Citation Nr: 21077593 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 20-10 918 DATE: December 30, 2021 ORDER Service connection for intervertebral disc syndrome (IVDS) of the thoracolumbar spine is granted. Service connection for right lower extremity neuropathy as due to the service connected IVDS is granted. Service connection for left lower extremity neuropathy as due to the service connected IVDS is granted. Service connection for obstructive sleep apnea is denied. REMANDED Service connection for right upper extremity neuropathy as due to the service connected IVDS is remanded. Service connection for left upper extremity neuropathy as due to the service connected IVDS is remanded. FINDINGS OF FACT 1. The Veteran sustained a back injury during service. 2. The currently diagnosed IVDS had its onset during service. 3. The currently diagnosed bilateral lower extremity neuropathy disabilities are related to the (now) service-connected back disability. 4. The Veteran does not have, nor has he had at any time proximate to or during the course of this appeal, sleep apnea. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a back disability of IVDS have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for right lower extremity neuropathy, as secondary to the service connected IVDS, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.310. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for left lower extremity neuropathy, as secondary to the service connected IVDS, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.310. 4. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from July 1999 to April 2001. This matter comes before the Board of Veterans' Appeals (Board) from November 2018 and January 2019 rating decisions. The issues of service connection for neuropathy of the right and left upper extremities were deferred in the former rating decision and denied in the latter rating decision. In September 2020, the Board denied service connection for sleep apnea and IVDS, and remanded the issues of service connection for neuropathy of the lower extremities to the Agency of Original Jurisdiction (AOJ) for additional development. Although the issues of service connection for neuropathy of the bilateral upper extremities had been certified to the Board, the September 2020 Board decision inadvertently omitted those issues. The Veteran appealed the Board's decision denying service connection for sleep apnea and IVDS to the Court of Appeals for Veterans Claims (Court). In a March 2021 Order, the Court granted a Joint Motion for Partial Remand (Joint Motion), vacating the Board's decision regarding sleep apnea and IVDS and remanding for additional proceedings. In June 2021 the Veteran's agent withdrew the requested Board hearing regarding the issues of service connection for neuropathy of the lower extremities on the Veteran's behalf. This case was previously before the Board in June 2021, where the Board remanded all issues on appeal for additional development. Any discussion with regard to compliance with the Board's remand instructions is rendered moot by the full grant of benefits sought on appeal as to the issues of service connection for IVDS and the bilateral lower extremity neuropathy disabilities. As to the issue of service connection for sleep apnea, VA attempted to obtain any outstanding treatment records; therefore, an additional remand to comply with the June 2021 remand directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Service Connection for IVDS is Granted. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. In this case, the Veteran has been diagnosed with IVDS, which does not qualify as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran essentially contends developing a back disability from sustaining in service injuries, and that symptoms of the back disability have continued since service separation. Specifically, the February 2020 and August 2021 VA examination reports reflect the Veteran indicated that he injured the back during service and that he sought in-service treatment for the injures. The February 2020 VA examination report also reflects that the Veteran indicated that symptoms of an in-service back injury have continued to the present, and the August 2021 VA examination report reflects the Veteran indicated that the back disability began in 2000 during service. A November 2018 statement reflects the Veteran indicated that he injured the back in the summer of 2000 during service. Initially, the Board finds that the Veteran is currently diagnosed with IVDS. Specifically, the reports from the February 2020 and August 2021 VA examinations reflect that the Veteran has been diagnosed with IVDS. After a review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether there was onset of symptoms of a back disability in service and since service separation (i.e., whether a back disability was "incurred in" service) that was later diagnosed as IVDS. The evidence weighing in favor of the finding of in-service onset includes the February 2020 and August 2021 statements showing that the Veteran reported sustaining an in-service back injury and that he sought in-service treatment. The Veteran is competent to report an in-service back injury and treatment. Additional favorable evidence also includes the Veteran's consistent lay statements demonstrating back disability symptoms since service, to include the August 2021 VA examination report reflecting an injury to the back related to various in-service exercises. Further, a May 2000 service treatment record reflects the Veteran reported sharp pain in the tailbone area with the service examiner assessing low back pain/buttock pain secondary to sit-ups and rash. A March 2001 separation report of medical history reflects the Veteran endorsed having recurrent back pain. A physician's summary elaborated, "Swollen/painful joints, [headache], head injury, dizziness, back pain all [signs and symptoms] occurred [after] injury 3/00 during training." In Walker, 708 F.3d 1331, the Federal Circuit held that the presumptive theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). While the back disability is not a chronic disease listed under 38 C.F.R. § 3.309(a), as indicated above, the Board has nonetheless found the evidence at least in equipoise on the question of whether the Veteran had back disability symptoms that began during service and continued since service separation, which were later diagnosed as IVDS, thus tending to show direct service incurrence. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a), (d). As discussed above, however, the Board is granting the service connection claim based on evidence, including that pertinent to service, which establishes that symptoms of the back disability (later diagnosed as IVDS) began in service, so were directly "incurred in" service. The finding that the Veteran has had back disability symptoms since service is supportive of the direct service connection theory of the claim overall because it tends to show that the symptoms that began in service were the basis for the later diagnosed back disability. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements are competent on in-service and post-service symptoms - dizziness, loss of balance, hearing trouble, stumble and fall, and tinnitus - that were later diagnosed as Meniere's disease). For these reasons, and after resolving reasonable doubt in the Veteran's favor, the Board finds that the back disability was incurred in active service; thus, the criteria for service connection for a back disability have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service Connection for Right Lower Extremity Neuropathy is Granted. 3. Service Connection for Left Lower Extremity Neuropathy is Granted. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. The Veteran essentially contends that the bilateral lower extremity neuropathy disabilities are related (secondary) to the (now) service-connected back disability. As to the secondary service connection theory (38 C.F.R. § 3.310), the February 2020 VA examiner indicated that the right and left lower extremity nerve disabilities were related to IVDS. Based on the above, and resolving reasonable doubt in favor of the Veteran, secondary service connection for right and left lower extremity neuropathy disabilities, as secondary to the now service-connected IVDS, is warranted. 38 C.F.R. § 3.310. The grant of secondary service connection renders moot all other theories of service connection. See 38 U.S.C. § 7104 (stating that the Board decides questions of law or fact). 4. Service Connection for Sleep Apnea is Denied. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Board finds that the weight of the evidence is against a finding that the Veteran has currently diagnosed sleep apnea, either by diagnosis or by functional impairment, including based on lay evidence reports. See VA and private treatment records; Saunders v. Wilkie, 886 F.3d 1356 (2018). The competent evidence of record including VA and private treatment records does not demonstrate a current sleep apnea diagnosis. Insomuch as the Veteran asserts that he has a current sleep disorder, the Board finds that, under the specific facts of this case that include no current diagnosis of sleep apnea, the Veteran does not have the requisite medical training or credentials to be able to diagnosis sleep apnea. The etiology of the sleep apnea is a complex medical etiological question dealing with the origin and progression of the respiratory system, and sleep apnea is a disorder diagnosed primarily on symptoms, clinical findings, and physiological testing. As discussed above, no examiner, VA or private, has diagnosed sleep apnea. For these reasons, the Veteran's unsupported lay opinion under the specific facts of this case that include no current sleep apnea diagnosis, is of no probative value. Based on the foregoing, the Board finds that the significant weight of the evidence demonstrates that the Veteran does not have currently diagnosed sleep apnea; therefore, the appeal for service connection must be denied. REASONS FOR REMAND 4. Service Connection for Right Upper Extremity Neuropathy is Remanded. 5. Service Connection for Left Upper Extremity Neuropathy is Remanded. The Veteran contends generally that a bilateral upper extremity neuropathy disability is related to the service-connected IVDS. To date, no opinion has been offered as to whether the currently diagnosed upper extremity neuropathy is related to the (now) service-connected IVDS. The aforementioned issues are REMANDED for the following action: Request that a VA medical professional review the electronic file and provide the VA medical opinion requested below. The relevant documents in the electronic file should be made available to, and be reviewed by, the VA examiner. The VA examiner should note such review in the medical opinion. If the VA examiner determines that additional examination(s) of the Veteran is necessary to provide reliable opinions, such examination(s) should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The VA examiner should provide the following opinions with supporting rationale: A. Is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed right and/or left upper extremity neuropathies were caused by the service-connected intervertebral disc syndrome of the thoracolumbar spine? B. Is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed right and/or left upper extremity neuropathies were worsened in severity beyond a normal progression by the service-connected intervertebral disc syndrome of the thoracolumbar spine? E. BLOWERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tenney, 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.