Citation Nr: 21075036 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-24 028A DATE: December 17, 2021 ORDER Entitlement to service connection for a cervical spine disability is granted. Entitlement to service connection for a low back disability is granted. Entitlement to service connection for peripheral neuropathy of the left upper extremity is granted. Entitlement to service connection for peripheral neuropathy of the right upper extremity is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for an acquired psychiatric condition, to include post-traumatic stress disorder (PTSD) and major depressive disorder (MDD), is granted. REMANDED Entitlement to service connection for asthma is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Veteran's cervical spine disability is etiologically related to his service. 2. Resolving all reasonable doubt in his favor, the Veteran's low back disability is etiologically related to his service. 3. The evidence is at least in equipoise that the Veteran's peripheral neuropathy of the left upper extremity is caused by his cervical spine disability. 4. The evidence is at least in equipoise that the Veteran's peripheral neuropathy of the right upper extremity is caused by his cervical spine disability. 5. The evidence is at least in equipoise that the Veteran's sleep apnea was caused by obesity, which was caused by his service-connected musculoskeletal disabilities. 6. Resolving all reasonable doubt in his favor, the Veteran's PTSD and MDD are etiologically related to his service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 6. The criteria for entitlement to service connection for an acquired psychiatric condition, to include PTSD and MDD, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1984 to December 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2014 and June 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified before the undersigned at a hearing via videoconference. A transcript of his testimony has been associated with the claims file. Service Connection Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). 1. Cervical spine and low back The Veteran contends that he injured his neck and back during an in-service car accident and that he experiences chronic pain that has progressively worsened over time as a result. His service treatment records confirm that he was in a motor vehicle accident that caused him to lose consciousness in March 1987. Although no fractures were found, he was in mild distress after the accident and hospitalized due to his injuries. Hospital records indicate that he sustained whiplash, abrasions to the left scapula, sacral spine, left forearm, and bilateral legs, and a contusion to his thoracolumbar spine when he was ejected from his car. After he was discharged from the hospital, he continued to report pain and stiffness. For instance, in an August 1988 service treatment record, he reported that he sustained a back injury during a car accident that resulted in chronic low back pain and stiffness. He stated that the pain had worsened over the past year and was aggravated by standing. He also sought treatment for mechanical low back pain in September 1988. Post-service VA treatment records reflect that he has complained of chronic pain in his shoulders, neck, and back for several years. Imaging studies from April 2014 show degenerative changes of the cervical spine, while imaging studies from July 2015 show degenerative changes in the lumbosacral spine. In October 2014, the Veteran was afforded with a VA examination regarding the nature and etiology of his cervical spine disability. At that examination, however, the VA examiner opined that the Veteran's current cervical spine disability was less likely than not related to his in-service injury, because medical literature did not support finding that whiplash caused or resulted in degenerative joint disease or degenerative disc disease of the cervical spine three decades later. Additionally, he attended a December 2016 VA examination regarding the etiology of his low back disability. In that examination report, the December 2016 VA examiner acknowledged that the Veteran was in a motor vehicle accident during service, but also that he was in another car accident in May 2016. The December 2016 VA examiner ultimately opined that there was no evidence of record supporting a finding that his current low back disabilities were incurred, caused by, or the result of his 1987 accident, and that his current clinical findings were "clearly preceded" by the May 2016 car accident. The Veteran also submitted a private medical opinion regarding the etiology of his low back and cervical spine disabilities. In that medical opinion, Dr. M. indicated that he had reviewed the Veteran's service treatment records, which discussed his first car accident, as well as post-service treatment records and medical literature. Dr. M. stated that injuries from an accident increase the risk of osteoarthritis, even if injuries occurred many years ago and seemingly healed. Dr. M. also conceded that the Veteran had been in a second car accident in 2016, but also stated that imaging studies rom prior to the 2016 accident showed degenerative changes in his cervical and lumbosacral spine. In his opinion, those degenerative changes were at least as likely as not related to his in-service motor vehicle accident. Ultimately, the Board finds that the June 2020 private medical opinion from Dr. M. is more persuasive than the October 2014 or December 2016 VA examiners' opinions. To that end, the VA examiners' opinions do not fully address the Veteran's lay statements regarding the onset of his pain. Moreover, the December 2016 VA examiner failed to address the degenerative changes present on imaging studies that were performed prior to his 2016 car accident. An opinion is inadequate if it does not consider all relevant evidence of record, including lay evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board finds that the VA medical opinions are inadequate. Dr. M.'s opinion, on the other hand, is supported by other evidence in the record, such as the April 2014 and July 2015 imaging studies, service treatment records, VA treatment records, and lay statements. Accordingly, Dr. M's opinion is entitled to significant probative weight. Ultimately, the preponderance of the evidence demonstrates that the Veteran's current cervical spine and low back disabilities are at least as likely as not related to his in-service accident. Service connection is thus granted for these disabilities. 2. Peripheral neuropathy The Veteran also argues that he suffers from peripheral neuropathy in his bilateral upper extremities. He reports that he has had intermittent numbness and tingling in his arms and fingers in the past few years and argues that these symptoms are related to his cervical spine disability. Nerve testing performed in 2014 indicates current diagnoses of right ulnar neuropathy and left median neuropathy. In the October 2014 VA examination report, the VA examiner opined that the peripheral nerve conditions in his bilateral upper extremities were not due to his neck condition but instead due to carpal tunnel and cubital tunnel syndromes. On the other hand, in his June 2020 private medical opinion, Dr. M. opined that his peripheral nerve conditions were secondary to his now service-connected cervical spinal disability. For instance, he stated that the Veteran's 2014 nerve testing revealed a 30-year history of neck pain as well as constant numbness and tingling in the right arm and pain in the left arm. Dr. M. stated that medical literature reports that nerve compression at the neck can make nerves that are lower down more vulnerable. Based on the Veteran's imaging studies, his cervical spine showed degenerative disc disease, moderate spinal stenosis at C6/C7 and C5/C6, severe foraminal stenosis at C6/C7, and moderate foraminal stenosis of at C5/C6. The Board takes judicial notice that stenosis is a condition in which the spinal column narrows and compresses the individual nerve roots in the spinal cord. Once more, the Board finds Dr. M's private medical opinion more persuasive than the October 2014 VA examiner's opinion. To that end, the October 2014 VA examiner only addressed whether the Veteran's peripheral nerve symptoms were caused by his cervical spine disability, but not whether it was aggravated by the cervical spine disability. An adequate medical opinion regarding secondary service connection must address causation and aggravation separately. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (indicating that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b)). Moreover, the October 2014 VA examiner states without providing a rationale that the peripheral nerve symptoms are due to carpal tunnel syndrome and cubital tunnel syndrome. An opinion that is conclusory or that does not provide a sufficiently detailed rationale is inadequate. Stefl v. Nicholson, 23 Vet. App. 320 (2007). The October 2014 medical opinion is thus entitled to little, if any, probative weight. Dr. M.'s opinion, on the other hand, is supported by a clear rationale, consistent with other evidence in the record, and not directly contradicted by any other probative medical evidence. As such, the Board finds that the evidence is at least in equipoise that the Veteran's cervical spine disability is the cause of his right ulnar and left median peripheral neuropathy. Resolving all reasonable doubt in his favor, the Board finds that service connection is warranted on a secondary basis. 3. Sleep apnea The Veteran also asserts that service connection for sleep apnea is warranted. More specifically, he has argued that his low back, cervical spine, and peripheral nerve disabilities make it too painful for him to exercise, which in turn has caused him to gain weight and develop sleep apnea. The Board notes that obesity is not a disability that qualifies for service connection, nor does it qualify as an in-service event to warrant service connection for another disability. However, obesity could act as an "intermediate step" to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. See VAOPGCPREC 01-17 (Jan. 6, 2017). Here, obesity would be an "intermediate step" in establishing secondary service connection for sleep apnea if the Veteran's service-connected musculoskeletal disabilities caused him to become obese; if obesity is a "substantial factor" in the development of sleep apnea; and if sleep apnea would not have occurred but for the obesity caused by the service-connected musculoskeletal disabilities. In this case, Dr. M. opined in his June 2020 report that the Veteran's back pain has prevented him from exercising for years, which has "significantly contributed" to his obesity. Obesity, in turn, is a major cause of sleep apnea. As support, Dr. M. cited an article on the relationship between sleep apnea and obesity. He ultimately opined that the Veteran's sleep apnea was at least as likely as not due to his obesity, and that his obesity was a direct cause of his chronic back pain. Here, the Board finds that the evidence is at least in equipoise with respect to whether the Veteran's sleep apnea developed due to his obesity, which is secondary to his service-connected musculoskeletal disabilities. As Dr. M. explained, the evidence is consistent with a finding that his musculoskeletal disabilities have restricted his ability to exercise or perform other activities, which has resulted in significant weight gain. The evidence also shows that obesity is a substantial factor in developing sleep apnea and suggests that, but for his weight gain, he would not have developed sleep apnea. As such, the Board finds that service connection for sleep apnea is warranted, secondary to obesity caused by his service-connected musculoskeletal disabilities. 4. Acquired psychiatric condition Additionally, the Veteran asserts that he is entitled to service connection for PTSD due to his in-service motor vehicle accident. At the outset, the Board notes that his post-service treatment records reflect a variety of mental health diagnoses, including PTSD and MDD. As such, the Board has broadened the characterization of his claim on appeal to entitlement to service connection for an acquired psychiatric condition to recognize this fact. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In general, establishing service connection for PTSD requires specific findings. These are: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f). The Board notes that, effective March 19, 2015, VA amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Fifth Edition, or DSM-V. See 79 Fed. Reg. 149, 45,094 (Aug. 4, 2014). VA directed that the changes be applied only to applications for benefits received by VA or pending before the agency of original jurisdiction on or after August 4, 2014, but not to claims certified to, or pending before, the Board, the Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on or before August 4, 2014. As the Veteran's original PTSD claim was received in April 2014, but first certified to the Board after August 4, 2014, the DSM-V applies. As such, diagnoses must conform to the DSM-V. Here, there is some conflicting evidence in the record regarding the precise nature of the Veteran's acquired psychiatric condition. Although an October 2014 VA examiner diagnosed unspecified depressive disorder and unspecified anxiety disorder, the VA examiner also stated that the Veteran did not have a diagnosis of PTSD that satisfied the DSM-V criteria. In a private psychological evaluation from August 2021, however, Dr. H.H. diagnosed PTSD consistent with the DSM-V criteria, as well as MDD. Resolving all reasonable doubt in the Veteran's favor, the Board finds that he has a current diagnosis of PTSD, as well as a diagnosis of MDD. As set forth above, the evidence clearly demonstrates that the Veteran was in a car accident during service. Whether this in-service stressor occurred is not in dispute. Instead, the chief question for the Board is whether the Veteran's in-service accident is causally related to his currently diagnosed PTSD and MDD. To that end, the Veteran has consistently stated that his mental health suffered following his in-service accident and that others noticed his behavior had changed. For example, he reported feelings of paranoia following his accident, as well as a depressed mood, anxiety, hopelessness, and a lack of energy. He has also submitted various lay statements discussing changes in his personality after his accident. In a lay statement received in May 2016, his father reported that the Veteran has become "more and more angry and confused" over the years, and that he has become more untrusting and paranoid. He also submitted a buddy statement from J.S., a fellow servicemember who lived with the Veteran during service. In his buddy statement, J.S. stated that the Veteran had "drastic mood changes" after his car accident, but that he did not want to go to sick call because he did not want to receive backlash for seeking medical treatment. He also submitted a lay statement from his sister, who reported that he was calm, even-tempered, and fun to be around before his accident, but that after the accident he was angry, jumpy, anxious, rude to strangers, and paranoid. She also stated that he began having nightmares and problems sleeping. Additionally, the Veteran submitted Dr. H.H.'s private psychological evaluation. In her evaluation, she diagnosed PTSD and MDD. In pertinent part, she stated that he had a diagnosis of PTSD that met all the DSM-V criteria and that this disorder was due to the motor vehicle accident that he was in during service. As support, she cited the reported changes in his behavior following his accident, as well as the lay statements submitted by his relatives. Dr. H.H. reiterated that the Veteran had become angry, jumpy, anxious, and paranoid following the accident and that he had nightmares and difficulty sleeping. As such, she ultimately opined that his PTSD was at least as likely as not due to his motor vehicle accident in service. She also indicated that he suffered from MDD, which was associated with his PTSD. The Board acknowledges that the October 2014 VA examiner opined that the Veteran did not have a diagnosis of PTSD and that his other mental health conditions were less likely than not related to his in-service accident. However, the October 2014 VA examiner did not consider the lay statements submitted by the Veteran's relatives or former roommate. Because the October 2014 VA examiner's opinion did not address this evidence, its probative value is significantly diminished. On the other hand, Dr. H.H.'s opinion considers and is consistent with the lay statements in the record, as well as the Veteran's lay statements with respect to the onset of his symptoms. Ultimately, the Board finds that Dr. H.H.'s opinion is highly probative regarding the etiology of the Veteran's PTSD and MDD. As such, the Board finds that the preponderance of the evidence weighs in favor of granting service connection for PTSD and MDD. REASONS FOR REMAND Last, the Veteran argues that he is entitled to service connection for asthma due to his work as a corrosion control technician. While he worked as a corrosion control technician, he was reportedly exposed to various chemicals that stripped away paint and rust. He contends that his exposure to these chemicals has caused his current asthma symptoms, which he must treat using medication. Every veteran who served in the active military, naval, or air service after December 31, 1946, is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. Only those conditions recorded in examination reports can be considered as "noted," 38 C.F.R. § 3.304(b), and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b)(1). Here, the Veteran's March 1983 enlistment examination contains no notations regarding asthma or any other respiratory abnormalities. In the accompanying report of medical history, however, he reported a remote history of childhood asthma that had since resolved without recurrent wheezing or other problems. The report of a remote history of childhood asthma is insufficient to overcome the presumption of soundness, which attached at enlistment. However, when the RO arranged for the Veteran to undergo a VA examination with respect to the etiology of his asthma, the October 2014 VA examiner opined that the Veteran's asthma, which clearly and unmistakably pre-existed his service, had not been aggravated by his exposure to chemicals. As set forth above, the Veteran was presumed to be in sound condition when he enlisted, and it is unclear why the VA examiner concluded that his asthma clearly and unmistakably pre-existed service when his March 1983 report of medical history reflects only a remote history of childhood asthma that had resolved without symptoms. Indeed, the VA examiner failed to explain when the condition had its onset. Moreover, even assuming the condition pre-existed service, the VA examiner's opinion that his asthma had not been aggravated by his service was conclusory and not supported by a detailed rationale. When VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). If an examination report is inadequate or does not contain sufficient detail, the Board is required to return the report in a remand. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001). In the interest of assembling clear and reliable findings, the Board thus finds that remand is warranted to obtain an addendum medical opinion regarding the etiology of his asthma. Accordingly, this matter is REMANDED for the following action: 1. After obtaining proper authorization, obtain and associate with the claims file any outstanding VA treatment records and any outstanding, relevant private treatment records. 2. Thereafter, obtain an addendum medical opinion from an appropriate VA examiner in connection with the Veteran's claim for service connection for asthma. After reviewing the claims file in its entirety, including a copy of this remand, the examiner is asked to do the following: (a.) Provide an opinion as to whether it at least as likely as not (approximately 50 percent or greater probability) had its onset during or is otherwise related to service, including exposure to certain chemicals. A detailed rationale should accompany all opinions rendered. In doing so, the examiner must address the Veteran's lay contentions regarding the onset and nature of his asthma symptoms. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.