Citation Nr: 21041405 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 14-42 403 DATE: July 9, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is denied. Service connection for a low back disability is denied. FINDINGS OF FACT 1. OSA was not present in service or for years thereafter, and is not etiologically related to active military service. 2. The Veteran does not have a current low back disability. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2000 to October 2004. In June 2018 and August 2020, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. SERVICE CONNECTION 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; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. 1. Service connection for OSA The Veteran contends that his currently diagnosed OSA is related to his active military service. Service treatment records show the Veteran was treated with Trazodone for insomnia. See April 2003 Discharge Summary. However, they are negative for any diagnosis of sleep apnea during active duty or at discharge. Post-service treatment records show that the Veteran was first diagnosed with sleep apnea in 2017, many years after his discharge. However, the evidence does not indicate that the diagnosed OSA is due to any event or incident of the Veteran's period of active duty. In this regard, the Veteran was afforded a VA examination for his claimed OSA in April 2021. The examiner opined that the currently diagnosed OSA less likely than not had its clinical onset during active service or is related to any in-service disease, event, or injury. The examiner noted that the Veteran was discharged in 2004 and was not diagnosed with OSA until 2017 (13 years post-separation). The examiner also noted that the Veteran does have some risk factors for OSA. Service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, given the lack of evidence of OSA in service or at discharge, and the years-long gap between service and the first notation of OSA, the Board does not find the Veteran's accounts of OSA since service to be credible. As such, the Board finds the April 2021 VA examiner's opinion is supported, and another examination is not necessary. There is no other evidence of record, VA or private, besides the Veteran's lay statements, otherwise linking the currently diagnosed OSA to service. The Board acknowledges the Veteran's assertion that his OSA is due to events during his active service. The Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability. However, the Board finds that in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed OSA and his active service or events therein, as it would require medical expertise to say that the current OSA, identified after service, is the result of an in-service disease or injury. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his OSA. 38 C.F.R. § 3.159 (a)(1), (2). There is no competent evidence relating the Veteran's OSA to any event in his active service. Absent such evidence, the Veteran's claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 2. Service connection for a low back disability The Veteran contends that he has a current low back disability related to his active military service, including a motor vehicle accident in November 2002. Service treatment records show in January 2001, the Veteran complained of lower back pain that had persisted for several months. He was diagnosed with a lumbar strain. There is other treatment for the low back noted during service, and no diagnosis of a low back disability at discharge in 2004. Post-service VA treatment records show consistent complaints of low back pain from the Veteran, related to wearing his left leg prosthetic. However, he has never been diagnosed with a chronic low back disability. He was afforded a VA examination in April 2021. The examiner noted the Veteran's continued reports of chronic low back pain, and reports of having back spasms in 2013 and 2018, related to wearing the left leg prosthetic (9-14 years post-separation). As such, the Veteran stopped using the left leg prosthesis and uses crutches. The examiner concluded, after physical examination, that there was no confirmed diagnosis of a thoracolumbar back disability. The examiner also noted that the decreased range of motion of the lumbar spine noted on examination is of no clinical significance, and the Veteran's symptoms are subjective only. There is no other medical evidence of record showing a diagnosis of a low back disability. Historically, symptoms such as pain, without a diagnosed or identifiable underlying malady, were not sufficient to establish a current disability for VA compensation purposes. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). However, in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit rejected such a theory, holding that pain can constitute a current disability under 38 U.S.C. § 1110, so long as it results in functional impairment of earning capacity. Here, there is no evidence of record demonstrating that the Veteran's low back pain has resulted in any functional limitations that could negatively impact his earning capacity. As such, the Veteran's claim seeking service connection for a low back disability based on low back pain cannot succeed, as no current disability has been established within the appellate period. (Continued on the next page) Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, there is no confirmation in the evidence of record that the Veteran has, or has ever had a low back disability during the pendency of the appeal. In the absence of proof of a current disability, there is no valid claim of service-connection. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.