Citation Nr: 21004052 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 15-30 310 DATE: January 25, 2021 ORDER Service connection for a cervical spine disability is granted. Service connection for a low back disability is granted. Service connection for obstructive sleep apnea (OSA) is granted. REMANDED The claim of entitlement to service connection for Sjogren's syndrome with vitreous degeneration and punctate keratitis is remanded. FINDINGS OF FACT 1. The Veteran’s degenerative disc disease of the cervical spine is related to service. 2. The Veteran’s thoracolumbar intervertebral disc disease is related to service. 3. The Veteran’s OSA is related to service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for degenerative disc disease of the cervical spine have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria to establish service connection for thoracolumbar intervertebral disc disease have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 3. The criteria to establish service connection for OSA have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1990 to November 1996. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions by the Agency of Original Jurisdiction (AOJ). An August 2013 rating decision denied service connection for neck and back disabilities, as well as for OSA. In November 2017, the Board denied service connection for OSA and remanded the issues of entitlement to service connection for neck and back disabilities. The Veteran appealed the Board’s denial of service connection for OSA to the United States Court of Appeals for Veterans Claims (Court). In August 2018, the Court granted the parties’ Joint Motion for Partial Remand (JMR), vacating the Board’s decision and returning the issue for action consistent with the JMR. In February 2019, the Board remanded the issue of entitlement to service connection for OSA for additional development. At that time, the previously remanded issues of entitlement to service connection for neck and back disabilities remained in remand status. All three of these issues have been returned to the Board. A March 2018 rating decision denied service connection for Sjogren’s syndrome, and the Veteran subsequently perfected an appeal with regard to that issue. In November 2020, the Veteran and his attorney were advised that VA had added records to the file since the issuance of a January 2020 statement of the case. The Veteran was told that he could waive initial AOJ review these records, and that if he did not respond within 45 days, the Board would assume that he did not wish the Board to decide his appeal and would remand the appeal to the AOJ for review. Neither the Veteran nor his attorney responded. However, as the Board has concluded that service connection for the claimed cervical spine disability, low back disability, and OSA is warranted, final disposition of these issues by the Board results in no prejudice to the Veteran. Service Connection Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran 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”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, “[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.” Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service connection for a cervical spine disability Service connection for a low back disability The Veteran seeks service connection for cervical spine and low back disabilities, maintaining that they are related to a motor vehicle accident during service. The record reflects current diagnoses of degenerative disc disease of the cervical spine and intervertebral disc disease of the thoracolumbar spine. Service treatment records reflect that in January 1995, the Veteran was seen following a motor vehicle accident. He reported neck, back, and shoulder pain. The provider indicated that the accident had occurred one day previously, and that the Veteran had been taken by ambulance to Nuremburg Hospital. He noted that the Veteran had left without obtaining any paperwork. Physical examination revealed pain on motion, with reduced range of motion in all planes. The impression was myalgias secondary to motor vehicle accident, probably whiplash. The Veteran was placed on 72 hours bedrest and instructed to return following that period. On followup in January 1995, the Veteran endorsed continued pain in his neck and pain radiating to his low back. Examination revealed reduced range of motion and tenderness to palpation at the cervical and lumbar spine. On report of medical assessment in August 1996, the Veteran reported that he had been in a car accident and injured his neck. A December 2017 report by E.J.G., D.O. indicates that Dr. G. reviewed the record. He noted that the record documented the occurrence of a rear-end motor vehicle accident. He indicated that the Veteran’s vehicle was totaled, indicating the severity of the impact. He recited relevant findings in the service treatment records, including neck pain radiating into both shoulders and low back pain radiating down the right leg. He concluded that the in-service accident and mechanism of injury were the cause of the Veteran’s spine pathology. He reasoned that rear-end collisions severe enough to total a vehicle and cause concussions were sufficient enough to cause severe whiplash and spinal injuries. He pointed out that the radiating neurological symptoms noted in the service records were indicative of significant injury. He stated that it was inconceivable that the Veteran could escape the accident without developing long term degeneration. He acknowledged that the Veteran had been involved in post-service motor vehicle accidents, but indicated that the evidence supports the onset of spinal problems in temporal proximity to the in-service accident. He stated that the Veteran clearly developed problems before any post-service incidents, and that the post-service accidents merely aggravated the Veteran’s conditions. Having carefully reviewed the record, the Board has determined that service connection for the Veteran’s claimed cervical spine and low back disabilities is warranted. In reaching this conclusion, the Board notes that Dr. G. provided a detailed statement regarding the Veteran’s in-service motor vehicle accident, subsequent treatment, and post-service injuries. He ultimately concluded that the Veteran’s claimed neck and low back disabilities had their onset during service. In consideration of the above, the Board has carefully considered the record, and finds that there is at least an approximate balance of evidence with respect to the question of whether the Veteran’s current neck and low back disabilities are related to service. Therefore, having resolved doubt in favor of the Veteran, service connection for his cervical spine and low back disabilities is granted. Service connection for OSA The Veteran asserts that his OSA had its onset in service, and that therefore service connection is warranted. Medical records reflect a current diagnosis of OSA. Service treatment records indicate that the Veteran was seen in May 1992 for sore throat and coughing. The provider noted that penicillin had been ineffective. In August 1992, the Veteran reported that he had woken with a headache. Examination revealed edema and erythema of the throat. In February 1993, the Veteran again complained of sore throat. Examination revealed edema and erythema, as well as swollen tonsils. In March 1993, a provider noted recurrent tonsillitis characterized by no fever, but sore throat for three to four days, every two to four weeks. In February 1995, the Veteran complained of sore throat for two days. Examination revealed slightly red tonsils. In November 2014, the Veteran’s wife stated that she met the Veteran in 1995. She indicated that she noticed loud snoring and that the Veteran would stop breathing during sleep. She noted that he always woke with a sore throat and headaches. A December 2017 report by E.J.G., D.O. indicates that Dr. G. reviewed the record. He indicated that the convergent data indicates in-service onset of OSA symptoms. He pointed out that the Veteran was documented to have chronic sore throat, tonsillitis, sleep trouble, and headaches upon wakening. He noted that headaches upon waking were a classic sign of sleep apnea. He indicated that the clinical findings were supported by the Veteran’s wife’s lay statements, in which she related that she witnessed loud snoring during service, which was clinically significant in the OSA context. Having carefully reviewed the record, the Board has determined that service connection for the Veteran’s OSA is warranted. In reaching this conclusion, the Board notes that Dr. G. provided a detailed statement regarding the Veteran’s symptoms during service, and also considered his wife’s lay statements regarding her observations during service. He ultimately concluded that the Veteran’s claimed OSA had its onset during service. In consideration of the above, the Board has carefully considered the record, and finds that there is at least an approximate balance of evidence with respect to the question of whether the Veteran’s current OSA is related to service. Therefore, having resolved doubt in favor of the Veteran, service connection for OSA is granted. REASONS FOR REMAND Service connection for Sjogren's syndrome with vitreous degeneration and punctate keratitis In November 2020, the Veteran and his attorney were advised that VA had added records to the file since the issuance of a January 2020 statement of the case. The Veteran was told that he could waive initial AOJ review these records, and that if he did not respond within 45 days, the Board would assume that he did not wish the Board to decide his appeal and would remand the appeal to the AOJ for review. Neither the Veteran nor his attorney responded. Thus, remand of this issue is necessary for initial review of newly added evidence by the AOJ. Review the expanded record and readjudicate the Veteran’s claim of entitlement to service connection for Sjogren’s syndrome, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his attorney should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Barone, 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.