Citation Nr: 21003435 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 11-15 865 DATE: January 21, 2021 ORDER Entitlement to service connection for low back disability is granted. Entitlement to service connection for sleep apnea is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s low back disability began during active service and has been continuous to the present. 2. The evidence is at least in equipoise as to whether the Veteran’s sleep apnea symptoms began during active service and have been continuous to the present. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for low back disability have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1976 to February 1980, and from October 1, 2003 to May 2005 to include service in Southwest Asia. The Veteran had additional periods of active duty for special work (ADSW) from October 2001 to May 2002, February 2003 to May 2003, June 2003 to September 2003, and December 2008 to May 2010. The Board thanks the Veteran for his service to our country. This matter is before the Board of Veterans’ Appeal (Board) on appeal from a December 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter involves an extensive procedural history that need not be detailed here. However, pertinent to this instant action, this matter was previously before the Board in September 2014, February 2016, August 2017, and February 2020. Most recently, in February 2020, the Board remanded the issues of entitlement to service connection for migraine headaches, skin disorder, low back disability, and sleep apnea, to the Agency of Original Jurisdiction (AOJ) for medical opinions. A July 2020 rating decision granted service connection for (1) dermatitis/eczema (claimed as skin rash, right forearm) effective November 13, 2007, and (2) migraine headaches including migraine variants effective July 31, 2008. Therefore, these issues are no longer on appeal. The issue of entitlement to service connection for (1) low back disability and (2) sleep apnea are once again before the Board. The Board finds there has been substantial compliance with the February 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Under the relevant law and regulations, service connection may be granted for a 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. Generally, the evidence must show: (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 be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d). For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 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). In this case, “arthritis” is a “chronic disease” for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, sleep apnea is not a “chronic disease” listed under 38 C.F.R. § 3.309(a) therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker, 708 F.3d 1131. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, 38 U.S.C. § 1154(a) requires VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for low back disability is granted. As an initial matter, the Board finds the evidence of record demonstrates the Veteran has been diagnosed with a low back disability, diagnosed as lumbosacral strain, degenerative arthritis of the spine, intervertebral disc syndrome, and scoliosis lumbar spine. See September 2019 QTC Examination. The Veteran contends his low back disability had its onset during his initial period of military service, and he has continuously experienced relevant symptoms since that time. Specifically, he stated while on “jump status” he injured his lower back and has experienced chronic pain, swelling, and stiffness in his back since. See July 2008 Correspondence. The AOJ in its April 2011 Statement of the Case (SOC), concluded the Veteran was never awarded a Parachutist Badge, however, review of the Veteran’s service personnel records confirms the Veteran was awarded a Parachutist Badge. In February 1978, upon his request, the Veteran was removed from Airborne duty and the special qualification identifier “P” was withdrawn from his military occupational specialty, and his Parachutist Badge was revoked. As the Veteran’s description of the above-referenced in-service injury is consistent with his circumstances of service, the Board finds there is competent, credible evidence of an in-service event or injury. See Caluza v. Brown, 7 Vet. App. 498 (1995). Review of the Veteran’s service treatment records (STRs) confirms treatment for stiffness, and soreness in his back, and recurrent back pain. See Army 1976 to 1980 STRs received July 2019. Next, the Board finds the evidence is in relative equipoise as to whether the Veteran had the onset of symptoms of low back disability in service and since service separation. Regarding the Veteran’s assertions he has experienced low back disability symptoms in service and following service, the Board finds the Veteran competent and credible to report the onset of symptoms of that disability, specifically pain. Furthermore, the Board finds the Veteran is competent and credible to report the continuation of symptoms of that disability. See Charles v. Principi, 16 Vet. App. 370 (2002); see also Caluza, 7 Vet. App. 498. Turning to the medical opinions of record regarding the etiology of the Veteran’s low back disability, the Veteran attended a QTC spine examination in September 2019. The examiner provided a negative nexus opinion stating there was no evidence of a chronic condition immediately following service in March 2005. Further, the examiner noted the Veteran was not treated for his back disability until 2014. Therefore, the examiner concluded there are no records to establish chronicity. In the February 2020 remand decision, the Board found the QTC examiner did not provide a reasoned analysis of whether the Veteran’s low back disability was related to his initial period of active duty service. Therefore, an addendum opinion was necessary to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Pursuant to the February 2020 remand decision, VA obtained an addendum opinion in March 2020. The March 2020 examiner opined the Veterans low back disability is more likely than not incurred in or caused by service, providing the following rationale: “I have reviewed STRs and all of the following support a relationship of current back pain and back problems in service: (1) October 1976 report of back pain and findings of intermittent stiffness and soreness of the right upper back; (2) December 1979 report of medical noting a history of recurrent back pain; and (3) March 2005 report of medical history noting arthritis.” The examiner further noted additional documentation of back pain in treatment records in 2005, 2014, and 2019. The examiner concluded the Veteran’s low back disability started in service and continuity of the same symptomatology since service has been documented. Despite the March 2020 positive opinion, the RO obtained an additional opinion in September 2020. The September 2020 examiner opined the Veteran’s low back condition was unrelated to military service because there were no complaints of back pain for 25 years after separation from service. The examiner concluded continuity of in-service back complaints could not be established. In the October 2020 post-remand Supplemental Statement of the Case (SSOC) the AOJ continued the denial of the claim essentially on the reasoning of the previous denial, that continuity of in-service back complaints cannot be established. The AOJ did not mention the Veteran’s lay statements or the March 2020 examiner’s positive addendum opinion. It is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). After review of the record, the Board finds service connection for low back disability is warranted. Here, the Board finds the March 2020 opinion is highly probative as it reflects consideration of all the relevant facts and is supported by the medical evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In addressing the other evidence of record, the Board acknowledges the September 2020 negative opinion accorded great weight to the fact that the Veteran did not seek medical treatment for twenty-five (25) years after his initial period of active duty service. The Board finds the opinion to be of diminished probative value. The examiner failed to consider the competent and credible evidence of the Veteran’s report of the onset of his low back disability symptoms in service, and the continuation of those symptoms in the years since. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The Board finds the Veteran to be both competent and credible concerning the testimony related to his low back disability. See Jandreau, 492 F.3d at 1377; Davidson, 581 F.3d at 1316. The Veteran’s statements regarding his in-service injury and resulting low back disability symptoms since service separation are competent evidence as to factual matters of which he has first-hand knowledge and the presence of observable symptoms; they are given great probative weight. Layno, 6 Vet. App. at 469. A lay person is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes through their senses. Id. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. Furthermore, it is significant that the March 2020 examiner opined the Veteran’s low back disability is likely to have occurred while on active duty. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49. Here, in light of the positive and negative evidence of record, to specifically include the Veteran’s competent and credible statements regarding his low back disability symptoms after service and positive and negative medical nexus opinions, the Board finds the evidence is at least in equipoise regarding whether the Veteran’s current low back disability was incurred in service. In affording him the benefit of the doubt, service connection for low back disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for sleep apnea is granted. At the outset, after a review of all the evidence of record the Board finds the evidence of record demonstrates the Veteran has a currently diagnosed sleep apnea. In September 2002 the Veteran underwent nocturnal polysomnogram; Dr. E.M. diagnosed moderate obstructive sleep apnea. In May 2005 the Veteran initiated treatment with Dr. J.M. for follow-up for medical problems after being deployed to Iraq. The Veteran noted a post medical history of sleep apnea with uvuloplasty. In August 2007, the Veteran requested another sleep study for documentation for Army Physical Evaluation Board (PEB). In September 2007 the Veteran was referred for a nocturnal polysomnogram; Dr. D.W. diagnosed severe obstructive sleep apnea. In a December 2007 follow-up clinical note, Dr. E.M. noted the Veteran has a history of nasal obstruction, facial pressure, facial pain, and obstructive sleep apnea. Dr. E.M. stated, “I believe the majority of this patient’s problem is deviated septum and this is causing his nasal obstruction, nasal congestion, facial pressure, and obstructive sleep apnea. I do not believe his obstructive sleep apnea is caused by his palate and certainly since he had his uvulopalatopharyngoplasty (UPPP) this is no longer primary problem. His problem is his nasal vaults, so we can straighten his deviated septum, reduce his turbinates, so he will probably not have a need for CPAP machine.” In August 2010, the Veteran underwent overnight polysomnography to evaluate obstructive sleep apnea; Dr. D.W.’s impression was obstructive sleep apnea. Next, the Board finds the evidence is in relative equipoise as to whether the Veteran had the onset of symptoms of sleep apnea in service and since service separation. A review of the Veteran’s STRs fails to uncover any evidence he reported sleep-related symptoms during his initial period of active duty service. However, in a November 1976 STR, the Veteran complained of sinus congestion. In a December 1977 STR, the Veteran reported tenderness to deep palpation over frontal and sinus, the treating service physician noted as sinusitis. See Army 1976 to 1980 STRs received July 2019. Additional evidence supporting the finding the Veteran had symptoms of sleep apnea since service separation, included competent credible lay statements from fellow Soldiers. G.M. stated the Veteran work for him since 1998. He stated during field operations the Veteran would snore loudly and over the years it became worse. By the time they deployed to Iraq, he observed the Veteran sleeping with a CPAP machine. T.E., stated he was the Veteran’s Section Sergeant in Iraq and observed the Veteran sleeping with a CPAP machine. He recalled the Veteran would snore and would need to be awakened. R.M., the Veteran’s roommate in Iraq, stated he observed the Veteran sleeping with a CPAP machine and witnessed the Veteran stop breathing and snoring. M.M. stated he observed the Veteran’s sleeping habits during field training in November 2008. He noted the Veteran’s sleep apnea was “bad”, and the Veteran’s peers would wake him to ensure he was okay. Turning to the medical opinions of record regarding the etiology of the Veteran’s sleep apnea, the Veteran attended a QTC sleep apnea examination in September 2019. The examiner provided a negative nexus opinion stating the Veteran’s diagnosis of sleep apnea in 1992 and subsequent surgery does not coincide with his military service. In the February 2020 remand decision, the Board found the QTC examiner did not provide a reasoned analysis of whether the Veteran’s sleep apnea was related to his initial period of active duty service. Therefore, an addendum opinion was necessary to decision the claim. See Barr, 21 Vet. App. 303. Pursuant to the February 2020 remand decision, VA obtained an addendum medical opinion in March 2020. The March 2020 examiner opined the Veteran’s sleep apnea is more likely than not incurred in or caused by service, providing the following rationale: “I have reviewed STRs and all of the following support a relationship of current sleep apnea to service: (1) Veteran’s 1986 report of sinus congestion and December 1977 report of tenderness to deep palpitation over frontal and sinus resulting in sinusitis; (2) December 2007 private treatment note indicating the Veteran’s obstructive sleep apnea may be caused by his deviated septum; and (3) March 2005 report of medical history noting frequent trouble sleeping post-service, and post-service reports, to include the May 2005 private treatment report of sleep apnea.” Despite the March 2020 positive opinion, the RO obtained an additional opinion in September 2020. The September 2020 examiner stated the Veteran’s obstructive sleep apnea is believed to be secondary to [the Veteran’s] sinuses. The RO obtained an additional opinion in October 2020. The examiner provided a negative nexus opinion. The examiner stated there was no evidence of a pre-existing [sleep apnea] condition as such, the complaints and notations in March and May 2005 represent the first definitive evidence of sleep apnea. The examiner found continuity of the condition is established via encounters in December 2007, and May, August and September 2010. The examiner continued, regarding the in-service sinus complaints in November 1976 and December 1977, there is no evidence of continuity of complaints or direct evidence linking these encounters to sleep apnea. Additionally, the examiner noted, a previous provider noted the Veteran had uvuloplasty in 1992 however, there are no records confirming this. In the October 2020 post-remand SSOC the RO continued the denial of the claim, citing the above medical opinion. It is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes, 5 Vet. App. 60. After view of the record, the Board finds service connection for sleep apnea is warranted. Here, the Board finds the March 2020 and September 2020 opinions are highly probative as they reflect consideration of all the relevant facts and are supported by the medical evidence of record. See Nieves-Rodriguez, 22 Vet. App. at 302-04. In addressing the other evidence of record, the Board acknowledges the October 2020 negative opinion of record. The Board, however, finds the opinion inadequate as it relies on inaccurate facts. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The examiner incorrectly noted the first complaints and notations in March and May 2005 represent the first definitive evidence of sleep apnea. However, the Veteran’s post-service treatment records noted the Veteran has a past medical history of sleep apnea first diagnosed in the 1990s. The Veteran’s sleep apnea was confirmed by nocturnal polysomnogram in September 2002. The Board finds the Veteran to be both competent and credible concerning the testimony related to his sleep apnea. See Jandreau, 492 F.3d at 1377; Davidson, 581 F.3d at 1316. Furthermore, it is significant that the March 2020 and September 2020 examiners opined the Veteran’s sleep apnea is likely to have occurred while on active duty. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49. Here, in light of the positive and negative evidence of record, to specifically include the Veteran’s competent and credible statements regarding his sleep apnea symptoms after service and positive and negative medical nexus opinions, the Board finds the evidence is at least in equipoise regarding whether the Veteran’s current sleep apnea was incurred in service. In affording him the benefit of the doubt, service connection for sleep apnea is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.