Citation Nr: 22018388 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-50 425A DATE: March 29, 2022 ORDER Service connection for a low back disorder is denied. Service connection for insomnia is denied. FINDINGS OF FACT 1. The Veteran's low back disorder has not been shown to be causally or etiologically related to any disease, injury, or incident during service. 2. The Veteran's insomnia has not been shown to be causally or etiologically related to any disease, injury, or incident during service; and it has not been shown to be related to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for insomnia have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2009 to September 2013. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in July 2020, at which time the Board remanded the case for additional development. The case returns to the Board at this time for further appellate review. The Board notes that this appeal originally included a claim of service connection for sleep apnea. In an August 2021 rating decision, the RO granted service connection for sleep apnea with a 50 percent evaluation, effective September 13, 2013. As this constitutes a full grant of the benefits sought on appeal for that issue, the issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which 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 sufficient 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. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Service connection for a low back disorder The Veteran contends that he is entitled to service connection for a low back disorder. As an initial matter, the Board finds that evidence of record reflects that the Veteran has a current diagnosis of lumbosacral strain, as shown by an April 2021 VA examination. In an April 2014 notice of disagreement (NOD), the Veteran stated that he had treatment for his back during active service. When his back pain flared up during service, the doctors advised him to apply ice and heat and take ibuprofen and Advil for the pain. Looking at the Veteran's service treatment records (STRs), in a July 2012 Emergency Nurse Record, the Veteran complained of back pain from a car accident the previous Friday. The Veteran was riding as a passenger in a car that was hit on the front left. The Veteran was wearing his seatbelt, and the airbag did not deploy. The nurse noted that the Veteran traveled to this examination by car, and the Veteran was discharged to home. In an Emergency Physician Record from the same day, the Veteran was reported to have an injury to his back as a result of a motor vehicle crash two days ago. The Veteran had mild pain in his back, but he was alert with no acute distress. The examiner noted that the Veteran was tender to the lumbosacral musculature. The examiner diagnosed the Veteran with acute lumbosacral strain and prescribed naproxen. The Board notes that there is no mention of problems with the Veteran's back in the STRs prior to the July 2012 motor vehicle accident. The Veteran's STRs are otherwise silent for any complaint, diagnosis, or treatment of back problems. A few months after the motor vehicle accident, in a November 2012 treatment note, the examiner stated that the Veteran had no back pain. There is no diagnosis or treatment of arthritis in the back in the evidence of record from the year immediately following the Veteran's active service. Thus, service connection may not be presumed here based on manifestation of arthritis within one year of discharge from active service. The one-year presumption under 38 C.F.R. §§ 3.307 and 3.309 is therefore not applicable in this case. See 38 U.S.C. §§ 1101, 1112. At a March 2014 VA examination, the VA examiner found that the Veteran had not been diagnosed with a thoracolumbar spine (back) condition. The Veteran reported that he has intermittent low back pain. He reported that he was in an automobile accident in July 2012, and he went to the emergency room. He had pulled something in his lower back, and he was put on profile for three weeks. The Veteran stated that it did not bother him at first, but he has had intermittent lower back pain ever since. The Veteran reported that he had flare-ups with increased pain and stiffness that occurred every couple of days and lasted two or three hours or up to half a day. The VA examiner stated that, since the Veteran was not examined during a flare-up, it was not practical or feasible to objectively quantify any additional limitation due to flare-ups; the examiner was unable to render a statement as to the actual degrees of additional loss due to flare-ups without resorting to mere speculation. The March 2014 VA examiner found that the Veteran's reported (by history) in-service low back strain was acute, self-limiting, and portended to no chronic sequelae. The VA examiner stated that the Veteran had a normal back examination on the day of the March 2014 VA examination, and he had no current back diagnosis. In the July 2020 Board decision, the Board stated that VA examiners have a duty to elicit information regarding flare-ups of a musculoskeletal disability if an examination is not conducted during a flare-up and must use that information to estimate additional functional loss during flare-ups in terms of loss of range of motion, if feasible. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board found that, as the only VA examination of record failed to comply with this requirement, remand for another examination was necessary. At an April 2021 VA examination, the examiner diagnosed the Veteran with lumbosacral strain. The Veteran reported that his back pain started during active service. He had slight low back pain with physical training and ruck marches, but he was not treated for the condition. The Veteran stated that he continues to have stiffness and soreness intermittently to the lower back, which he treats with Icy Hot or Aleve. He stated that the back pain makes it hard to perform some normal tasks at work. He worked as a heating and cooling specialist, and he worked in tight spaces. He had done this job for the last six years. The Veteran reported moderate flare-ups of the thoracolumbar spine that occurred two or three times a month. The flare-ups were precipitated by certain activities or tasks at work. The Veteran also reported increased pain with repeated bending or lifting overhead or with stretching. Although the Veteran was not being examined during a flare-up, the VA examiner found that the procured evidence did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination which significantly limited functional ability with flare-ups. In a related medical opinion, the VA examiner found that the claimed low back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner acknowledged that the Veteran sustained a motor vehicle accident in July 2012. The Veteran reported he was a passenger, and the vehicle was hit on driver's side at an angle. The Veteran was seen two days later at the ER, and he reported mild low back pain. He was diagnosed with acute lumbosacral strain and was put on profile for three weeks. He had no other complaints of the low back pain during active service. The VA examiner also noted that the Veteran had completely forgotten about the motor vehicle accident at the April 2021 VA examination. The VA examiner found that the Veteran's low back pain experienced during service was acute and self-limited; and there is no evidence of chronic, persistent low back pain from the low back pain during service. The VA examiner noted that the Veteran is working as a heating and cooling specialist and is regularly bending and lifting to do duct work. The VA examiner also noted that the Veteran is overweight. The Veteran's physical examination was within normal limits without any abnormalities to the low back. Thus, the VA examiner determined that the Veteran's intermittent low back pain is less likely than not incurred in or caused by the in-service acute lumbosacral strain following the July 2012 motor vehicle accident. No other evidence of record demonstrates a causal relationship between the Veteran's low back disorder and his active service. The Board finds that the Veteran's low back disorder is not related to service. In this regard, the Board finds that the medical opinion provided by the April 2021 VA examiner to be sufficient to decide the claim and affords the opinion significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, the examiner considered the Veteran's history of a motor vehicle accident during service, noting the Veteran's treatment for acute back pain. The examiner also considered the Veteran's lay reports of current and periodic symptoms, and his report that he had completely forgotten about the in-service motor vehicle accident when asked at the examination. In analyzing the information available, the examiner opined that the Veteran had forgotten about the in-service motor vehicle accident. This candid statement reveals that the Veteran's low back disorder is related to other factors noted by the examiner rather than an incident or injury during service. Thus, the Veteran's low back disorder is not related to service. The Board has considered the Veteran's statements that his low back disorder was caused by or related to his active service. However, the Veteran, as a lay person, does not have the requisite training and experience necessary to address such a complex medical matter as the etiology or cause of his low back disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Board finds that the Veteran's assertions as to the nature and etiology of his low back disorder are not competent evidence and, consequently, are afforded no probative weight. Based on the above, the Board finds that the weight of the probative evidence is against a grant of service connection for a low back disorder. In reaching the foregoing conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the weight of the probative evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal; and his claim of service connection for a low back disorder must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Service connection for insomnia The Veteran contends that he is entitled to service connection for insomnia. In an April 2014 notice of disagreement (NOD), the Veteran stated that he had insomnia prior to discharge from active service. He stated that he lived with this disability because he was in the military, and treatment for things like snoring and staying awake at night were not taken very seriously in a combat unit. He learned to dealt with these problems while not inconveniencing his superiors and their troops. The Veteran stated that his reporting of sleep problems while in the military occurred after many episodes; and during service, he was told there was little that could be done about it. Looking at the Veteran's service treatment records (STRs), in a June 2009 treatment note where the Veteran presented with gastroenteritis, he complained of generalized pain, feeling tired or poorly, and tiring easily; there was no lethargy or sudden exhaustion. In post-deployment health re-assessments from December 2011 and June 2012, the Veteran reported that he did not experience problems sleeping or feeling tired after sleeping. In an April 2013 telephone consult, the Veteran reported trouble sleeping or staying asleep. There was no previous indication for allergies, snoring, or obstructive sleep apnea; and the examiner noted that the Veteran's BMI was chronically greater than 32. The Veteran was diagnosed with obstructive sleep apnea in a January 2014 sleep study, and he was placed on a CPAP machine. As noted earlier, the Veteran is currently service connected for sleep apnea. In a March 2014 VA examination, the VA examiner determined that the Veteran's claimed insomnia is less likely than not related to his active service. The VA examiner explained that the etiology of the Veteran's insomnia is multi-factorial. The related factors included working a third shift at work (10:00 p.m. to 6:00 a.m.), awakenings in the middle of the night by his 8-month-old son and his dog, occasional alcohol use, caffeine use, moderate work stress in his police work at a hospital, and moderate financial stress, as well as a sleep apnea diagnosis. The Veteran reported that the CPAP machine helps him a lot; and his insomnia problems are a lot better with the CPAP machine, except for nights when his 8-month-old son or his dog wakes him up in the middle of the night. In the July 2020 Board decision, the Board stated that, while the March 2014 VA examiner provided an opinion regarding the Veteran's insomnia, it is unclear from the medical record and examination whether the Veteran has a formal diagnosis of insomnia. Thus, the Board remanded the issue to clarify whether the Veteran has a clinical diagnosis of insomnia. The Board also noted that the March 2014 VA examiner's rationale raised a theory that the Veteran's insomnia is secondary to his obstructive sleep apnea. In an April 2021 VA examination for sleep apnea, the VA examiner noted that, at the time of the Veteran's January 2014 sleep apnea diagnosis, he also reported insomnia; and the insomnia reportedly improved for some time with the use of a CPAP. The VA examiner found that the Veteran's primary sleep diagnosis was the obstructive sleep apnea. The Veteran had symptoms of persistent daytime somnolence, and he reported that he continued to feel daytime fatigue. He stated that he crashes around 5:00 p.m. on some evenings and does not wake until 3:00 a.m. In an August 2021 VA addendum opinion, the VA examiner stated found that the Veteran does not meet the diagnostic criteria for insomnia. The VA examiner explained that, while the Veteran's records do reveal interval complaints, the third edition of the International Classification of Sleep Disorders sets forth the diagnostic criteria for insomnia, and the Veteran does not meet the four criteria to reach this diagnosis. Therefore, the VA examiner determined that it is less likely than not that the Veteran's claimed insomnia was incurred in or caused by the claimed in-service injury, event, or illness. No other evidence of record demonstrates a causal relationship between the Veteran's claimed insomnia and his active service. The Board finds the April 2021 and August 2021 VA addendum opinions adequate to decide the claim, as they consider the Veteran's diagnoses of sleep apnea and other relevant medical history, the Veteran's lay statements regarding insomnia, and the relevant medical principles. See Nieves-Rodriguez, supra. Specifically, the August 2021 VA examiner opined that the Veteran did not have an insomnia disorder that was separate and distinct from his sleep apnea. The April 2021 VA examiner also described the Veteran's insomnia and daytime somnolence and fatigue as improving with treatment for sleep apnea. As such, the Veteran's lay statements and examiner's opinions do not reveal further functional impairment due to insomnia or difficulty sleeping during the claims period. Finally, even to the extent that the Veteran has had trouble sleeping during the claims period, it has been attributed to non-service-related factors such as working extra or unusual work shifts, work-related stress, financial stress, awakenings in the middle of the night by his young son and dog, and use of alcohol and caffeine, as well as his then-untreated obstructive sleep apnea. Thus, the medical and lay evidence of record does not indicate a formal diagnosis of insomnia or residual functional limitations from insomnia not contemplated by the Veteran's sleep apnea which are related to service or a service-connected disability. In reaching this conclusion, the Board has considered the Veteran's statements that he has an insomnia disorder that is caused by or related to his active service. However, the Veteran, as a lay person, does not have the requisite training and experience necessary to address such a complex medical matter as the nature, etiology, or cause of his claimed insomnia. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Board finds that the Veteran's assertions as to the nature and etiology of his claimed insomnia are not competent evidence and, consequently, are afforded no probative weight. (Continued on the next page) Based on the above, the Board finds that the weight of the probative evidence is against a grant of service connection for insomnia. In reaching the foregoing conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the weight of the probative evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal; and his claim of service connection for insomnia must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Jason George Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dawn A. Leung, 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.