Citation Nr: 21026708 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-24 963 DATE: May 3, 2021 ORDER Service connection for obstructive sleep apnea is denied. Service connection for a lumbar spine disorder is granted. Service connection for a cervical spine disorder is granted. FINDINGS OF FACT 1. The Veteran had active service from November 1993 to November 1997 and had additional service in the Naval Reserves. 2. Obstructive sleep apnea was not shown in service and is not causally or etiologically related to service. 3. Resolving reasonable doubt in the Veteran's favor, his lumbar and cervical spine disorders manifested in service and have been continuous since service. CONCLUSIONS OF LAW 1. Sleep apnea was not incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 5103(a) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.309, 3.310 (2020). 2. Resolving reasonable doubt in the Veteran's favor, a lumbar spine disorder may be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 5103(a) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.309, 3.310 (2020). 3. Resolving reasonable doubt in the Veteran's favor, a cervical spine disorder may be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 5103(a) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a procedural matter, in December 2018, the Board remanded the claims on appeal for additional development. The case has now been returned to the Board for further appellate action. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must determine the value of all pertinent lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The evaluation of evidence generally involves three steps: competency, credibility and weighing the evidence as a whole. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2020). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n. 4 (Fed. Cir. 2007). However, laypersons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Service Connection for Obstructive Sleep Apnea As an initial matter, sleep apnea is not a chronic disorder under 38 C.F.R. § 3.309(a); as such, presumptive service connection is not for application. Furthermore, the Veteran has not argued that his sleep apnea was caused or aggravated by a service-connected disability; therefore, secondary service connection will not be considered. However, direct service connection will be discussed. Turning to the evidence, the Veteran has been diagnosed with sleep apnea. Specifically, an October 2019 VA examination diagnosed obstructive sleep apnea. Therefore, a current diagnosis has been shown and the first element of service connection has been met. A review of the service treatment records (STRs) shows that he reported in multiple reports of medical history between November 1993 and July 1997 that he did not then-presently or previously have frequent trouble sleeping, and that multiple medical examinations over the same time frame found him to be neurologically normal. The STRs are otherwise silent for complaints, treatment, or diagnoses of sleep apnea. Therefore, the medical evidence does not support an in-service incurrence of sleep apnea. However, in a subsequent August 2020 statement, a fellow servicemember reported witnessing the Veteran take naps and observing him snoring to the point that he woke himself up, seemingly gasping for air, and then fell back to sleep. The servicemember noticed that he would be in a daze when he ultimately woke up. Lay witnesses are competent to report their observations, to include the way in which their fellow servicemembers slept in-service; accordingly, resolving reasonable doubt in the Veteran's favor, the second element of direct service connection- in-service incurrence- has been met. As to nexus, the Veteran reported that sleep apnea was not a known condition at the time of his service and went untreated. He said that he snored excessively, had lengths between breaths, but thought that this was normal. He explained that once he became aware of the disorder, he was tested and told by clinicians that he had one of the worst cases that they had seen. A review of the records reveals that the Veteran reported daytime sleepiness in a September 2011 medical treatment note that began two to three weeks prior to examination and was prompted by a drop in his blood sugar. In a subsequent June 2013 sleep study, he said that his sleep was "not restful" and presented a history of significant excessive daytime sleepiness and snoring, but no apnea. Clinicians ultimately diagnosed severe obstructive sleep apnea. In October 2019, July 2020, and September 2020 VA examinations, the examiner diagnosed obstructive sleep apnea, but opined that it was less likely than not that the Veteran's obstructive sleep apnea was incurred in or caused by military service. The examiner observed that the STRs revealed no complaints of an in-service snoring problem, delayed breathing while sleeping, or other sleep disorder. The examiner further noted that sleep apnea was not diagnosed until 2013- 16 years after his separation from service- and that there was no documentation that the Veteran experienced sleep apnea until his 2013 diagnosis. The examiner thoroughly reviewed the claims file and discussed the relevant evidence, to include whether the evidence established a nexus between the Veteran's then-current sleep apnea and his complaints of in-service snoring problems and delayed breathing in sleep, considered his assertions, and provided a thorough supporting rationale for the conclusion reached. As such, the October 2019, July 2020, and September 2020 VA examinations were adequate and are assigned high probative value. The medical evidence does not otherwise establish a direct nexus between the Veteran's obstructive sleep apnea and his military service. Accordingly, the third element of direct service connection- a nexus to military service- has not been met. As such, the medical evidence weighs against the claim and service connection for obstructive sleep apnea is not warranted. The Board has considered the lay statements submitted by the Veteran, and his fellow servicemembers regarding the etiology of his obstructive sleep apnea. Lay witnesses are competent to report symptoms and describe their observations because this requires only personal knowledge as it comes to them through their senses. However, they are not competent to offer opinions as to the etiology of any current disorder due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who have treated the Veteran and by clinical records and STRs obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements that have been submitted. Based on the above, service connection is not warranted for obstructive sleep apnea and the appeal is denied to this extent. Service Connection for Lumbar and Cervical Spine Disorders In addition to the above, veterans are considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders "noted" at entrance into active service, except where clear and unmistakable evidence demonstrates that an injury or other disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b). A review of the STRs reveals that in a November 1993 medical treatment note, the Veteran reported that he was in a motor vehicle accident in August 1993 for which he saw a private clinician and chiropractor and was treated with pain medication. The clinician diagnosed low back pain status-post motor vehicle accident. However, the November 1993 enlistment examination found his neck, spine, and musculoskeletal system to be clinically normal and did not otherwise note the presence of lumbar and cervical spine disorders. Accordingly, lumbar and cervical spine disorders were not noted upon entry into service and the presumption of soundness attaches; the claims will therefore be considered on the basis of presumptive service connection on the basis of continuity of symptomatology and direct service connection. Turning first to presumptive service connection based on continuity of symptomatology, the Veteran has been diagnosed with chronic lumbar and cervical spine disorders under 38 C.F.R. § 3.309(a). Specifically, as to the lumbar spine, January 2015 and October 2019 VA examinations diagnosed lumbar degenerative joint disease (DJD) with radiculopathy, lumbar degenerative disc disease (DDD), and stenosis of the lumbar spine. Similarly, as to the cervical spine, a January 2015 VA examination diagnosed degenerative arthritis of the cervical spine. As such, chronic disorders have been shown and the first element of presumptive service connection has been met as to both claims. As to continuity of symptomatology for the Veteran's lumbar and cervical spine disorders, the evidence is in equipoise. On the one hand, in January 2015 VA examinations, an examiner diagnosed lumbar and cervical spine disorders. The examiner found that the lumbar spine disorder was not aggravated beyond its natural progression by an in-service injury and his cervical spine disorder was less likely than not the product of either a service-connected disability or aggravated by in-service mid-thoracic pain. The examiner noted that the Veteran had lumbar and cervical pain in November 1993, but that his STRs contained no subsequent report of diagnoses, treatment, or aggravation of additional lumbar and cervical spine disorders. The examiner found that the medical treatment records did not document a lumbar spine disorder until 2000 or a cervical spine disorder until a 2014 MRI. However, the examiner did not address whether a direct nexus existed between his spinal disorders and his military service; accordingly, the January 2015 VA examinations are assigned lesser probative value and weigh against the claim. In subsequent October 2019 and September 2020 VA examinations, the examiner offered that it was less likely than not that the Veteran's lumbar spine disorder either increased in severity during service, explaining that the Veteran's back was presumed sound at enlistment and that he had no record of a back disorder at separation. The examiner further opined that it was less likely than not that the Veteran's lumbar and cervical spine disorders were incurred in or caused by service. The examiner observed that no lumbar or cervical disorder was either identified on active duty or reported in his separation examination. The examiner noted that DDD generally resulted from aging and that all activity putting stress on the spine logically contributed to its development. The examiner acknowledged that his strenuous in-service physical activity contributed to his lumbar and cervical degeneration but ultimately explained that the impact of his in-service physical activity was outweighed by "all other activity" performed since his separation. However, the examiner's opinion was vague and insufficient. Accordingly, the October 2019 and September 2020 VA examinations are also assigned lesser probative value and weigh against the claim. On the other hand, in March 2015 and October 2020 lay statements, the Veteran acknowledged experiencing a motor vehicle accident prior to enlistment but said that the accident did not require medical treatment and that his lumbar and cervical disorders were the product of in-service back and neck pain that stemmed from his in-service responsibilities. The lay statements and additional August and September 2020 buddy statements from fellow servicemembers further described how he was responsible for performing multiple strenuous activities, including extended periods of time on the flight deck, continuous movement, bending, ducking, and crawling around moving and stationary aircraft, and the continuous carrying of heavy equipment, to including 5-gallon buckets of detergent, 100-pound boxes, and between 72 and 144 pounds of chains used to recover aircraft. Lay witnesses are competent to report their observations, to include descriptions of in-service responsibilities. Furthermore, the Veteran's lay assertions are consistent over time and correspond to medical treatment notes in the record. Accordingly, the Veteran and his fellow servicemembers are considered competent and the lay statements, as well as the August and September 2020 buddy statements are considered credible, weigh in favor of his claim, and are assigned greater probative value. Ultimately, as there is evidence weighing both for and against the claim, it places the evidence at least in equipoise on the question of whether symptoms of the Veteran's lumbar and cervical arthritis were sufficiently "continuous" since separation from service to establish presumptive service connection. The Veteran had an in-service injury, complaints of back and neck pain, and has continuously related his current back and neck pain to his in-service responsibilities. Further, as discussed above, the multiple negative VA medical opinions have been assigned lesser probative value and there are no additional contrary medical opinions of record. Accordingly, resolving reasonable doubt in the Veteran's favor, service connection for lumbar and cervical arthritis is warranted and the appeals are granted. Because the Board is granting service connection for the claims presumptively based on continuity of symptomatology, all other theories of service connection are rendered moot. (Continued on the next page) Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Emily Tamlyn Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Spigelman, 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.