Citation Nr: 21021540 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 08-18 150 DATE: April 13, 2021 ORDER Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected lumbar spine disability, is granted. Entitlement to service connection for sleep apnea, to include as due to service-connected asthma and service-connected gastroesophageal reflux disease (GERD), is denied. REMANDED Entitlement to service connection for left shin splints, to include as secondary to a service-connected lumbar spine disability or service-connected plantar fasciitis, is remanded. Entitlement to service connection for right shin splints, to include as secondary to a service-connected lumbar spine disability or service-connected plantar fasciitis, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his cervical spine disability is related to active service. 2. The Veteran is not shown by the probative and competent evidence of record to have a current diagnosis of sleep apnea that was either caused or aggravated by service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for sleep apnea due to service or service-connected disease are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.310, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1990 to October 1992. The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2019. A transcript of the hearing has been associated with the record. In May 2019, the Board remanded these matters to obtain updated VA medical examinations and opinions. Regarding the claims of service connection for cervical spine, shin splints, and sleep apnea, the requested VA examinations have been provided and the matters are again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also remanded the matter of service connection for erectile dysfunction, which was subsequently granted. The Veteran has expressed his disagreement with the effective date of the award of service connection, and that matter is pending under the modernized appeal review system. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. 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. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). In some cases, a grant of service connection is available on a presumptive basis. Service connection may be presumed for certain chronic conditions, such as arthritis, if a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and the condition manifested to a degree of at least 10 percent within one year of the date of discharge from service. 38 U.S.C. §§ 1101, 1112(a), 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 1. Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected lumbar spine disability The Veteran contends that his current cervical spine disability is related to a motor vehicle accident and a tank accident that both occurred during service. The Veteran has stated that he has experienced neck pain since separation from service. See August 2019 Statement. Alternatively, the Veteran contends that his cervical spine (neck) condition was caused by or aggravated by his service-connected lumbar spine (lower back) condition. In November 2016, the Veteran’s private chiropractor provided an opinion that the Veteran’s current cervical spine disability was caused by a 1991 MVA (tank accident). Later that month, the Veteran was provided with a VA cervical spine examination. The examiner found that the Veteran’s cervical spine disability is less likely than not proximately due to or the result of the Veteran’s service-connected lumbar spine disability. However, the November 2016 VA examiner did not provide any opinion regarding whether the Veteran’s cervical spine disability was aggravated by the lumbar spine disability. In March 2019, the Veteran’s private chiropractor submitted another letter on the Veteran’s behalf. The chiropractor opined that the Veteran’s cervical spine condition was due to his trauma during service, including the car and tank accident. The chiropractor noted that the Veteran’s conditions typically do not occur immediately after trauma and can take years to manifest. The chiropractor explained that, based on his forty years of experience treating spinal injuries from automobile accidents, the Veteran’s injury is the result of a very unique type of trauma and his current cervical involvement stems from the cervical trauma he sustained in the tank accident. Pursuant to the Board remand, the Veteran was provided with a VA cervical spine examination in November 2019. The examiner found that the Veteran’s cervical spine condition was not related to his lumbar spine condition. The examiner noted there is no documentation in the medical literature establishing a direct cause and effect relationship between a lumbar intervertebral disc syndrome (narrowing) as a direct cause of degenerative arthritis of the cervical spine. In August 2020, the VA examiner opined that the Veteran’s cervical spine condition was not caused by or aggravated by his service-connected lumbar spine condition. The medical opinions of record are contradictory on the issue of whether the Veteran’s current cervical spine condition is related to trauma incurred during a motor vehicle accident and a tank accident during service. Here, both the VA examiner’s and the private treating chiropractor’s opinions are competent and credible, and the opinions are supported by rationale. The Board will not assign greater probative weight to either and finds that the contrary opinions are at least in equipoise. In light of the above, the Board concludes that the evidence of record is at least in equipoise concerning whether the Veteran’s cervical spine disability is related to active duty service. Accordingly, the Board will resolve the benefit of the doubt in favor of the Veteran in this case as the law requires and grant service connection for a cervical spine disability. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55 (1990). 2. Entitlement to service connection for sleep apnea, to include as due to service-connected asthma and service-connected gastroesophageal reflux disease (GERD) The Veteran contends his current sleep apnea was incurred in service, or is secondary to his service-connected asthma or GERD. The Board notes that the Veteran is already service-connected for depressive disorder with anxious distress under Diagnostic Code 9435. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. While sleep disturbance is a symptom of that mental health condition, sleep apnea is a physical condition caused by decreased air flow through the upper respiratory passageway to the lungs during sleep. As these are separate physical and mental conditions, the Board will consider the claim of service connection for sleep apnea as a separate matter from the service-connected mental illness which causes sleep disturbance. In December 2012, the Veteran’s fellow service member submitted a statement on the Veteran’s behalf. The fellow service member stated that their assigned duties required them to work unusual hours which limited and interrupted sleep, and that he heard the Veteran snoring loudly during sleep. In December 2012, the Veteran was provided with a VA sleep apnea examination. The examiner noted that the Veteran was diagnosed with sleep apnea in February 2012. The examiner found that the Veteran’s sleep apnea was less likely than not incurred in service, or caused by an in-service injury, event, or illness. The examiner also noted that there is no causal relationship between sleep apnea and GERD. In March 2013, a VA physician reviewed the Veteran’s medical history and opined that the Veteran’s sleep apnea is less likely than not caused by or aggravated by the Veteran’s GERD. The examiner noted that the Veteran’s sleep apnea is being treated with CPAP, with no evidence of chronic respiratory failure with carbon dioxide retention, cor pulmonale, or requirement of a tracheostomy. The Veteran was awarded service connection for asthma by a December 2015 Board decision. In July 2016, the Veteran claimed his sleep apnea was secondary to his asthma, and submitted medical articles which suggest a nexus between sleep apnea and asthma. Pursuant to the May 2019 Board remand, the Veteran was provided with a VA sleep apnea examination in November 2019. The VA examiner reviewed the Veteran’s medical history contained in the VA e-folder and CPRS, and conducted an in-person examination of the Veteran. The examiner noted that the Veteran was first diagnosed with obstructive sleep apnea (OSA) in 2012. The 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 conditions. The examiner reasoned that asthma is not a cause of OSA. The examiner noted that OSA is caused by an upper airway obstructive process which has nothing to do with the small airways hyperreactivity that causes asthma. OSA occurs in the upper airways to include nose, pharynx and all passages leading into the trachea. Asthma is caused by bronchospasm in the bronchial tree of the lungs. The examiner also noted that gastroesophageal reflux disease (GERD) and hiatal hernia are not causes of OSA according to the existing medical literature. The examiner noted that GERD symptoms could be aggravated by the CPAP used to treat OSA, but this does not prove that the GERD aggravates the OSA. The November 2019 VA examiner also opined that it is less likely than not that the Veteran’s asthma and GERD aggravated his OSA beyond its natural progression. The examiner reasoned that neither GERD nor asthma can produce an increased narrowing of the upper airways which is the cause of OSA. The Board acknowledges the lay statements made by the Veteran indicating that his sleep apnea is related to service. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, a layperson without the appropriate medical training and expertise is simply not competent to provide a probative opinion on a complex medical matter, such as an etiological relationship between any current disability and military service or a service-connected disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board also acknowledges that the Veteran submitted medical literature suggesting a connection between sleep apnea and asthma or GERD. However, the medical information contained in these materials is general in nature and does not take into account the Veteran’s particular medical history. The November 2019 VA examiner reviewed the record, interviewed the Veteran, and examined the Veteran. The examiner’s opinions were based on the specific facts of this case as presented in the record and by the Veteran at an in-person examination. The examiner reviewed the record and provided appropriate rationales are factually accurate, fully articulated, and soundly reasoned. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Accordingly, the Board accepts the VA examiner’s opinions as the most probative evidence as whether it is at least as likely as not that the Veteran’s sleep apnea is related to service or to a service-connected disability. Although grateful for the Veteran’s honorable service, the Board concludes that the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for left shin splints, to include as secondary to a service-connected lumbar spine disability or service-connected plantar fasciitis, is remanded. 2. Entitlement to service connection for right shin splints, to include as secondary to a service-connected lumbar spine disability or service-connected plantar fasciitis, is remanded. The Veteran contends that he suffers from shin splints related to treatment for shin splints during service, or caused by or aggravated by his service-connected lumbar spine disability or service-connected plantar fasciitis. In June 2014, during the period on appeal, a VA examiner diagnosed the Veteran with bilateral shin splints, but opined that the Veteran’s shin splints were not proximately caused by the Veteran’s service-connected lumbar spine disability or service-connected bilateral plantar fasciitis. In December 2019, a VA examiner found that the Veteran did not have a current diagnosis of shin splints. In August 2020, the VA examiner opined that the Veteran’s shin splint condition was not caused by or aggravated by his service-connected lumbar spine disability or service-connected plantar fasciitis because the shin splint condition had resolved. The Board notes that a current disability for the purposes of establishing service connection includes any diagnosis during the period on appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that current disability requirement is satisfied when a claimant “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.”). The Board further notes the Court of Appeals for the Federal Circuit found that pain alone can constitute a disability because pain can cause functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). In light of Saunders, while the record shows that a current diagnosis may have resolved, the Board acknowledges that the Veteran reports bilateral shin pain, and the record indicates chronic pain, such that there is an indicator of possible functional impairment. As such, the Board finds that a remand is necessary so that an examination may be conducted of the Veteran’s bilateral lower legs to establish whether the Veteran has a current diagnosed disability, or in the alternative, symptoms including pain which reach to the level of functional impairment of earning capacity. If there is a finding of functional impairment, then a medical nexus opinion must be rendered. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his bilateral shin splints. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: Are the left and right shin splints at least as likely as not related to service, including treatment for shin splints in March 1992? Provide a rationale to support the opinion(s). Are the left and right shin splints at least as likely as not proximately due to service-connected lumbar spine disability or service-connected plantar fasciitis? Are the left and right shin splints at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected lumbar spine disability or service-connected plantar fasciitis? In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Casey, 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.