Citation Nr: 21020957 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 06-21 763A DATE: April 8, 2021 ORDER Entitlement to service connection for a cervical spine/neck disability is denied. Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for insomnia is granted. FINDINGS OF FACT 1. The Veteran did not have chronic complaints referable to his cervical spine or neck in service, and the most probative (competent and credible) evidence of record is against finding that, post service, he had any cervical spine or neck disability related or attributable to his service. 2. The most probative evidence of record also is against finding that he had sleep apnea that was caused or aggravated by his service or a service-connected disability. 3. However, it is as likely as not he had insomnia during the pendency of his claim and that it as likely as not onset during his service. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for a cervical spine or neck disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria also are not met for entitlement to service connection for obstructive sleep apnea. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. But, with resolution of all reasonable doubt in the claimant’s favor, the criteria are met for entitlement to service connection for insomnia. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1971 to July 1991. He died in January 2016, during the pendency of this appeal, but his surviving spouse since has been substituted as the appellant to process these claims to completion. These claims were most recently before the Board in January 2021, when they were remanded for further development and consideration – including especially for still more review and supplemental comment (additional addendum opinions), which subsequently was obtained in February 2021. Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation (“nexus”) between the disease or injury in service and the present disability. 38 U.S.C. §§ 1110; 1131; 38 C.F.R. § 3.303. See also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, certain chronic diseases will be presumed to have been incurred in service, absent an intervening (“intercurrent”) cause, if they were shown as chronic in service or if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). According to 38 C.F.R. § 3.310(a) and (b), service connection may be granted, as well, on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability – although in the latter instance compensation is limited to the degree of disability specifically owing to the aggravation. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). 1. Entitlement to service connection for a neck/cervical spine disability Prior to his unfortunate death, the Veteran contended that he had a neck or cervical spine disability because of his military service. On his VA Form 9, Substantive Appeal to the Board, he said he sustained an injury in Thailand in 1973 that initially was believed to be a back problem but eventually was found instead to be a neck problem requiring surgery. But the most probative evidence of record does not support this contention. The Veteran also contended that he had a bump on his neck in 1972. And the Board acknowledges a December 1972 service treatment record (STR) confirming he reported a bump on his neck for two weeks, which was assessed as a pimple. Warm soaks were prescribed to treat it. But there is no probative evidence that the pimple then shown was in any way related to any cervical spine or neck disability later shown or diagnosed during the pendency of his claim. The Board also acknowledges the Veteran had back complaints in 1973, but the evidence does not support that it was eventually found, by a competent and credible clinician, that those complaints were actually related to a cervical spine/neck injury or disability. A July 1973 Physical Profile Serial Report reflects that the Veteran was provided a profile for his “lumbosacral strain”; the report is unremarkable for cervical spine conditions. Moreover, STRs from July 1973 again reflect spine problems in the lumbosacral (L-S) area, and that he was diagnosed with L-S strain. The Board finds that clinicians in service were competent to distinguish a condition of the lumbosacral spine (i.e., low back) from one instead affecting the cervical spine (i.e., neck). Additional 1973 records note venereal disease (VD) testing (July 1973), tinea versicolor (October 1973), and headaches for one day in duration (November 1973). 1973 STRs simply do not support any cervical spine injury or consequent disability. The Veteran’s subsequent October 1974 Report of Medical Examination shows he reported mumps and chickenpox in childhood, dizziness due to getting up fast, skin diseases due to a rash in his groin, recurrent back pain due to overexercise, and frequent trouble sleeping. This report conversely is unremarkable for complaints referable to his neck/cervical spine and even notes that, on evaluation, his neck was normal. An October 1981 STR shows the Veteran reported pain from between his shoulder blades radiating into his neck for two days in duration. Upon examination, he was diagnosed with a minor shoulder sprain. The record is unremarkable for a cervical spine injury. A January 1985 STR for when he was seen for a left eye complaint notes that his head and neck were normal. An April 1989 STR shows the Veteran was involved in a motor vehicle accident with no loss of consciousness. His neck was tender to palpation. X-rays were negative. Another STR less than two weeks later reflects that he complained of right flank pain post the motor vehicle accident; he was assessed with a rib contusion. The record is unremarkable for complaints of the neck. A May 1989 STR reflects that it was now three weeks since the accident and he still had pain in his right ribs. Again, though, the record is unremarkable for complaints referable to his neck/cervical spine. The Board can reasonably find consequently that, if he also had chronic or significant neck/cervical spine complaints, he would have reported them. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The Veteran’s STRs contain more than 100 entries for a variety of issues such as: a dog bite, VD, right ankle complaints, headaches, eye pain, diarrhea, right knee pain, abdominal cramps, wart removal, athlete’s foot, right hand abrasion to 3rd digit, runny nose, acute rhinitis, sinusitis, seborrheic dermatitis, positive TB tine test, dandruff, nervousness, lower back pain, general malaise and insomnia, left ear pain, tinea cruris, viral upper respiratory infection, sutures in the lower lip, mild shoulder sprain, right knee abrasion, hemorrhoids, coccygeal pain, pharyngitis, infected lymph node on right side of neck, and itching. Yet these records are unremarkable for chronic complaints of the cervical spine/neck. The Veteran’s November 1990 Report of Medical History reflects that he reported that he had, or had previously had, 16 complaints, and did not know about another eight conditions; there was no contention of neck pain. The corresponding physician’s summary and elaboration of all pertinent data is unremarkable for neck/cervical spine complaints. His Report of Medical Examination reflects that his neck was normal upon evaluation. The Board finds that, if he also had chronic neck/cervical spine issues in service, it stands to reason he also would have complained about or sought treatment for that, too, particularly since he sought treatment for several other ailments. The Veteran’s military service ended in July 1991; there is no evidence that he injured his cervical spine/neck in the months between his November 1990 examination and July 1991 separation. Four years, post service, a December 1995 VA radiology record notes the Veteran had a normal cervical spine. The Board resultantly finds that any contention of chronic neck/cervical spine pain in service and since service is less than credible. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. A November 1999 Jackson Hospital and Clinic, Inc., record reflects that the Veteran sought treatment for complaints of right foot and left arm pain. With regard to the left arm pain, it was noted that this was “actually fairly new and has only been going on for about 1 month. This is also a burning tingling pain down his arm.” His listed past medical history was unremarkable for chronic neck pain. His review of symptoms was also negative for neck pains but noted chest pain, kidney problems, bladder problems, back pain, weakness, and blurred vision. An MRI was obtained which showed severe stenosis at C4-5 secondary to disk herniation as well as stenosis at C3-4 secondary to spondylosis. Additional records note that the Veteran had “surprisingly full range of motion.” The Board finds that if the Veteran had chronic neck/cervical spine pain since service, or a significant injury in service, it would have been reasonable for him to have reported it rather than simply note a fairly new onset of pain (for approximately one month) in the left arm, which then led to radiology testing, which in turn, revealed the cervical spine disabilities. It was recommended that the Veteran have cervical spine surgery, which was done in 2000 (anterior corpectomy with fusion). Social Security Administration (SSA) records include a MDSI Physician Services report which states that the Veteran developed neck pain in 2000, and an MRI revealed DDD (degenerative disc disease) in the cervical spine, and he had a cervical fusion. Again, there was no contention as to chronic symptoms since service. A January 2008 VA examination report reflects that the Veteran was employed as a gardener. He was noted to have DDD of the cervical spine which had resolved surgically but with which he had residual pain. The examiner acknowledged that the Veteran had been involved in a motor vehicle accident in April 1989, but that although he initially had a tender neck, the C-spine films were negative, and when seen shortly thereafter, his complaint was with regard to right flank pain; it was unremarkable for continued neck complaints. The examiner found it less likely as not that the Veteran had a current neck disability causally related to the April 1989 accident. A September 2014 Disability Benefits Questionnaire (DBQ) reflects the opinion of the examiner that it is less likely as not that the Veteran has a current neck/cervical spine disability causally related to service. The examiner’s opinion included noting that the Veteran 1990 separation examination did not indicate any head injury and noted no specific complaints regarding his neck, and that his symptoms started long after he left the military. An October 2020 DBQ also notes that the Veteran’s 1990 Report of Medical History and Report of Medical Examination are negative for a cervical condition, and the opinion of the examiner that it is less likely as not that a current disability is due to service. The examiner considered the Veteran’s lay statement as to an injury in service but found no documented signs, symptoms, or complaints to support the claimed condition in service, and that the Veteran’s lay statements are not sufficient to provide a competent diagnosis of an in-service disability. A February 2021 DBQ reflects the opinion of the examiner that it is less likely as not that the Veteran had a cervical spine/neck disability causally related to service. The examiner noted that the Veteran made no mention of complaints of neck pain upon separation and did not reference a prior injury, he was not seen for several years post service for complaints, and he had approximately a decade post service of wear and tear on his neck/spine. In sum, although the Veteran had a tender neck when examined after a motor vehicle accident in 1989, he did not make further neck/cervical spine complaints despite continued treatment for a different injury incurred in the accident. Thereafter, he had normal spine evaluations (1990, 1995), and it was not until 1999 after a one-month history of arm pain, that a cervical spine disability was diagnosed. The evidence as a whole, to include the VA clinical opinions, the private medical records, and the STRs, weighs against a finding that the Veteran had a neck/cervical spine disability during the pendency of his claim which was as likely as not causally related to service. To the extent he was asserting continuity of symptomatology since service, his statements are inconsistent with the contemporaneous evidence of record in the years of service and the decade after service. The Board also finds that any clinical opinion based on such unsupported history lacks probative value. Any clinical opinion based on the notion of continuity of symptoms since service, consequently, would lack probative value inasmuch as continuity of symptoms since service has not been credibly shown. 38 C.F.R. § 3.303(b). See also Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Neither the Veteran nor the Appellant has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of a neck/cervical spine disability during the pendency of his claim, including in terms of whether related or attributable to anything that occurred during his time in the military. This determination is beyond lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). For these reasons and bases, service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).   2. Entitlement to service connection for a sleep disorder, including obstructive sleep apnea (OSA) The Veteran contended that his sleeping problems, including OSA, began during his service or alternatively were secondary to (meaning caused or aggravated by) his service-connected sinusitis with cluster headaches. He testified that he had sleep problems in service due to shift work. The Veteran entered service in 1971. He provided a statement in September 1972 in which he stated that he fell asleep on duty because it was boring. An October 1974 Report of Medical History reflects that he reported frequent trouble sleeping; the cause was unknown, and no treatment was required. A June 1979 STR reflects that he reported general malaise and insomnia; he reported difficulty getting to sleep. A November 1989 report, while the Veteran was still in service, shows he was seen for headaches. He reported a “long history of terminal insomnia, ten to fifteen years.” This would correspond with his time in service (i.e., from 1971). The examiner found no objective neurological abnormality to explain the Veteran’s headaches but surmised that the “the first order of business would be to see if he could not get a good night’s sleep on a regular basis, sleeping through the night. I would probably address this problem wither with Trazodone 50-100 mg at night or perhaps Norpramine beginning at 25 mg at night increasing up to 100 mg at night.” The Veteran’s November 1990 Report of Medical History shows he did not deny or admit to frequent trouble sleeping. His military service ended in July 1991. A February 2008 VA examination report reflects that the Veteran reported difficulty with sleep maintenance for over 10 years that had worsened over time. He explained that he often wakes up several times per night. The examiner found that the etiology of reported sleep disturbances could not be determined; therefore, dyssomnia, not otherwise specified (NOS), best accounts of his symptoms. The examiner further stated that “[m]edical reports indicate that veteran has had long-standing sleep problems. It cannot be stated, without resort to mere speculation, the cause or onset of these problems.” A November 2009 VA record reflects that the Veteran’s wife had told him that he snores loudly and quits breathing at night, and that he jumps up and turns over in his sleep. A February 2011 Jackson Sleep Disorder Center record notes mild OSA. An April 2012 VA clinical record shows the Veteran reported insomnia related to wearing his continuous positive airway pressure (CPAP) mask at night for his OSA and being unable to tolerate wearing the mask. A September 2014 DBQ contains the Veteran’s statement that he had developed insomnia in the 1980s, and that he had worked as a shift worker. The examiner found it less likely than not the Veteran’s OSA was due to his service as it was diagnosed many years after conclusion of his service. The examiner also found that the Veteran’s sinus condition with migraines did not aggravate the Veteran’s OSA since the conditions are unrelated and, therefore, no relationship of aggravation can be established. A February 2019 VA DBQ reflects the opinion of the examiner that it is less likely than not the Veteran’s active duty sleep complaints were related to his mild OSA diagnosis 20 years following his separation from active duty. The examiner indicated the evidence suggests, instead, a primary mental-health related etiology for the sleep disorder. In a March 2019 addendum opinion, the VA examiner added there is no evidence found linking the Veteran’s mild OSA to his sinus condition, either on an aggravation basis or direct-incurrence basis. The examiner opined that neither the OSA nor the sinusitis nor the headaches aggravated one another permanently beyond their natural progression. The examiner further stated that the Veteran’s lack of compliance with his CPAP therapy had contributed to his sleep disturbances.   An October 2020 DBQ explains that risk factors for OSA include obesity, gender, age, and upper airway crowding such as enlarged tonsils. The examiner found that, although sinusitis can affect breathing through the nose, it does not affect the mouth breathing, and that OSA is not caused by headaches. The examiner further found it less likely than not the Veteran’s service-connected disabilities aggravated his OSA. In sum, the Veteran was diagnosed with insomnia in service, reported continued difficulties with sleep after service, and was diagnosed with dyssomnia after service. Although he reported insomnia due to his intolerance of his CPAP mask and machine that had been prescribed for treatment of his nonservice-connected OSA (2012), the etiology also has been found not determinable (2008) and likely related to mental health (2014). Regardless, he did not have a CPAP machine in service, so also did not have the troublesome mask in service, and yet he still had insomnia even then. Although, the etiology of his insomnia has not been clinically found to any degree of certainty, the evidence nonetheless supports that, while in service, he had insomnia for at least a decade or even longer. Given his in-service complaints and diagnosis, and that he also had insomnia post service, the Board finds that the exact etiology is irrelevant. Rather, his diagnosis in service, his diagnosis post service, and his indication of continuity in the interim are the most relevant factors in attribution of this disorder to his service. “Absolute” etiology is not a condition precedent to granting service connection, nor is “definite” or “obvious” etiology. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Rather, this need only be an “as likely as not” proposition. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.   Here, then, giving the Veteran’s spouse the benefit of the doubt, the Board finds that service connection for the late Veteran’s “insomnia” is warranted. However, the Board finds that service connection for his OSA conversely is not warranted. The STRs are unremarkable for complaints of OSA, OSA was not diagnosed until almost two decades after his separation from service, age is a risk factor for OSA, and there is no competent and credible, i.e., probative medical opinion linking the Veteran’s OSA to his service or to a service-connected disability, including especially to his sinusitis with cluster headaches. To the contrary, the probative medical evidence disassociates the OSA from the Veteran’s service, including from his service-connected disabilities. Thus, the probative evidence does not support an award of service connection for OSA, though, to reiterate, service connection is contrastingly being granted for the “insomnia” that as likely as not incepted during his service. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.