Citation Nr: 21004369 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-01 528 DATE: January 26, 2021 ORDER Service connection for cervical spine arthritis is denied. Service connection for a right hip condition, to include residuals of an abscess and arthritis, is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The evidence is insufficient to establish that the Veteran’s cervical spine arthritis is directly connected to service, manifested within one year after separation from active duty service, or manifested in continuous symptoms since active duty service. 2. The evidence is insufficient to establish that the Veteran’s right hip condition, to include residuals of an abscess or residuals of surgical treatment for an abscess, was incurred in the line of duty in active military service. 3. The evidence is insufficient to establish that the Veteran’s right hip arthritis is proximately due to or aggravated by his service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical spine arthritis have not been met. 38 U.S.C. §§ 1112, 1131; 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). 2. The criteria for service connection for a right hip condition, to include residuals of an abscess and arthritis, have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a), 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1983 to July 1997, followed by service in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Board remanded the claims for adequate VA opinions. The Veteran seeks service connection for neck arthritis, for a right hip condition, and for sleep apnea. 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; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service event, injury, or disease and the present injury or disease. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Active military, naval, or air service during a period of war includes active duty, a period of active duty for training during which an individual was disabled from an injury or diseases incurred in the line of duty, or a period of inactive duty for training during which an individual was disabled from an injury incurred in the line of duty. 38 U.S.C. § 101(24). Service connection may also be granted for a disability which is proximately due to or aggravated in severity beyond its natural progression by a service-connected injury or disease. 38 U.S.C. § 1131; 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Additionally, service connection may be presumed if a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). Alternatively, under 38 C.F.R. § 3.303(b) service connection is available for continuity of symptomatology of a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker, 708 F.3d at 1331. Arthritis is among the chronic diseases in listed in 38 C.F.R. § 3.309(a). Qualifying service for the presumption of a chronic disease is 90 days’ service in active, continuous service. 38 C.F.R. § 3.307(a)(1). 1. Cervical Spine Arthritis The Veteran seeks service connection for cervical arthritis, which he contends is due to military service including working overhead, going up and down stairs, and performing his duties as a systems maintenance technician. Turning to the evidence, the record shows the Veteran was diagnosed with degenerative joint disease and degenerative disc disease of the cervical spine in 2009. Private treatment records reflect that the Veteran has continued to seek treatment for his neck condition throughout the appeal period. During service, medical examinations in September 1986 and December 1993 found the Veteran’s spine to be in normal condition. A June 1997 service treatment record showed that the Veteran sought treatment for back pain, although the note specified that the pain was in the Veteran’s “lower thoracic” spine. At the Veteran’s July 1997 separation examination, his spine was found to be in normal condition, and on his report of medical history the Veteran did not indicate that he at that time or previously had problems with his neck. In October 2019, a VA examination and nexus opinion were provided, with the examiner opining that the Veteran’s neck arthritis did not begin during service, to include as caused by performing overhead work on aircraft and lifting heavy aircraft parts. The examiner also opined that the condition did not manifest within one year after separation from service and did not manifest in continuing symptomatology since service. Following the Board’s prior remand, an opinion was provided in August 2020 that reviewed the Veteran’s entire file and concluded the Veteran’s first report of cervical pain in 2009, over 13 year after separation from service, was too long of a period “to associate the present [arthritis] with anything that transpired in the active duty period.” Consequently, the August 2020 clinician opined that the cervical arthritis is less likely than not directly related to service. Based on consideration of all the evidence, the Board finds that service connection for cervical arthritis is not warranted, as the evidence of record is insufficient to establish that the Veteran’s current condition is connected to service. Regarding a direct connection, the October 2019 and August 2020 clinicians, based on an examination of the Veteran and review of his entire file, opined that the neck condition is less likely than not related to the Veteran’s duties during service. 38 C.F.R. § 3.303. The evidence also fails to establish that the Veteran’s arthritis either manifested within one year of separation from active-duty service in 1997 or manifested in continuous symptoms since active duty service. Rather, the evidence of record reflects that the time of onset was approximately 2009. 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). Without sufficient evidence of a connection to service, the claim for service connection for cervical spine arthritis must be denied. 38 U.S.C. §§ 1112, 1131; 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). 2. Right Hip The Veteran seeks service connection for a hip condition. He describes having had an infection while serving in the National Guard that eventually required surgery in 2011, and since the surgery he has had difficulty walking and getting in and out of vehicles. He also contends that his right hip condition may be his service-connected spine disability. The evidence shows that around 2011 the Veteran underwent surgery for a right hip abscess related to the spread of bacteremia from foot ulcers. Additionally, x-rays taken for an October 2019 VA examination showed early-stage right hip arthritis. Regarding service connection for residuals of the abscess or the residuals of the surgical treatment for the abscess, the evidence fails to establish that the abscess was incurred during active military service, defined as a period of active duty for training during which an individual was disabled from injury or diseases, or a period of inactive duty for training during which an individual was disabled. 38 U.S.C. § 101(24). Though the evidence does reflect that the infection and surgery happened around 2011, a year in which the Veteran was still enlisted with the National Guard, of record are the Veteran’s service treatment records from the Arizona National Guard, and there is nothing within those records reflecting that the abscess was incurred or treated in the line of duty of his National Guard service. Without evidence of disease or injury in the line of duty in active military service, entitlement to service connection is not warranted. 38 U.S.C. §§ 101(24), 1110; see also 38 C.F.R. § 3.303. Regarding service connection for arthritis, a new opinion was provided in August 2020 to address whether the Veteran’s hip arthritis may be related to his service-connected spine disability. Following review of the Veteran’s medical history and treatment records, the August 2020 clinician stated that the medical literature does not support a known relationship between the Veteran’s lumbar degenerative joint disease and hip arthritis, and therefore the clinician opined that the Veteran’s right hip arthritis is less likely than not proximately due to or aggravated by his service-connected back condition. Though the Veteran provided his statement that he believes his right hip condition is related to his service-connected back disability, there is no evidence of record to show that the Veteran has education, training, or experience to opine on the etiology of hip arthritis, which is a medically complex issue beyond observation by the senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Accordingly, the Board finds that the August 2020 opinion is the most probative evidence of record as to a connection between the Veteran’s right hip arthritis and his service-connected back disability. See 38 C.F.R. § 3.159(a)(1). The August 2020 clinician also opined that the right hip arthritis is “wholly unrelated to the right hip abscess incision and drainage performed in” 2011, evidence against a connection to the abscess even if the evidence established the injury was incurred during a qualifying period of active military service. Finally, the evidence also does not establish that the Veteran’s arthritis either manifested within one year of service or manifested in continuous symptoms since service. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Based on all of this evidence, the Board finds the evidence insufficient to establish that the Veteran’s right hip arthritis is related to service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Accordingly, the service connection claim for either residuals of a right hip abscess or surgical treatment therefor, or for right hip arthritis, there is not sufficient evidence of a connection to an injury or disease incurred during active military service or of a secondary connection to a service-connected disability, and therefore the claim for service connection for a right hip condition must be denied. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a), 3.310(a). REASONS FOR REMAND 3. Sleep Apnea The Board’s previous July 2020 decision remanded for a VA opinion to “specifically consider and discuss the Veteran’s statement that during service he was ‘always tired’ and that other servicemembers complained that he snored loudly.” Though a new opinion was provided in August 2020, the clinician only considered the absence of any evidence in the service treatment records, without discussing the Veteran’s own reports or the report of his fellow servicemembers. Thus, the August 2020 opinion is inadequate and failed to comply with the directives of the Board’s prior remand, which now requires the Board to remand for a new opinion. Dalton v. Nicholson, 21 Vet. App. 23, 39, 40 (2007); Dyment v. West, 13 Vet. App. 141, 146–47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the matter is REMANDED for the following action: 1. Associate with the Veteran’s claims file any VA treatment records not already of record. 2. Obtain an addendum opinion regarding the etiology of the Veteran’s sleep apnea. The clinician must opine whether the Veteran’s sleep apnea at least as likely as not was incurred in or is otherwise related to the Veteran’s service. The clinician must specifically consider and discuss the Veteran’s statements that during service he was “always tired” and that other servicemembers complained that he snored loudly. An opinion that only considers service treatment records is not adequate. (Continued on the next page)   3. After the above development and any other development deemed necessary is completed, readjudicate the Veteran’s claim. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Davis, 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.