Citation Nr: 21022499 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 16-12 542A DATE: April 16, 2021 ORDER Entitlement to service connection for a low back disorder is granted. Entitlement to service connection for right lower extremity radiculopathy is granted. Entitlement to service connection for a left upper extremity disability, including radiculopathy, is denied. Entitlement to service connection for sleep apnea is denied. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, he has a current low back disability that was at least as likely as not caused by military service. 2. The Veteran has a current diagnosis of right lower extremity radiculopathy that was caused by his low back disability. 3. There is no medical evidence indicating that the Veteran has a left upper extremity disability that was incurred in or caused by service, and it was not caused or aggravated by a service-connected disability. 4. There is no medical evidence indicating that the Veteran’s sleep apnea was incurred in or caused by service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 3. The criteria for service connection for a left upper extremity disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 4. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1977 to April 1978 and from January 1981 to June 1982. This case comes to the Board of Veterans’ Appeals (Board) from June 2014 and August 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In July 2019, these issues were remanded by the Board for further development. Service Connection Generally, service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation of that disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Lower Back Disability The Veteran contends that he has a low back disability that had its onset during service, or was caused by the stresses of physical training in service. The Veteran wrote in September 2014 that in service, he had to carry rucksacks with 75 pounds or more on his back during road marches, but that he did not go to sick call at the time because he would be looked down on or ridiculed. He wrote that now his balance is off, and his back is so painful that he cannot attend to activities of daily living. In February 2016, he wrote that he had done a training exercise that caused him to fall onto his back in a pit, but that he could not “cry about it,” no matter how much it had hurt. After reviewing all of the evidence of record, the Board finds that affording the Veteran the benefit of the doubt, it is as likely as not that he has a low back disorder that is related to service. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ the Nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). While the Veteran’s service treatment records do not show any specific injury to the lower back, the Veteran has reported that he had ongoing strain and pain in his back during service due to training exercises and carrying heavy equipment. The medical evidence also establishes that the Veteran has a current low back disorder. His private treatment records show that he receives regular treatment for chronic back pain. He underwent lumbar decompression surgery in September 2009, but continued to have chronic back pain since then. He has been diagnosed with degenerative disc disease, lumbar spinal stenosis, and lumbago. The Veteran attended a VA examination in February 2019. He was diagnosed with lumbosacral strain, degenerative arthritis, and intervertebral disc syndrome. The Veteran reported that he had been in a motorcycle accident in service in 1982 and that he had a lot of “wear and tear injuries” in service. The examiner discussed the Veteran’s medical history and symptoms, and concluded that his back disorder was at least as likely as not related to service. He explained that while there were no service treatment records showing treatment for back pain, it was “well known that advance marine training exerts excessive stressors on among other things the lumbar spine,” and an early back sprain could lead to early degenerative arthritis in the back. He wrote that the medical records showed no alternative mechanism that could have caused his condition, and the only known injury was in 1982. He concluded that the Veteran’s back condition was as likely as not related to service. While the Board acknowledges that the February 2019 VA examiner referenced a 1982 motorcycle accident that has not been verified, and this was in large part the Regional Office’s basis for rejecting his findings, the Board finds that this opinion does not actually rely on the occurrence of a 1982 motorcycle accident for its conclusions. The examiner found that the excessive stressors of training caused damage to the lumbar spine, and that this led to early degenerative arthritis of the back. The Board finds that this medical opinion from a competent physician constitutes adequate probative medical evidence on the nexus question, as it was based on review of the Veteran’s documented and asserted medical history, and the examiner provided sufficient explanatory rationale for his findings. See Prejean v. West, 13 Vet. App. 444 (2000).  The Board acknowledges that a VA medical opinion was also obtained in January 2021 which came to a different conclusion regarding the etiology of the Veteran’s back disorder. The Board finds that these medical opinions are at least in equipoise regarding the etiology of the Veteran’s low back disorder, and therefore by affording the Veteran the benefit of the doubt, the claim may still be granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In sum, the Veteran currently has a diagnosed low back disability, and this disorder has been related by competent medical evidence to events which occurred during military service. The evidence is at least in equipoise, and the claim is granted. Right Lower Extremity Radiculopathy The Board also finds that because the Veteran’s low back disability has been granted, service connection is also warranted for his right lower extremity radiculopathy. The Veteran’s private treatment record show that he has been diagnosed with right-sided lumbar radiculopathy. A July 2010 EMG found chronic right lumbar radiculopathy. In 2014, he began attending VA physical therapy for right leg radiculopathy and weakness. There is more than sufficient medical evidence showing that the Veteran’s right leg radiculopathy was caused by his low back disorder. A February 2019 VA medical opinion found that the lower extremity radiculopathy was at least as likely as not caused by his back disorder. The Veteran also attended a VA examination in December 2020. The examiner found that the Veteran’s right leg radiculopathy was proximately due to or the result of the Veteran’s back disability, explaining that spinal discs that are damaged or out of place can press on nerves, and that thickening of the spinal ligaments can lead to narrowing of the space around the nerve roots and subsequent nerve compression. It is therefore clear from the medical evidence that the Veteran’s right leg radiculopathy was caused by his low back disorder, and the claim is granted. Left Upper Extremity Disability The Veteran has also requested service connection for a left upper extremity disability, which he asserts began in service or was caused by strenuous physical activity in service. While the Board finds that the Veteran does have a current diagnosis of the left upper extremity, there is no evidence indicating that this disorder was incurred in or caused by service. The Veteran underwent nerve conduction studies in July 2010 after he reported neck pain and tingling numbness radiating to his arms. He was diagnosed with cervical myelopathy, stenosis, and cervical disc disease, bilateral cervical polyradiculopathy, and moderate bilateral carpal tunnel syndrome. There is no evidence indicating that the Veteran’s left arm disability was injured in service, and the Veteran has not actually asserted that he had left arm pain or any problems with his left arm in service. The Veteran’s May 1982 separation examination does not show any upper extremity disorder. On the Report of Medical History, the Veteran reported that he was in good health, and did not report any problems related to the arms. The Veteran attended a VA examination in July 2019. He was diagnosed with left upper extremity radiculopathy. The examiner found that the Veteran’s left upper extremity radiculopathy was less likely than not incurred in or caused by service. The examiner discussed the Veteran’s medical history and symptomatology, and found that there was no medical record support for a cervical injury in service and no claimant history for inciting incident to the neck. There was no cervical pathology in the past medical histories, and the condition was less likely than not related to service. The Board remanded this issue in July 2019 so that a new VA medical opinion could be obtained that would better consider the Veteran lay statements about having undergone strenuous physical training in service. At a December 2020 VA examination, the examiner found mild incomplete paralysis in the median nerve, and the Veteran was diagnosed with left hand carpal tunnel syndrome. In an opinion provided in January 2021, the examiner found that it was less likely than not that the Veteran’s left upper extremity was caused by any in-service injury, event, or illness. As rationale, he discussed the Veteran’s medical history, including his service-treatment records in which he reported that he was in good health and the treatment records which only showed that left arm symptoms began around 2008. He wrote that based on the Veteran’s records, the present examination, and the Veteran’s lay statement, it was less likely than not the condition was caused by military duties, such as carrying heavy rucksacks and participating in constant physician endurance exercises in service. The Board finds that the January 2021 medical opinion provides highly probative medical evidence against the claim, as it was provided by competent physician who had reviewed all of the medical evidence and performed an in-person examinations of the Veteran. See Prejean, 13 Vet. App. 444.  She provided adequate explanation for her findings, including consideration of the Veteran’s assertions about carrying heavy loads and undergoing strenuous exercise in service, and her opinion is uncontradicted by any other medical opinion of record. The Board also notes that while the Veteran’s left arm polyradiculopathy has been related to a cervical spine disability, the Veteran has not claimed entitlement to service connection for a cervical spine disorder, and he is not service connected for any cervical spine disorder. Therefore service connection cannot be granted on a secondary basis to such a disorder, as a matter of law. 38 C.F.R. §§ 3.102, The Board acknowledges that the Veteran may believe that his left arm radiculopathy or carpal tunnel syndrome was caused by physical training in service. While he is competent to describe events that occurred during military service and any symptomatology as he has experienced it, as a lay person, he is not competent to provide a medical diagnosis or to determine the etiology of a complex disability such as these. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  The Veteran’s assertions are outweighed by the findings from the January 2021 VA examination and the associated medical opinion.   The Board therefore finds that the preponderance of the evidence is against finding that the Veteran’s left upper extremity disability is related to service, and the claim is denied. 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 claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b). Sleep Apnea The Veteran has also requested service connected for sleep apnea, and he has written that the disability began in service. The Veteran’s spouse wrote in December 2013 that the Veteran rarely slept more than 4 hours a night, and that he had loud snoring and sometimes seemed to stop breathing. The Veteran underwent a sleep study in September 2014 and was diagnosed with mild sleep disordered breathing/mild sleep apnea. While the Veteran has a current disability of sleep apnea, there is no evidence that the Veteran incurred any in-service disease or injury, or that sleep apnea is related to any event in service. The Veteran’s service treatment records do not show any complaints or treatment related to sleep apnea or other sleep disorder, and the Veteran has not actually asserted that he had any symptoms of sleep apnea or other sleep disorder while still in service. The Veteran has not provided any information, statements, or testimony indicating why he believes that service connection for sleep apnea is warranted. He has not indicated that he believes it to be related to any specific incident in service or secondary to any service-connected disability. In this case, there is absolutely no evidence of record which indicates any causal connection between the Veteran’s sleep apnea and service, including in the Veteran’s own lay statements. This evidentiary deficiency concerning the nexus element is fatal to the claim. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). The Board acknowledges that the Veteran was not afforded a VA examination for sleep apnea. VA is obliged to provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/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 Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, while the Veteran has been shown to have a current disability, there is absolutely no evidence indicating that any event, injury, or disease occurred in service which could be related to his sleep apnea. There is also no evidence that the disability, or any associated symptoms, have been caused or aggravated by any service-connected disability. In the absence of any such evidence, the Board does not find that a VA examination is warranted. The weight of the evidence of record preponderates against finding that sleep apnea is related in any way to active duty service. As such, the claim is denied. The Board has again considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary E. Rude, 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.