Citation Nr: 21008452 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-06 264A DATE: February 17, 2021 ORDER Entitlement to service connection for a fractured vertebra is denied. Entitlement to service connection for a bilateral eye condition, to include as secondary to herpes infection or non-specific urethritis, is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to asbestosis, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a fractured vertebra began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that a bilateral eye condition began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a fractured vertebra are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2019). 2. The criteria for service connection for a bilateral eye condition, to include as secondary to herpes infection or non-specific urethritis, have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1962 to November 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2016. A transcript of the hearing is associated with the electronic claims file. The Board issued a decision denying the fractured vertebra and eye claims in June 2018, as well as remanding the sleep apnea claim. Following an appeal to the United States Court for Appeals for Veterans Claims (Court), in January 2020 a memorandum decision was entered, vacating the portion of the Board’s June 2018 decision denying the fractured vertebra and eye claims. The Board issued another remand regarding the sleep apnea claim in January 2020. In August 2020, the Board issued a remand for the fractured vertebra and eye claims pursuant to the January 2020 memorandum decision. Service Connection Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or 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). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (permanently worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448–49 (1995). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for a fractured vertebra. The Veteran testified that he hurt his cervical spine in 1963 while he was part of a new class of Navy SEALS. The Veteran further testified that during “hell week” he was helping to carry a transmission pole while running through the sand and that the pole came collapsing down onto his neck and shoulder causing his later diagnosed fractured vertebra. Despite this injury, the Veteran testified that he did not seek any immediate medical attention and upon reporting the injury to his commanding officer he was discharged from the SEALS and sent to the USS Galveston. The Veteran had x-rays of his cervical spine in July 1987, more than 20 years after separating from service, which showed an avulsion fracture of the antero-interior C5 vertebral body with associated soft tissue swelling, and degenerative changes about the C5-6 interspace consistent with a previous trauma. Current treatment records do not show continuing treatment for this injury. Turning to the in-service event or injury, the preponderance of the evidence is against finding that the fractured vertebra began during active service. At his enlistment exam in November 1962, the Veteran had no defects or diagnoses, except for less than perfect vision. At his release from active duty exam in November 1966, no defects or diagnoses were noted. Moreover, a review of the Veteran’s service treatment records shows no complaints of pain or injury to his neck, shoulder, or spine at any time during service. An injury as significant as sustaining a fracture of the neck would eventually require some medical attention if in fact it occurred. Instead, the Veteran went on to serve on two separate ships following his alleged in-service incident with the Navy SEALS with no documented complaints of residual problems. As noted above, it was not until more than 20 years after separating from service that the Veteran had x-rays of his cervical spine completed. As such, there is no credible evidence that the Veteran’s fractured vertebra happened during service. As noted above, in August 2020 the Board issued a remand pursuant to the January 2020 memorandum decision. In its memorandum decision, the Court wrote “The record includes several pieces of evidence that indicate that appellant sought private treatment from several physicians, yet those treatment records are unavailable in the record of proceedings. R. at 350, 438. Regarding the appellant’s neck claim, the appellant’s June 1987 private treatment notes indicate that he suffered an injury, and displayed degenerative changes that were ‘consistent with previous trauma.’ R. at 159.” In compliance with the remand directives, in September 2020, the RO sent the Veteran a letter requesting he complete the enclosed authorization forms so that the above discussed private treatment records may be obtained. The Veteran did not return any completed authorization forms. Instead in November 2020 he indicated that he had no additional information or evidence to submit in support of his claim. However, the Veteran also submitted a letter in November 2020 requesting a copy of his service treatment records and denying he was given a physical at his separation from service. The Veteran was provided a copy of the requested information in February 2021 and to date has not provided any additional correspondence or evidence in support of his claim. The Board finds the Veteran’s conclusion - that the past trauma indicated on the 1987 x-ray results is related to his 1963 Navy SEALS training - is based on mere speculation and is not plausible. As such, the preponderance of the evidence is against finding that the fractured vertebra began during active service. Accordingly, service connection for a fractured vertebra must be denied. 2. Entitlement to service connection for a bilateral eye condition, to include as secondary to herpes infection or non-specific urethritis. The Veteran initially contended that he had a bilateral eye condition that was secondary to a herpes infection which was diagnosed during service. However, during his hearing, the Veteran testified that he was not diagnosed with herpes during service, but that he was instead diagnosed with non-specific urethritis. Upon questioning by his representative, the Veteran also testified that the only problem he currently has with his eyes is cataracts. His representative decided to make no argument for service connection for cataracts noting that it is a developmental condition that advances with age. As discussed above, the Veteran had no defects or diagnoses at his release from active duty exam in November 1966. The Veteran’s service treatment records do not show a diagnosis for any eye condition, nor do they show a diagnosis of herpes or non-specific urethritis during service. Moreover, the Veteran is not service connected for either of these conditions, thus his bilateral eye condition could not be found to be secondarily service connected. Finally, current medical records do not show a diagnosis of any eye condition, except cataracts, which is not contended to be related to service. As such, the preponderance of the evidence is against finding that a bilateral eye condition began during active service. Pursuant to the January 2020 memorandum decision, this issue was also remanded by the Board in August 2020 and the RO requested the Veteran return signed authorizations in September 2020 in order to obtain private treatment records regarding his eye condition. To date the Veteran has not provided any completed authorizations or additional evidence in support of his eye claim. Therefore, service connection for a bilateral eye condition is denied. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include as secondary to asbestosis is remanded. The Veteran filed an application for service connection for sleep apnea as secondary to pleural disease in September 2013. In a February 2014 rating decision, the RO denied this claim, finding that while the Veteran did have a current diagnosis of sleep apnea, he was not service connected for pleural disease or asbestosis, therefore he could not be secondarily service connected for sleep apnea. The Veteran appealed the issue up to the Board. In June 2018, the Board remanded this claim in order to provide the Veteran with a VA examination to determine the etiology of his sleep apnea. In April 2019, the Veteran was given a VA examination for sleep apnea. Here, the examiner diagnosed obstructive sleep apnea and opined that it was less likely than not incurred in or caused by his active service. The examiner provided “No evidence was found and available service treatment records of any diagnosis of sleep apnea, or of any symptoms suspicious for sleep apnea, such as frequent awakenings, snoring or daytime somnolence. The earliest confirmed record of sleep apnea is his 2012 sleep apnea, with other records mentioning sleep apnea since 2004. Either way, this is well after his active duty service time, and does not indicate sleep apnea during his service time.” With regard to secondary service connection, the examiner also opined that it was less likely than not that the Veteran’s sleep apnea was caused by his asbestosis. In support of his opinion, the examiner wrote “There is no pathophysiologic connection between asbestosis and sleep apnea. Asbestosis affects the parenchyma and smaller airways of the lungs, plus sleep apnea is caused by upper airway obstruction related to obesity and genetic propensity for this. Therefore, there is no grounds to establish likelihood for causation, or for aggravation.” Finally, the examiner opined that it was less likely than not that the Veteran’s sleep apnea was aggravated by his asbestosis. As rationale, the examiner provided the same explanation as noted above. A review of the Veteran’s service treatment records shows no complaints of or treatment for sleep apnea during active service. At his November 1966 separation exam, no defects or diagnoses were noted. However, the Board notes that at his September 2016 hearing the Veteran indicated that his sleep apnea may be related to his active service “because in the service, if I stood still for 10 minutes, I’d go to sleep. If I was in the turret, you know, as a, as, you know, shooting guns or if I was in the, down below loading ammo or powder, if I got a calm minute, I’d fall asleep. And, uh, even in the combat control area, if we were firing a missile off and I was communicating between the operations officer and the commanding officer on the bridge, he’d have to wake me up to get the missile (inaudible), because it was dark and, you know, and I never slept more than three to four hours at any one time, in the military, because I couldn’t sleep.” Moreover, in June 2019 correspondence, the Veteran again contended that his sleep apnea started during active service “because I had constant problems sleeping at night was always tired during the day.” The Veteran also contended that after he married in 1967 his wife told him that he “kept snoring and would stop breathing, she had to keep waking me up at night so that my breathing would continue.” The Veteran was given a VA examination for respiratory conditions in June 2019. Here, the examiner noted “Secondary to the asbestosis, Veteran had bilateral interstitial pulmonary fibrosis and pulmonary hypertension. Also developed chronic atrial fibrillation due to the lung disease, and has sleep apnea associated with the asbestosis, requiring CPAP therapy at night. Veteran is chronically short of breath, has minimal exercise tolerance due to restrictive lung disease but does not yet need hoe [sic] O2.” In light of all the additional evidence, the Board again remanded this claim in January 2020 in order to obtain additional treatment records and an addendum opinion from a sleep specialist regarding the Veteran’s sleep apnea. The Veteran was given another VA examination for his sleep apnea in September 2020. Here, he was again diagnosed with obstructive sleep apnea and it was opined that the condition was not incurred in or caused by his active service, nor was it proximately due to or aggravated by his asbestosis. The Board notes that this examination and these opinions were provided by a nurse practitioner, rather than a sleep specialist as instructed in the January 2020 remand directive. Accordingly, another remand is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding remand by the Board confers on the claimant the right to compliance with the remand requests). The Board also notes that in November 2020 the Veteran provided a positive nexus opinion regarding his sleep apnea from his treating physician. He wrote “[The Veteran, […], has sleep apnea. In my opinion, he most likely than not developed sleep apnea during his military career. He is currently using a CPAP machine.” The Board notes that no rationale was provided for this opinion which renders this opinion inadequate (see Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (providing that it is well established that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"), but it will be considered on remand, and the Veteran is welcome to supplement this opinion while the claim is in remand status. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a sleep specialist regarding the etiology of the Veteran’s sleep apnea. The electronic claims file must be reviewed by the examiner, including this remand order which includes a summary discussion of each of the currently provided opinions regarding the Veteran’s sleep apnea, and a note that it was reviewed should be included in the report. The examiner should answer the following questions: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea began in (or is related to) his active service? (b.) If not, is it at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea was caused by his service-connected asbestosis with pleural plaques and interstitial and restrictive lung disease? (c.) If not, is it at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea was aggravated beyond its natural progression by the Veteran’s service-connected asbestosis with pleural plaques and interstitial and restrictive lung disease? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the sleep apnea by the asbestosis. In formulating an opinion, the examiner should specifically consider and address: (1) the Veteran’s lay statements and hearing testimony that his sleep apnea began while he was still in active service; (2) the prior VA sleep apnea and respiratory condition examinations, including the June 2019 examination that seems to indicate that the Veteran’s sleep apnea is associated with his asbestosis; and (3) the November 2020 opinion provided by the Veteran’s private physician. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, Associate Attorney 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.