Citation Nr: 22015348 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 17-08 151 DATE: March 17, 2022 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. Entitlement to service connection for cervical spine disabilities, diagnosed as degenerative arthritis, intervertebral disc syndrome, and spinal stenosis of the cervical spine, is granted. Entitlement to service connection for radiculopathy of the upper left extremity, as secondary to the Veteran's service-connected cervical spine disabilities, is granted. Entitlement to service connection for radiculopathy of the upper right extremity, as secondary to the Veteran's service-connected cervical spine disabilities, is granted. REMANDED Entitlement to service connection for residuals of a tonsillectomy, as secondary to the Veteran's service-connected OSA, is remanded. Entitlement to service connection for degenerative arthritis of the left shoulder is remanded. Entitlement to service connection for degenerative arthritis of the right shoulder is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his OSA had its onset in service. 2. Resolving reasonable doubt in favor of the Veteran, his cervical spine disabilities had their onset in service. 3. The Veteran's service-connected cervical spine disabilities more likely than not caused or aggravated to the Veteran's radiculopathy of the upper left extremity. 4. The Veteran's service-connected cervical spine disabilities more likely than not caused or aggravated to the Veteran's radiculopathy of the upper right extremity. CONCLUSIONS OF LAW 1. The criteria to establish service connection for OSA have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria to establish service connection for cervical spine disabilities have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. 3. The criteria to establish service connection on a secondary basis for radiculopathy of the upper left extremity have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for entitlement to service connection on a secondary basis for radiculopathy of the upper right extremity have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from February 1979 to March 2002. This matter comes to the Board of Veterans' Appeals (Board) from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in a July 2019 decision, the Board denied entitlement to service connection for bilateral shoulder numbness and tingling and a cervical spine disability. The Board also remanded the claims for entitlement to service connection for sleep apnea and tonsillectomy. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In July 2020, the Court vacated the Board decision with regard to the claims for a bilateral shoulder disability and a cervical spine disability and remanded the Veteran's claim for action consistent with the directives of a joint motion for partial remand. These claims were subsequently remanded in April 2021 for additional development. The Board notes that, according to the United States Court of Appeals for Veterans Claims (Court), when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemmons v. Shinseki, 23 Vet. App. 1 (2009). The record shows diagnoses of bilateral shoulder disabilities and bilateral cervical radiculopathy. Based on the record the Board will recharacterize the Veteran's claim pursuant to Clemmons, as one for entitlement to service connection for bilateral shoulder disabilities and another for bilateral cervical radiculopathy. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 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); 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 requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for obstructive sleep apnea (OSA) The Veteran and his agent assert that the Veteran is entitled to service connection for OSA because it originated during his active-duty service. The evidence reflects that the Veteran was diagnosed with OSA by a private physician in April 2003 after a sleep study. Additionally, VA examinations from January 2020 and October 2021, and a private evaluation from November 2021 also confirm the diagnosis. Accordingly, the first element necessary to establish service connection has been demonstrated. Concerning the second element to establish service connection, the Board observes that the Veteran's service treatment records (STRs) are devoid of a diagnosis of OSA. However, the absence of documented treatment in service is not considered fatal to a service connection claim. A veteran or other lay person is competent to report that which he perceives through his symptoms, which in this case, would be respiratory problems while sleeping. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran provided a January 2017 lay statement alleging his sleep apnea began during his service, and was noted on separation as sleep issues. The Veteran explained that he left service in March 2002, and his April 2003 sleep study confirmed a diagnosis of sleep apnea. The Boards also notes that there is a June 2003 treatment note that explains that the Veteran's diagnosed OSA began several years ago. The Board finds the statement from the Veteran is highly probative, as he is certainly considered to be competent and credible to report a timeline of his treatment. Id. As the Veteran's assertions outlining his history of treatment for OSA is corroborated by the treatment records, the Board finds that the competent evidence of record is at least in equipoise as to whether the symptoms diagnosed as OSA in June 2003 are the same symptoms the Veteran originally experienced in active service. The Veteran was provided a VA examination in connection with this issue in January 2020. While noting that the Veteran began having symptoms in 2002, and that sleep apnea was diagnosed after a sleep study in April 2003 and reclassified as OSA in June 2003. The examiner concluded that the Veteran's OSA was less likely than not due to his service. The examiner argues that the Veteran's OSA was positive only due to the structural obstructions, and once those were removed, the OSA was resolved and began again 4 years prior to the examination. The examiner also opined that there was no current diagnosis of OSA. The Veteran was provided another VA examination in connection with this issue October 2021. While noting that the Veteran complained of trouble sleeping on separation, the examiner concluded that the Veteran's OSA was less likely than not due to his service. The examiner argues that the Veteran's OSA was not diagnosed during his service, and the sleeping problems noted on separation did not explain specific symptoms therefore it may not relate to symptoms of OSA and noted that the diagnosis was not made until one year after separation from service. The Veteran submitted a physician's evaluation and opinion by a private physician that notes review of the Veteran's claims file and medical records. The private physician noted that a March 2021 opinion by a pulmonologist noted that the Veteran's OSA was present all along, but was "covered up by his uvulopalatopharyngoplasty in 2003." The examiner noted that the Veteran underwent a tonsillectomy and uvulectomy due to his OSA, as a curative measure, which was not successful. The Board finds that these medical opinions are highly probative because they are based on a thorough review of the record, they contain details of the Veteran's history and in-service experiences, and clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). An addendum opinion was obtained by VA in November 2021, wherein the examiner opined that the Veteran's OSA was more than likely secondary to his tonsillar and uvula hypertrophy, for which the veteran underwent a uvulopalatoplasty, tonsillectomy and inferior turbinoplasty in June 2003. The examiner noted that the October 2003 follow-up appointment indicated that the Veteran's symptoms of daytime somnolence and snoring had resolved. The examiner also concluded by stating that, based on review of medical literature, the Veteran's OSA could not be caused by his military occupational specialty of Medical Noncommissioned Officer and Practical Nurse, nor does it to relate to his Expert Badge on Pistol, Expert Field Medical Badge, and Driver and Mechanic Badge. The examiner concluded by stating that the Veteran's September 2001 separation medical examination noted a complaint of sleeping problems for 5 years that had worsened; however, his complaint of sleeping problems were not specific to include symptoms "of snoring or gagging." The Board finds that this addendum medical opinion is not probative because its conclusion is based on a false assumption, as it concludes that the Veteran's disability was caused by a June 2003 procedure that was meant to be a curative measure for the Veteran's OSA, which was initially diagnosed in April 2003. Where, as here, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Consequently, the Board finds that service connection of the Veteran's OSA is warranted. 2. Entitlement to service connection for cervical spine disabilities, diagnosed as degenerative arthritis, intervertebral disc syndrome, and spinal stenosis of the cervical spine The Veteran and his agent affirm that the Veteran is entitled to service connection for his cervical spine disabilities as they originated during his active-duty service. While a July 2015 VA examiner determined that the Veteran didn't have a cervical spine disability, the medical evidence of record reflects that the Veteran has been diagnosed with a cervical spine strain, as noted in a VA examination from October 2021; and degenerative arthritis, intervertebral disc syndrome, and spinal stenosis, as noted in the November 2021 private evaluation. Accordingly, the first element necessary to establish service connection has been demonstrated. Concerning the second element to establish service connection, the Board observes that the Veteran's service treatment records (STRs) include complaints and treatment of a cervical spine strain. In a January 2017 lay statement, the Veteran asserted that his cervical spine disability originated in 1982 after lifting 600 lbs. of inflatable sections in a combat hospital, and was constantly aggravated during service, by carrying patients during evacuations. Vet also admits to self-treating. According to an October 2018 lay statement, the Veteran asserts that his cervical spine disability originated when he was a medic during service and had to carry patients during evacuations. A veteran or other lay person is competent to report that which he perceives through his symptoms, which in this case, would be pain in his cervical spine. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds that the Veteran's statements regarding his in-service neck pain and the STRs are sufficient to satisfy the second element necessary for his service connection claims. The only remaining issue to resolve these service connection claims is the nexus, the link between the in-service incident or injury and the current disability. The Board notes that the evidence regarding this element is mixed. The Veteran is considered competent to provide statements to establish the occurrence of medical symptoms. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, the Veteran was not medically qualified to prove a matter requiring medical expertise. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Thus, while the Veteran's statements that he had pain in his neck since he was in active service are both competent and credible, his statements alone are not sufficient to medically attribute his current disabilities to the injury he experienced in service. During the October 2021 VA examination, the Veteran reported that his in-service role as a medic contributed to his cervical spine disability, and that he sought medical care during service and was given pain medication and muscle relaxers. The VA examiner stated that the cervical spine disability during service was acute, and there was no evidence of chronicity of care and the Veteran's symptoms were only subjective. The examiner noted that the medical records did not support the claim that the current cervical spine disability was incurred or caused during service, due to a lack of chronicity of care. An addendum opinion was obtained by VA in November 2021, the examiner opined that the Veteran's currently diagnosed cervical spine strain was the result of a stretch injury to the muscular and ligamentous elements of the cervical spine. The examiner concluded that the disability was not due to his service as it is currently 19 years after discharge and there was no evidence to indicate a chronic disability was present. The Board notes that the October 2021 examiner and the addendum examiner from November 2021 did not adequately consider the Veteran's lay statements of the in-service injury and the continuity of symptoms. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence, and can alternatively establish a relationship between the current disability and injury in service. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran submitted a November 2021 physician's evaluation, in which the Veteran reported that, while in stationed in Germany in 1982, he was carrying an inflatable hospital with others, approximately 500 lbs., and the weight shifted onto the left side of his neck, causing severe neck pain. In 1994, during a road march deployed field training exercise, carrying full combat gear, developed a cervical strain and radiculopathy, doing a fireman's carry, and injured himself. The examiner noted that the Veteran's STRs indicated that the Veteran was treated for neck pain during his service, but no specific nexus opinion was provided. However, the Board finds that this private evaluation supports the Veteran's claim that his neck pain originated during his service. The Board also finds that the Veteran's credible statements of continuity of symptoms regarding the chronic diseases of arthritis and diseases of the nervous system are additional probative evidence linking the Veteran's claimed disabilities to service. Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for degenerative arthritis, intervertebral disc syndrome, and spinal stenosis of the cervical spine is warranted. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. Entitlement to service connection for radiculopathy of the upper left extremity, to include as secondary to the Veteran's service-connected cervical spine disabilities 4. Entitlement to service connection for radiculopathy of the upper right extremity, to include as secondary to the Veteran's service-connected cervical spine disabilities The Veteran claims that he is entitled to service connection for radiculopathy of the bilateral upper extremities on a secondary to his service-connected cervical spine disabilities. While July 2015 and October 2021 VA examiners determined that the Veteran didn't have bilateral shoulder disabilities, the medical evidence of record reflects that the Veteran has been diagnosed with bilateral cervical radiculopathy, as noted in a November 2021 private evaluation. Therefore, the first element for direct and secondary service connection has been satisfied. The July 2015 and October 2021 VA examiners, and a subsequent November addendum medical opinion did not provide nexus opinions, as they did not conclude the Veteran had a current disability. The Veteran submitted a November 2021 physician's evaluation, in which the Veteran reported that, while in stationed in Germany in 1982, he was carrying an inflatable hospital with others, approximately 500 lbs., and the weight shifted onto the left side of his neck, causing severe neck pain. In 1994, during a road march deployed field training exercise, carrying full combat gear, developed a cervical strain and radiculopathy, doing a fireman's carry, and injured himself. The examiner noted that the Veteran's STRs indicated that the Veteran was treated for neck pain during his service, but no specific nexus opinion was provided. However, the Board finds that this private evaluation supports the Veteran's claim that his cervical spine disability is linked to his bilateral cervical radiculopathy. As such, the Board finds that the evidence in equipoise as to the existence of a nexus between the Veteran's bilateral cervical radiculopathy and the Veteran's newly service-connected cervical spine disabilities. Affording the Veteran the benefit of the doubt, the nexus element for secondary service connection of the Veteran's bilateral cervical radiculopathy has also been met. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a tonsillectomy, to include as secondary to the Veteran's service-connected OSA, is remanded. The Veteran claims that he is entitled to service connection for residuals of a tonsillectomy as secondary to his OSA. Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The Veteran was not afforded a VA examination. However, the evidence of record establishes that the Veteran underwent a tonsillectomy due to his OSA. However, it is unclear what residuals the Veteran may have related to the procedure. As the Veteran's lay statements, and treatment records indicate that the Veteran may have a disability that could be related to a service-connected disability, the Board finds that a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination so as to determine the nature, etiology, and severity for residuals of a tonsillectomy. 2. Entitlement to service connection for degenerative arthritis of the left shoulder is remanded. 3. Entitlement to service connection for degenerative arthritis of the right shoulder is remanded. The Veteran claims that he is entitled to service connection for bilateral shoulder disabilities on a direct basis, and as secondary to his cervical spine disabilities. Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The evidence of record establishes that the Veteran has been diagnosed with bilateral shoulder strain, shoulder impingement syndrome, rotator cuff tendonitis, and degenerative arthritis. However, there is no nexus opinion in the evidence of record. As the Veteran's lay statements, and treatment records indicate that the Veteran has a disability that could be related to his active-duty service or a service-connected disability, the Board finds that a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination so as to determine the nature, etiology, and severity for bilateral shoulder disabilities. The matters are REMANDED for the following action: 1. The Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's residuals of a tonsillectomy. Any and all studies, tests, and evaluations that are deemed necessary by the VA examiner should be performed. The claims folder, including a copy of this remand, the Veteran's lay statements, and private medical records, should be made available and be reviewed by the examiner. Following a complete review of the record, the examiner is asked to: a. Confirm a current diagnosis as to the Veteran's residuals of a tonsillectomy. b. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's residuals of a tonsillectomy originated due to, or was aggravated by, a service-connected disability, to include his newly service-connected OSA. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. The Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's bilateral shoulder disabilities. Any and all studies, tests, and evaluations that are deemed necessary by the VA examiner should be performed. The claims folder, including a copy of this remand, the Veteran's lay statements, and private medical records, should be made available and be reviewed by the examiner. Following a complete review of the record, the examiner is asked to: a. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral shoulder disabilities originated due to, or were caused by, the Veteran's active-duty service. b. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral shoulder disabilities originated due to, or were aggravated by, a service-connected disability. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, Associate 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.