Citation Nr: 21041982 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-58 715 DATE: July 10, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected chronic degenerative cervical spondylosis, is granted. REMANDED Service connection for degenerative arthritis, lumbar spine (claimed as lower back condition), to include as secondary to service-connected chronic degenerative cervical spondylosis, is denied. FINDING OF FACT The Veteran's sleep apnea was aggravated by his service-connected chronic degenerative cervical spondylosis (neck disability). CONCLUSION OF LAW The criteria for service connection for sleep apnea due to service or service-connected neck disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from December 1974 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma; this case is in VA's legacy appeals system. The Veteran testified at a June 2017 Board hearing before the undersigned; a transcript is associated with the claims file. Initially, the Board notes that in October 2020 the Veteran filed a timely VA form 20-0996 requesting to opt-in to the modernized appeal system (AMA) and requesting higher level review. The Veteran's Benefits Administration (VBA) denied this request and certified the case to the Board in the legacy appeals system. In February 2021, the Board remanded this case for further development. In March 2021, the RO mailed a Supplemental Statement of the Case (SSOC) to the Veteran. The Veteran did not attempt to opt-in to the AMA system after this SSOC. It is not clear why the VBA denied the Veteran's request to opt-in to the AMA. However, because the case has proceeded through development in the legacy system and the Veteran did not attempt to opt-in to the AMA system when presented the opportunity after the March 2021 SSOC, the Board will continue to exercise its jurisdiction to decide these issues in the legacy system. Service Connection Entitlement to service connection for sleep apnea The Veteran contends that his sleep apnea was caused by his service-connected neck disability. The Veteran had a sleep study in February 2014 which showed sleep apnea and he was prescribed CPAP therapy. In September 2017, he did a home sleep study which did not show sleep apnea and his pulmonologist opined that his condition had likely resolved with exercise and weight loss. Over the next few years, he continued to have symptoms and sometimes used his CPAP. VA treatment records and his October 2020 VA examiner note that a non-VA sleep study earlier that month confirmed his diagnosis of sleep apnea. A private examiner's opinion of November 2020 also stated that home sleep studies like the Veteran had in September 2017 are prone to false negative results. The Board therefore finds that the February 2014 and October 2020 sleep studies, in conjunction with noted symptoms and CPAP use both before and after the September 2017 home sleep study, demonstrate that the Veteran has a current diagnosis of sleep apnea. The Veteran's service treatment records are silent for any complaint, diagnosis, or treatment of sleep apnea, and the Veteran does not claim that this condition began in or is otherwise directly related to his active service. The Veteran underwent cervical fusion surgeries in October 2007 and November 2008 to treat his service-connected neck disability. The Veteran's wife reported he began snoring and occasionally stopped breathing around the time of these surgeries. The evidence against the Veteran's claim includes VA examinations of September 2016, October 2020, and March 2021. In September 2016, a VA examiner opined that the Veteran's sleep apnea was less likely than not caused or aggravated by his service-connected neck disability. The rationale was that the surgeries were successful and uncomplicated, resulting in reduced pain in the area, and there is no causal connection between uncomplicated cervical fusion surgery and sleep apnea. The examiner suggested that the Veteran's weight, 204 lbs. in February 2009 and 208 lbs. in July 2014, which was not related to his neck disability or surgeries, was the most likely cause of his sleep apnea. In October 2020, a VA examiner opined that the Veteran's sleep apnea was less likely than not caused or aggravated by his service-connected neck disability. The rationale was that there was a seven-year gap between the Veteran's cervical fusion surgeries and his first diagnosis of sleep apnea, and one would expect documentation of sleep apnea symptoms closer to the time of the surgery if the two were related. In March 2021, a VA examiner opined that the Veteran's sleep apnea was less likely than not caused or aggravated by his service-connected neck disability. The rationale was that sleep apnea is a recurrent, functional collapse during sleep of the velopharyngeal and/or oropharyngeal airway, causing substantially reduced or complete cessation of airflow despite ongoing breathing efforts that leads to intermittent disturbances in gas exchange (eg, hypercapnia and hypoxemia) and fragmented sleep, with risk factors including old age, male gender, obesity, and craniofacial and upper airway abnormalities. The examiner addressed a case study submitted by the Veteran by pointing out that it showed increased cervical spine degeneration in patients with sleep apnea but did not suggest any causal connection from cervical spine degeneration to sleep apnea. The evidence in favor of the Veteran's claim includes lay statements from the Veteran and his wife, VA examinations and treatment records documenting ongoing neck pain, and a private provider's opinion of November 2020. As noted above, the Veteran stated that his wife reported onset of snoring and interrupted breathing around 2008. While the Veteran's cervical fusion surgeries around that time did lead to some reduction in neck pain, his treatment records and later VA examinations consistently document that neck pain was an ongoing symptom. In November 2020, a private provider opined that the Veteran's sleep apnea was at least as likely as not related to his service-connected neck disability. The rationale did not focus on the timing of the Veteran's surgery in relation to the onset of sleep apnea symptoms. Instead, it cited medical literature demonstrating the looping connection between spinal pain, interrupted sleep, and developing sleep apnea. The private provider opined that the Veteran's documented cervical spine pain at least as likely as not led to poorer sleep and reduced REM cycles, which is known to increase the risk of developing sleep apnea. This in turn leads to increasingly fragmented sleep patterns, which increases sensitivity to pain, with each condition increasingly aggravating the other. While there are several well-reasoned VA opinions explaining why the Veteran's cervical fusion surgeries were less likely than not contributing or aggravating factors to his sleep apnea, the November 2020 private opinion provided an independent rationale for finding the Veteran's service-connected neck disability at least as likely as not aggravated his sleep apnea. The November 2020 opinion is probative because it is consistent with the evidence of record and cited relevant medical literature. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current sleep apnea was proximately due to or aggravated by his service-connected neck disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Service connection for degenerative arthritis, lumbar spine The record contains examinations of the Veteran's currently diagnosed degenerative arthritis of the lumbar spine. Previous VA examiners of May 2014 and October 2020 have opined that this condition is less likely than not directly related to the Veteran's active service and less likely than not secondary to service-connected neck disability. However, degenerative arthritis is a chronic condition listed in 38 C.F.R. § 3.309(a), and no examiner has opined whether this condition began during active service, manifested within one year after discharge from service, or was noted during service with continuity of the same symptomatology since service. A remand is necessary to obtain this opinion. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his low back disability, diagnosed as degenerative arthritis of the lumbar spine. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: Does the Veteran have a low back condition which is at least as likely as not related to service, including in-service complaints of low and mid back pain? Is it at least as likely as not that the Veteran's degenerative arthritis of the lumbar spine (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinions. In providing the requested opinions, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If any benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zimmerman, Micah 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.