Citation Nr: 21003762 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 19-37 948 DATE: January 22, 2021 ORDER Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for lumbosacral spondylosis is remanded. FINDING OF FACT The preponderance of the evidence is against finding that sleep apnea began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1967 through April 1970, with additional service in the Reserves. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision from August 2018. The Board has limited the discussion below to the relevant evidence required to support is finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545 552 (2008). 1. Entitlement to service connection for sleep apnea is denied. The Veteran contends that his sleep apnea is a result of his active duty service. He claims that he only sleeps 3-4 hours per night “since Vietnam.” 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, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The evidence provided by the Veteran in regards to his claim for service connection for sleep apnea is minimal. According to his medical treatment records, the Veteran began treatment for this condition in 2013, decades after service. His service treatment records, on the other hand, are silent for any complaints, treatment, or diagnoses related to sleep apnea or any sleep related issues. There are also no indication of any such issues within one year of leaving active duty. Again, the first indication of complaints, treatment, or a diagnosis of sleep apnea is not until decades after service in 2013. Again, the Veteran contends that he has had poor sleep “since Vietnam,” only sleeping approximately 3-4 hours per night, but it is unclear how he relates this poor sleep to the diagnosis of sleep apnea specifically or why this was due to his time in the military. In fact, there are no statements, no medical opinions, no records that directly relate the Veteran’s sleep apnea with his active duty service, either by medical professionals or the Veteran himself. There is no event or in-service injury or treatment related to sleep apnea, and no claim that something happened during service to cause this particular disability. The Board concludes that, while the Veteran has a diagnosis of sleep apnea, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The Board notes that the Veteran has not been afforded a VA examination to aid in substantiating this claim; however, the Board finds no duty to obtain one in this case. Other than filing his claim seeking entitlement to service connection for sleep apnea, the Veteran has offered only one explanation as to how his condition relates to service, namely that he only sleeps 3-4 hours per night since Vietnam. His service treatment records are silent as to any complaints, treatment, or diagnoses related to sleep apnea. The only evidence offered by the Veteran are his own lay statements that he had had poor sleep since Vietnam. Again, the Board finds the contemporaneous documentation of record shows no symptoms, no complaints, and no treatment for sleep apnea in service or for decades thereafter until 2013. As such, given the lack of an in-service incurrence or evidence indicating that there may be a nexus between the current disability and service, the Board finds that a VA examination is not warranted. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for sleep apnea and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 2. Entitlement to service connection for lumbosacral spondylosis is remanded. The Veteran contends that his lumbosacral spondylosis is related to his active duty service. In particular, the Veteran asserts he fell off the roof of a bunker during active duty service in Vietnam. He claims he did not seek treatment for the injury at the time but seems to assert this event as the cause of his current disability. The Board finds a remand is necessary to obtain a VA examination to clarify his current back diagnoses and the nexus of any condition(s) found. The Veteran’s 1967 entrance examination indicates he entered service with a pre-existing back condition, notably scoliosis. His STRs, in contrast, do not indicate any in-service trauma, complaints, or treatment for any back related issues and his separation examination is negative for any back related issues. After service, the Veteran was diagnosed with lumbar degenerative disc disease (DDD) decades after service in 2014, but records appear to attribute this to a vascular disease. The Secretary is required to provide a medical examination or opinion “if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim” and (1) the record contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of disease; (2) the evidence establishes that the veteran suffered an in-service event, injury or disease; (3) and the evidence indicates that the claimed disability or symptoms may be associated with the established in-service event, injury or disease or with another service-connected disability. See 38 C.F.R. § 3.159(c)(4); see alsoMcLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). Further, there are additional complexities in this case. Again, the Veteran was noted to have a congenital back defect, scoliosis, on his entrance examination into the military. Where, as here, a condition is noted upon entrance into service, in order to establish entitlement to compensation benefits, the burden falls on the veteran to show an increase in disability in service. 38 U.S.C. § 1153; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the Veteran satisfies this burden, the preexisting condition will be presumed to have been aggravated by service. Wagner, 370 F.3d at 1096. In such cases, the burden falls on the government to rebut the presumption of aggravation by clear and unmistakable evidence that the demonstrated increase in disability was the result of the natural progress of the condition. Id. The Board further notes that congenital defects, while in and of themselves are pre-existing and, therefore, not due to service, can still be subject to superimposed disease or injury, and if such superimposed disease or injury does occur, service connection may be warranted. See VAOPGCPREC 82-90. Given the different diagnoses, medical notes, lay statements and different potential causes of the Veteran’s lumbar condition, a VA examination is needed to aide the Board in determining the Veteran’s current disability and its etiology. The matters are REMANDED for the following action: 1. Obtain any additional treatment records from the VA or private medical centers pertaining to treatment the Veteran may have received during his lifetime, following the procedures ser forth in 38 C.F.R. § 3.15. The evidence obtained, if any, should be associated with the record. 2. After obtaining any outstanding records to the extent possible, ask an appropriate examiner to review the Veteran’s file and provide an opinion. The necessity of a physical examination is left to the discretion of the examiner. After reviewing the claims folder (and examining the Veteran, if deemed necessary), the examiner is requested to address the following: (a) Identify any and all lumbar spine diagnoses, to include scoliosis and degenerative disc disease (and any other diagnosis found); (b) With regard to the Veteran’s scoliosis (which was noted on his entrance examination and, therefore, pre-existed service), the examiner is asked to clarify whether the Veteran’s scoliosis is a “congenital defect” and, if so, whether it is at least as likely not the Veteran suffered any in-service “superimposed injury or disease” and, if so, to specify the injury or disease. If the Veteran’s scoliosis is not “congenital” the examiner is asked to opine whether the pre-existing scoliosis increased in severity during service and, if so, whether there is clear and unmistakable evidence (obvious/manifestly undebatable) that the scoliosis did not increase beyond the normal progression of the disorder during active duty. (c) For any other diagnosed condition(s), is it at least as likely as not (i.e. is it 50 percent or more probable) that the Veteran’s condition (1) began during service, (2) is related to the Veteran’s description of an injury where he fell off a bunker roof (regardless of when it began), or (3) (regardless of when it began) is related to any other incident of his military service? The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Boivin, 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.