Citation Nr: 21008538 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-24 652 DATE: February 17, 2021 ORDER Entitlement to service connection for cervical spondylosis (cervical spine disability) is granted. Entitlement to service connection for lumbosacral strain (low back disability) is granted. Entitlement to service connection for sleep apnea, to include on a secondary basis, is denied. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's cervical spine disability is related to an in-service injury. 2. The evidence is at least evenly balanced as to whether the Veteran's low back disability is related to an in-service injury. 3. The preponderance of the evidence is against a finding that the Veteran’s sleep apnea is related to or had its onset in service; and against a finding that it is caused or aggravated by his service-connected traumatic brain injury (TBI). CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for cervical spine disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for low back disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for sleep apnea, to include on a secondary basis, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2002 to June 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for cervical spine disability and sleep apnea. This matter also comes before the Board from a January 2015 rating decision which denied service connection for lumbosacral spine disability. In March 2015 the Veteran filed a Notice of Disagreement (NOD) as to his sleep apnea and arthritis of the neck. In March 2015 the Veteran also filed a separate NOD as to his lumbosacral strain. In March 2017 the RO issued a statement of the case (SOC) as to his cervical spine disability and sleep apnea and a separate SOC as to his lumbar spine strain. In May 2017 the Veteran timely filed two substantive appeals (via VA Form 9). In September 2018 the Board remanded the Veteran’s claim for further evidentiary development, specifically, to obtain a medical opinion to determine the nature and etiology of his sleep apnea. For the reasons stated in the discussion below the RO substantially complied with the remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). In April 2020 the RO issued Supplemental Statement of Case (SSOC). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established 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(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) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a),(b). 1. Low back and cervical spine disabilities A March 2020 VA examiner diagnosed the Veteran with spondylolisthesis. A March 2020 private physician diagnosed the Veteran with light anterolisthesis at the C4-5 level. Also, a November 2012 private physician diagnosed the Veteran with cervical vertebral bodies with evidence of mild multilevel cervical spondylosis from C3-4 and C5-6. A March 2020 VA examiner diagnosed the Veteran with lumbosacral strain. Also, an October 2014 VA examiner diagnosed the Veteran with lumbosacral strain and spinal stenosis. Thus, current low back and cervical spine disabilities have been demonstrated. On a November 2013 VA Form 21-4138 the Veteran stated that his arthritis was caused by the vigorous physical activities that he completed as a part of his daily routine. Also, the Veteran stated that his arthritis in his neck and back are a result of being exposed to an IED explosion which caused him to hit his head and lose consciousness. On an April 2013 VA Form 21-4138 the Veteran stated that when he sought medical treatment for his head injury he was given motrin and told to come back at a later time. Based on these statements, the Veteran contends that he was engaged in combat with enemy forces. As noted on his DD Form 214, the Veteran served in a designated imminent danger pay area. Also, a May 2005 STR indicates that the Veteran was a gunner and went on weekly missions. Thus, the Board finds that the Veteran engaged in combat with the enemy. VAOPGCPREC 12-99 (October 18, 1999) (combat determination should be made on a case by case basis where there is no award specifically indicating combat service). The finding that the Veteran engaged in combat is significant because it allows a combat veteran to use "satisfactory lay or other evidence" to establish that he was injured or incurred a disability while on active duty, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154(b)). Although there is no documentation of a combat injury in the Veteran’s STRs, the fact that the Veteran was in combat supports his contention that his injury would not be reported due to the places, types, and circumstances of service. Reeves v. Shinseki, 682 F.3d at 998. Furthermore, a September 2003 STR indicates that the Veteran was diagnosed with chronic low back pain and muscle spasms. A January 2006 STR indicates that the Veteran experienced neck pain. Taken together, the Veteran’s statements regarding his in-service injury, his back and neck pain noted on his STRs, and his combat experience satisfy the in-service injury or disease requirement. The remaining question is whether a nexus exists between the Veteran’s current low back and cervical spine disabilities and an in-service injury. A March 2020 VA examiner opined that the Veteran’s cervical spine disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that the Veteran’s STRs were silent for any cervical neck complaints. The VA examiner explained that the March 2018 private treatment note most likely indicated a soft tissue or muscle strain and he did not find any objective evidence of a chronic disability. The VA examiner attributed the Veteran’s neck pain to age or body habitus and concluded that any injury the Veteran sustained in service would likely have progressed to a point of more significant objective presentation. The VA examiner noted that the Veteran reported that his cervical spine disability was not the result of his TBI, but rather, the normal challenges of being a service member. The March 2020 VA examiner indicated that there was no evidence of in-service neck symptoms, however, the Veterans STRs indicate that the Veteran did exhibit neck pain symptoms. Therefore, the VA examiner’s opinion is entitled to no probative weight. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). The March 2020 VA examiner also opined that the Veteran’s low back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that the Veteran’s condition in service was acute and had resolved. The VA examiner explained that there was no objective evidence of a chronic disability and that the Veteran’s low back disability was likely related to age or body habitus. The VA examiner noted that the Veteran reported that his low back disability was not the result of his TBI, but rather, the normal challenges of being a service member. The Veteran is currently service connected for TBI and the Board has found the Veteran's statements to be credible and consistent with the circumstances of his service including his combat experience. While the March 2020 VA examiner reasoned that the Veteran’s in-service back pain was not extensive, he did not adequately consider the effect of the Veteran’s TBI, nor address the Veteran’s statement on the November 2013 VA Form 21-4138 in which he stated that his low back and cervical spine disabilities resulted from the physical activities and the work demand of his daily activities. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Given the competent and credible statements as to the Veteran’s in-service physical stress on his lower back, the back and neck pain noted on the Veteran’s STRs, and the flawed negative nexus opinions, the evidence is at least evenly balanced as to whether the Veteran's low back and cervical spine disabilities are related to his service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for low back and cervical spine disabilities is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Sleep apnea A May 2013 private treatment note indicates that the Veteran is diagnosed with mild obstructive sleep apnea and mild central apnea. A January 2014 VA examiner diagnosed the Veteran with sleep apnea. On the Veteran’s November 2013 Supplemental Claim (VA Form 21-526b) the Veteran claimed service connection for both obstructive and central sleep apnea and the Board has characterized the issue to reflect that it is not limited to obstructive sleep apnea. Thus, a current disability has been demonstrated. The Veteran’s STRs are negative of complaints, treatment, or findings of sleep apnea. The earliest indication that the Veteran experienced sleep apnea was at the July 2013 VA examination in which the Veteran reported that he snores but denied nocturnal choking or gasping. In a November 2013 Statement in Support of Claim (VA Form 21-4138) the Veteran stated that his sleep apnea is a direct result of an IED explosion which caused him to hit his head and lose consciousness. On the March 2015 NOD the Veteran stated that his sleep apnea was due to his TBI. As previously discussed, the Veteran has engaged in combat. Based on his combat experience and his lay statements regarding his head injury, the in-service injury or disease requirement is met. Also, the Veteran is service connected for TBI and the Veteran contends that his sleep apnea should be service connected on a secondary basis. The Board notes that when assessing whether the Veteran is entitled to service connection for sleep apnea it will distinguish between the Veteran’s in-service head injury to consider whether he is entitled to service connection on a direct basis and his service connected TBI to consider whether he is entitled to service connection on a secondary basis. Thus, the remaining question is whether the Veteran’s current sleep apnea is related to an in-service injury or whether the Veteran’s service connected TBI caused or aggravated his sleep apnea. A March 2020 VA examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner explained that the Veteran has type II obesity which is a risk factor for obstructive sleep apnea and was alcohol dependent which is a risk factor for central apnea. There is no evidence or argument that the obesity was caused by a service-connected disability. Cf. VAOPGCPREC 1-2017 recognizes that obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). The VA examiner explained that with respect to the Veteran’s TBI, there were only minimal non-specific changes on his MRI and no changes that could be associated with the Veteran’s sleep apnea. The VA examiner concluded that the Veteran’s sleep apnea is not associated with his service connected TBI. This language is broad enough, when read with the remainder of the opinion, to encompass both causation and aggravation. See Chavez v. McDonald, No. 13-2886, 2014 WL 4662475 (mem dec. Sept. 22, 2014) (a medical opinion finding a lack of relationship between left and right ankle disabilities was adequate even though it did not specifically indicate a lack of aggravation because read as a whole it encompassed aggravation (citing Monzingo and Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012)); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Thus, the VA examiner provided an opinion on a direct and secondary basis and substantially complied with the September 2018 Board remand instructions. The March 2020 VA examiner provided a thorough rationale and explained the reasons for his conclusion based on an accurate characterization of the evidence of record. The VA examiner’s opinion is therefore entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Outside of a generalized conclusory lay statement suggesting a nexus on his March 2015 NOD, the Veteran has not stated how his in-service head injury or service connected TBI caused his sleep apnea. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). The statements of a combat veteran must be considered on the question of whether his sleep apnea was incurred in service. Reeves, 682 F.3d at 999. In this case, to the extent that the Veteran is competent to opine as to whether his in service injury or service-connected TBI caused his sleep apnea, the specific, reasoned opinion of the March 2020 VA examiner is of greater probative weight than the Veteran’s more general lay assertions, particularly as to the an internal medical processes which extend beyond an immediately observable cause-and-effect relationship. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge; Jandreau, 492 F.3d at 1376, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). The Veteran does not contend that he was diagnosed with or experienced any symptoms associated with sleep apnea while in service. The Board notes that the Veteran’s STRs do not contain a separation examination or report of medical history. However, the chronological records of medical care in the Veteran’s STRs do not indicate that the Veteran experienced any symptoms associated with sleep apnea and the Veteran’s February 2004 and December 2005 post-deployment health assessments indicate that the Veteran did not feel tired after sleeping which is a common symptom associated with sleep apnea. For the foregoing reasons, the preponderance of the evidence is against the claim of service connection for sleep apnea on a direct and secondary basis. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.