Citation Nr: 20057545 Decision Date: 08/31/20 Archive Date: 08/31/20 DOCKET NO. 15-36 123 DATE: August 31, 2020 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for sleep apnea is denied. FINDINGS OF FACT 1. The Veteran’s low back disability, diagnosed as degenerative arthritis and spondylosis, did not have its onset in service or for many years thereafter, and is not related to service. 2. The preponderance of the evidence is against a finding that the Veteran has had sleep apnea during the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1131, 5103; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1131, 5103; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2002 to July 2007. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified before the undersigned Veterans Law Judge by videoconference hearing. A copy of the transcript is associated with the Veteran’s claims file. In a July 2019 decision, the Board, in pertinent part, remanded the issues of entitlement to service connection for a back disability and sleep apnea for further development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases, to include arthritis, manifesting to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 1. Entitlement to service connection for a low back disability The Veteran’s service treatment records note she was seen in October 2005 with a diagnosis of lumbar back strain after lifting heavy groceries the day before. In April 2006 she was seen with pain the back at the area of a pilonidal cyst. The service treatment records do not further back complaints. Following service, the Veteran was seen in April 2012 for acute back pain; she noted that the pain had been present for three weeks. An April 2012 MRI noted L5 disc herniation. Spondylosis was noted in August 2012. A VA examiner in July 2013 opined that the Veteran’s current back disability was not related to service. However, that opinion did not contain sufficient rationale for the examiner’s conclusion. Pursuant to the Board’s remand, a VA examination was conducted in November 2019. The Veteran reported onset of back pain in boot camp that worsened after an alleged rape in Iraq in 2005. She reported that she currently had recurrent low back pain increased with physical exertion and emotional stress. The examiner opined that the Veteran’s current low back disability was “less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice injury, event, or illness.” The examiner noted: “Minimal arthritic changes LS spine 15 years after discharge with no in-service [lumbosacral] x-ray noted and not likely aggravated beyond natural progression. [Lumbosacral spine] x-ray 11/22/19 indicates LS spondylosis 15 years after [discharge] and likely due to natural progression of age-related degenerative arthritis. It is less likely than not that degenerative arthritis/back disability is related to in-service condition.” The November 2019 examiner provided a plausible rationale for the finding that the Veteran’s currently documented spine conditions were unrelated to her period of service. He noted that the minimal arthritic changes shown on current X-ray were not consistent with an injury in service many years earlier and that they were age-related. There are no competent medical opinions of record contradicting the VA examiner’s opinion. The Veteran is competent to report back pain, which is within the realm of her personal experience. The Veteran, however, is not competent to offer an opinion as to the etiology of her claimed back disability. Determining the etiology of osteoarthritis and spondylosis in this case requires medical knowledge or training that the Veteran does not have and is not susceptible to lay observation. Jandreau, 492 F.3d at 1377-78. The Board finds that to the extent that the Veteran had back pain in service, there was no documentation of more than a lumbar strain noted at that time. Moreover, no further complaints of musculoskeletal back pain are noted in the remainder of service after October 2005. The first post-service report of back pain was noted in 2012, nearly five years after service, and the Veteran reported at that time that the pain had been present for three weeks. Thus, the Board finds that the preponderance of the evidence is against a finding that the Veteran suffered an injury of the back, which resulted in a chronic back disorder, during service. The Board acknowledges that the evidence shows degenerative arthritis in the lumbosacral spine. To the extent the Veteran has arthritis, the evidence does not show that the arthritis was manifest to a compensable degree within one year of separation of service. Additionally, the evidence weighs against continuity of symptomatology given the lack of relevant complaints for many years following service. Thus, service connection is not warranted under the provisions pertaining to presumptive service connection for chronic diseases. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309. The preponderance of the evidence is against the claim of service connection for a low back disability; there is no doubt to be resolved; and service connection is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for sleep apnea Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for sleep apnea. Sleep apnea has not been present at any time during the pendency of the claim. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. § 1110; Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). STRs and VA treatment records show no diagnosis for sleep apnea based on a sleep study. On an April 2007 service treatment record, a review of systems found “no sleep apnea.” An October 2011 VA treatment record noted that a sleep apnea screen of the Veteran showed she was at high risk for obstructive sleep apnea. A VA examination was conducted in November 2019. The examiner noted that the Veteran did not have obstructive sleep apnea. The examiner noted that a sleep study conducted in November 2019 was “non-diagnostic for obstructive sleep apnea.” The examiner further stated that “there is no evidence of sleep apnea with normal sleep study.” The Veteran has described herself as having sleep apnea. The Veteran is competent to report her symptoms. However, she is not competent to diagnose herself with sleep apnea as this is a medical determination based on symptoms of snoring and waking gasping for air confirmed with a sleep study. Here, the Veteran lacks the requisite medical expertise to diagnose sleep apnea and the sleep study in November 2019 showed that she does not have sleep apnea. See Jandreau, supra. The Board assigns greater probative value to the medical evidence, including the sleep study conducted in November 2019, which found no evidence of sleep apnea. The Board notes that the Veteran has not presented any medical evidence showing a diagnosis for sleep apnea confirmed by sleep study. Accordingly, the weight of the evidence is against the claim for service connection for sleep apnea. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.