Citation Nr: 21077125 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 19-12 900 DATE: December 28, 2021 ORDER Entitlement to service connection for a thoracolumbar spine condition (claimed as arthritis back condition) is granted. Entitlement to service connection for obstructive sleep apnea is granted. FINDINGS OF FACT The Veteran's low back disability had its onset in-service. CONCLUSIONS OF LAW The criteria for entitlement to service connection for a thoracolumbar spine condition (claimed as arthritis back condition) have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the U.S. Army from September 1978 to May 1985. This case comes before the Board of Veteran's Appeals (Board) on appeal from August 2016 and April 2017 rating decisions of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The former denied service connection for obstructive sleep apnea; that issue was subsequently remanded to the AOJ for development in a February 2020 Board decision. The latter was denied in April 2017 and is before the Board for the first time. The Veteran testified during a virtual hearing before the undersigned Veterans Law Judge (VLJ) in December 2021. This decision is rendered prior to production of a hearing transcript; given the favorable outcome, the Veteran is not prejudiced by this action. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Back Disability The Veteran contends that his current back disability was related to his military service. Specifically, he asserts that the physical training from military service contributed to his current back disability. Service treatment records (STRs) documented a complaint of lower back pain. A July 1982 treatment note documented that he complained of a backache for one-week. The Veteran was assessed with muscle strain. The Board notes that the Veteran did not have a separation examination performed. Post service treatment records documented that the Veteran's continued complaints and treatment of back pain. A November 2016 VA treatment documented he had an impression of degenerative disc disease (DDD) at L4-5. An April 2018 VA treatment noted documented that he had chronic lower back pain. In February 2019, the Veteran was afforded a VA examination. The Veteran was diagnosed with degenerative arthritis of the spine. The Veteran reported that the onset of his condition was in 1983. He reported that while in Fort Campbell, Kentucky while doing air assault training in 1980/81, he fell several times during training. He indicated that he had pain but never complained about it. He noted that he continued to take over the counter medication until he could no longer cope. He noted that he made a compliant with the VA in 1990. The VA examiner opined that the Veteran's back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was that although there were VA records that documented treatment, there was a lack of in-service records to corroborate that any of the current conditions initiated during service. On April 2019 VA Form 9, the Veteran wrote that he had many slips and falls during filed training. He noted that during marches he had his backpack and other equipment on that contributed to his back disability. In December 2021, the Veteran testified that his back disability started in-service and had continued since then. He indicated that he performed air assault training and hurt his back during this training. Further, he indicated that the normal wear and tear of the service contributed to his current disability. He noted that during service he treated his disability with hot compresses, topical medicines, etc. The Veteran stated that his wife also helped him with treating his disability. His wife testified that she remembered he had lots of vomiting in-service and his back would tighten up during service. The Board finds the February 2019 medical opinion is not entitled to probative weight, as it is based on the lack of documentary evidence of treatment and ignores the Veteran's competent and credible lay statements. Dalton v. Peake, 21 Vet. App. 23 (2007). The evidence of record establishes that the Veteran had back pain and a back disability during service. The 2019 examiner did not discuss or acknowledge this fact. Given the Veteran's competent and credible complaints of back pain both during and after service, and the evidence of a current disability, the Board finds that the Veteran's back disability had its onset in active service. Accordingly, the Board finds that service connection is warranted based on continuity of symptomatology. The Board finds that the Veteran's competent and credible statements coupled with the treatment records showed continuity of the signs and symptoms of back problems associated with arthritis. Service connection for a back disability is warranted. Obstructive Sleep Apnea The Veteran similarly contends that his currently diagnosed obstructive sleep apnea was first manifested on active duty. He reports snoring, waking up gasping for air, and daytime sleepiness and fatigue in service. Barracks mates complained when he slept in a communal room, and several submitted statements describing the Veteran's disturbed sleep breathing. Further, his wife of over 40 years stated that she had observed these behaviors in and since service and verified the complaints of others. STRs reflect no findings or reports of sleep apnea in service, or other trouble sleeping. A March 2020 VA examiner noted the January 2016 diagnosis of sleep apnea and prescription of a CPAP device. The examiner also acknowledged the Veteran's reported history of snoring and disturbed sleep breathing, corroborated by statements from his wife and friends. The examiner did not offer a nexus opinion. An April 2020 addendum from a different reviewer offered a negative nexus opinion, reasoning that there was no documentary evidence of symptoms, complaints, or diagnosis of sleep apnea in service. She listed the lay evidence discussed above, but did not address it in her rationale, in direct contradiction of the Board's remand directives. The opinion is, accordingly, given no probative weight. Instead, the Board credits the competent lay evidence describing the clear onset of sleep apnea on active duty. Service connection for obstructive sleep apnea is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.