle disorder. See STR dated November 2013, STR dated October 2012, Medical Treatment Record dated March 2015 and VA Examination dated October 2011. In a May 2018 hearing, during his testimony about his back disability, the Veteran testified that the last thing an aviator would want to do is come off flight status, himself included, by tell the fight surgeon you were having “back issues, or leg issues, or anything like that.” He testified that just prior to separation, he was working as a combat advisor and that sometime later after service, he initiated treatment at the Mayo Clinic. Furthermore, for his sleep disturbance, the Veteran testified that he was always told that he stopped breathing in his sleep or snores while sleeping. Similar to back problems, he testified that his sleep disturbance was not something he would have reported to the flight surgeon and that it was not until after service that he finally sought treatment for this problem. See Hearing Transcript dated May 2018. The Board has considered the Veteran’s statements and notes that for the Veteran’s last 2-3 years of service, he was no longer on flight status. Therefore, this would suggest that there was a significant period of time in service where he no longer would have had concerns about reporting symptoms for fear of being taken off flight status. The Veteran’s STRs revealed that in 2007, the Veteran had an aeromedical waiver in effect for hypertension (a disqualifying condition), which allowed him to retain his flying status while undergoing treatment for this condition along with other efforts to manage his weight. Also, the STRs revealed that sometime in late 2008 or early 2009, the Veteran lost his flying status. In fact, a November 2008 report of medical examination indicated that Veteran was “disqualified” from flying duty by the Army Aeromedical Center on April 10, 2009 (see date stamped) for reasons not clearly specified. Further, the Veteran’s Army individual flight record indicated that his last flight was on April 30, 2008. Therefore, based on the record, the Veteran had not flown any military aircraft since April 30, 2008 and he was officially disqualified from flying duty on any military aircraft from April 10, 2009 until his separation from service. See Military Personnel Record dated May 2018 and STR dated April 2014. Notably, the Veteran’s STRs contain ample medical evidence of complaints and/or treatment of numerous other disorders and conditions to include, but not limited to, treatment for hypertension, obesity, left knee injury (surgery), hyperlipidemia, joint pain (shoulder), foot pain, left knee sprain, shoulder injury, dietary counseling, hemorrhoids, and screening for cardiovascular disorders. Therefore, if the Veteran had any back or sleep disturbance complaints or problems during service, it is reasonable to assume he would have reported these problems given that he reported and/or was treated for many other problems as shown by his STRs prior to separation from service. Moreover, it is also reasonable to assume that any reports of back problems or sleep disturbance issues would not have jeopardize the Veteran’s flight status as he testified during his May 2018 hearing, because the record shows that for the latter half of his military career, he was either on a flight status waiver for a disqualifying condition or disqualified from flying duty. See STR dated November 2013 and STR dated October 2012. Back Disability In November 2019, the Veteran was afforded a VA examination to assess his lower back (thoracolumbar spine) disability, in which his diagnoses of degenerative arthritis of the spine and intervertebral disc syndrome were confirmed. During the examination, the Veteran reported that his condition is getting worse and he was unable to pass a flight physical due to his lower back disability despite having a commercial pilot license. He indicated that the onset was in 2006 and he begin to notice pain and stiffness while operating helicopters in Iraq. Further, the Veteran stated that his pain progressively worsened over time and was a constant three on a 10 point scale. See C&P Exam (DBQ) dated December 2019 In the November 2019 medical opinion report, the examiner concluded that it was less likely than not (less than 50 percent probability) that the Veteran’s current back disability was incurred in or caused by service. As for rationale, the examiner noted that the Veteran was seen at the Mayo Clinic (Clinic) from March 2014 to June 2014 and the Clinic’s assessment was that his lower back disability appeared to be a new onset of mechanical back symptoms of six to eight months and that the MRI findings of degenerative disc disease (DDD) and facet hypertrophy, lumbar joint are wear and tear conditions of the back or spine based on medical literature. See C&P Exam (Medical Opinion) dated December 2019. Additionally, the examiner referred to other articles about low back pain for helicopter pilots and indicated that both articles report height concern issues regarding the types of helicopters flown and both agree that ergonomics are the pressing factor causing low back pain, not height and that the back pain is temporary. The examiner opined that it is less likely as not that his current low back pain diagnosis is due to or result of or related to military service, but rather it is most likely due to the risk factors (as noted by the Clinic) that the Veteran has now, which has contributed to his current lower back disability. Further, the examiner opined that the Veteran’s risk factors as identified by the Clinic during his 2014 examination include age (back pain is more common as you get older); excess weight, which the Veteran weighed 354 pounds (excess body weight puts extra stress on the back); improper lifting (using your back instead of your legs can lead to back pain); and smoking (reduces blood flow to the lower spin and slows healing). The examiner opined that “a nexus has not been established.” See C&P Exam (Medical Opinion) dated December 2019. Sleep Disturbance The Veteran underwent a VA examination in December 2019, in which his diagnoses of obstructive sleep apnea and insomnia were confirmed. The examiner concluded that it was less likely than not (less than 50 percent probability) that the Veteran’s sleep apnea and insomnia were incurred in or caused by service, but by his weight gain after the service, hypertension, male gender, and social habits of alcohol consumption and smoking. As for rationale, the examiner noted that the Veteran’s STRs were silent for sleep disturbances complaints, such as such as daytime sleepiness or sleep apnea complaints such as snoring. Also, the examiner noted that she was unable to find any corroborating evidence stating that the Veteran snored or had periods of not breathing or gasping while sleeping in service. The examiner opined that in 2014 when the Veteran sought help, his weight was 354 pounds (considered morbidly obese) and that one of the major risk factors for sleep apnea is being excessively overweight. The examiner noted that the Veteran’s other risk factors included hypertension, smoking cigars and alcohol intake that were noted in his 2015 and 2016 VA treatment records. The examiner opined that “a nexus has not been established.” See C&P Exam dated December 2019. The examiner’s December 2019 medical opinions are highly probative. In developing her conclusions, the examiner considered, consulted, and reported on the array of medical evidence on record to include STRs, private treatment records (specifically the Mayo Clinic) and VA treatment records; the Veteran’s report of symptoms and assertions regarding his back and sleep disturbance disabilities and other lay evidence; and medical literature and other articles, studies, or treatise evidence about the subjects in support of her opinions. As there is no contrary medical opinion or other evidence directly contradicting the conclusions of the December 2019 VA medical opinions, the Board finds the conclusions presented by the VA medical opinions to be persuasive. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Considering the foregoing, the competent medical evidence of record is against a finding that the Veteran’s lower back disability and sleep disturbance disability are related to his military service. The Board finds that the preponderance of the evidence is against a finding that the Veteran’s lower back disability is related to his military service. Also, the preponderance of the evidence is against a finding that service connection is warranted on a presumptive basis or on the basis of continuity of symptomatology as the Veteran does not contend, and the evidence does not show, that arthritis manifested to a compensable degree within a year of service or that any back symptoms have been continuous since service. 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Specifically, there are no notations of complaints of any lower back disability in the Veteran’s active duty STRs and no evidence of onset of any other spine-related disability during active service. While the Veteran reported in his 2018 hearing that he started having lower back pain around 2005 or 2006 as a result of flying helicopters while in service, according to the contemporaneous evidence of record, the Veteran denied nor reported having such problems. Further, the record shows that the Veteran’s flight status changed to “disqualified” in April 2009, over two years before his separation from service. Thus, during this period, it is reasonable to assume that any reports of any back problems would not have placed his flight status in jeopardy as the Veteran testified in his May 2018 hearing. Moreover, it was not until April 2014, an eight year gap from when he asserted that the onset of his pain started (around 2005 or 2006) that the Veteran sought treatment. The Board finds that the preponderance of the evidence is against a finding that the Veteran’s sleep disturbance disability is related to his military service. There are no notations of sleep apnea or symptoms of sleep apnea in the Veteran’s active duty service treatment records and no evidence of onset of any other sleep disorder during active service. While the Veteran reported in his 2018 hearing that he had always been told that he stopped breathing and snored while sleeping in service, according to the contemporaneous evidence of record, for the entirety of his service, the Veteran denied nor reported having such sleep disturbance problems. As noted above, the Veteran’s active duty included service in Southwest Asia during the Persian Gulf War. With respect to the service connection claims presently on appeal, the evidence does not show (and the Veteran does not claim) his lower back and/or sleep disturbance disabilities are related to an undiagnosed illness or medically unexplained chronic multisymptom illness. As stated above, the Veteran has current diagnoses of mild degenerative joint disease of the lumbar spine and severe obstructive sleep apnea (to include insomnia and sleep-wake cycle disorder). As such, the presumptive provisions for Persian Gulf veterans are not applicable. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). Hence, based on the record, the Board finds that the preponderance of the evidence is against finding that service connection for mild degenerative joint disease of the lumbar spine is warranted. Further, the Board finds that the preponderance of the evidence is against finding that service connection for obstructive sleep apnea to include insomnia and sleep-wake cycle disorder is warranted. The Board acknowledges that a Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence (equipoise) on the merits. But, because the fair preponderance of the evidence is against the Veteran’s claim(s), the benefit of the doubt rule is not applicable in this case. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990); 38 U.S.C. § 3007(b). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nawatha M. Duncan-Hayes 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.