Citation Nr: 21068004 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 16-57 796 DATE: November 8, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to service connection for a lumbar spine disability, manifested by pain with functional impairment, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his obstructive sleep apnea had its onset in service. 2. The Veteran's lumbar spine disability is manifested by pain and functional impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. § 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.302, 3.303. 2. The criteria for entitlement to service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1985 to April 1988 and from December 2001 to November 2002. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the AOJ's determination, and the present appeal ensued. The Veteran's claims have previously been before the Board in November 2018 and June 2021, at which time the Veteran's claims were remanded for further development. SERVICE CONNECTION In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for obstructive sleep apnea As an initial matter, the Board notes that the Veteran was diagnosed with obstructive sleep apnea in October 2014. Accordingly, the first element for establishing service connection has been met. With respect to the second element, the Board notes that the Veteran's service-treatment records are silent for in-service treatment or diagnosis of obstructive sleep apnea. However, the absence of documented treatment in service is not considered fatal to a service connection claim. A veteran or other lay person is competent to report that which he perceives through his symptoms, which in this case, would be snoring, choking, and gaging at night. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran maintains that these symptoms began in 1986, however he did not seek treatment in service as he was unaware that his symptoms could be due to a medical disability. In this regard, the Board notes that the Veteran's service treatment records indicate that while he was not diagnosed with or treated for sleep apnea in service, he did experience symptoms of sleep apnea. Additionally, the Veteran submitted a statement from his ex-wife documenting the symptoms experienced by the Veteran. In September 2014, a statement from the Veteran's ex-wife was provided. The Veteran's ex-wife stated that while the Veteran "would be sleeping, he would choke." The Veteran's medical treatment records also indicate that the Veteran's ex-wife witnessed respiratory disruption while sleeping. In addition to the Veteran's ex-wife's statement, the Veteran has consistently noted the approximate date of onset of his symptoms, and the history of the sleep apnea symptoms he has experienced. As stated above, the Board notes that symptoms of sleep apnea are capable of lay observation and as the Veteran has been consistent with his statements, which are corroborated by his ex-wife's competent and credible statement, the Board finds them to be credible and of significant probative value. The Board notes that the Veteran has been afforded VA medical examinations for his obstructive sleep apnea in August 2019 and September 2021. Both the August 2019 and September 2021 examiners relied on a lack of diagnosis and treatment for obstructive sleep apnea in service to find that the Veteran's obstructive sleep apnea was less likely than not caused by service. Generally, the degree of probative value attributed to a medical opinion issued by a VA or private treatment provider takes into account certain factors, including the opinions thoroughness and degree of detail, and whether there was a review of the claims file. Prejean v. West, 13 Vet. App. 444 (2000). The analysis also includes whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999). The Board has been charged with the duty to assess the credibility and weight given to the evidence. As both the August 2019 and September 2021 medical examiners relied on a lack of in-service diagnosis and treatment, and did not address the etiology of the Veteran's OSA, the opinions are given little probative value. Therefore, the Board finds that the competent evidence of record is at least in equipoise as to whether the symptoms diagnosed as sleep apnea in 2015 are the same symptoms the Veteran originally experienced in active service. Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for sleep apnea is warranted on a direct basis. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Entitlement to service connection for a lumbar spine disability, manifested as pain and functional impairment. The June 2021 Board remand instructed the AOJ to provide the Veteran with an additional VA medical examination to determine whether the Veteran's lumbar spine pain reaches the level of a functional impairment of earning capacity so as to constitute a current disorder. The Federal Circuit held in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and that "pain alone can serve as a functional impairment and therefore qualify as a disability." Saunders v. Wilkie, 886 F.3d 1356, 1367 (Fed. Cir. 2018). Pursuant to the remand, a medical examination was conducted in September 2021. The examiner stated that the Veteran exhibited evidence of pain, both active and passive, that causes functional loss. The examiner further explained that the Veteran's pain reduces the ability for a full range of motion. Additionally, the examiner characterized the Veteran's functional pain as having impacted his ability to perform any type of occupational task, including the ability to do prolonged standing, walking, and reduces the Veteran's ability to do heavy lifting. The Board notes that the examiner documented the Veteran's diagnosed back strain in 1986. While the examiner did not expressly provide an opinion regarding the Veteran's functional pain related to the in-service diagnosis of lumbar strain, the examiner did provide an opinion that the Veteran's disability was less likely than not incurred in service due to an absence in the Veteran's service treatment records of continuous treatment for a low back disability. The Board declines to remand again, finding that while worded differently than the remand directives, the examiner's opinion provides sufficient information for the Board to address this issue, and the record contains sufficient evidence upon which to make a decision on the merits. The Board is not required to remand a claim for additional development when it would impose unnecessary burdens on VA with no additional benefit flowing to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Pursuant to Saunders, "pain alone can serve as a functional impairment and therefore qualify as a disability." The Board notes that while the examiner only provided a diagnosis of lumbosacral strain, diagnosed 1986, the examiner went on to document that the Veteran's lumbar pain qualified as functional impairment, having impacted the Veteran's ability to perform occupational tasks. As the Veteran's pain qualifies as functional impairment, the nexus opinion provided does not adequately address the Veteran's testimony and lay statements regarding the continuity of his pain. While the Board acknowledges and appreciates this opinion, it is afforded little probative value because it does not consider the Veteran's competent and credible reports of ongoing lumbar spine pain. Had the examiner considered this evidence of continued symptoms, perhaps the offered opinion would have been manifestly different. The Veteran's medical treatment record indicates a history of treatment for lumbar spine pain. Additionally, the lay statements provided by the Veteran address the lack of continuity of treatment in service; the Veteran explained that he thought his lumbar spine pain was normal, and self-medicated to treat it. While the Veteran's service treatment records lack documentation of treatment for pain, there are two instances of complaints of low back pain contained in the Veteran's service treatment records, in March 1985 and August 2002. Further, the Veteran's VA medical examinations include a history of the Veteran's lumbar pain, beginning in 1986 and continuing to the present. Finally, the Veteran's ex-wife provided a statement in September 2014, indicating that during service the Veteran had complained of low back pain. As noted in the most recent remand, the Veteran is competent and credible to report that he has pain related to his lumbar spine. That includes reporting the onset of such pain. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent to describe his symptoms however not to diagnose those symptoms. While VA examiners have been unable to associate the Veteran's lumbar spine pain with a diagnosed disability, the fact remains that the Veteran has established that he experiences lumbar spine pain that causes functional loss. The Board finds that pain alone can constitute a ratable disability in this circumstance and, thus, for the purpose of this decision, the Board will accept that the Veteran has a lumbar spine disability owing to his lumbar spine pain, even absent an underlying diagnosis accounting for such pain, and qualifies as a disability per Saunders. For the purposes of this decision, it is sufficient that the Veteran has shown that he experiences lumbar spine pain that has caused functional loss and that his pain has continued since service. Service connection is for such disability is therefore warranted. 38 C.F.R. §§ 3.102, 3.303(d); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.