Citation Nr: 21022210 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-42 215 DATE: April 15, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder is granted. Entitlement to service connection for a back disability is denied. FINDINGS OF FACT 1. Sleep apnea is secondary to the Veteran’s service-connected posttraumatic stress disorder with alcohol use disorder. 2. A back disability was not manifested in service or in the first post-service year with respect to arthritis, and the preponderance of the evidence is against a finding that the Veteran’s current back disability is otherwise related to an event, injury, or disease in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2000 to April 2006, including service in the Persian Gulf. The Veteran testified at a hearing with the undersigned VLJ in November 2016. The Board remanded the claim of entitlement to service connection for a back disability in January 2019, the claim of entitlement to service connection for a sleep apnea disability in August 2019, and remanded both claims of entitlement to service connection for further development in a June 2020 Board decision. The claims have returned for further appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially 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). Additionally, service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. 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 disability. Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc). 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder. The Veteran is seeking service connection for obstructive sleep apnea that he asserts is related to service-connected posttraumatic stress disorder. After a careful review of the record, the Board finds that the evidence supports the Veteran’s claim. Initially, the Board finds that the Veteran has a current diagnosis of obstructive sleep apnea. The Veteran’s treatment records reflect current treatment for obstructive sleep apnea. See May 2017 VA Treatment Record. At a November 2020 Disability Benefits Questionnaire (DBQ) medical examination, the examiner confirmed the Veteran’s diagnosis of obstructive sleep apnea but opined that the Veteran’s obstructive sleep apnea was less likely than not secondary to PTSD. The examiner further stated that it was unlikely that the Veteran’s obstructive sleep apnea was caused or aggravated by service or service-connected disabilities. As rationale, the examiner submitted that the Veteran’s sleep apnea is more likely due to the Veteran’s obesity. He explained that in adults, the most common cause of obstructive sleep apnea is excess weight and obesity. The examiner stated that it would be mere speculation to render secondary nexus to the Veteran’s PTSD when medical literature is solid on obesity as the leading factor in sleep apnea. The examiner referenced the Veteran’s body mass index measurement but did not provide rationale to the explain the Veteran’s specific body mass index measurements to a likelihood of obesity related sleep apnea. Subsequently, a private examiner submitted a medical opinion in January 2021. The provider, who is a board certified Fellow Member of the American Academy of Sleep Medicine (FAASM), explained that PTSD has been shown in medical literature to cause airway instability due to excessive brain awakenings (cortical arousals) and, therefore, exacerbate the airway obstruction that is the hallmark of obstructive sleep apnea. After examination and review of the Veteran’s claims file, the VA provider opined that the Veteran’s sleep apnea was more likely than not secondary to his service-connected PTSD. Thus, such evidence is in support of a causal relationship between sleep apnea and service-connected PTSD. The Board notes the November 2020 VA opinion did not consider whether the sleep apnea was related to the weight gain caused by airway instability due to excessive brain awakenings due to a psychiatric disorder. As such, the Board finds the November 2020 opinion to be more probative and persuasive. With consideration of the above, the Board finds that the competent evidence supports the Veteran’s contentions that he has obstructive sleep apnea secondary to his service-connected psychiatric disability. Based on the above and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for obstructive sleep apnea is warranted. 2. Entitlement to service connection for a back disability. The Veteran is seeking service connection for a back disability due to service, to include as secondary to his service-connected knee disabilities. The Veteran has a current diagnosis of lumbosacral strain. See November 2020 VA back conditions examination. The Veteran’s September 2000 service treatment records show that he received treatment for a complaint of back pain after running. See September 2000 Service Treatment Record. The complaint was assessed as muscle strain and acute low back muscle spasm that had resolved by the time of examination. Id. Regarding nexus, there are only two competent opinions of record, and they are against the claim. Specifically, in a June 2016 VA back conditions examination, it was opined that the Veteran did not have a diagnosed low back condition. After examination of the Veteran, the examiner found no abnormalities or low back pain. The examiner did, however, find thoracic pain unrelated to the Veteran’s complaint of low back pain. His range of motion was normal with no guarding, localized tenderness or muscle spasm found. There was no objective evidence to support a diagnosis of a low back condition, and the examiner opined that the Veteran’s reports of pain had no clinical significance. A November 2020 X-ray showed a normal lumbar spine. There was no osteoarthritis, degenerative disc disease other abnormality indicated. A subsequent November 2020 VA back conditions examination diagnosed a lumbosacral strain condition. The examiner opined that the Veteran’s condition was less likely than not incurred in or caused by the low back pain event that occurred during service. The examiner rationalized that given the Veteran’s single report of low back pain in September 2000, and lack of complaint of back pain until fourteen years later, the Veteran’s current lumbar strain is unrelated to service. The examiner also explained that the Veteran’s lumbar strain is unrelated to his service-connected knee condition, but it more likely due to the natural aging process, given the Veteran’s normal strength with no weakness or deficits in his lower extremities. The examiner also explained that the aging process causes cartilage to fade away, while discs lose water and become narrow, adding more pressure to the joints. The pressure causes inflammation and can lead to back pain. Thus, the examiner opined that the current pathology is not related to the Veteran’s complaint of back pain in September 2000. This opinion, which was based on a review of the relevant evidence of record and is supported by rationale, is highly probative. Notably, there is no competent medical opinion in support of the Veteran's claim. To the extent the Veteran may be relating his disability to service, he is not competent to do so, as he does not have the requisite medical expertise to opine as to the etiology of his disability. Further, the Veteran does not state, nor does the record show that the Veteran’s lower back pain has been continuous since service. See November 2016 Board Transcript; see 38 C.F.R. § 3.303. The Board also notes that there was no evidence of any back arthritis within one year after separation from service, thus there is no basis to award service connection for arthritis on a presumptive basis. See June 2016 VA X-rays of lumbosacral spine (revealing normal lumbar spine after his complaints of back pain). Moreover, there is no indication that any arthritis manifested during service to a sufficient degree to identify the disease to allow for service connection based on recurrence of symptomatology. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In reaching this decision, 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 in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Booker 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.