Citation Nr: 21015183 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 18-27 920 DATE: March 16, 2021 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a neck disability is denied. Entitlement to service connection for sleep apnea is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a back disability began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that a neck disability began during active service, or is otherwise related to an in-service injury or disease. 3. The Veteran’s sleep apnea is proximately due to or aggravated by his service-connected diabetes mellitus or service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a neck disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for sleep apnea, to include as secondary to service-connected diabetes are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Army from June 1967 to August 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran’s May 2018 Form 9, the Veteran elected to only appeal the issues of a back disability, neck disability, and sleep apnea. In December 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. 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). 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). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be “shown in service,” the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the veteran’s service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a back disability 2. Entitlement to service connection for a neck disability The Veteran contends that he developed his current back disability and neck disability in service more than 50 years ago. Reportedly, he injured his back and neck from a blast injury in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of interverbal disc syndrome (IVDS) and cervical strain, the preponderance of the evidence weighs against finding that the Veteran’s back and neck disability began during service or is otherwise related to an in-service injury, event, or disease more than 50 years ago. The March 2016 VA examiner opined that the Veteran’s back disability and neck disability is not at least as likely as not related to an in-service injury, event, or disease, including an IED injury. The examiner stated that the Veteran’s back pain was most consistent with a L/S strain. Noting that the Veteran had some chronicity of symptoms, the Veteran’s current back pain did not occur until many years later. Therefore, while the Veteran has current symptoms, it would be temporally unlikely to be associated with the initial IED injury. As for the Veteran’s neck disability, the examiner found there is no objective data or medical records demonstrating cervical spine pathology and the examination was grossly normal. The examiner’s opinions are probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his back and neck disability are related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of medical pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence. In this regard, the Board must find that both the service records and post-service treatment records provide evidence against this claim, indicating problems that began well after service with no connection to any injury in service. Having thoroughly considered and weighed the evidence of record, the Board finds that service connection for a back disability and a neck disability are not warranted. 3. Entitlement to service connection for sleep apnea The Veteran contends he has sleep apnea that is proximately due to or aggravated by his service-connected diabetes mellitus. A March 2018 VA examiner opined that the Veteran’s sleep apnea is less likely than not proximately due to or the result of the Veteran’s service-connected disabilities. The examiner stated that peer-reviewed medical literature does not support the nexus between the Veteran’s medications and the development of obesity. Furthermore, the examiner stated there is no sufficient convincing evidence that his obesity was solely caused by his medications for his service-connected conditions. February 2020 private treatment records show the Veteran has a current disability of obstructive sleep apnea and opined that it is at least as likely as not that the Veteran’s current sleep apnea is secondary to, related to, and/or is aggravated by his service-connected diabetes mellitus. The private examiner noted the total weight gain of approximately 20 pounds during the Veteran’s active duty with an additional weight gain of 45 pounds from his discharge, notably after the manifestation of his diabetes condition. Furthermore, the Veteran’s diabetes promoted weight gain and at least contributed as an aggravating factor of his sleep apnea condition. The private examiner cited to medical literature in support of their opinion. In this case, there are two highly probative medical opinions in this case of equal probative value. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for sleep apnea is warranted, to include as secondary to his service-connected diabetes mellitus. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, 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.