Citation Nr: 21028876 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 13-20 771 DATE: May 12, 2021 ORDER Service connection for a cervical spine disorder, including as secondary to the service-connected back disability, is denied. Service connection for obstructive sleep apnea, including as secondary to the service-connected back disability, is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of degenerative joint disease of the cervical spine (cervical spine disorder). 2. There was no in-service cervical spine injury, disease, or event. 3. Symptoms of cervical spine arthritis were not chronic during service, were not continuous since service separation, and did not manifest to a compensable degree within one year of service separation. 4. The Veteran is service connected for degenerative joint disease of the lumbar spine with radiculopathy (lumbar spine disability). 5. The lumbar spine disability did not cause or worsen in severity beyond a natural progression the cervical spine disorder. 6. The Veteran has a current diagnosis of obstructive sleep apnea. 7. There was no in-service injury, disease, or event related to obstructive sleep apnea. 8. The lumbar spine disorder did not cause or worsen in severity beyond a natural progression the obstructive sleep apnea. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disorder, to include as chronic disease presumptive service connection and as secondary to the service-connected lumbar spine disorder, are not met. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.310. 2. The criteria for service connection for obstructive sleep apnea, to include as secondary to service-connected lumbar spine disorder, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from January 1980 to December 1984. This case is on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in pertinent part, denied service connection for a cervical spine disorder and for obstructive sleep apnea. This case has been before the Board of Veterans' Appeals (Board) previously. In May 2018, the case was remanded to obtain an examination and nexus opinion for obstructive sleep apnea and to obtain an addendum opinion for the cervical spine disorder. The opinions have been obtained, so there has been substantial compliance with the terms of the remand and the case is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Legal Authority Direct Service Connection Service connection can be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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). Service connection generally requires competent evidence of (1) a current disability, 2) an in-service incurrence or aggravation of a disease or injury, and 3) a nexus between the claimed in-service disease or injury and the current disability. Chronic Disease Presumptive Service Connection Arthritis is a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions for chronic diseases at 38 C.F.R. § 3.303(b) apply, namely, service connection based on "chronic" symptoms in service or "continuous" symptoms since service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then, generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Secondary Service Connection Under 38 C.F.R. § 3.310, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Service Connection for a Cervical Spine Disorder The Veteran seeks service connection for a cervical spine disorder, asserting that he injured the neck at the same time that he injured his lumbar spine, for which service connection was granted. See September 2020 Correspondence. In the September 2020 Correspondence, the Veteran asserted that during service he slipped and fell while carrying a generator and was bedridden for about one month. Notwithstanding the Veteran's assertion that he injured his neck in the generator injury during service, the weight of the lay and medical evidence is inconsistent with, and outweighs, this assertion. Because the prior remand may have implied, for remand purposes, that the Board was going to credit the story of in-service neck (cervical spine) injury, the Board sent a fair process letter to the Veteran on March 30, 2021 that alerted him to the concerns about the credibility of the alleged in-service cervical spine injury assertion, and giving him 30 days to provide any additional evidence to substantiate this in-service injury element of the service connection claim. No additional evidence or argument was received from the Veteran. While the Veteran has asserted that he fell while lifting a generator, hit his head, and was knocked unconscious, this version of alleged in-service event is inconsistent with and outweighed by other, more contemporaneous lay and medical evidence. The service treatment records show a back injury, and do not show in-service neck injury. In the December 1984 Report of Medical History at service separation, the Veteran stated "I am not in good health. I had a back injury in November 1984." Notably, at this comprehensive medical history reporting opportunity, when the Veteran was otherwise thorough in reporting the medical history and current symptoms, the Veteran did not mention injuring his neck during the same incident in which he injured the back. At the service separation examination, the Veteran specifically marked that he currently had or had in the past other specific symptoms, including joint problems, while notably not indicating the same history or current symptoms regarding the neck. At the service separation examination, the Veteran specifically marked that he currently had or had in the past swollen or painful joints, frequent or severe headache, eye trouble, severe teeth or gum trouble, pain or pressure in chest, cramps in his legs, painful or trick shoulder or elbow, recurrent back pain, foot trouble, depression or excessive worry, or nervous trouble. The narrative from the medical professional who reviewed the history and the Veteran indicated that a sprained right ankle was the swollen or painful joint and that there were no others. Notably, there was no mention by the Veteran of a cervical spine injury or neck pain at service separation. In the December 1984 Report of Medical Examination at service separation, spine and other musculoskeletal system were found to be normal. The Board recognizes that the records for November 1984 and December 1984 note a back (not neck) injury, which is consistent with the Veteran's reported back (not neck) injury at service separation. There are approximately seven different appointments; however, there is still no mention of a neck injury or symptoms during service, despite all the specific references to back injury and treatment and all the follow up treatment opportunities to mention neck symptoms, had they been present. Had the neck been injured during the same incident, it would have likely been recorded in a treatment note, or a history from the Veteran, or during the several histories provided by the Veteran when being subsequently treated during service. Histories presented for treatment purposes are especially probative because they are made in order to receive proper medical care (treatment). The Veteran provided copies of two sick call slips related to having to have bedrest, which supports the assertion that he was given bedrest after the back (not neck) injury, but similarly only tends to show that the bedrest was for the clearly documented back injury and treatment, and has no tendency to show a neck injury or neck symptoms. The service treatment records are complete and show a back (not neck) injury, symptoms, and treatment stemming from the back injury that the Veteran identified occurred during service. Cervical spine symptoms would be included in the medical records had a neck injury similarly occurred, or had cervical spine symptoms occurred during service. Accordingly, the fact that the evidence shows no in-service cervical spine injury, disease, or event during service, in the context of showing other injuries and treatment including for other orthopedic conditions, is evidence that weighs against a finding of in-service neck/cervical spine injury, disease, or even neck/cervical spine symptoms during service. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact that would ordinarily be recorded). Because there is no in-service cervical spine injury, disease, or event during service, service connection on a direct basis must be denied. Degenerative joint disease of the cervical spine is a form of arthritis, so the chronic disease presumptive service connection legal provisions apply. In this case, because there was no cervical spine injury, disease, or event during service, and the weight of the evidence shows no chronic symptomatology during service, that element of presumptive service connection is not met. The weight of the evidence is also against finding continuous neck/cervical spine symptoms since service separation. In a June 2015 VA examination, the Veteran reported neck pain for only several years. Several years prior to June 2015 would still be 25 to 30 years after active duty service (from January 1980 to December 1984). Likewise, the evidence shows that the cervical spine symptomatology did not manifest to a compensable degree within one year as the symptoms started several years prior to June 2015. Accordingly, chronic disease presumptive service connection for arthritis must be denied. With regard to secondary service connection (38 C.F.R. § 3.310), the weight of the evidence shows that the lumbar spine disability did not cause or worsen in severity beyond a natural progression the cervical spine disorder. The June 2015 VA examiner provided a negative opinion as to secondary causation by the service-connected lumbar spine disability with right and left lower extremity radiculopathy (lumbar spine disability). The June 2015 VA opinion explained that the service-connected lumbar spine disability and the cervical spine disorder have different anatomical locations with different pathophysiological processes unrelated to each other, and that the present radiological finding of the cervical spine is compatible with degenerative changes, which are an expected change related to the normal process of aging. In May 2019, a VA examiner opined that there is no objective evidence that the now claimed cervical disorder has been aggravated beyond its natural progression by his lumbar spine disability. In summary, the weight of the evidence is against a secondary theory of entitlement. Given that the weight of the evidence is against service connection on a direct, chronic disease presumptive, and secondary basis, the claim for service connection for a cervical spine disorder must be denied. 2. Service Connection for Obstructive Sleep Apnea The Veteran seeks service connection for obstructive sleep apnea, asserting that the obstructive sleep apnea is due to weight gain related to back surgery. Although a March 2017 Polysomnogram Report shows a current diagnosis of obstructive sleep apnea and, therefore, a present disability, the weight of the evidence is against a finding that the obstructive sleep apnea is related to service or to the service-connected lumbar spine disability. Regarding direct service connection, the service treatment records are silent for any mention of obstructive sleep apnea or related symptoms. In addition to the back treatment and assessment discussed above, the service treatment records reflect treatment for other symptoms such as cramps and diarrhea, a rash on the lip, pain in the left knee, irritation around the eye, a cyst on the leg, an abrasion, upset stomach, gastroenteritis, ankle injury, eye infection, viral syndrome, allergic conjunctivitis, upper respiratory infection, and cold sores. There is no mention of sleep disorder, fatigue, daytime hypersomnolence, or other sleep apnea indicia. As noted, the service treatment records are complete and obstructive sleep apnea symptoms are such that they would be recorded if they had happened. Accordingly, the absence of symptoms that might suggest the presence of sleep apnea during service is one factor in support of a finding that there was in fact no in-service obstructive sleep apnea related injury, disease, or event. See Kahana, 24 Vet. App. at 438; Buczynski, 24 Vet. App. at 224. The Board notes that there was also no assertion by the Veteran that there was an in-service obstructive sleep apnea injury, disease, or event. Because there is no in-service injury, disease, or event, service connection on a direct basis cannot must be denied. The Veteran provided a March 2017 Polysomnogram Report that included a statement by a private provider that "[the Veteran's] obstructive sleep apnea was caused or exacerbated by his 30 pounds weight gain since his back injury." The Board finds that, notwithstanding this statement, the weight of the evidence is against a finding that the obstructive sleep apnea was caused or aggravated (worsened in severity beyond a natural progression) by the service-connected lumbar spine disability. The Veteran provided the one-line statement without any proof that there was a connection between the back injury, the weight gain, and the obstructive sleep apnea. There was no theory as to how the back injury might have caused the weight gain, for example, and, therefore, no objective way of linking the two. The Veteran has made this general unsupported assertion, but neither the Veteran nor the evidence has suggested how the back limitations affected movement to such an extent that all exercise would be precluded and obesity would follow, and has not broached the subject of dietary intake as a factor responsible for obesity. The Board solicited opinions related to secondary service connection for the lumbar spine disability. In May 2019, a VA examiner stated that the obstructive sleep apnea was less likely than not due to or a result of the service-connected lumbar spine disability. "Sleep apnea is a condition related to obesity and airway obstruction or malformations, which does not apply to this veteran. [Degenerative joint disease] is a completely separate condition which cannot cause or aggravate sleep apnea." Regarding aggravation, the opinion was that it was not possible to establish a baseline of severity, but the sleep apnea was not at least as likely as not aggravated beyond its natural progression by the back disability. The rationale was that there was no anatomic link between the two conditions. The Board finds that the secondary service connection opinions are more probative than the one sentence statement about weight gain because the secondary service connection opinions provide a more thorough rationale. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (stating that whether a physician provides a basis for his medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits); Miller v. West, 11 Vet. App. 345, 348 (1998) (providing that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record). Because the weight of the evidence is against a grant of service connection on a secondary or a direct basis, the claim for service connection for obstructive sleep apnea must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.