Citation Nr: 21027285 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-31 093 DATE: May 5, 2021 ORDER Service connection for obstructive sleep apnea (claimed as an undiagnosed illness manifested by fatigue) is granted. Service connection for a cervical spine disability (claimed as an undiagnosed illness manifested by body aches and pain) is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his obstructive sleep apnea (claimed as chronic fatigue) had onset in service. 2. The most probative evidence of record is against a finding that the Veteran's current cervical spine disability (claimed as an undiagnosed illness manifested by body aches and pain) had onset in service, manifested within one year of separation from service, or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea (claimed as chronic fatigue) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a cervical spine disability (claimed as body aches and pains) have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REFERRED ISSUE In a September 2019 decision, the Board noted that the Veteran described symptoms of what appear to be distinctly diagnosed conditions of the ear and nose in connection with the claims currently on appeal. The Veteran and his representative were advised that service connection claims for distinctly diagnosed conditions, raised after March 24, 2014, must be submitted on the application form prescribed by the VA Secretary. Upon further review, and insofar as the Veteran's November 2011 service connection claim for an undiagnosed illness manifested by aches and pain can be sympathetically construed as a service-connection claim for a sinus and/or upper respiratory condition, this question has not been adjudicated by the agency of original jurisdiction (AOJ) in the first instance, and is outside the scope of this appeal. Therefore, the issue of entitlement to service connection for an undiagnosed illness manifested by aches and pain involving the sinuses and/or an upper respiratory condition is referred to the AOJ for appropriate action. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from May 1989 to May 1993. A Board hearing was held before the undersigned Veterans Law Judge in February 2019, and transcript of the hearing is of record. Historically, the Veteran filed an application seeking entitlement to service connection for an undiagnosed illness manifested by fatigue, rashes, and body aches and pain. See November 2011 VA Form 21-526. With respect to the Veteran's claim for a disability manifested by rashes, the Board denied entitlement to service connection for a skin condition, to include as an undiagnosed Gulf War illness, in a final September 2019 decision. The Board remanded the issues of entitlement to service connection for a disability manifested by fatigue and/or a disability manifested by body aches and pains, to include as an undiagnosed Gulf War illness, in September 2019 and again in December 2020 for additional development. The agency of original jurisdiction (AOJ) has substantially complied with the remand instructions, and the Board finds the evidence of record is sufficient to proceed with a decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Obstructive Sleep Apnea (Claimed as Chronic Fatigue) The Veteran filed an application seeking entitlement to service connection for an undiagnosed illness, manifested by fatigue. See November 2011 VA Form 21-526. Upon enlistment, the Veteran denied a history of frequent trouble sleeping. See February 1989 Report of Medical History. Prior to his separation from service, the Veteran reported he was in good health. See March 1993 Report of Medical History. However, the Veteran noted that he had experienced frequent trouble sleeping. Neither the Veteran nor the provider expanded upon the Veteran's report of frequent trouble sleeping in March 1993. In a July 2012 VA mental health consult, the Veteran reported some initial insomnia when trying to sleep at night, frequent awakenings throughout the night, and waking up tired in the morning. The provider referred the Veteran to a sleep clinic to rule out sleep apnea due to the Veteran's report of loud snoring and unrefreshing sleep. The Veteran underwent a sleep study in August 2012, and was diagnosed with severe obstructive sleep apnea. In a June 2013 statement, the Veteran's spouse reported that she met the Veteran in March 2000. See June 2013 VA Form 21-4138. The Veteran's spouse reported that the Veteran was tired throughout the day, and was very restless at night. The Veteran's mother-in-law also reported the Veteran was tired throughout the day. The Veteran was afforded a VA Gulf War examination in July 2013 for his claim for entitlement to service connection for an undiagnosed illness manifested by fatigue. The examiner reported the Veteran did not meet the criteria for a diagnosis of chronic fatigue syndrome, but that the Veteran had a diagnosis of obstructive sleep apnea. The examiner noted the Veteran was diagnosed with obstructive sleep apnea after complaints of daytime hypersomnolence, restless nights, and loud snoring. Pursuant to the September 2019 Board remand, the Veteran was afforded new VA examinations to address the nature and etiology of the Veteran's claimed condition manifested by fatigue. Additionally, the Board expanded the Veteran's claim for a condition manifested by fatigue to include obstructive sleep apnea. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (the Board must consider the claimant's description of the claim, symptoms described, and the information submitted or developed in support of the claim). In a December 2019 VA sleep apnea examination, the Veteran reported that his current symptoms of obstructive sleep apnea had onset in service. The Veteran reported his loud snoring began in service, and that his best friend in service moved to a different room due to the Veteran's snoring. The Veteran reported that he would wake up tired and had daytime fatigue. See also July 2020 VA sleep apnea examination. In a July 2020 VA medical opinion, the examiner reported the Veteran's report of fatigue was easily explained by chronic obstructive sleep apnea. In a January 2021 VA medical opinion, the examiner reported that the March 1993 Report of Medical History, in which the Veteran reported frequent trouble sleeping, was not diagnostic or suspicious for sleep apnea in and of itself. However, the Veteran has credibly reported the onset of additional symptoms in service, including loud snoring, waking up tired, and daytime fatigue. The Veteran's report of such symptoms formed the basis of his referral for a sleep study in 2012. The Board places weight on the July 2020 VA medical opinion that the Veteran's report of fatigue was easily explained by chronic obstructive sleep apnea. See also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence may be competent to establish etiology if the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to service connection for obstructive sleep apnea is warranted. 2. Cervical Spine Disability (Claimed as Undiagnosed Illness Manifested by Body Aches and Pain) The Veteran filed an application seeking entitlement to service connection for an undiagnosed illness, manifested by body aches and pain. See November 2011 VA Form 21-526. In reviewing service treatment records, the Veteran denied a history of swollen or painful joints, as well as chronic or frequent colds, prior to entering service. See February 1989 Report of Medical History. In January 1993, among other symptoms, the Veteran reported aches and small cramps in his neck. The Veteran was diagnosed with a sinus infection. Prior to his separation from service, the Veteran reported he was in good health. See March 1993 Report of Medical History. However, the Veteran noted that he had experienced swollen or painful joints, and chronic or frequent colds. Although it appears that neither the Veteran nor the provider expanded upon the Veteran's report of swollen or painful joints and chronic or frequent colds, the provider reported clinical evaluation of the Veteran was normal, with the exception of an asymptomatic growth on the left lower extremity. See March 1993 Report of Medical Examination. The Veteran's spouse submitted a statement in support of the Veteran's claim for an undiagnosed illness manifested by body aches and pain. See June 2013 VA Form 21-4138. The Veteran's spouse reported that she had known the Veteran since 2000, and that the Veteran complained of pain and a numb spot in the area of his left shoulder for the entire time they had known each other. The Veteran's spouse reported that the Veteran complained of his body hurting, and that he experienced pain and stiffness when waking in the morning. The Veteran's mother-in-law also reported the Veteran complained of pain and numbness in the area of his left shoulder. In an April 2009 private treatment record, the Veteran reported symptoms of congestion, body aches, and cough with an onset of two days earlier. Based on evaluation of the Veteran and his reported symptoms, the provider indicated a diagnosis of bronchitis, acute, and upper respiratory infection, acute, not otherwise specified. In a December 2011 private treatment record, the Veteran reported muscle pain and stiffness. See also January 2012 private treatment record (Veteran reported stiffness). Upon clinical evaluation of the Veteran's musculoskeletal system, no deformities were noted. In a December 2011 VA primary care note, the Veteran reported tender spots along the upper thoracic region and morning muscle stiffness. The provider's assessment indicated the Veteran had myalgias/arthralgias with an area of hypoesthesia of the left scapular region. In a February 2012 VA neurology note, the provider reported the Veteran had an abnormal nerve conduction study of the left median nerve. In a May 2012 VA note, the Veteran reported he had heard a pop in his neck when rising from his bed, and had severe burning pain in his neck muscles and down his back. In June, August, and November 2012 VA treatment records, the Veteran reported similar symptoms of pain and stiffness in his neck and across his shoulders. The Veteran was afforded a VA Gulf War examination in July 2013 for his claim for entitlement to service connection for an undiagnosed illness manifested by body aches and pain. The examiner reported the Veteran did not meet the criteria for a diagnosis of fibromyalgia, but indicated that the Veteran's body aches and pain were related to a cervical spine strain with disc bulging. The Board observes the examiner also reported the Veteran had a current diagnosis of chronic rhinitis, a diagnosable disease with partially explained etiology, that manifested in symptoms including ear pain and pressure. As noted above, insofar as the Veteran's claim for an undiagnosed illness, manifested by aches and pain, can be sympathetically construed as a service-connection claim for a sinus and/or upper respiratory condition, this issue is referred to the AOJ for appropriate action. In an April 2015 VA primary care note, the Veteran sought follow-up treatment for chronic medical problems. The Veteran reported his current employment involved a lot of typing and driving. The Veteran reported pain in his neck and shoulders that had onset in 2000, and which had increased in severity over the last few years. The Veteran reported problems with lifting his shoulders while in bed, and that he felt a burning sensation in his muscles. The provider noted a 2012 MRI indicated minimal right posteriolateral disc bulge of the cervical spine. During the February 2019 Board hearing, the Veteran reported that he noticed his current body aches, described as pain in his neck, back, and shoulders, several years after his separation from service. See February 2019 Board hearing transcript. The Veteran indicated his body aches and pain were generally localized to the back of his neck and shoulders. The Veteran reported that he received treatment through VA for his neck and shoulders. Pursuant to the September 2019 Board remand, the Veteran was afforded new VA examinations to address the nature and etiology of the Veteran's claimed disability manifested by body aches and pain. Additionally, the Board expanded the Veteran's claim for body aches and pain to include a cervical spine disability. See Clemons, 23 Vet. App. at 5. In a December 2019 VA Persian Gulf examination, the Veteran reported he felt tired and sluggish with aches and pain shortly after his discharge from service. The Veteran reported he did not seek medical attention, but attributed his symptoms to sinus issues he had been dealing with for a long time. The Veteran reported physical therapy and massage therapy provided no relief. See also November 2012 VA physical medicine consult (past treatment for pain and stiffness in neck and left shoulder region included massage therapy and muscle relaxers without relief). In a December 2019 VA cervical spine examination, the Veteran indicated the onset of aches and pain in his neck was 1996. The examiner opined the Veteran's claimed disability manifested by body aches and pain, to include a cervical spine condition, were less likely than not incurred in or related to service. In a July 2020 VA Gulf War examination, the examiner summarized the evidence of record, noting that the Veteran's report of aches and pain in service treatment records were related to an upper respiratory infection and a sinus infection. The examiner reported the Veteran's current symptoms of pain were muscular pain related only to the cervical region. In a July 2020 VA cervical spine examination, the Veteran reported the onset of posterior neck pain was in 2000. The examiner reported the Veteran's current body aches and pain are directly attributable to his cervical spine disorder, which is a disease with a clear and specific etiology and diagnosis. The examiner reported the Veteran's current cervical spine disorder had onset well after the Veteran's discharge from service, and opined such was less likely than not related to service. Pursuant to the December 2020 Board remand, a new VA medical opinion was obtained concerning the nature and etiology of the Veteran's claimed disability manifested by body aches and pain, to include a cervical spine disability. In a January 2021 VA medical opinion, the examiner considered the Veteran's report of swollen or painful joints in service. The examiner again indicated that service treatment records indicated aches and pain were related to an upper respiratory infection and a sinus infection, and that the Veteran's current condition manifested by body aches and pain was attributable to his diagnosis of cervical strain, degenerative arthritis of the cervical spine, and cervical disk bulge. In considering lay evidence concerning continuity of symptoms related to the Veteran's current claim for a disability manifested by aches and pain, the examiner noted that the Veteran did not report a neck condition until many years after his separation from service. The examiner opined the Veteran's claimed disability manifested by aches and pain (which has been attributed to a cervical spine condition that has a clear and specific etiology and diagnosis) was less likely than not incurred in or related to service. In this case, the Board finds that both the medical and lay evidence of record demonstrates that the Veteran's current claim on appeal for an undiagnosed illness manifested by aches and pain is attributable his current diagnosis of cervical strain, degenerative arthritis of the cervical spine, and cervical disk bulge. The Veteran, the Veteran's spouse, and the Veteran's mother-in-law have indicated the Veteran's report of pain and numbness involve his left shoulder region. During the February 2019 Board hearing, the Veteran described his claim for an undiagnosed illness manifested by body aches and pain as localized to the neck, back and shoulders. Additionally, VA treatment records document the Veteran's report of pain and muscle stiffness involve his neck and shoulders. The Veteran was diagnosed with cervical strain in 2012, and imaging revealed an abnormal nerve conduction study of the left median nerve and cervical disc bulge. In considering the entire evidence of record, the Board finds that, collectively, the negative VA medical opinions are based upon consideration of the Veteran's prior medical history and examinations, and describe the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). The Board finds the weight of evidence is against the Veteran's claim for an entitlement to service connection for a cervical spine disability, claimed as an undiagnosed illness manifested by body aches and pain. The competent medical evidence of record has attributed the Veteran's current report of body aches and pain to his diagnosis of cervical strain, degenerative arthritis of the cervical spine, and cervical disk bulge. Additionally, the competent medical evidence of record establishes that the Veteran's cervical strain, degenerative arthritis of the cervical spine, and cervical disk bulge have a clear and specific etiology and diagnosis. The July 2020 and January 2021 VA medical opinions indicated that the Veteran's report of body aches and pain in service were related to an upper respiratory infection and a sinus infection. As the Veteran has indicated that he attributed his symptoms of body aches and pain to sinus issues he experienced in service, the claim for entitlement to service connection for an undiagnosed illness manifested by symptoms of a sinus and/or upper respiratory condition is referred to the AOJ for appropriate action in the decision herein. See November 2013 notice of disagreement with associated documents; see also February 2019 Board hearing transcript (Veteran reported body aches and pain in service associated with sinus problems, and current issues with neck and back muscle spasms that became increasingly severe several years after his separation from service); see also December 2019 VA Persian Gulf examination; see also March 1993 Report of Medical History. The Board places probative weight on the Veteran's report (as noted above in the Veteran's VA treatment records and during VA examinations) that the onset of posterior neck pain was sometime in 2000 (or 1996 at the earliest), years after the Veteran's separation from service. The evidence of record does not demonstrate, and the Veteran has not asserted that his current cervical spine condition, is related to an in-service incurrence or aggravation of a disease or injury. Caluza v. Brown, 7 Vet. App. 498 (1995). There is no medical evidence of record establishing a link between the Veteran's service and his diagnoses of cervical strain, degenerative arthritis of the cervical spine, and cervical disk bulge. Additionally, there are no medical opinions of record supportive of a connection between the Veteran's active service and his current diagnoses of cervical strain, degenerative arthritis of the cervical spine, and cervical disk bulge. The Board finds the preponderance of evidence is against the Veteran's claim for entitlement to service connection for a cervical spine disability, claimed as an undiagnosed illness manifested by aches and pain. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Mask, 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.