Citation Nr: 21030287 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 13-22 422 DATE: May 18, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is granted as secondary to service-connected disease or injury. Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to a compensable disability rating for status post tonsillectomy is denied. FINDINGS OF FACT 1. The most probative evidence reflects that OSA is due to the combined effects of service-connected disease, to include resulting obesity. 2. The Veteran's low back disability did not manifest in service and arthritis of the low back did not manifest within one year of separation. The disability is not otherwise related to service. 3. The Veteran's left shoulder disorder did not manifest in service and arthritis of the left shoulder did not manifest within one year of separation. The disability is not otherwise related to service and is unrelated (caused or aggravated) to service-connected disease or injury, to include the right shoulder. 4. Status post tonsillectomy has not been manifested by or approximated hoarseness with inflammation of cords or mucous membrane. CONCLUSIONS OF LAW 1. Obstructive sleep apnea is proximately due to or the result of service-connected disease or injury. 38 C.F.R. §§ 3.102, 3.310; VAOPGCPREC 1-2017. 2. The criteria for service connection for low back disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 3. The criteria for service connection for left shoulder disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.310. 4. The criteria for a compensable rating for status post tonsillectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.31, 4.97, Diagnostic Codes 6599-6516. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1974 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In October 2015, the Veteran testified before the undersigned Veterans Law Judge as to the service connection for left shoulder and low back claims and the tonsillectomy rating claim. The VLJ clarified the issues, determined if there were outstanding evidence and explained the concepts of service connection and increased rating. The actions of the VLJ comply with 38C.F.R. §3.103. These issues, which stem from a May 2010 rating decision, were remanded by the Board in March 2016 for examinations. The matters have been returned to the Board. The claim of service connection for OSA stems from a September 2016 rating decision. The appeals have been merged. Subsequent to the issuance of the most recent supplemental statement of the case (SSOC) relevant to each of these claims, the Veteran's attorney has submitted additional evidence and argument with a waiver of consideration by the agency of original jurisdiction. Service Connection Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(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 or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases such as arthritis will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection is also warranted for a disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. 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); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for obstructive sleep apnea is granted as secondary to service-connected disease or injury. The Veteran contends that he has obstructive sleep apnea that is secondary to the combined effects of his service-connected disabilities. We note that service connection is in effect for the following disabilities: right shoulder arthritis, rated 40 percent; sinusitis, rated 30 percent, depressive disorder associated with the right shoulder, rated 30 percent, and noncompensable rating each for right thigh scar, chronic tonsillitis (status post tonsillectomy and uvulectomy), hepatitis C and erectile dysfunction associated with the right shoulder arthritis. His combined rating is 60 percent from May 28, 2010 and 70 percent from April 3, 2017. A total rating due to service-connected disabilities based on individual unemployability (TDIU) is in effect from April 3, 2017. VA has recognized that "[o]besity may be an 'intermediate step' between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a)." VAOPGCPREC 01-2017 at 2 (Jan. 22, 2017). The Court has recently observed there are six non-exclusive factors for consideration including: mobility limitations or reduced physical activity as a result of a service-connected physical disability (in particular, orthopedic conditions or chronically painful conditions); reduced physical activity or inability to follow a course of exercise or diet as a result of service-connected mental disability; side effects of medication (e.g., weight gain), where the medication is prescribed for service-connected disability; treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; lay statements by a veteran attributing weight gain or obesity to the service-connected disability; and statements by treating physician or medical examiners attributing weight gain or obesity to the service-connected disability. See Garner v. Tran, No. 18-5865, 2021 U. S. App. Vet. Claims LEXIS 81 (Vet. App. Jan. 26, 2021). There is a current disability of obstructive sleep apnea as diagnosed in the May 2017 VA sleep apnea examination. The date of diagnosis is listed as 2002. The question for the Board is whether the obstructive sleep apnea is caused or aggravated by his service-connected disease or injury, to include resulting obesity. VA obtained a medical opinion from a nurse practitioner in May 2017 which was against the claim on a direct and secondary basis. In support of his appeal, the Veteran submitted medical literature suggesting links between OSA to his service-connected disorders. He also submitted a September 2017 private medical opinion. This private physician stated that the VA examiner's opinion was not logical. The private physician then noted that the Veteran has multiple risk factors for OSA that he developed during service and based on these secondary factors he now has OSA. They stated this is true even without mentioning that the obesity exists. It is their opinion that OSA is as likely as not secondary to weight gain due to his service-connected disabilities. Both opinions are competent on their face, though we note the private physician's criticism of the VA opinion is basically valid. Given that the rationale provided by private physician in 2017 is congruent with the balance of the evidence of record the Board concludes that the examination should be afforded probative weight. It is at least as probative as the VA examiner's opinion and indeed provides a sound rationale for rejecting the VA opinion. The aforementioned non-exclusive factors have been given consideration in the context of this case. As such, the Board finds that the most probative evidence reflects that the Veteran's service-connected disease or injury, to include resulting obesity, caused his obstructive sleep apnea. In such cases, service connection is warranted on this basis. 38 C.F.R. § 3.310; VAOPGCPREC 1-2017. Here, we note that the AOJ could have obtained a better opinion, to include one that reflects that generally weight gain is actually a function of caloric intake. However, we shall not remand and shall based the decision on the evidence of record. 2. Entitlement to service connection for a lumbar spine disability is denied. 3. Entitlement to service connection for a left shoulder disability is denied. The question for the Board is whether the Veteran has a current lumbar spine or left shoulder disorder that manifested in service or within any applicable presumptive period, or whether the condition is otherwise related to service. Also for consideration is whether any left shoulder disorder is related to the service-connected right shoulder disorder. The Veteran asserts that he has both a left shoulder disability and a lumbar spine disability related to injuries sustained during service. He has diagnoses of acromioclavicular joint osteoarthritis of the left shoulder, and endplate degenerative change at T12 of the thoracolumbar spine. See the March 2010 VA examiner's report. He was in a motor vehicle accident during service in August 1976. The Veteran asserts that he has had back and left shoulder problems since this in-service accident. With respect to the Veteran's left shoulder, although most of the treatment reports pertaining to care following the August 1976 accident document treatment for a right shoulder disability, there is one service treatment report dated August 29, 1976 indicating "pain in shoulders [plural] and leg" from the automobile accident. Although the March 2010 VA examiner evaluated the nature of the Veteran's left shoulder disability, she did not provide an opinion as to the etiology of his claimed disability. In November 2011, a VA examiner opined against a relationship between the Veteran's left shoulder disability and service, simply noting that the condition is related to a post-service work injury, without providing any discussion of the Veteran's service treatment records. The examiner similarly noted that the left shoulder disability is not a condition secondary to his service-connected right shoulder condition. With respect to the Veteran's lumbar spine, the March 2010 VA examiner opined against a relationship between his lumbar spine disability and the Veteran's in-service automobile accident, citing both to an absence of treatment for a back problem immediately following the accident, and the presence of intervening post-service injuries to the back. Pertinently however, the examiner did not provide an opinion as to whether the Veteran's current disability could be related to the Veteran's other documented complaints of, and treatment for back pain during service. Indeed, a June 10, 1976 treatment report indicates that the Veteran injured his back two months prior in a fight, and complained of back pain with exertion. He also complained of pain in his tail bone, after falling on a cement curb one and a half years prior. He was assessed as having a contusion. A November 7, 1974 treatment report also noted complaints of back pain after a fall two days prior. The Veteran underwent VA examinations in April 2016 to obtain (1) a more thorough opinion as to the etiology of his left shoulder disability, both on a direct and secondary basis and (2) an opinion as to whether the Veteran's spine disability is related to service, to include his documented complaints of back pain. Disability demonstrated in the April 2016 VA examination included thoracolumbar spondylosis with radiculopathy and arthritis, and left shoulder degenerative arthritis. While we note the aforementioned references in the STRs, we find it significant that the July 1977 separation examination reflected normal clinical evaluation of the upper extremities and spine. Also, the separation examiner observed right shoulder dislocation and with no complaints related to the back. Post service records reflect left shoulder problems beginning in approximately 1997 as reported with a lifting injury, with low back issues dating from 2007. There were two intervening accidents that occurred in 1981 and 1988. The VA examiner in April 2016 found that the Veteran's current low back disability is less likely as not incurred in or proximately due to his active duty. The rationale was as follows: Review of Veteran's STR has only 2 documentation of back pain dated 6/10/76 injured back during fight x 2 mos LBP; 1 1/2 month pain in tail bone fell on cement curb, contusion consider fx of coccyx; 11/7/74 fall pain in back since. There are Veteran's statement of continuous symptoms since service despite documentation by Veteran dated 7/29/79 ETS report of medical history-NO recurrent back pain. Review of Private medical records indicating back pain due to car accident 3/21/12 also private medical records indicating 2 additional car accidents in 1981 and 1988. 8/14/08 MRI minor narrowing of the L4-L5 disc from degeneration. 3/23/12 CT of the L spine recent motor vehicle accident, pain: At L4-L5, diffuse disc bulge resulting in mild compromise of central canal and bilateral foramina. There is a lack of medical evidence while on active duty to show chronicity for a back condition. MRI dated 8/14/08 shows only minor narrowing of L4-L5 disc from degeneration. Review of multiple medical literature including Up To Date has information that these minor changes are considered age related in a 51 year old man (veteran's age at MRI). Veteran's statement says there were continuous symptoms since service, however with no medical evaluation, diagnosis I would have to resort to mere speculation that the symptoms the Veteran is claiming as continuous are related to the Veteran's current lumbar condition. The examiner also stated that the Veteran's left shoulder disability is less likely as not incurred in or proximately due to his active duty service. The rationale was as follows: Review of Veteran's STR has an isolated documentation of shoulder pain dated August 29, 1976. Veteran's signed report of medical history at his time of separation does not indicate left shoulder pain he only mentions right shoulder pain. There was never follow up while on active duty for left shoulder pain and there is no medical evidence to suggest chronicity of a left shoulder condition. Veteran's statement says there were continuous symptoms since service, however with no medical evaluation, diagnosis I would have to resort to mere speculation that the symptoms the Veteran is claiming as continuous are related to the Veteran's current shoulder condition. The examiner also stated that the Veteran's left shoulder disability is less likely as not aggravated beyond its natural progression by another orthopedic disability, to include his service-connected right shoulder disability and/or his cervical spine disability. The rationale was that review of multiple medical literature including Up To Date Has no information that a right shoulder injury or cervical injury leads to degenerative arthritis of the left shoulder. They also found it was less likely as not aggravated beyond its natural progression by another orthopedic disability, to include his service-connected right shoulder disability and/or his cervical spine. Review of multiple medical literature including Up To Date has no information that a right shoulder injury or cervical injury leads to degenerative arthritis of the left shoulder. As pointed out by the 2016 VA examiner, there is a lack of medical evidence while on active duty to show chronicity for either the low back or left shoulder condition and the assertions that there were continuous problems since service cannot be relied upon without resort to mere speculation given the lack of treatment for years following service. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The preponderance of the evidence is against finding chronic disease in service or within a year following separation, nor is there continuity of the same symptomatology since service, with no intervening cause. The preponderance of the evidence is also against finding that a nexus exists between the Veteran's current back and left shoulder disability and service. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Here, the weight of the evidence is against finding that the in-service complaints and findings represented more than acute incidents related to the low back and left shoulder. The 2016 VA examiner clearly indicated, with citation to the record and to medical literature review, that the current conditions were not etiologically related to the acute incidents in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. There was no chronic back or left shoulder disorder or diagnosis in service. While we note the Veteran's recitation of the events and we indeed note there were incidents in service as he describes, we find the 2016 opinion of the VA examiner to be more probative as to the issue of whether any current back or left shoulder disability is related to service, to include the documented incidents. As to whether the left shoulder disorder is due to or aggravated by the right shoulder disorder, we find the 2016 VA opinion to be competent evidence. The Veteran is not competent to opine as to etiology, and there has been no medical professional who supports this theory. The Veteran, through his attorney, has merely submitted evidence that he continues to be treated for left shoulder and low back conditions. The Veteran's assertons as to a relationship, either direct or secondary, pale in comparison to the opinion of a trained medical professional. The VA examiner considered the Veteran's theory as to a relationship and provided sound reasons for ultimately rejecting it. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) The medical opinion is the most probative, credible evidence as it is consistent with the finding that there is no relationship between current disability and service. The benefit sought on appeal is denied. Increased Rating The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 4. Entitlement to a compensable disability rating for status post tonsillectomy is denied. The Veteran's tonsillectomy residuals are currently rated noncompensable under DC 6599-6516, with DC 6599 being a built up rating for an unlisted condition and 6516 representing Laryngitis, chronic. Under DC 6516, hoarseness, with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy warrants a 30 percent rating, while hoarseness, with inflammation of cords or mucous membrane warrants a 10 percent rating. VA examination in March 2010 showed the Veteran reported tonsil infection while in Korea and a past tonsillectomy with uvula removal for chronic tonsillitis and sleep apnea. The larynx was normal with no evidence of a laryngectomy. The diagnosis was status post tonsillectomy. Examination in October 2010 also showed no current evidence of active recurrent, or chronic tonsillitis or infection following surgery and no evidence of any current residuals related to the tonsillectomy, residuals of injury to the pharynx or the nasopharynx and no hoarseness with inflammation of cords or mucous membrane. At his hearing in 2015, he testified that he loses his voice at times, and when he eats and drinks, food goes up through his nose "because they cut out too much of my throat." The Veteran submitted an opinion from Dr. T.O. indicating that the Veteran experiences regurgitation of food into the nasopharynx that is likely related to prior uvulopalatopharyngoplasty (UPPP). The Board remanded the matter in March 2016 to assess current symptoms of this disability and to determine the extent to which any residuals that may exist overlap with symptoms of his service-connected sinusitis, currently rated at 30 percent disabling (and not on appeal). Examination was accomplished in April 2016. The examiner noted that current complaints included food or water going up his nose when he eats or drinks, he gets runny nose and occasionally chokes when eating or drinking. A couple of years ago he lost his voice for 2-3 months. He was diagnosed with a vocal cord cyst at this time. He stated he periodically loses his voice for 2-3 days. He stated his voice gets hoarse and raspy at times and he has had post-nasal drainage since he was in the hospital in Korea and he feels this is what contributed to his cyst. He states he is constantly having to blow his nose while eating and this is embarrassing while in restaurants. The examiner found that there are no symptoms attributable to the Veteran's tonsillectomy. There was no functional impairment due to tonsillectomy. Treatment records, to include VA records and non-VA treatment records submitted by appellant, do not suggest manifestations greater than those demonstrated on the most recent VA examination. A June 2016 Ear, Nose and Throat consult reflects his doctor could not accomplish a biopsy of his larynx in 2013 but when they looked in 2016 it was smaller. The Board finds that the 2016 VA examination report and treatment records show that the Veteran's disability fails to meet or approximate the criteria for a 10 percent rating under DC 6516. Here, there is no hoarseness, with inflammation of cords or mucous membrane. The Veteran's description of problems with eating and drinking due to the surgery was considered by the examiner, but they examiner found no current symptoms after examination and review of the record. The Board finds the examiner's assessment to be highly probative as to the degree of disability. It is consistent with the treatment record and was made based in part on the Veteran's descriptions of symptoms. The 10 percent rating criteria are not more nearly approximated. See 38 C.F.R. §§ 4.7, 4.10. To the extent that the Veteran urges that the criteria for a compensable rating are met or approximated, his assertions are outweighed by the treatment and examination record which do not support this assertion, as discussed above. There is no reasonable doubt regarding the degree of disability. See 38 C.F.R. § 4.3. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. RIPPEL, 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.