Citation Nr: 21040229 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-40 699 DATE: July 2, 2021 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for a seizure disorder is denied. REMANDED Entitlement to service connection for pneumonia is remanded. Entitlement to service connection for a tremor disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a cervical spine (neck) disability is remanded. Entitlement to service connection for bilateral lower extremity radiculopathy is remanded. Entitlement to service connection for bilateral upper extremity radiculopathy is remanded. FINDINGS OF FACT 1. The Veteran's sleep apnea is caused by his service connected sinusitis. 2. The preponderance of the evidence is against a finding that the Veteran had a seizure disorder at any time during the appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2021). 2. The criteria for service connection for a seizure disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. § 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from September 1969 to September 1993. In October 2018, he testified before the undersigned Veterans Law Judge (VLJ) and a transcript is of record. The Veteran's claims were initiated in the Fully Developed Claims process (FDC). Claims initiated through this process are filed on VA Form 21-526EZ, which provides the Veteran notice of the evidence necessary to establish entitlement to the benefits they are seeking. The Veteran submitted a VA Form 21-526EZ in March 2014 and in August 2014 and thus initiated the FDC process. Therefore, VA's duty to notify was satisfied. 38 U.S.C. § §§ 5102, 5103, 5103A (2018); 38 C.F.R. § § 3.159 (2021); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Additionally, VA has a duty to assist claimants in substantiating their claims for VA benefits. 38 U.S.C. § 5103A (2018); 38 C.F.R. § 3.159 (2021). The evidence of record includes the Veteran's VA treatment records and private medical records. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Consequently, all relevant, identified, and available evidence has been obtained. The duty to assist also includes providing an examination when the record indicates a claim may have merit but there is insufficient evidence to decide the matter. 38 U.S.C. § 5103A (2018); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran received VA examinations for all his disabilities except for his tremor disorder. The Board finds that the examinations for his sleep apnea and seizure disorder were based on a thorough evaluation and appropriate diagnostic tests. The Board finds that these VA examinations were adequate and provided sufficient information to assess the possible nexus to service for those disabilities. The examiners also provided rationales for their opinions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) evidence of 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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2021); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. 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 (2021). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). 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. Sleep Apnea Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disability or injury. 38 C.F.R. § 3.310(a) (2021). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(a) (2021); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran received a VA examination in May 2015. The examiner noted that sleep apnea is caused by soft tissue structures of the upper airway blocking the posterior oropharynx. Additionally, no specific environmental exposure can cause the abnormalities which lead to sleep apnea. The examiner noted that the Veteran's allergic rhinitis aggravates his sleep apnea symptoms but does not cause it. The examiner opined that the most likely cause of the Veteran's symptoms were his history of smoking and obesity. The Veteran received another VA examination in September 2015. The examiner noted that the Veteran has significant rhinitis and a deviated nasal septum. The Veteran's rhinitis, nasal obstruction, and deviated septum caused his obstructed breathing which lead to sleep apnea. The examiner also noted that his sinus issues cause interrupted sleep and daytime hypersomnolence. At his Board hearing, the Veteran testified that he had sleep issues in service. He reported that he had interrupted sleep and experienced fatigue during the day. The Veteran thought that his sleep apnea may be secondary to his service connected PTSD. His partner also testified that he snored during service and had issues with gasping for breath while sleeping. The Board finds that the preponderance of the probative evidence is for the Veteran's claim. The May 2015 and September 2015 VA examiners found that the Veteran's service-connected rhinitis aggravated or caused his sleep apnea. The Board notes the Veteran is service connection for sinusitis, and the evidence shows that his sleep apnea is related to this disability. Consequently, secondary service connection for sleep apnea is warranted on a causation basis because one of the medical opinions supports causation and it is the greater benefit. Because the Board is grating service connection for sleep apnea as caused by service-connected rhinitis, the theory that it is caused or aggravated by PTSD does not need to be addressed. 2. Seizure disorder The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110 (2018); see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges that the Veteran's service records documented his in service seizure. He was put on medication for a time but discontinued the medication because he had no other seizures. Accordingly, the Veteran has not had a seizure during the entire appeal period. Likewise, the March 2015 VA examiner noted that the Veteran had never been diagnosed with a seizure disorder. Additionally, at the Veteran's Board hearing he testified that he did not have a seizure disorder. Consequently, as there is no evidence of a current disability, the Board finds service connection for a seizure disorder is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). REASONS FOR REMAND 1. Pneumonia The Veteran has not received a VA examination for his pneumonia. The Board acknowledges that the medical evidence shows that he was last treated for pneumonia in March 2013, which is outside the appeal period. However, the Veteran testified that he had pneumonia during the appeal period. As other service connection claims are being remanded, the Board finds his pneumonia claim should be remanded to allow the Veteran to provide records documenting his pneumonia treatment. Furthermore, the Veteran should be afforded a VA examination to determine if there is a nexus to service. 2. Tremors The Veteran has not received a VA examination for his tremor disability. At his Board hearing he testified that his hands started shaking in service and have continued since. His partner also testified that she noticed his hands shaking while in service. The Board finds a VA examination is necessary to determine if he has a tremor disability that is related to service. 3. Back and Neck Disabilities The Veteran received VA examinations for his neck and back in March 2014 and May 2015. While the examiners considered his in service incidents, the lay statements concerning his disabilities were not addressed. The Veteran testified that the gear he wore in service for his fire protection job put a tremendous strain on his neck and back. The Veteran testified that he had neck and back pain while in service and his wife reiterated that he complained about neck and back pain. The Board finds that another VA examination is necessary that considers his lay statements. 4. Bilateral Lower Extremity Radiculopathy and Bilateral Upper Extremity Radiculopathy As the Veteran's neck and back disabilities are remanded his service connection claims for bilateral upper and lower radiculopathy must be remanded. His radiculopathy disabilities are inextricably intertwined with his neck and back disabilities. Accordingly, the Veteran's bilateral upper and lower radiculopathy claims are remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any physician or facility where he received treatment for pneumonia. Make two requests for the authorized records from the physician or facility unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination with an appropriate clinician for his pneumonia. The entire claims file and a copy of this remand must be made available to the examiner for review. a.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's pneumonia began during active service or is related to an incident of service, including the multiple treatment records documenting the Veteran's treatment for pneumonia and bronchitis. b.) Whether it is at least as likely as not that the Veteran's pneumonia was proximately due to or the result of his service connected bronchitis. c.) Whether it is at least as likely as not that the Veteran's pneumonia was aggravated beyond its natural progression by his service-connected bronchitis. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Schedule the Veteran for an examination with an appropriate clinician for his tremor disability. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must determine whether the Veteran has a disability manifested by tremors, including shaking in the hands. If the Veteran has a tremor disability, the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's tremor disability began during active service or is related to an incident of service, including his in-service seizure. The examiner should specifically address the Veteran's and his wife's lay statements that he experienced hand tremors in service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Schedule the Veteran for an examination with an appropriate clinician for his back disability. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's back disability began during active service or is related to an incident of service, including wearing his fire protection gear; or, if arthritis is diagnosed, whether it began within one year after discharge from active service. The examiner should specifically address the Veteran's lay statements that he experienced back pain in service and his wife's testimony concerning his complaints. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. Schedule the Veteran for an examination with an appropriate clinician for his neck disability. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's neck disability began during active service or is related to an incident of service, including wearing his fire protection gear; or, if arthritis is diagnosed, whether it began within one year after discharge from active service. The examiner should specifically address the Veteran's lay statements that he experienced neck pain in service and his wife's testimony concerning his complaints. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 6. If the VA examiner finds that the Veteran's back disability is related to service, have the examiner provide a supplemental opinion. The entire claims file and a copy of this remand must be made available to the examiner for review. An examination is only required if deemed necessary by the examiner. The examiner must opine as to whether it is at least as likely as not that the Veteran's bilateral lower extremity radiculopathy is a neurological complication of his back disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 7. If the VA examiner finds that the Veteran's neck disability is related to service, have the examiner provide a supplemental opinion. The entire claims file and a copy of this remand must be made available to the examiner for review. An examination is only required if deemed necessary by the examiner. The examiner must opine as to the whether it is at least as likely as not that the Veteran's bilateral upper extremity radiculopathy is a neurological complication of his neck disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 8. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.