Citation Nr: 21009280 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-01 663A DATE: February 22, 2021 ORDER Entitlement to service connection for a thoracolumbar spine disorder (the back disability) is granted. Entitlement to service connection for insomnia, to include as secondary to a thoracolumbar spine disorder, is granted. Entitlement to service connection for obstructive sleep apnea, to include as secondary to a thoracolumbar spine disorder, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his thoracolumbar spine disorder is at least as likely as not related to an in-service injury, event, or illness. 2. Resolving reasonable doubt in the Veteran's favor, his insomnia is at least as likely as not related to his service-connected thoracolumbar spine disorder. 3. The preponderance of the evidence is against a finding that the Veteran's sleep apnea had its onset in service or is otherwise related to service, to include as secondary to the Veteran’s service-connected thoracolumbar spine disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a thoracolumbar spine disorder have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for insomnia have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § § 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1975 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2013 and May 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2019 decision, the Board remanded these matters for additional development. They have returned to the Board for further appellate review. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Additionally, service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § § 1101, 1112; 38 C.F.R. § § 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was “noted” during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.” Walker at 1336; 38 C.F.R. § 3.303(b). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); Ward v. Wilkie, 31 Vet. App. 233 (2019) (holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability)). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. Degmetich v. Brown, 104 F. 3d 1328 (1997). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for a thoracolumbar spine disorder. The Veteran contends that his thoracolumbar spine disorder had its onset during or is otherwise related to his active service. The Veteran’s service treatment records show complaints of and treatment for back pain. In January 1976 the Veteran was diagnosed with low back strain. The examining physician noted range of motion limitations and walking abnormality. The Veteran reported first experiencing back during service in 1975 with severe pain while carrying a heavy object. The Veteran reported that he was provided x-rays and diagnosed with stenosis and calcification in his spine. The Veteran reported several similar episodes of back pain during service, treated with heat and rest. The Veteran has reported continued back pain and symptoms since active service. The Board notes that records for the additional in-service treatments and examinations for his back condition, as reported by the Veteran, are not part of the record. However, as addressed in the September 2019 Board remand, the record suggests that portions of the Veteran’s service treatment records are missing. Prior to returning this matter to the Board, the RO made several unsuccessful attempts to obtain additional service treatment records. As such, the Board recognizes it has a heightened duty to consider the application benefit-of-the-doubt rule when service records are unavailable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Destruction or loss of service treatment records does not create a heightened benefit of the doubt, but only a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005). The Veteran contends that his longstanding back disability is the result of intensive manual labor performed during active service. The Veteran reported that he was assigned to the Civil Engineering Squadron (CES) at Homestead Airforce base and responsible of building and repairing pavement on runways. The Veteran stated that he was trained for 6 months on a weekly basis and then assigned to a work crew responsible for repairing sections of runway. The Veteran provided a very detailed and comprehensive summary of his labor and assignments while assigned to the CES work crew. The Veteran reported using heavy road maintenance equipment and hand tools in performing his duties. Post-service treatment records show that the Veteran’s imaging studies demonstrated significant thoracic spinal stenosis due to ossification of the yellow ligament from T7-T12. The record indicates that the Veteran had experienced low back pain, sensation change, and loss of motor function in his lower extremities on three occasions. In June 1996, the Veteran underwent a laminectomy, bilateral of T7 T8 T9 T10 T11 and T12 (six levels); posterolateral fusion, T7-T12; posterior segmental spinal instrumentation with TSRH hook, screws, and rods, T7-T12; and harvest of left posterior iliac crest bone graft. The Veteran was provided a VA examination for back (thoracolumbar spine) conditions in April 2013. The Veteran was diagnosed with lumbar canal stenosis with residual fusion hardware and degenerative joint disease of the lumbar spine as documented by imaging studies. The examiner found that the Veteran’s back conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there was no in-service report of fracture or dislocation, radiculopathy, or disc lesions. The examiner stated that the Veteran did not undergo a myelogram during active duty to make a definite or probable diagnosis of lumbar canal stenosis. The Veteran obtained a private examination and etiological opinion regarding his back disability in January 2014. The examiner found that, over the length of time in the military, he sustained severe irreparable injury to his spine. The examiner explained that the Veteran’s in-service heavy labor job duties put a strain and/or pressure on the thoracic spine, injuring the ligament and/or vertebrae. The Veteran obtained a private examination and etiological opinion regarding his back disability in January 2014 from an orthopedic surgeon. The examiner found that it is more likely than not, based on his history and present findings, that his current back disability is a direct result of his military service; either through causing his thoracic spinal disease or aggravation of preexisting congenital stenosis, so that it because symptomatic and has required treatment and caused his present disability. The Veteran obtained a private etiological opinion regarding his back disability in June 2019. The examiner found that given the Veteran’s documented onset of back pain during his military service and his clear and convincing history of the continuity and progression of those symptoms until his diagnosis of severe thoracic spinal stenosis, it is at least as likely as not his current back condition is secondary to his military service. The Board also notes that June 2019 private examiner raised several issues with the adequacy of the April 2013 VA examination. The Board acknowledges the differing opinions proffered by several equally qualified medical professionals as to the Veteran’s thoracolumbar spine disorder and concludes that one opinion does not outweigh the other. The Board thus finds that the record evidence is at least in relative equipoise as to whether the Veteran's thoracolumbar spine disorder is related to active service. The Board notes that when the evidence is in relative equipoise, by law; the Board must resolve all reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, the Board finds that service connection for a thoracolumbar spine disorder is warranted. The extent of the problem is not before the Board at this time. Entitlement to service connection for insomnia, to include as secondary to a thoracolumbar spine disorder. The Veteran contends that his insomnia is secondary to his now service-connected thoracolumbar spine disorder. The Veteran does not assert, and the record does not demonstrate, that his insomnia had its onset during active service. Rather, the Veteran alleges that he has insomnia or sleep disorder that is caused by his back disability and/or the pain medication used to treat it. The Veteran’s post-service treatment records show a long history of diagnosis and treatment for insomnia, including the use of prescription sleep aids. The record shows that the Veteran’s insomnia has been associated with his spinal disorder and pain medication. The Veteran obtained a private medical examination and etiological opinion in June 2019. The examiner diagnosed the Veteran with insomnia. The examiner stated that the Veteran’s sleep disorder is characterized by delayed sleep onset, frequent awakenings, and overall unrestorative sleep. The examiner found that the Veteran’s insomnia is more likely than not secondary to his back condition, both to the pain and spasticity in his back, as well as the sleep disturbances caused by his pain medication regimen. Considering the above, the Board finds that the evidence of record is at least in relative equipoise as to whether the Veteran’s insomnia is related to his service-connected thoracolumbar spine disorder. The Board notes that when the evidence is in relative equipoise, by law; the Board must resolve all reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, the Board finds that service connection for insomnia is warranted. The extent of the problems is not before the Board at this time. Entitlement to service connection for obstructive sleep apnea, to include as secondary to his service-connected thoracolumbar spine disorder. The Veteran contends that his obstructive sleep apnea is related to his service-connected thoracolumbar spine disorder. The Veteran does not assert, and the record does not demonstrate, that his sleep apnea had its onset during active service. In this regard, it is important for the Veteran to understand that this problem is not the same insomnia, though the two issues may sometime overlap. As discussed above, the Veteran has now been service-connected for insomnia as secondary to his thoracolumbar spine disorder. Thus, the Board notes that service connection for sleep apnea may be subject to the prohibition on pyramiding in 38 C.F.R. § 4.14, which prohibits separate compensable ratings for the same symptoms/functional impairment under different diagnoses. Post-service records indicate that the Veteran received a sleep study in June 1996 that showed obstructive sleep apnea, hypopnea, and mixed events. A trial of a nasal continuous positive airway (CPAP) therapy was recommended. The sleep study report indicated that the Veteran had a history of snoring, excessive daytime sleepiness, and breathing cessation at night. Nothing indicates a condition to the back problem or insomnia. No etiological opinions or suggestions are contained in the record that relate the Veteran's diagnosis for sleep apnea to service. The Veteran's treatment records indicate that the Veteran's sleep apnea began many years after service. Here, there is no competent evidence of a nexus between the Veteran's sleep apnea and service. The only evidence of record in support of such a nexus is the Veteran's lay opinion that his sleep apnea is due to service. To the extent the Veteran's statements are being offered to establish a nexus, such evidence fails because this determination is a complex medical matter beyond the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has not been shown to possess specialized training sufficient to render such an opinion. Accordingly, the Veteran's assertions as to a relationship between his sleep apnea, diagnosed many years after service, and service are of little probative value. The Board acknowledges that the Veteran was not afforded a VA examination in connection with his claim for service connection for sleep apnea; however, the Board finds that no such development is warranted based upon the facts of this case. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The standards of McLendon are not met in this case as there is no evidence indicating that the Veteran's disability may be associated with service. Again, there is no competent and probative evidence to show that the Veteran had sleep apnea during or contemporaneous with service and no competent and probative evidence that his current condition is related to service or a service-connected problem. The treatment records only provide evidence against this claim, indicating a problem that began years after service with no connection to any of the problems being granted in this case. Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for sleep apnea and that the claim must be denied. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. § § 3.102, 3.303. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Entitlement to TDIU due to service-connected disabilities. The Veteran contends that his disabilities on appeal have caused him to be unable to obtain and maintain substantially gainful employment. Currently, as a result of the above decision, the Veteran is service connected for a back disability and insomnia. Hence, the matter of entitlement to TDIU is inextricably intertwined with the ratings assigned upon implementation by the RO of the award of service connection for these disabilities. The RO is therefore asked to complete this implementation and then readjudicate the Veteran's claim for TDIU. This matter is REMANDED for the following action: 1. Obtain the Veteran's updated VA treatment records and associate them with the evidence of record. If possible, the Veteran himself should submit these records (if any), and any other new treatment for this problem, himself, to expedite the case. Any assistance on this issue would be appreciated. (Continued on the next page)   2. The Agency of Original Jurisdiction (AOJ) should assign ratings to the disabilities granted in this Board decision and complete any additional development regarding the Veteran's claim for TDIU. 3. After completion of the aforementioned, the AOJ should readjudicate the claim for TDIU. If the benefit sought on appeal is not granted, then the AOJ should provide the Veteran with a supplemental statement of the case and afford him the appropriate opportunity to respond thereto. Thereafter, the case must be returned to the Board for further appellate review. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. VanValkenburg, 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.