Citation Nr: 21000070 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 18-48 779 DATE: January 4, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. Entitlement to service connection for the aggravation of a preexisting back disability is granted. FINDINGS OF FACT 1. The competent evidence of record shows that the Veteran’s obstructive sleep apnea is etiologically related to or was incurred during his period of active service. 2. The competent evidence of record shows that the Veteran’s preexisting back disability was aggravated beyond its natural progression during service. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1111, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317 (2019). 2. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1112, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.306 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from April 1996 to August 1997. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2016 and March 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. By way of history, in the February 2016 rating decision, in relevant part, the RO denied entitlement to service connection for OSA. In November 2016 the Veteran filed a timely notice of disagreement (NOD) and in August 2018, the RO issued a statement of the case (SOC). In October 2018, the Veteran perfected his substantive appeal and in a July 2019 decision, the Board, in relevant part, denied the claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In March 2019, the Court granted a March 2019 Joint Motion for Partial Remand (JMPR) to vacate the Board’s July 2019 decision only as to its denial of service connection for OSA, and remanded the issue to the Board for further development and proceedings consistent and pursuant to 38 U.S.C. § 7252(a). In the March 2016 rating decision, the RO denied entitlement to service connection for a back disability. The Veteran filed a timely NOD in November 2016 and in July 2018, the RO issued a SOC. In August 2018, the Veteran perfected his substantive appeal and requested a video conference before a Veterans Law Judge (VLJ). In February 2020, the Veteran testified at a videoconference hearing before the undersigned VLJ. A transcript of that proceeding is associated with the record. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). A Veteran is presumed to be sound upon entry into service when no preexisting disability is noted during the entrance examination, except when clear and unmistakable evidence demonstrates that a disability preexisted service. 38 U.S.C. § 1111. The burden falls on the VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both (1) preexisting and (2) not aggravated by service. 38 U.S.C. § 1153. Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for OSA. The Veteran is seeking service connection for OSA. Specifically, he contends that his OSA is related to active service because it began during service, as evidenced by his reported of trouble breathing and difficulty sleeping during service. See October 2018 VA Form 9. Having reviewed the evidence of record, the Board finds that service connection for OSA is warranted. Regarding the first and second elements of service connection, the Veteran is currently diagnosed with OSA and in his June 1997 separation examination, the Veteran reported shortness of breath. An April 1997 service treatment record (STR) also shows breathing and wheezing difficulties. Furthermore, the Veteran’s mother in a July 2020 buddy statement, competently and credibility asserted that the Veteran upon returning from military duty, exhibited tiredness, snoring, choking, and losing of breath during sleep. As such, the Board finds the first and second elements of service connection have been met. The salient question is thus whether the Veteran’s currently diagnosed OSA is etiologically related to active service. In a July 2020 private treatment record, the Veteran’s treating physician, following a review of the Veteran’s military records, noted that the Veteran was diagnosed with dysphasia, which is a symptom of sleep apnea. Therefore, he opined that the Veteran’s OSA is at least as likely as not related to his military service. There are no opinions of record to the contrary. As such, the Board finds that a positive nexus has been established between the Veteran’s OSA and service. Based on the foregoing, the competent evidence of record indicates that the Veteran’s currently diagnosed OSA is etiologically related to service and the claim for entitlement to service connection for OSA is granted. 2. Entitlement to service connection for aggravation of a preexisting back disability. The Veteran is seeking service connection for his back disability. Specifically, he contends that his preexisting scoliosis was aggravated beyond natural progression by this military occupational specialty (MOS) which required heavy lifting, pushing, and pulling. He also asserts that his disability is due to a strain during service or from falling off a tank. See February 2020 Board Hearing. Service connection is warranted if a preexisting disorder was aggravated by a veteran’s active service. A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The burden is on VA to establish a lack of aggravation of the preexisting disability. VA must show that there is clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). Having reviewed the evidence of record in its entirety, the Board finds that service connection for aggravation of a preexisting condition beyond natural progression is warranted. Here, the Veteran has low back pain, intervertebral disc degeneration, lumbar region radiculopathy. See April 2019 Private Treatment Record. As such the first element of service connection has been met. Regarding the second and third elements of service connection, the Veteran’s February 1996 enlistment examination identified no preexisting back disabilities and determined the Veteran qualified to enlist. Therefore, the presumption of soundness attaches. However, based on statements from the Veteran and medical treatment records, it is undebatable that the Veteran had a preexisting back disability (scoliosis). See March 2020 Private Treatment Record; February 2020 Board Hearing, August 2018 VA Form 9. Because there is undebatable, i.e. clear and unmistakable, evidence that the Veteran’s back disability existed prior to entrance to service, the Board finds that the presumption of soundness is rebutted. The salient question is thus whether the Veteran has a current disability that was clearly and unmistakably not aggravated beyond natural progression during service. Turning to the evidence of record, in his August 2018 substantive appeal, the Veteran asserted that he was diagnosed with a back condition prior to entering service and reported back issues whenever he went to sick call. In an April 2019 private treatment record, the Veteran’s treating physician opined that the Veteran’s low back pain, intervertebral disc degeneration, and lumbar region radiculopathy are service related. In his February 2020 Board Hearing, the Veteran asserted that he had scoliosis prior to service but he did not have pain. He remembered feeling a strain during service while working on a tank and asserted that it has progressed over time. During service, the Veteran pushed, pulled, and lifted heavy items. He also fell off a tank. In a March 2020 private treatment record, the Veteran’s treating physician opined that Veteran’s low back pain, intervertebral disc degeneration, and lumbar region radiculopathy, are at least as likely as not related to his service. The physician explained that the rigors of military training and service exacerbated his scoliosis beyond its normal progression and led to his current disabilities. Based on the foregoing, the Board finds that there is no clear and unmistakable evidence that the Veteran’s back disability was not aggravated during service. Rather, the evidence shows that the back disability was likely aggravated beyond its natural progression by service. See March 2020 Private Treatment Record. In reaching this determination, the Board considered the Veteran’s February 2016 VA opinion which provided a negative nexus opinion for direct service connection. The examiner opined that the Veteran’s disabilities were not at least as likely as not due to service. The examiner based his opinion solely on the medical record and in part on the lack of service treatment records noting a back disability. Here, the examiner based his opinion on a lack of STRs and failed to consider the Veteran’s competent statements regarding his disability since service. Moreover, the examiner did not offer an opinion regarding whether the Veteran’s back disability clearly and unmistakably preexisted service and whether it was clearly and unmistakably not aggravated during service. As such, the Board found this opinion inadequate for adjudicative purposes and afforded little, if any, probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Based on the foregoing, the Board finds that the competent evidence of record does not clearly and unmistakably show that the Veteran’s disability was not aggravated by service. Absent clear and unmistakable evidence that the Veteran’s preexisting back disability was not aggravated beyond natural progression during service, the presumption of aggravation is not rebutted and elements two and three of service connection are met. Therefore, service connection for aggravation of a preexisting back disability is warranted. 38 U.S.C. §§ 1131, 1153, 1154; 38 C.F.R. § 3.303, 3.306, 3.385. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, 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.