Citation Nr: 21041007 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-25 913 DATE: July 7, 2021 ORDER The request to reopen the prior finally disallowed claims of entitlement to service connection for coccydynia and lumbar spine strain is granted. Entitlement to service connection for coccydynia and degenerative arthritis of the spine is granted. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for lumbar spine strain, claimed as low back pain, was last denied in a January 2007 rating decision that was not appealed and then became final. 2. The Veteran's request to reopen his prior finally disallowed claim of entitlement to service connection for coccydynia was last denied in a September 2008 rating decision that was not appealed and then became final. 3. Evidence submitted since the January 2007 and September 2008 rating decisions are new to the record, relate to unestablished facts, and raise a reasonable possibility of substantiating the claim of entitlement to service connection for coccygeal pain and degenerative arthritis of the spine. 4. The evidence is in at least relative equipoise as to whether the Veteran's back conditions, diagnosed as coccygeal pain and degenerative arthritis of the spine, were incurred in or is otherwise related to service. 5. The evidence is in at least relative equipoise as to whether the Veteran's OSA was incurred in service. CONCLUSIONS OF LAW 1. The January 2007 rating decision that denied entitlement to service connection for lumbar spine strain is final. 38 U.S.C. § 7105; 38 C.F.R. § 19.52. 2. The September 2008 rating decision that denied the request to reopen the claim of entitlement to service connection for coccydynia is final. 38 U.S.C. § 7105; 38 C.F.R. § 19.52. 3. As new and material evidence has been received on the issues of entitlement to service connection for lumbar spine strain, claimed as low back pain, and for coccydynia, the criteria for reopening the claims have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for entitlement to service connection for OSA have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for coccygeal pain and degenerative arthritis of the spine have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2000 to September 2006. This appeal to the Board of Veterans' Appeals (Board) arose from merged appeals of June 2016 and September 2016 rating decisions issued by the Department of Veterans Affairs (VA). See September 2016 Notice of Disagreement (NOD); October 2016 NOD; April 2018 Statement of the Case (SOC); April 2018 Substantive Appeal (VA Form 9); April 2019 SOC; April 2019 VA Form 9. The Veteran testified before the undersigned Veterans Law Judge in a February 2021 hearing. See February 2021 Hearing transcript. New and Material Evidence The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision-makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. The Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the limited purpose of evaluating whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 511 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 1. Request to reopen the prior finally disallowed claims of coccydynia and lumbar spine strain The Veteran's claims of entitlement to service connection for coccydynia and lumbar spine strain, claimed as low back pain, were previously denied in a January 2007 rating decision. The claims were denied based on no evidence of a current disability for either claimed condition. Id. The Veteran filed a request to reopen his claim of entitlement to coccydynia which was denied in a September 2008 rating decision for no new and material evidence supporting a current disability. The Board finds that new and material evidence has been added to the claims file since the January 2007 and September 2008 rating decisions. The evidence shows continued complaints of coccygeal pain and imaging evidence of degenerative changes in the thoracic and lumbar spine. See May 2016 VA examination for back conditions; June 2016 VA examination addendum; December 2020 Private treatment evidence. This evidence is new as it was not available at the time of the January 2007 or September 2008 rating decisions. The evidence is material as it relates to unestablished facts necessary to substantiate the claims and raise a reasonable possibility of substantiating the claims. Accordingly, new and material evidence has been received and the claims of entitlement to connection for coccydynia and lumbar spine strain (recharacterized as degenerative arthritis of the spine) are reopened. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 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). Service connection may also 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for OSA. The Veteran asserts entitlement to service connection for OSA as having its onset during service. See September 2016 NOD. The Veteran testified that he was told he snored loudly during service and would occasionally stop breathing. February 2021 Hearing Transcript. The Veteran also testified that he tried to obtain a sleep study during service, but was unable to attend due to being scheduled a 24-hour duty shift. Id. As an initial matter, the Board notes that Veteran August 2000 Report of Medical Examination during enlistment notes no defect in the Veteran's sleeping or breathing, and there is no evidence that the Veteran had snoring or breathing problems prior to service. The evidence supports that the Veteran has a current diagnosis of mild OSA. July 2016 Private treatment evidence. The evidence also supports that the Veteran snored and have breathing difficulty while he slept during service. An October 2016 lay statement from G R R, a service member who roomed in the same barracks as the Veteran, indicates that he witnessed the Veteran snoring in his sleep and intermittently stop breathing. The Veteran's spouse, R T, reports that she met the Veteran while he was still in service and also witnessed his loud snoring and that he would stop breathing at times. December 2020 VA Form 21-4138. Lay statements are generally not competent evidence to establish the cause of a medically complex issue like snoring and apneas, but they are competent evidence of symptoms that are observable. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, the evidence shows that G R R and RT had the opportunity to observe the Veteran's snoring and problems breathing while sleeping. The Board finds their lay statements to be probative and support symptoms that are generally associated with OSA during service. The Board also considered the service treatment records which show that the Veteran sought treatment for reports that he snored and would stop breathing when he slept. March 2003 Service treatment record. The Veteran also reported sleeping well, but with occasional daytime drowsiness. Id. He was assessed with OSA. Id. This evidence supports that his current OSA was incurred during service. The Board recognizes that a VA examiner provided a March 2018 opinion and an April 2018 addendum opinion that the Veteran's OSA was less likely than not incurred in or due to service. The VA examiner explained that the reported symptoms during service were insufficient on their own for a OSA diagnosis and can occur without OSA. March 2018 VA examination medical opinion. The VA examiner also noted that the Veteran did not undergo a sleep study until 10 years after separation and this suggested the symptoms did not bother him enough until the natural worsening of snoring and apnea with age. April 2019 VA examination addendum opinion. However, the Board notes that there is no evidence that the Veteran's snoring or apneas worsened since service. The examiner also did not have the benefit of the December 2020 statement from the Veteran's spouse nor the Veteran's February 2021 testimony, which suggest that he continued to have problems with snoring since service, morning headaches, and daytime sleepiness. The VA examiner is a medical professional and his opinion that the Veteran's snoring and apneas during service may not be due to OSA still raises a reasonable doubt. In resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's current OSA was incurred during service. Accordingly, entitlement to service connection for OSA is warranted. 3. Entitlement to service connection for coccydynia and degenerative arthritis of the spine. The Veteran asserts entitlement to service connection for an in-service back and coccygeal injury from a parachute jump during service. October 2016 NOD. The evidence supports that coccydynia and degenerative arthritis of the spine are current disabilities. During a July 2006 VA examination, the Veteran was diagnosed with coccydynia, which was noted as limiting his ability to sit during work. The Veteran testified that this condition still affects him today. See February 2021 Hearing Transcript. A January 2013 thoracic MRI showed old minimal endplate compressions and disc bulges. January 2013 Private treatment evidence. A May 2016 lumbar spine x-ray showed mild lumbar and thoracic degenerative disc disease. May 2016 VA examination for back conditions. The evidence also support that he had an in-service back and coccygeal injury from a parachute jump. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Here, in addition to the Veteran's statements and testimony, service member G R R relates that he witnessed the Veteran have a bad landing from a parachute jump. See October 2016 Correspondence; October 2016 NOD; February 2021 Hearing Transcript. A statement from R M, the Veteran's supervisor during service, also indicates that the Veteran had a bad landing on his back during a parachute jump and that the Veteran was unable to walk normally on his own. February 2020 Buddy Statement. The Board finds the lay statements to be probative and that they support on in-service injury to his back and coccygeal. The question remaining for the Board is whether there is a medical link between the Veteran's current coccydynia and degenerative arthritis of the spine and his in service back and coccygeal injury. The Veteran was afforded a June 2016 VA examination in which the examiner opined that the Veteran's lumbar spine and coccygeal pain is less likely than not related to service. The VA examiner's rationale is that his in-service coccygeal and back pain complaints were isolated incidents without follow-up treatment, which did not suggest that they were ongoing conditions. See id. However, there are two opinions from the Veteran's private treatment providers that support the Veteran's current coccygeal pain and degenerative arthritis of the spine as due to his in service injury. Private treatment provider K A I, M.D., opined that the Veteran's spinal pain and the multi-level degenerative changes shown by the MRI evidence are usually the result of high velocity vertical impacts. May 2018 Private treatment evidence. Private treatment provider J N, D.O., also opined that the Veteran's pain and the degenerative changes shown by the 2013 MRIs are at least as likely as not related to his reported high velocity impact during service. December 2020 Private treatment evidence. The VA examiner and the private treatment providers are medical professionals qualified to opine on the cause and onset of the Veteran's current coccydynia and degenerative arthritis of the spine. They also reviewed the available evidence and provided rationale to support their opinions. Each opinion is probative for these reasons and provide equally plausible explanations as to whether the Veteran's current coccydynia and degenerative arthritis of the spine were incurred in or are otherwise due to service. The Board, thus, finds that the evidence is in at least relative equipoise as to whether the Veteran's coccydynia and degenerative arthritis of the spine were incurred in or are otherwise due to service. Accordingly, entitlement to service connection for coccydynia and degenerative arthritis of the spine is warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lin 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.