Citation Nr: 21034976 Decision Date: 06/08/21 Archive Date: 06/08/21 DOCKET NO. 18-07 518 DATE: June 8, 2021 ORDER Entitlement to service connection for a left elbow disability is granted. Entitlement to service connection for a low back disability is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran is presumed sound on entry for any left elbow disability. 2. The evidence is at least in relative equipoise that the Veteran's current left elbow disability had an in-service onset. 3. The Veteran's low back disability was incurred between the Veteran's second and third period of service; however, the disability was aggravated in service and the increase in disability was not clearly and unmistakably due to its natural progression. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left elbow disability have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.102, 3.303. 2. The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1983 to February 1986, from January 1990 to May 1990, from April 1999 to September 1999, and from December 2003 to November 2005, with additional service in the United States Army National Guard. This case comes on appeal of a January 2014 rating decision. Due to the ongoing global pandemic, the Veteran agreed to testify before the Board at a virtual hearing in March 2020. As a preliminary matter, the Veteran initially filed claims for service connection for his back and left elbow disabilities in April 2009. The agency of original jurisdiction (AOJ) denied those claims in a September 2009 rating decision and the Veteran did not submit a notice of disagreement or new evidence within one year. However, at the time of the September 2009 rating decision, the AOJ had made a formal finding that the Veteran's original service treatment records were unavailable. Subsequent to the September 2009 rating decision, service treatment recordsto include evidence of an elbow injury in the Veteran's first period of service and a line of duty determination regarding a low back injurywere associated with the claims file. Under 38 C.F.R. § 3.156(c), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Thus, there is no need to first reopen the claims before reaching a merits adjudication. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. Service connection generally requires 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 present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for a left elbow disability The Veteran has a current left elbow disability that was identified in November 2017 VA treatment as a left elbow strain. The Veteran contends that this disability had its onset during active duty service. Service treatment records demonstrate that the Veteran was treated in August 1985 for complaints of elbow pain. At that time, the treating provider identified an old supracondylar fracture and instructed no pushups, pullups, or lifting over 10 pounds for 30 days. Subsequent evidence indicates that the Veteran's left elbow recovered after this incident. In August 1990, the Veteran had a commission examination for Army National Guard service, at which time no elbow conditions were noted. In October 1997, the Veteran underwent a physical examination. At that time, the examiner noted the Veteran's statement that his elbow did not interfere with his current military job or with his physical fitness test. The Veteran was examined again in February 1999, prior to being called to active duty. At that time, the examiner noted a left elbow fracture that occurred in 1968 or 1969, but reported no limitations. At a December 2004 post-deployment examination, the Veteran reported no swollen, stiff, or painful joints. In September 2005, while still on active duty, the Veteran reported crepitus of the left elbow with passive range of motion following his most recent deployment to Afghanistan. In June 2010, the Veteran was determined to be unable to do pushups for his National Guard physical fitness test and received a permanent physical. The Veteran contends that his left elbow pain has continued to progress since service. In January 2014, the Veteran underwent a VA examination of his left elbow. At that time, the examiner noted that the Veteran had a left elbow fracture at age six that was treated with casting. The Veteran reported that at various times on active duty he would experience elbow pain. He stated that he experienced pain and a grinding sensation when doing exercises like pushups. The examiner observed that x-rays showed a history of fracture of both bones of the proximal end of the forearm bones. The impression was dysfunctional elbow status post nonunion of an old fracture region affecting the distal humerus with resulting arthritis. The examiner could not conclude that the Veteran's left elbow condition, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression during the Veteran's period of service without resorting to mere speculation. The examiner explained that the x-ray suggested that there was a nonunion of the childhood fracture, which would predispose the Veteran to the development of pain and arthritis in the joint later in life. Notably, a Veteran is presumed to have been in sound condition when examined, accepted, and enrolled into service except for defects, infirmities, and disorders noted on entry into service, or where clear and unmistakable evidence shows that the disability existed prior to service and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Thus, a recorded "history of" a disorder, in and of itself, is not sufficient to constitute a "noting" under 38 C.F.R. § 3.304(b). Such a notation may be considered in the determination of whether clear and unmistakable evidence exists to rebut the presumption of soundness. Crowe v. Brown, 7 Vet. App. 238 (1994). In this case, the Veteran's service treatment records were initially determined to be unavailable. Service treatment records are now associated with the claims file, however, the Veteran's enlistment examination is not included in these records. In the case where a claimant underwent an enlistment examination, but the examination is not available in the records, the presumption of soundness attaches. See 38 C.F.R. § 3.304(b); see also Quirin v. Shinseki, 22 Vet. App. 390, 397 n.5 (2009). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disability both pre-existed service and was not aggravated in service. See 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The term "clear and unmistakable" effectively means that the fact is undebatable. Here, although the VA examiner found that it was clear and unmistakable that the Veteran had a left elbow condition that existed prior to service, the examiner did not find that it was clear and unmistakable that the injury was not aggravated beyond its natural progression during service. Indeed, the examiner simply stated that they "could not conclude" that the disability was aggravated beyond its natural progression during service. By its very nature, the inability to come to a conclusion indicates that the fact is not undebatable. Therefore, the examiner did not find it clear and unmistakable that the Veteran's left elbow disability was not aggravated during service. As a result, the presumption of soundness attaches and the Board must evaluate the claim for service connection as though the Veteran had no left elbow disability at the time of entry into service. In this case, the Veteran had trouble with his elbow during his first period of service, however, this trouble appears to have resolved based on the Veteran's examinations subsequent to that service. Indeed, the left elbow appears not to have caused any additional trouble until 2005. However, in 2005, while still on active duty service, the Veteran began to experience crepitus and pain with range of motion. In support of his claim, the Veteran submitted a private medical opinion from Dr. C.N.B. Dr. C.N.B. opined that the Veteran's left elbow crepitus continued from service in 2005 to the present day, noting that the crepitus was evident in VA treatment in 2009. According to Dr. C.N.B., this type of degeneration would not be expected were it not for the rigors of the Veteran's military service. Notably, Dr. C.N.B.'s opinion does not address significant portions of the Veteran's medical history. Indeed, in the opinion, Dr. C.N.B. asserts that the Veteran's 1985 treatment was evidence of the onset of the current disability, but does not address the numerous instances in which the Veteran's left elbow was determined not to have any issues prior to his last period of active duty service. Nevertheless, given the presumption of soundness, there is no evidence to contradict the conclusion that the Veteran's current left elbow disability had its onset in service. Accordingly, the Board finds that the evidence is at least in relative equipoise. As the evidence is in equipoise, the Board resolves all reasonable doubt in the Veteran's favor and service connection for a left elbow disability is granted. 2. Entitlement to service connection for a low back disability In a January 2014 examination, the examiner identified a current diagnosis of intervertebral disc syndrome and status post L5-S1 laminectomy for degenerative disc disease. The Veteran contends that his current low back disability is the result of a pre-existing injury that was aggravated by service. Specifically, the Veteran explained at his Board hearing that he injured his back in a skiing accident, between periods of active duty service. He underwent discectomy surgery in 1991, but had no issues with his back post-surgery, to include passing physical fitness tests when called to active duty. The Veteran noted both at his hearing and at his January 2014 examination that his back was doing well until about August or September 2005 while he was serving in Afghanistan. He had a recurrence of pain while lifting heavy items and this pain progressed into daily low back pain. The VA examiner opined that the Veteran's low back injury clearly occurred in a period of time when he was not active duty and not performing military activities. However, service treatment records showed that there was a line of duty determination for a low back condition while the Veteran was in Afghanistan. Therefore, according to the examiner, the Veteran's low back condition, which clearly and unmistakably existed prior to service, was affirmatively aggravated beyond its natural progression by an in-service injury. Importantly, the Veteran's next period of service following the 1991 surgery was in 1999. There is no enlistment examination for that period of service. Absent such examination, the presumption of soundness does not attach. See Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012) ("before the presumption of soundness is for application, there must be evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service."); Smith v. Shinseki, 24 Vet. App. 40, 45 (2010) ("In the absence of [an entry] examination, there is no basis from which to determine whether the claimant was sound condition upon entry."); Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (presumption of soundness "attaches only where there has been an induction examination in which the later-complained-of disability was not detected"). However, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preexisting disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). In this case, after consideration of all of the above, the Board finds probative the VA examiner's unequivocal opinion that the Veteran's low back disability was made worse by an in-service injury that was documented in a Line of Duty report. Accordingly, service connection based on application of the presumption of aggravation is warranted. REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran has presented two theories of contention regarding entitlement to service connection for obstructive sleep apnea. The first is that sleep apnea had an in-service onset. The second is that sleep apnea was caused or aggravated by service-connected posttraumatic stress disorder (PTSD). In a January 2014 VA examination, the examiner observed that the Veteran was not diagnosed with sleep apnea until 2010, five years after leaving active duty service. Moreover, the examiner explained that the most common predisposing factor to developing sleep apnea was obesity. As the Veteran's body mass index was in the obese range, this was the more likely cause of the disability. In January 2015, the Veteran submitted a medical opinion addressing the Veteran's sleep apnea from Dr. C.N.B. Dr. C.N.B. opined in support of both the Veteran's theories of entitlement. In support of in-service onset, Dr. C.N.B. stated that the Veteran reported significant in-service snoring. Dr. C.N.B. then referenced several medical treatises that, according to Dr. C.N.B.'s assertions, demonstrated that snoring was causally related to sleep apnea. While this may be true in some individuals, whether such was true for this Veteran was not adequately explained. Regarding sleep apnea as secondary to PTSD, Dr. C.N.B. referenced several medical treatises that discussed correlations between patients with PTSD or other psychiatric disorders and sleep apnea. However, these treatises did not address whether there was a causal relationship between the two conditions or whether PTSD aggravated sleep apnea. Nevertheless, the Veteran has raised a theory of contention that has not been addressed by a VA examiner and has triggered VA's duty to assist. On remand, this new evidence should be presented to an appropriate examiner who can then opine as to whether sleep apnea was caused or aggravated by the Veteran's service-connected PTSD. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate examiner regarding the Veteran's obstructive sleep apnea. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran's documented history and assertions. The examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's sleep apnea had onset in, or is otherwise related to service. In doing so, the examiner should specifically address the Veteran's reports of loud snoring during his deployment to Afghanistan. The examiner should also render an opinion as to whether it is at least as likely as not that the disability was caused or aggravated by service-connected PTSD. The examiner should specifically address the January 2015 opinion from Dr. C.N.B. and accompanying references to medical treatises identifying sleep apnea as a comorbidity of PTSD. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. 2. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.