Citation Nr: 21064429 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 11-32 905 DATE: October 20, 2021 ORDER Entitlement to service connection for a cervical spine condition, to include as secondary to a service-connected right shoulder disability is denied. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to a service-connected psychiatric disability, is denied. FINDINGS OF FACT 1. The evidence fails to establish that the Veteran's cervical spine disorder is due to a disease or injury in service or was caused or aggravated by his service-connected right shoulder disability. 2. The evidence fails to establish that the Veteran's OSA is due to a disease or injury in service or was caused or aggravated by his service-connected acquired psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. 2. The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1983 to June 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2008 and July 2009 rating decisions by the VA Regional Office (RO) in Montgomery, Alabama. The Veteran testified in April 2014 and November 2020 Board hearings before the undersigned Veterans Law Judge (VLJ); transcripts of both hearings have been associated with the claims file. This case was previously before the Board in December 2015, June 2017, and December 2017 at which time multiple service connection claims were denied, including those noted above. The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims (Court). In October 2018 the Court granted a Joint Motion for Partial Remand. This case returned to the Board in February 2019 and most recently in January 2021 when the claims noted above, along with a service connection claim for a right hip condition, were remanded for new VA examinations and medical opinions to address the nature and etiology of any diagnosed conditions. The record shows VA requested and obtained new VA examinations and medical etiology opinions. The Board notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The matter has returned to the Board for appellate review. During the pendency of this appeal, a September 2021 rating decision granted service connection for right hip strain with a 10 percent evaluation and effective date of June 28, 2014, the first date the medical evidence showed a diagnosis of a right hip disability that has been linked to a service-connected disability. The September 2021 rating decision also granted service connection for right hip limitation of adduction/abduction and separately for limitation of extension, both rated noncompensable and with an effective date of December 10, 2019. As this decision represents a full grant of the benefits sought on appeal with respect to this claim, and the Veteran has not appealed either the evaluations or assigned effective dates, these matters are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service Connection In general, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or a disease incurred or aggravated in the line of duty during active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if preexisting such service, was aggravated therein. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. However, VA will not concede aggravation unless the baseline level of severity of the non-service-connected disease is established by medical evidence. 38 C.F.R. § 3.310(b). To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107(b). A Veteran is competent to report on that of which he has actually observed and is within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a cervical spine condition, to include as secondary to a service-connected right shoulder disability. The Board acknowledges the Veteran has a current diagnosis of cervical strain and degenerative arthritis. See July 2021 VA neck (cervical spine) conditions examination. Therefore, the only question for the Board is whether the Veteran's cervical neck disability began during service or is at least as likely as not (at least an approximate balance of positive and negative evidence) related to an in-service injury, event, or disease, or in the alternative was caused or aggravated by his service-connected right shoulder disability. The Veteran's service treatment records (STRs) include a May 1986 sick call that noted a complaint of neck stiffness. The same record noted the Veteran was diagnosed with torticollis. A March 1987 treatment record noted a complaint of neck pain that has continued for five weeks. X-ray imaging in March 1988 showed no bone or soft tissue abnormality. X-ray imaging in November 1990 showed no significant osseous or soft tissue abnormality and normal bony structures. The Veteran was treated fora cervical strain in November 1990. The provisional diagnosis was nerve root impingement C7. December 1990 X-rays show minimal cervical degenerative joint disease. The June 1992 medical board examination and physical are negative for cervical spine problems. A thorough review of the claims file shows the Veteran has been afforded multiple compensation and pension examinations including a January 2016 neck (cervical spine) conditions examination. Notwithstanding confirmation of a diagnosis of cervical spondylosis, the examiner opined that the claimed neck condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner noted that the Veteran was treated for mechanical neck pain in 1987. STRs also show she was treated for cervical strain/sprain. Cervical spine X-rays during active service were negative for arthritis. The examiner noted that the Veteran has been receiving treatment at the VA clinic since 1999. The first mention of neck pain in her VA treatment records was in August 2002 when the Veteran requested an appointment based on pain in the neck and across the shoulders. The Veteran subsequently complained of a work injury where she had pulled her right shoulder and arm. The examiner concluded, although the Veteran was treated for cervical strain during active service, strains are acute soft tissue injuries that do not cause arthritis. The examiner also noted treatment records are negative for a diagnosis of chronic neck condition until the 2002 injury. The Board also review a December 2019 addendum medical opinion to the January 2016 VA examination. The examiner addressed whether the Veteran's cervical spine disorder is related to military service, to include as secondary to the Veteran's already service-connected right shoulder disability and the December 1990 STR showing a diagnosis of minimal degenerative joint disease. The examiner noted STRs include a December 1990 treatment record that states X-rays of the neck show minimal DJD. However, the examiner continued, the actual X-ray reports read by radiologists, as noted below repeatedly state no significant osseous abnormality and the bony structures are normal. The examination done by that private provider also states that her neck had a full, painless, range of motion and resulted in a normal exam. While the provider recommended physical therapy for her knees and shoulders, no such recommendation was made for a neck condition. Cervical spine X-rays from November 1990 for right shoulder and neck pain show no significant osseous abnormality. Separate cervical spine X-rays from November 1990 show the bony structures and soft tissues are normal. STRs reveal the Veteran was treated for cervical strain in November 1990. The Veteran was also seen in March 1988 for sore throat. An X-ray of the soft tissues of neck showed no bone or soft tissue abnormality observed. STRs show the Veteran was treated for cervical strain during service. However, the examiner noted strains are temporary muscular/soft tissue conditions that do not cause DJD, those strains were treated and resolved. The Veteran was diagnosed with a cervical condition in 2002 after she complained of neck pain related to a post separation work injury. A December 1990 clinical note mentions X-rays of the neck show minimal DJD. However, the examiner noted that this interpretation is not substantiated by the actual X-ray reports as noted above. Those reports repeatedly state the cervical spine had no osseous/bone abnormality, that is, no evidence of DJD. The addendum also addressed secondary service connection noting there is no causal relation for a shoulder condition to cause a spine/cervical condition as the shoulder joint does not cause any impact on the spine/neck. The examiner concluded therefore, it is less likely than not for the diagnosed cervical condition to be due to or caused by military service and less likely than not due to or caused by her service-connected shoulder condition. Following the January 2021 Board remand, the Veteran was afforded a July 2021 VA neck conditions examination. The examiner confirmed diagnoses of cervical strain, degenerative arthritis, and right upper extremity radiculopathy. Range of motion test results were noted abnormal in all ranges. In the attached medical opinion, the examiner opined that the Veteran's claimed neck condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected shoulder condition. As a rationale for this opinion, the examiner noted there is no medical pathophysiologic relationship between the two conditions, and they are in anatomically different physiological systems. The cervical strain, arthritis, and right upper extremity radiculopathy are less likely as not proximately due to or the result of the veteran's right shoulder condition. The same medical opinion addressed aggravation. The examiner noted that a baseline level of severity of the claimed neck condition can be determined based on a review of the medical evidence. The examiner observed that a March 1987 treatment record noted the Veteran was treated for five-week history of neck pain, with a diagnosis of mechanical cervical pain. A January 1990 treatment record noted the Veteran was in an automobile accident in which she injured her right shoulder and neck. A December 1990 clinic note indicated that X-rays showed minimal degenerative joint disease and the presence of subacromial bursitis of the right shoulder. The examiner opined that the present condition is more severe than the baseline, however, the Veteran's neck condition is not at least as likely as not aggravated beyond its natural progression by his service-connected shoulder condition. As a rationale, the examiner noted the Veteran developed degenerative disc disease (DDD) and degenerative joint disease (DJD) of the cervical spine since the 1987 baseline noting mechanical cervical pain. Thus, the cervical spine disability has worsened. However, the shoulder disability did not cause the worsening of the cervical spine disability. Shoulder pain can cause increase pain to the neck, but there is no mechanism through which shoulder pain could aggravate the cervical spine degenerative process. The Veteran's claimed cervical spine condition is thus less likely as not aggravated beyond its natural progression by her service-connected right shoulder condition. No medical professional has provided an opinion relating a cervical spine disorder to the Veteran's service, to include being secondary to her service-connected right shoulder disability. As to the Veteran's own contentions, including testimony in her April 2014 and November 2020 Board hearing, the Board notes she is competent to observe lay symptoms, including the presence of pain and when it started. However, the record does not show she has the training or credentials to provide a competent opinion as to a diagnosis or a competent link to her service-connected shoulder condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Indeed, under VA regulations, arthritis is a disease that is shown by X-rays. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Consequently, the Board assigns substantially more probative value to the opinions of the multiple VA examiners who have reviewed the claims file and medical records and then provided negative etiology opinions. As to the right upper extremity radiculopathy noted in the July 2021 VA examination, the Board notes that the findings above reflect that the Veteran is not entitled to service connection for a cervical spine condition. Since service connection has not been established for the underlying disability, there is no legal basis upon which to award service connection for any separately ratable associated neurological abnormalities secondary to a disability that is not service connected. See 38 C.F.R. § 3.310. In summary, the preponderance of the evidence is against the claim for service connection for a cervical spine disorder. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim for service connection must therefore be denied. 2. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected psychiatric disability. The Board acknowledges that the Veteran has a current diagnosis of obstructive sleep apnea (OSA). See July 2021 VA sleep apnea examination. Again, the only question for the Board is whether the Veteran's OSA disability began during service or is at least as likely as not (at least an approximate balance of positive and negative evidence) related to an in-service injury, event, or disease, or in the alternative was caused or aggravated by his service-connected acquired psychiatric disability. The Veteran's STRs include an August 1982 report of medical history (RMH) and report of medical examination (RME) for enlistment that are silent to sleep issues. The STRs also include a treatment records for laryngitis in May 1988 and February 1992; tonsillitis in December 1985 and February 1992; sore throat in October 1990; and pharyngitis in January 1986 and May 1988. No sleep problems were noted in the June 1992 medical board examination and physical. The Veteran checked the yes box indicating trouble sleeping in her June 1992 RMH for the medical board but did not provide a description of the problem. The June 1992 RME was negative for OSA. The Veteran was afforded a June 2009 VA general medical examination. The examiner confirmed a diagnosis of OSA but did not provide an etiology opinion. In a subsequent January 2016 VA sleep apnea examination, the examiner confirmed a diagnosis of OSA from 2006. The Veteran reported a history of tonsillitis and eventual surgical removal in 1992. Use of a continuous positive airway pressure machine (CPAP) was noted. The examiner opined the Veteran's OSA was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. As a rationale, the examiner noted a review of the Veteran's reported symptoms of excessive snoring, and complaints of stopping breathing while asleep, as well as her belief that symptoms attributed to tonsillitis and laryngitis during active service were manifestations of her OSA. However, the examiner noted that the Veteran's treating providers did not request a sleep study during be completed during active duty. In addition, the examiner explained that the Veteran's chronic tonsilitis is not a risk factor for developing OSA, and neither tonsillitis nor laryngitis are a manifestation of sleep apnea. Thus, it is less likely as not for the OSA diagnosed 13 years post separation from service to be due to or caused by military service. The Board reviewed an August 2016 correspondence from the Veteran titled "Formal Appeal" wherein the Veteran reported having the symptoms and the condition. The Veteran asserted that competent medical evidence indicates enlarged tonsils can lead to trouble swallowing or to OSA. Removal of the tonsils can help the problem. The Veteran also reported a diagnosis of sleep disordered breathing with load snoring and gasping on awakening. The claims file also includes a June 2017 VA medical opinion based on the January 2016 VA examination. The examiner opined the Veteran's OSA is less likely than not (less than 50 percent probability) proximately due to the result of the Veteran's service-connected PTSD. As a rationale, the examiner noted that medical literature indicates well known risk factors for the development of OSA include obesity, and craniofacial abnormalities such as abnormal maxillary or short mandibular size. Potential risk factors include heredity, smoking, a large neck, and family history. Anxiety disorder with features of PTSD is not a well-known risk factor for the development of OSA. Thus, it is less likely as not that the Veteran's OSA is due to or caused by the service-connected anxiety disorder, not otherwise specified (NOS) with features of PTSD. As to aggravation, the examiner indicated that it is not possible to determine a baseline level of severity of OSA based upon the available medical evidence. Regardless, the examiner opined that the Veteran's OSA is not at least as likely as not aggravated beyond its natural progression by the Veteran's service-connected psychiatric disability. As a rationale, the examiner noted OSA is a disorder characterized by shallow breathing or pauses in breathing while sleeping. OSA is a mechanical problem, and it is not influenced by a mental disorder. Therefore, it is less likely as not to be aggravated by her service-connected anxiety disorder, (NOS) with features of PTSD. The Board also reviewed a November 2019 sleep apnea disability benefits questionnaire. The examiner confirmed a diagnosis of OSA. Use of a CPAP was noted. A sleep study was noted performed in 2006. No etiology opinion was provided. The Board also reviewed a December 2019 addendum medical opinion to the January 2016 VA examination. The examiner addressed entitlement to service connection for sleep apnea due to military service and/or secondary to her service-connected psychiatric disability. The examiner noted that the STRs are negative for any documentation of a diagnosis or treatment for sleep apnea. The examiner reviewed and noted the August 2016 correspondence wherein the Veteran asserted a relationship between tonsillitis and OSA. However, the Veteran's tonsils were surgically removed in 1992 and she was diagnosed with OSA in 2006. Medical literature notes the complaint of snoring, while common in patients with OSA, was found to have no predictive value. Although there may be an increased perception of sleep disturbance in PTSD, the examiner concluded that the weight of the medical evidence is against a cause and effect, noting that association is not causation. Medical literature notes snoring, and sleep disturbances have a low specific predictive value and the increased prevalence of OSA in PTSD is unclear as noted in one specific study. In a study of Australian Vietnam Veterans with and without PTSD, no difference was seen. However, those with PTSD demonstrated an increased perception of sleep disturbances. Increased perception is not causation and although there may be an association, in which PSTD and OSA my co-exist, an association is not causation. Therefore, it is less likely than not for the Veteran's OSA to be due to service or to the tonsillitis that was surgically treated and resolved or secondary to the service-connected psychiatric disability. A July 2021 VA sleep apnea examination noted a diagnosis of OSA from June 2006. The examiner noted that the Veteran reported onset of symptoms including snoring, gagging for breath, daytime sleepiness, and fatigue from 1991. The examiner referenced the June 2006 private sleep study, wherein the Veteran was first diagnosed with OSA. In the attached medical opinion, the examiner opined that the Veteran's OSA is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected psychiatric disability. As a rationale, the examiner noted OSA is a potentially serious sleep disorder in which breathing repeatedly stops and starts. OSA occurs when throat muscles relax. An individual can experience snoring loudly and feeling tired even after a full night's sleep. The examiner noted that there is no medical pathophysiologic relationship between sleep apnea and a psychiatric disability. As to aggravation, the examiner noted that sleep apnea is a potentially serious sleep disorder in which breathing repeatedly stops and starts. OSA occurs when throat muscles relax. A psychiatric disability does not cause throat muscles to relax. Research studies have been conducted to find a correlation between sleep apnea and psychiatric disorders such as anxiety and stress. However, the medical literature does not establish or confirm their relationship. The research studies included in the claims file were reviewed, and, after reading the articles, it is noted that neither confirm which condition caused the other. Additional articles were reviewed showing sleep apnea causes extremely poor sleep quality, and without a restful night's sleep the body will often massively struggle to deal with stress, it is more likely that patients with OSA syndrome present with anxiety and depression than the typical symptoms, and new research suggests sleep deprivation can cause an anxiety disorder. The examiner thus concluded that the Veteran's OSA is less likely as not aggravated beyond its natural progression by the service-connected psychiatric disability. No medical professional has provided an opinion relating OSA to the Veteran's service, to include being secondary to her service-connected psychiatric disability. The Board again notes that the Veteran is competent to observe lay symptoms including the presence of snoring and gagging for breath upon awakening. However, the record does not show she has the training or credentials to provide a competent opinion as to a diagnosis, a date of such diagnosis, or a competent link to her service-connected psychiatric condition. See Jandreau, supra. Consequently, the Board assigns substantially more probative value to the opinion of the multiple VA examiners who have reviewed the claims file and then provided negative etiology opinions. In summary, the preponderance of the evidence is against the claim for service connection for OSA. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim for service connection must therefore be denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, 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.