Citation Nr: 21040438 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-35 916 DATE: July 3, 2021 ORDER Entitlement to service connection for a neck disability is denied. REMANDED Entitlement to service connection for a sleep disability, to include as due to an undiagnosed multisymptom illness and/or secondary to posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating due to individual unemployability based on service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran's neck disability did not incur during active service, was not caused by active service, and did not manifest without one year of separation from active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a neck disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1986 to June 1991. The Veteran testified before the undersigned Veterans Law Judge in February 2019. The Board of Veterans' Appeals (Board) remanded the matters for further development in March 2020. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Moreover, certain chronic diseases, such as arthritis, may be presumed to have been incurred during service if they are established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a), such as arthritis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that his neck disability began in-service when he was struck by a fueling hose. See December 2011 VA Form 21-526; February 2019 Hearing Transcript. The Veteran has been diagnosed with cervical spine degenerative disc disease (DDD). As such, element one under Shedden and Wallin is met. The Veteran's service treatment records (STRs) show treatment for a neck injury in October 1989. A negative finding for cervical spine tenderness is documented in March 1990 STRs. The Board notes the Veteran's entrance and separation examinations are silent for complaints of or diagnoses for any neck conditions. In September 2013, the Veteran was provided with a VA neck examination. The examiner diagnosed the Veteran with DDD of the cervical spine. The examiner provided a negative nexus opinion. However, the examiner did not provide an adequate rationale to support their opinion. A VA examination and opinion were afforded to the Veteran in December 2020 and February 2021. The examiner. The examiner provided a negative nexus opinion, noting there was no evidence of chronic long-term neck issues in the Veteran's STRs following the October 1989 injury. The examiner clarified that the March 1990 STR showing "cervical spine tenderness" was accompanied by a negative sign which would denote there was no evidence of cervical spine tenderness at the time of the March 1990 emergency room visit. The neurology consult from May 2011 showed the Veteran had over 20 years of blue-collar work experience with extensive physical labor requirements after his separation from active duty. The Veteran's neck disability was most likely caused by the chronic repetitive manual labor after separation. Based on the evidence of record, the Board finds that the preponderance of the evidence is against service connection on a direct or presumptive basis. The Board notes that the Veteran's STRs document one isolated complaint of a neck injury in October 1989, but the separation examination in May 1991 showed no complaints of or diagnoses for any neck disability. The December 2020 VA examiner opined that the claimed condition less likely than not incurred in or was caused by the in-service injury. The first medical evidence of a diagnosed cervical spine disorder was in April 2011, i.e., over 20 years after his discharge from active service. In the February 2020 hearing, the Veteran reported that he did not seek treatment for his neck until 2010. The fact that there were no records of any complaints or treatment involving the Veteran's neck condition for many years after service weighs against the claim. Regarding presumptive service connection, the Board finds that service connection for cervical DDD on a presumptive basis is not warranted, as the record does not show evidence of arthritis within one year of separation from active duty. The first competent evidence suggestive of cervical arthritis was in 2011. As there is no competent evidence that the disability manifested to a compensable degree within one year of his active service and was not continuous since service, a presumption of service connection under 38 C.F.R. §§ 3.307, 3.309 is not warranted. The Board acknowledges the Veteran and his representative's statements regarding the etiology of the Veteran's neck disability. Although they are competent to report the Veteran's symptoms, they are not competent to render a medical diagnosis and causation. Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Thus, the Veteran and his representative's opinions by themselves are outweighed by the 2020 VA examiner's findings. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). The claim is denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for a sleep disability, to include as due to an undiagnosed multisymptom illness and/or secondary to PTSD is remanded. The Veteran was provided a VA examination in December 2020. The examiner diagnosed the Veteran with obstructive sleep apnea and provided a negative nexus opinion in February 2021. Within the examination, the examiner noted "the condition began during the service" in the medical history section of the examination, yet the examiner determined there was no evidence of sleep apnea in active duty service records in the medical opinion rationale. The medical history section of the examination and the rationale for the negative nexus opinion include contradictory findings. Therefore, an addendum opinion is necessary to prior to adjudication to resolve and explain the disparity in the findings. During the February 2019 Board Hearing, the Veteran reported he noticed symptoms of a sleep disability in-service. The Veteran's wife testified that the Veteran would stop breathing in his sleep when they first moved in together. The Board notes the Veteran's wife previously stated they moved in together in 1992 in a December 2011 Statement in Support of Claim, which would be approximately within one year of the Veteran's separation from active service. In the rationale, the examiner stated the first mention of sleep apnea symptoms occurred in 2013. The examiner failed to acknowledge or discuss positive lay evidence of sleep apnea symptoms during and shortly after active service provided by the Veteran and his wife within the record. Upon remand, the examiner must discuss the positive lay evidence. The Veteran is service connected for PTSD. The Board notes that prior to the Veteran's diagnosis for sleep apnea, medical records show the notation "will continue currant dosage of Ambien and Valium . . . There is no clear evidence of OSA and he is sleeping better on this dose" under the listed psychiatric medications. See December 2013 VA treatment notes; March 2014 VA treatment notes. In viewing the evidence in a light most favorable to the Veteran, this evidence shows that there may be an association between the Veteran's PTSD medications and the occurrence or symptoms of sleep apnea. Accordingly, the Board will expand the Veteran's claim to include the secondary theory of entitlement, and obtain a VA opinion to determine if the sleep disorder is secondary to PTSD. 2. Entitlement to TDIU is remanded. The Board further finds that adjudication of the TDIU issue must be deferred, as it is inextricably intertwined with the issue being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: Forward the Veteran's claim file, to include this REMAND, to a qualified medical professional to obtain an addendum opinion regarding the nature and etiology of the Veteran's sleep disability. The examiner is asked to address the following: Explain the onset of the Veteran's sleep apnea, with specific attention provided to the December 2020 VA examination finding "the condition began during the service;" Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that sleep apnea had its onset during or is otherwise related to any event or injury during active duty; Provide an opinion as to whether it is at least as likely as not that sleep apnea was caused by PTSD and/or PTSD medications; Provide an opinion as to whether it is at least as likely as not that sleep apnea was aggravated beyond its natural progression by PTSD and/or PTSD medications; If a nexus to service or PTSD cannot be established for, please provide an opinion as to whether the disability pattern is consistent with: (1) an undiagnosed illness, (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (3) a diagnosable chronic multisymptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis; and If, after reviewing the claims file, it is determined that the Veteran's disability pattern is consistent with either (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as not that the disability pattern or disease is related to environmental exposures experienced during active duty, to include his service in Southwest Asia. A complete rationale for all opinions expressed should be provided. Relevant lay evidence must be addressed. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. N. Quarles, 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.