Citation Nr: 21073073 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 14-32 490 DATE: December 7, 2021 ORDER Entitlement to service connection for a back disorder is denied. Entitlement to service connection for obstructive sleep apnea (OSA) is denied. FINDINGS OF FACT 1. The evidence demonstrates that a lower back disorder was not incurred in service. 2. The evidence demonstrates that OSA was not incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lower back disorder are not met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for OSA are not met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July to August 1979 and from September 1982 until February 1986. This matter came before the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In April 2018 and July 2020, the Board remanded the claims on appeal for additional development. The case is again before the Board for appellate review. Service Connection The Veteran claims that he incurred back and sleep disorders during service. Relevant legal authority Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a 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 active service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic disorders such as arthritis are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309 (a)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Evidence and analysis The relevant evidence consists of lay assertions from the Veteran and his wife, service treatment records (STRs), VA and private treatment records, and VA compensation examination reports dated in February 2020 and October 2021. The evidence demonstrates that the Veteran has been diagnosed with OSA and a back disorder. This is documented most recently in the VA reports, which note OSA, spondylolisthesis, and residuals of two lumbosacral spinal surgeries. The evidence also indicates that the Veteran experienced a back problem and sleep trouble during service. An August 1979 STR notes sleep walking. January and March 2011 statements from the Veteran's wife indicate onset in 1984 of the Veteran's breathing difficulties while sleeping. In a February 1986 discharge report of medical history, the Veteran noted "recurrent back pain." In lay statements of record, the Veteran describes experiencing a back injury while moving personal belongings in 1983. He asserts that he later received treatment with prescription of pain medication while still in service. The record does not contain STRs documenting the back injury and treatment, or sleep problems other than the one incident of sleep walking. But, as noted in the Board remands, certain STRs are missing from the claims file despite several searches for the complete STR file. As such, the Board will accept as true the lay assertions regarding back and sleep issues during service. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991) (in a case in which a claimant's service records are unavailable through no fault of their own, there is a heightened obligation for VA to assist the claimant in the development of the claim and to provide reasons or bases for any adverse decision rendered without these records). Nevertheless, a preponderance of the probative evidence indicates that OSA and the current back disorder were not incurred in service. Indeed, the evidence indicates that the Veteran did not have either chronic disorder during service. The STRs in the record dated after 1983 do not indicate complaints of, or treatment for, a back or sleep disorder, or the diagnosis of a back or sleep disorder. In the February 1986 discharge report of medical history, the Veteran indicated that he did not have a history of trouble sleeping. The February 1986 discharge report of medical examination is negative for back and sleep disorders and notes the back as normal, despite the complaint of recurrent back pain in the discharge report of medical history. The record contains no medical evidence indicating a back or sleep disorder in the years after service. The earliest medical evidence addressing either disorder is found in private treatment records dated in the 2000s, over 15 years after discharge from service. The evidence shows back problems in 2002, lumbosacral surgery in 2010, and diagnoses of OSA beginning in 2010. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). The evidence therefore indicates that, for over a decade following service, the Veteran did not have the characteristic manifestations sufficient to identify a chronic disease entity involving the back or sleep. Thus, the record indicates that the Veteran did not have OSA or a chronic back disorder in the years following service. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Moreover, none of the VA reports supports the claims of medical nexus. Rather, each contains an opinion countering the claims. With regard to the back, the February 2020 examiner found service unrelated to the current back problems. After citing the evidence indicating an injury in service, and the evidence indicating treatment for a back disorder in the early 2000s, the examiner noted the length of time between service discharge and treatment. Pursuant to the Board's remand seeking clarification, the October 2021 VA addendum report again states that it was unlikely the current problems related to service. The examiner acknowledged the reported in-service injury but indicated that the current problems were more likely due to wear and tear associated with the Veteran's long history following service of obesity. The examiner stated that "[i]n people with high body mass index (BMI), the stress on the spine increases, contributing to even more wear and tear. One of the most common causes of a benign back condition is BMI or wear/tear of back muscle and spine. This has not been found to be related to this [V]eteran's active military service." With regard to OSA, the February 2020 report found service and OSA likely unrelated. The examiner noted the lay report of breathing difficulties while sleeping during active duty, but also noted the absence of evidence of OSA in the years following service. The examiner noted that 2010 back surgery led to breathing difficulty while sleeping to the use of a CPAP machine. The examiner also noted the Veteran's obesity following service and found the obesity the more likely cause of OSA, rather than service. The examiner noted the excess of "soft tissue of the mouth and throat" found with obesity and that "[d]uring sleep, when throat and tongue muscles are more relaxed, this soft tissue can cause the airway to become blocked." An addendum opinion was included pursuant to the Board remand. The October 2021 addendum opinion reiterated the finding that it was unlikely that service and OSA were related, noted the 2011 lay statement indicating sleep trouble during service, but again noted the Veteran's "excessive weight with obesity" as the more likely cause of the problem. Excess weight creates fat deposits in a person's neck called pharyngeal fat. Pharyngeal fat can block a person's upper airway during sleep when the airway is already relaxed. This is why snoring is one of the most common sleep apnea symptoms air is literally being squeezed through a restricted airway, causing a loud noise. The VA reports adequately address the claims. With the addendum reports, each notes the Veteran's current disorders, each notes the absence of evidence of such disorders at service discharge, each discusses the medical evidence indicating onset of problems after service, and each finds the disorders likely unrelated to service. And the Board finds the VA reports and opinions probative. They are explained with citation to facts in the record, are based on a review of the claims file, and are based on an examination and interview of the Veteran. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). And they are more persuasive than the lay statements. Lay persons are competent to describe observable symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, a layperson is not competent to determine issues such as diagnosis and etiology. Sleep problems and degenerative disorders in the spine are internal pathologies beyond a lay person's capacity for observation. They are medical matters and their development involves complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). On these more complex questions, the VA opinions are more credible than the lay opinions of record. See Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder). This is particularly the case here given the absence of lay or medical evidence dated in the years following service indicating back or sleep troubles. Thus, the lay assertions are outweighed by the VA opinions on the question of medical nexus here. Based on the foregoing, the Board finds that the evidence of record preponderates against the claims of entitlement to service connection. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine does not apply, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee 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.