Citation Nr: 21004502 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 15-39 959 DATE: January 27, 2021 ORDER Service connection for lumbar spine disability is denied. Service connection for obstructive sleep apnea is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability was not manifest in service and neither arthritis nor degenerative disc disease (other organic diseases of the nervous system) of the lumbar spine manifested within one year of separation. The disability is not otherwise related to service. 2. Sleep apnea did not manifest in service and is not attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability including arthritis or as an organic disease of the nervous system are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 2. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to August 1975, with subsequent inactive service in the National Guard dating into the 1990’s. He appeals a November 2014 rating decision, with the claims filed in September 2013 (lumbar) and January 2014 (sleep apnea). He attended a video-conference hearing before the undersigned Veterans Law Judge (VLJ) in February 2019. A transcript of the hearing is of record. The VLJ clarified the issues on appeal; clarified the concept of service connection; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran’s claims and inquired as to the existence of potential outstanding records. The actions of the VLJ comply with 38 C.F.R. § 3.103. Thereafter, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) in May 2019 for additional development to include obtaining examinations, obtaining updated treatment records and obtaining any outstanding service personnel records. The matters have been returned to the Board. We note that all available service personnel and medical records have been made part ot the claims folder. Service Connection 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 or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. §§ 1110, 1131. In general, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C. §§ 101 (21), (24), (106); 38 C.F.R. § 3.6 (a), (d). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(3). 1. Service connection for lumbar spine disability is denied. The Veteran testified that his lumbar spine disability is related to service. There is current disability inasmuch as the VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ) in March 2020 reflects diagnoses of degenerative arthritis and degenerative disc disease (DDD) of the lumbar spine, dated from 2019. We note that February 2019 non-VA medical records show lumbar DDD. The issue, therefore, is whether the ‘current disability’ began during service or is at least as likely as not related to service. For the following reasons, the preponderance of the evidence is against the claim. First, we note that low back disability was first documented decades following active service, with multiple denials of back complaints and negative back exams also documented in the record. In this regard, STRs include a June 1975 physical examination report for the Veteran’s separation from active service with negative clinical evaluation for the spine. Additionally, post August 1975 dated National Guard treatment records include a January 1982 ‘enlistment’ physical examination showing normal spine and his denial of recurrent back pain. In May 1983, he complained of back pain of one year duration, with the notation of ‘?’ change of 1 to 2 days duration, then lower back pain with bending four days later. One day later, he was no longer having lumbar back pain or tenderness. An August 1984 ‘re-enlistment’ examination reflects spine normal and denial of recurrent back pain. A March 1994 examination reflects spine normal and denial of recurrent back pain. VA back examination in September 2014 included the Veteran’s report that his back always feels stiff and has felt like this for a number of years. However, the examiner didn’t seek clarification of what this meant. The examiner was “unable to define a nexus between the complaints recorded in 1983 and his present complaints and findings.” This opinion was based in part on review of the Veteran’s VA records. The examiner stated this review “reveal his problem list is silent for back problems.” However, as we noted in our 2019 remand, in May 2014, the Veteran had reported for treatment that he had right lower back pain that comes and goes and feels stiff, and had occurred over the years. The March 2020 VA DBQ was ordered so that a medical opinion could be obtained that was based on examination as well as a review of the entire record. The 2020 examiner’s opinion noted no evidence of back condition or lumbar spine disability during service and observed that he denied back pain on exams in 1982 and 1984. The March 2020 examiner concluded that it was less likely than not that that the back disability began during service or occurred within one year of discharge from service and that it was less likely than not that there has been continuity of symptomatology since service. The rationale cited no evidence of a back condition or lumbar spine disability during service or within one year from discharge from service to include no evidence found in medical records. It was noted that the Veteran denied back pain on the later exams in 1982 and 1984. The examiner stated there is not enough evidence to support that the current lumbar spine DDD, Degenerative arthritis, L3-L4 retrolisthesis, L4-L5 anterolisthesis are due to service. The Board concludes that the current back disability, chronic disease under 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a), did not manifest in service or within a presumptive period, and continuity of symptomatology is not established. Rather, the low back disability was not present in service as noted in the 1975 active service separation examination, indeed the spine evaluation was negative. Moreover, he denied back complaints and had negative exams on two subsequent examinations in the 1980’s and one in 1994 as noted. As to the May 1983 isolated and self-resolved back pain report, we note this was not during active service and it is certainly not on its face suggestive of any chronic disease that is related to active service or the initial year following service when viewed in the context of the otherwise overwhelmingly negative record. We conclude that the current disability was not present until years, indeed decades after service separation in 1975. That is, initially documented well outside the applicable presumptive period. 38 U.S.C. §§ 1101 (3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). The Veteran’s assertions, to the extent that they suggest the back was injured on active duty, are outweighed by the combined weight of the negative treatment record prior to 2013, his multiple denials of back pain or problems prior the claim, the findings of normal spine in the 1980’s and 1994, and the 2020 VA examiner’s negative opinion. He actually testified that he hurt his back in 1994 at summer camp, Camp Shelby, Mississippi, and that injury still irritates him. Even the acute, isolated back pain complaints that resolved in May 1983 were not shown to have been during a period of active duty and do not actually describe any injury. Again, this was followed by a denial of recurrent back problems in 1984 and 1994. Additionally, there are no other indication in the record that any current back disease is otherwise related to service. 38 C.F.R. § 3.303 (d). The 2020 VA examiner explains that the current low back disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Although the Veteran argued in favor of a relationship, the Board can identify no relationship between the post-service low back disorder and service. No medical evidence suggests a relationship and the Veteran’s assertions are not credible. This 2020 VA opinion is based on a review of the medical record, all the evidence, and the examiner’s expertise, is well-supported, and referenced the contrary theories set forth by the Veteran. e.g. theory that the low back disorder is related to service. The opinion is uncontroverted by any other medical opinion. It is highly probative. While the Veteran is competent to assert what his perceptions of his condition is, such an assertion is of minimal probative weight in determining whether any back condition is actually related to service in view of the examiner’s well-supported opinion to the contrary. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the Board considers evidence to be more probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions). Thus, the Board finds the 2020 VA examiner’s conclusions more probative than the Veteran’s lay statements to the extent that they are contrary. Importantly, the mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Board finds that the Veteran did not experience any symptoms of the post-service back condition for many decades after service. This long period without back problems weighs against the claim. The Board acknowledges it must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation. Fountain v. McDonald, 27 Vet. App. 258 (2015). But importantly, the lack of objective evidence of any back problems and the normal examinations in STRs dated from August 1972 to August 1975 and 1982, 1984 and 1994 examinations, constitutes persuasive evidence that he was not then experiencing frequent and persistent or ongoing back problems from the time of his separation from service in 1975, which outweighs his present recollection to the contrary. See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (when a medical condition or symptom has not been noted in the medical records, the Board may not consider that as negative evidence unless it is the sort of condition or symptom that would normally be noted or reported); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (citing FED. R. EVID. 803 (7) for the proposition that "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded"). There is no medical opinion indicating that the current disorder is related to service. The Veteran as a layperson is not competent to make such an opinion and there are no Jandreau type exceptions. This issue of etiology is medically complex, as it requires specialized medical education and knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The preponderance of the evidence is against the claim. 2. Service connection for sleep apnea is denied. There is current obstructive sleep apnea (OSA), diagnosed in a November 2013 sleep study, and noted on a March 2020 VA sleep apnea DBQ. He testified that in service he was told he snored loudly, to the point that he was given his own room for a period of time. He also testified that he was always tired when he was in the military and that his drill sergeant would make him stand at the back of the room. The Veteran further testified that a VA doctor told him that his sleep apnea “might have” existed during active duty. The issue for the Board thus is whether the Veteran’s sleep apnea began during service or is at least as likely as not related to service. For the reasons that follow, we find that the preponderance of the evidence is against finding that the OSA is related to service. STRs show no findings, treatment, or diagnoses OSA. At the time of his June 1975 separation examination, there was no report of sleep problems or snoring and his clinical evaluation was wholly negative. Post active service, his National Guard records show he denied frequent trouble sleeping in January 1982, August 1984 and March 1994 examinations. There was no notation of sleep apnea. Here, we find that OSA was not manifest in service. The STRs reflect no noted sleep problems. Also, the March 2020 VA examiner found it less likely than not that OSA was present while in service. The Veteran’s assertion that he may have had OSA in service since he was told snored and was tired in service is not supported in the treatment record and is contrary to the VA examiner’s finding. OSA is not otherwise related to service. 38 C.F.R. § 3.303 (d). There is no medical opinion indicating that OSA, first manifested decades following service, is related to service. Rather, VA examination in March 2020 contains a negative opinion. The examiner opined that OSA was less likely than not (less than 50% probability) incurred in or caused by service. The rationale was as follows: No evidence of obstructive sleep apnea or sleep problems during service found in medical records. Veteran denied sleep problems on exam in 1982 and 1984.Veteran was diagnosed with mild obstructive sleep apnea in 2013 which was many years after service. There is not enough evidence to support that the current obstructive sleep apnea is due to service. The VA opinion is detailed and well-supported. Because it is informed by knowledge of the Veteran’s health as evidenced in the report, is not inconsistent with the documented record, and cites to critical facts in the record, the Board finds the VA opinion to be credible and probative of the issue of nexus. The Board finds the conclusions as to etiology to be sound as to the unique facts of this case. The examiner’s conclusions are uncontroverted by any other medical opinion evidence of record, and they are unfortunately not favorable to the claim. The Board accords it substantial probative weight as to the conclusion that sleep apnea is not related to service. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert’s opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The opinion is adopted. While the Veteran testified OSA is related to his service and was noted in service by people as snoring, as a lay person he is not competent to provide a nexus opinion on OSA. As noted by the VA examiner, there is a gap of many years between service and initial findings of the condition, with denials of sleep problems within that time gap. This issue of nexus is medically complex, as it requires specialized medical education/knowledge of the interaction between multiple organ systems in the body/the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which shows that the disorder first manifested years after service and is unrelated to service. The weight of the evidence is against finding that OSA is otherwise related to service. The multi-year gap between discharge from active duty service in 1975 and evidence of OSA in 2013 is viewed as a factor weighing against this claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As explained above with regard to Fountain, there is a proper foundation for this conclusion here as the lack of objective evidence of any sleep problems in STRs dated from August 1972 to August 1975 and in 1982, 1984 and 1994 examinations, constitutes persuasive evidence that he was not then experiencing frequent trouble sleeping or OSA from the time of his separation from service in 1975. The weight of the evidence is against concluding that any such disease was incurred in service. 38 C.F.R. § 3.303 (d). The preponderance of the evidence is against finding that a nexus exists between the Veteran’s OSA and service. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.