Citation Nr: 21027609 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-24 047 DATE: May 6, 2021 ORDER Entitlement to service connection for a right knee disability, to include as secondary to service-connected disabilities, is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a back disability is granted. Entitlement to service connection for a neck disability is granted. FINDINGS OF FACT 1. The Veteran's right knee disability was not incurred in or due to his time in service or is proximately due to or aggravated by his service-connected ankle disability. 2. The preponderance of the evidence is against finding that sleep apnea began during active service, or is otherwise related to an in-service injury or disease. 3. Resolving reasonable doubt in the Veteran's favor, his back disability began during active service. 4. Resolving reasonable doubt in the Veteran's favor, his neck disability began during active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disability, to include as due to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303, 3.310. 2. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for a neck disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. These issues were previously before the Board in October 2018 and were remanded for further evidence, to include obtaining etiology opinions and outstanding military records from the Yokota Air Base. The Board finds there has been substantial compliance with its October 2018 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial and not strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)); see also Dyment v. West, 13 Vet. App. 141, 14647 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand). SERVICE CONNECTION Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a 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 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must 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. 38 C.F.R. § 3.310 (a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 1. Entitlement to service connection for a right knee disability The Veteran contends that his right knee disability was incurred in or due to his time in service or is due to his service-connected ankle disability. The Veteran has a current diagnosis of a baja patella and right knee strain. See June 2001 Examination, 374th Medical Group, Yokota Air Base; January 2017 VA Examination. In November 2011, and again in January 2017, the Veteran underwent a VA examination for his right knee disability. The November 2011 examiner opined the right knee disability was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner stated there is no evidence found in the claims file to support this claim. The January 2017 VA examiner thoroughly reviewed the claims file and opined that the right knee is less likely than not proximately due to or aggravated by the Veteran's service-connected right ankle disability. In reaching their rationale, the examiner noted there is no anatomic or pathophysiological relationship between right knee and the feet and ankles. Medical literature does not support the contention that pathology in one joint may cause the same in the other joints of the body. Additionally, the examiner stated there was no evidence to support that the Veteran was treated for right knee pain during service. The Board has reviewed the Veteran's file, including his medical records, and find that the objective evidence does not show that this condition was incurred in and due to his time in service nor is it proximately due to or aggravated by his ankle disability. Therefore, the claim will be denied. 2. Entitlement to service connection for sleep apnea The Veteran contends his sleep apnea was incurred in or due to his time in service. The Veteran has a current diagnosis of obstructive sleep apnea. See November 2011 VA Examination. In November 2011, the Veteran underwent a VA examination for his sleep apnea. The examiner opined that sleep apnea was less likely than not incurred in or caused by an in-service injury, event, or illness. In reaching their rationale, the examiner noted the claims file does not show any evidence to suggest the Veteran had sleep apnea in service. While the Veteran experienced some sleep deprivation in service, it does not indicate sleep apnea. Additionally, sleep deprivation does not cause sleep apnea. It was not until September 2011 where the Veteran's symptoms indicated mild obstructive sleep apnea and therefore the findings support the onset of obstructive sleep apnea after 2011. The November 2011 VA examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, both the facts of the case and the medical opinion evidence provides evidence against the claim that the Board can not ignore, indicating a problem that began years after service. Therefore, the Board finds the preponderance of the evidence is against finding that sleep apnea began during active service, or is otherwise related to an in-service injury or disease. 3. Entitlement to service connection for a back disability 4. Entitlement to service connection for a neck disability The Veteran contends his back and neck disability were incurred in or due to his time in service. Alternatively, the Veteran contends his back and neck disability are due to his service-connected disabilities. After resolving reasonable doubt in favor of the Veteran, the Board concludes that the Veteran has a current back and neck disability that began in active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA treatment records show the Veteran has a current diagnosis of lumbosacral strain, degenerative arthritis of the cervical spine, and spondylosis with stenosis. See February 2020 VA Examinations. The Veteran's service treatment records (STRs) show that he was seen for back and neck pain. Specifically, the Veteran's STRs show that he was seen at least four separate occasions for back pain and a muscle strain and was also assessed with degenerative disc disease of the cervical spine and impingement of the neck while in service. The Board notes the Veteran was not provided an etiology opinion for direct service connection for a back disability, only an opinion as to whether the disability was proximately due to or aggravated by a service-connected disability. However, the Board finds the numerous times the Veteran was seen in service for back pain as evidence in favor of his claim for a back disability. See August 1977, January 1978, February 1978, and February 1991 STRs (showing complaints of back pain and a muscle strain). As for the neck disability, a November 2011 and February 2020 VA examiner opined that the Veteran's neck disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In reaching their rationale, the November 2011 VA examiner found there is insufficient evidence to support the claim that his current degenerative disc disease of the cervical spine is due to falling from a service-connected seizure disorder. The February 2020 examiner determined the neck condition was not related to service, as the separation examination did not show a neck condition. Furthermore, the examiner noted that medical records were silent for a neck condition until 1999. The Board notes that both the November 2011 and February 2020 examiners did not consider when the Veteran was seen in service for aching neck pain, degenerative disc disease of the cervical spine, and impingement of the neck. See December 1981 STRs. Therefore, the November 2011 and February 2020 opinions cannot be provided much probative weight. As a result, the STRs and the fact the Veteran was seen in service for neck pain, degenerative disc disease of the cervical spine, and impingement of the neck, provide evidence in favor of his claim for a neck disability. Regarding the issues the Board has granted, the STRs provide evidence, overall, in support of these claims. Regarding the issues the Board has denied in this case, the opposite is true: The STRs provide evidence against those claims. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current back and neck disability arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a back disability and neck disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, 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.