Citation Nr: A21020056 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 200124-64019 DATE: December 15, 2021 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease and low back pain, is denied. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran had sleep-related symptomatology in service. 2. The weight of evidence is against a finding that the Veteran has or has had degenerative disc disease of the lumbar spine during the appeal period. 3. The weight of evidence is against a finding that the current diagnosis of low back pain is related to active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2021). 2. The criteria for entitlement to service connection for a lumbar spine disability, to include degenerative disc disease and low back pain, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1997 to July 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2020 rating decision of a Department of Veterans Affairs (VA) regional office (RO). In January 2020, the Veteran selected the option of having a Board hearing and the opportunity to submit additional evidence within 90 days of that hearing. In August 2021, the Veteran testified at a virtual hearing held before the undersigned Veterans Law Judge and a transcript of that hearing has been associated with the electronic claims file. At the hearing, the Veteran's counsel confirmed that he wanted the 90-day stay to submit additional evidence. Hearing transcript, page 2. That 90-day period has expired, and the Veteran submitted additional evidence in October 2021. In May 2019, a VA RO denied service connection for sleep apnea. In an October 2019 rating decision, a RO denied service connection for degenerative disc disease. In December 2019, the Veteran filed a supplemental claim regarding the issues in the May and October 2019 rating decisions. In the January 2020 rating decision, the RO found that new and relevant evidence had been received to readjudicate the claims of service connection for sleep apnea and a lumbar spine disability, to include degenerative disc disease. VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). 1. Entitlement to service connection for sleep apnea Governing law and regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). To establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Analysis In the January 2020 rating decision, the RO made favorable findings of a current disability of sleep apnea, Hickson element (1); and nexus, or link, established between the sleep apnea and the in-service event or injury, Hickson element (3). The RO found that there was not in-service injury or event, Hickson element (2). In a December 2019 statement, the Veteran's former spouse reported that during service the Veteran had loud snoring and would stop breathing during his sleep. At the August 2021 hearing, the Veteran testified that he was sleep deprived in service. Hearing transcript, page 11. He added that he had dry mouth, choking or gasping for air, and decreased energy in service. Id. at 13. The Veteran and his former spouse are competent to report symptomatology, and the Board finds them credible. Though the service treatment records do not contain any complaints or findings of sleep-related symptomatology, the evidence is in equipoise as to whether the Veteran had sleep-related symptomatology in service. Hickson element (2) is shown. Service connection for sleep apnea is warranted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). The benefit sought on appeal is accordingly allowed. 2. Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease and low back pain Governing law and regulations The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Certain chronic disabilities, such as arthritis and degenerative disc disease, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge of a period of active service lasting at least 90 days. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2021). 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. 38 C.F.R. § 3.303(b). An alternative to showing chronicity in service is a showing of continuity of symptoms after discharge. The United States Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303 (b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Low back pain is not chronic conditions under 38 C.F.R. § 3.309. Analysis In the January 2020 rating decision, the RO made favorable findings of a current disability of low back pain, Hickson element (1); and qualifying event, injury, or disease, Hickson element (2), based on the complaint of back pain in May 1999. The RO found that there was no medical nexus, Hickson element (3). The Veteran is claiming that he has degenerative disc disease, and the RO has found that the Veteran has a current disability of low back pain. Therefore, the Board will separately address whether service connection is warranted for degenerative disc disease and for low back pain. The RO did not find that the Veteran has degenerative disc disease of the lumbar spine. Thus, there is no favorable finding that the Veteran has degenerative disc disease. In December 2019, the Veteran filed a supplemental claim for service connection for a lumbar spine disability. VA treatment records do not reveal a diagnosis of degenerative disc disease of the lumbar spine. A May 2019 VA examiner reviewed X-rays of the lumbar spine that revealed no loss of vertebral body height or significant degenerative changes. The VA examiner stated that in the May 2019 medical opinion report that the Veteran does not have degenerative disc disease because the current X-rays do not show that disability. The Veteran contends that he has degenerative disc disease of the lumbar spine. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the existence of degenerative disc disease of the lumbar spine falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The weight of evidence is against a finding that the Veteran has or has had degenerative disc disease of the lumbar spine during the appeal period. Turning to the current diagnosis of low back pain, the May 2019 VA examiner opined that the claimed disorder 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 noted that the Veteran's separation examination report was negative for back pain. The examiner added that the Veteran had not been seen until 2017 for any back issues. The examiner concluded that there was no consistent chronicity of pain. VA treatment records reflect that the Veteran reported in November 2018 he had issues with his lower back since service. Low back pain is not a chronic disorder under 38 C.F.R. § 3.309. Hence, continuity of symptomatology is not an alternative means of establishing a nexus between the Veteran's current disability and service in this case. To the extent the Veteran is relating his current low back pain to service, the Veteran is competent to report a history of low back pain but the Board does not find him credible. The Board notes that the Veteran denied any current or past medical history of recurrent back pain or any back injury at a May 2001 separation examination. The Veteran, however, did not deny a history of all physical symptomatology. In that regard, he reported a history of hay fever or allergic rhinitis. The Board gives greater weight to the Veteran's reporting at his May 2001 separation examination than on his reporting in November 2018. The weight of evidence is against a finding that the current diagnosis of low back pain is related to active service. The preponderance of evidence is against the claim of entitlement to service connection for a lumbar spine disability, to include degenerative disc disease and low back pain. The claim is denied. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cherry, 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.