Citation Nr: 1306059 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 03-31 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to a separate compensable rating for left-sided radiculopathy. 4. Entitlement to service connection for a psychiatric disorder, to include bipolar disorder (claimed as atypical depression secondary to service-connected lumbar myositis). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from November 1982 to November 1985. He also had active duty for training (ACDUTRA) from September 1992 to October 1992. These issues come to the Board of Veterans' Appeals (Board) on appeal from March 2003, November 2006, and February 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In the March 2003 decision, the RO granted service connection for lumbar paravertebral myositis and assigned disability ratings of 10 percent, effective November 5, 1985 (the day after release from active service), and 40 percent from June 6, 2002. In the November 2006 decision, the RO determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. In the February 2011 rating decision, the RO denied service connection for sleep apnea and a cervical condition. Although it denied service connection for right and left lower extremity radiculopathy at that time, whether separate disability ratings are warranted for lower extremity radiculopathy were issues part and parcel to the Veteran's initial appeal of the 2003 rating decision. These issues were previously before the Board in February 2012. At that time, the Board reopened the issue of entitlement to service connection for a psychiatric disorder and remanded it, along with the other issues currently before the Board, to the agency of original jurisdiction (AOJ), i.e., the RO via the Appeals Management Center (AMC) in Washington DC., for additional development. As to the cervical spine disorder and sleep apnea issues, the development was completed and those issues have been properly returned to the Board. The issues of entitlement to a separate compensable disability rating for left-sided radiculopathy and entitlement to service connection for a psychiatric disorder are addressed in the REMAND portion of the decision below and are again REMANDED to the RO via the AMC. FINDINGS OF FACT 1. The preponderance of competent and credible evidence shows that the Veteran's current cervical spine disorder did not have its onset during active service, was not caused by active service, and arthritis of his cervical spine did not manifest within one year of separation from active service. 2. The preponderance of competent and credible evidence fails to establish that the Veteran has been diagnosed with sleep apnea at any time since he filed his claim of entitlement to service connection for that condition. 3. The competent and credible evidence shows that the Veteran did not have a sleep disorder during active service and a sleep disorder was not caused by his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307(a), 3.309(a) (2012). 2. The criteria for service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Before addressing the merits of the issues of entitlement to service connection for sleep apnea and a cervical spine disorder, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice as to the issues before the Board, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. VA's duty to notify with regard to the sleep apnea and cervical spine disorder issues has been satisfied. In a letter dated in March 2010, the RO notified the Veteran of the criteria for establishing service connection for these claimed disabilities, the evidence required in this regard, his and VA's respective duties for obtaining evidence, and how disability ratings and effective dates are assigned in the event that service connection is granted. VA also has a duty to assist a veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran with regard to adjudicating his claims of entitlement to service connection for sleep apnea and a cervical spine disorder. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records have been obtained and associated with the claims file. Identified VA and private treatment records are also of record. The RO attempted to obtain the Veteran's Social Security Administrative (SSA) disability records on seven occasions, without success. The Veteran has not stated, nor does the record reflect, that there are any records in the SSA's possession that are relevant to the issues of entitlement to service connection for sleep apnea and a cervical spine disorder. The Veteran also sought to obtain his own SSA disability records. In August 2007, he received a letter in which the SSA indicated, in pertinent part, that he was found disabled in November 1993 and became eligible for benefits in May 1994. His primary diagnosis was a mental condition. No other records were apparently provided. In Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) noted that 38 U.S.C.A. § 5103A does not require VA to obtain all medical records or all SSA disability records, only those that are relevant to the claim for VA benefits. The Federal Circuit also stated that VA was not required to obtain records in every case in order to rule out their relevance. Rather, the standard is that as long as a reasonable possibility exists that the records are relevant to the claim, VA is required to assist the claimant in obtaining the identified records. Id. Notwithstanding the exhaustive search for records that was undertaken, the Board emphasizes there seems to be no reasonable possibility that the SSA records would be relevant to the Veteran's claims of entitlement to service connection for sleep apnea and a cervical spine disorder. In summary, no outstanding evidence, with respect to these issues, has been indentified that has not otherwise been obtained. VA provided an examination to address the nature and etiology of his claimed cervical spine disorder in March 2012. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examination was adequate. The VA examiner considered the pertinent evidence of record, to include his service treatment records, and personal statements and history. 38 C.F.R. § 3.159(c)(4). VA has not afforded the Veteran an examination with regard to the claim of entitlement to service connection for sleep apnea. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor has a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not stated when a sleep disorder first manifested. Service treatment records do not mention a sleep disorder. Other than December 2005 and August 2006 notes, there is no mention of a sleep disorder in the treatment records associated with the claims file, to include in VA treatment records problems lists. There is no diagnosis of sleep apnea found in the claims file. The record therefore shows that the first and second factors listed above are absent in this case. It is recognized that, in a clinical setting, the Veteran was scheduled for a sleep study in 2006; and, as explained below, the study was not conducted. Here, even if it could be said that his complaints and the subsequent clinical recommendation for a sleep study satisfied the first factor with regard to the duty to provide a medical examination, the second factor remains absent. For this reason, the Board finds that VA has no duty to provide an examination with regard to his claim of entitlement to service connection for sleep apnea. The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Finally, an appellant is entitled as a matter of law to compliance with the Board's remand directives and the Board errs if it does not ensure such compliance. See Stegall v. West, 11, Vet. App. 268, 271 (1998). The Board remanded the issues of entitlement to service connection for sleep apnea and for a cervical spine disorder in February 2102. In that remand the Board directed the AOJ to obtain the Veteran's September 2006 VA outpatient sleep study report, if any, and associate those records with the claims folder. It also directed the AOJ to afford the Veteran a VA orthopedic examination and provide an opinion as to whether it is at least as likely as not that a cervical spine disorder had onset in active service or was otherwise shown to have been incurred in or due to an event of service. An August 2006 VA treatment record documenting that there was a follow-up appointment for a sleep study in September 2006 gave rise to the remand order to obtain the sleep study records. Added to the Virtual VA part of the claims file in February 2012 are the records documenting that an appointment had been made for a sleep study in September 2006. In the October 2012 supplemental statement of the case (SSOC), in which the AMC readjudicated the sleep apnea and cervical spine disorder issues, the AMC stated that review of the Veteran's treatment records failed to show that the sleep study had been conducted. That SSOC was mailed to the Veteran and his representative in October 2012. That same month, his representative provided a written statement that following receipt of the SSOC it had no additional evidence to add to the record. The Veteran has not contended that a sleep study was conducted. The Board thus concludes that the sleep study was not conducted. VA afforded the Veteran the orthopedic examination in March 2012. As noted above, that examination is adequate. Given these facts, the Board concludes that there has been compliance with the February 2012 Remand directives regarding the sleep apnea and cervical spine disorder issues. II. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). For veterans who had active service of 90 days or more during a period of war or after December 31, 1946, certain chronic diseases that manifest to a degree of 10 percent or more in a specified period of time will be considered to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1112 (West 2002 & Supp. 2012); 38 C.F.R. § 3.307(a) (2012). 38 C.F.R. § 3.307(a)(1). The factual basis may be established by medical evidence, competent lay evidence or both. 38 C.F.R. § 3.307(b) (2012). Medical evidence should set forth the physical findings and symptomatology elicited by examination within the applicable period. Id. Arthritis is one such chronic disease and the presumptive period for the disease is one year. 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a) (2012). The term "arthritis" encompasses degenerative joint disease. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (30TH Ed. 2003) at 149. The presumption of incurrence of such disease during service can be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113(a). Such rebuttal evidence will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. 38 C.F.R. § 3.307(d). The expression "affirmative evidence to the contrary" will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. Id. One way of establishing the nexus element is through evidence of continuity of symptomatology. 38 C.F.R. § 3.303(b) (2012). A showing of continuity of symptomatology requires evidence (1) that the condition was "noted" during service; (2) post-service evidence of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496. The "noted" in service element requires only that the condition was noted at the time the veteran was in service but such noting need not be reflected in any written documentation contemporaneous to service. Id. In general, a claimant is competent to provide lay statements of observable symptoms of disability and continuity of such symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The value of lay statements of symptoms and continuity of symptomatology, as with any evidence, depends in part on whether it is credible; the mere absence of corroborating contemporaneous medical evidence does not render the statements incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2008). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II.A. Service Connection - Sleep Apnea In February 2010, the Veteran filed his claim of entitlement to service connection for sleep apnea, contending only that the condition was incurred coincidental to his military service. He has provided no further argument or explanation in this regard. Service treatment records contain no complaints regarding sleep problems. The only mention of his sleep was that due to his low back condition he tended to sleep better by sleeping on the floor. Post service the earliest report of symptoms construed as possibly linked to sleep apnea, or any sleep disorder, is found in December 2005 consult notes. At that time he reported poor sleep associated with tiredness during the day. The note states that he admitted snoring and having periods when he stopped breathing. A neurology nurse sleep screening note from several days later includes that a sleep related breathing disorder was suspected. After that note is an August 2006 addendum referring to a follow up appointment for a sleep study in September 2006. There is no evidence that he attended that appointment and he has not claimed to have done so. The Board has considered the Veteran's self-diagnosis of sleep apnea. There is no evidence of record establishing that the Veteran has education or training in the area of medicine, nor does he contend that he has such education or training. See Cox v. Nicholson, 20 Vet. App 563 569 (explaining that a nurse practitioner has medical education and training and therefore "fits squarely into the requirement of 38 C.F.R. § 3.159(a)(1) as one competent to provide diagnoses, statements and opinions"). It is noted by the Board, that a diagnosis provided by "one competent to provide diagnoses" is equivalent in the context of 38 C.F.R. § 3.159(a)(1) and Cox to "expert evidence" The Veteran is therefore considered a non-expert, or layperson when it comes to providing a diagnosis. The Board must determine whether his self diagnosis is competent evidence. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has recently provided a summary the law relevant to determining the competency of non-expert diagnoses and nexus opinions, citing to Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), and Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). It is error for the Board to categorically reject lay statements as incompetent evidence. See Davidson 581 F.3d at 1316. Rather the Board must consider on a case by case basis whether a particular disability is the type of disability for which lay evidence is competent. See Jandreau, 492 F.3d at 1366-77 (providing that lay evidence is competent to identify a simple condition, such as a broken leg, but not something such as a form of cancer). The Veterans Court has explained that conditions that are subject to identification by personal observation, such as varicose veins, can be diagnosed by a layperson. See Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (explaining that tortuous or dilated veins are observable and identifiable by lay people and holding that "because varicose veins may be diagnosed by their unique and readily identifiable features, the presence of varicose veins is not a determination "medical in nature" and is capable of lay observation"). Whether the Veteran has sleep apnea, or any sleep "disorder" is not a simple question and not one that can be answered by the Veteran's own personal observation. Indeed, the purpose of the scheduled sleep study that the Veteran failed to attend was to determine whether he had a sleep disorder such as sleep apnea. It is clear that diagnosing such a condition requires expertise in medicine, and, indeed, data obtained from a study. Whether he has sleep apnea or any sleep "disorder" is a question more in line with what type of cancer someone has as opposed to whether someone has a broken leg. The Board is not saying that the Veteran is not competent to report that he has trouble sleeping, that he is tired during the day, or that others have observed him snoring; he is certainly competent to provide statements in this regard. That, however, is different than identifying the cause of any of these observations as sleep apnea or a sleep disorder. In that regard, there is no competent diagnosis of sleep apnea of record. Since August 2006, which is well before he filed his current claim, there was no mention sleep apnea or any reference to rescheduling him for a sleep study. For these reasons, the Board concludes that the preponderance of evidence is against a finding that the Veteran has had sleep apnea or any sleep disorder during the course of his claim and appeal. The first and indeed perhaps most fundamental requirement for any service connection claim is there must be competent evidence of the existence of the currently claimed disorder. In the absence of a current disability, there can be no valid claim for service connection. See Boyer v. West, 210 F.3d 1351, 1353 (Fed.Cir.2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McLain v. Nicholson, 21 Vet. App. 319 (2007) (holding that 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, even if no disability is present when the claim is adjudicated.) The preponderance of evidence is also against a finding that the Veteran had any sleep related breathing disorder during his active service or that symptoms of such manifested within approximately 20 years of his active service. In this regard, there are detailed service treatment records and VA inpatient and outpatient treatment records going back to 1993. Those records document both physical and psychiatric symptoms. The only sleep related symptom documented in those records is insomnia, for example, as found in a December 2003 psychiatric examination report; and that symptom is in the context of a psychiatric disorder. If the Veteran had sleep apnea or symptoms of sleep apnea or a sleep related breathing disorder at any time prior to 2005 it would follow that there would be some indication of such in these records because the records document his reports of numerous other symptoms. Additionally, he has not reported that he had symptoms of a sleep related breathing disorder continuously since service or that he had a sleep related breathing disorder during service. Thus, even if it were shown that he had sleep apnea or a sleep related breathing disorder when he reported symptoms in December 2005 or when the sleep study was scheduled in 2006, the claim would still have to be denied as the preponderance of evidence shows that the second Shedden element is not met. Because the preponderance of evidence is against the claim of entitlement to service connection for sleep apnea, the appeal as to this issue must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II.B. Service Connection - Cervical Spine Disorder In February 2010, the Veteran filed his claim of entitlement to service connection for a cervical spine disorder, contending only that the condition was incurred coincidental to his military service. He has provided no further or argument or explanation in this regard. Service treatment records document that in July 1984 the Veteran reported a stiff neck of 3 days duration following a fall in the latrine. Objectively there was some swelling but not redness and vertebrae were intact. Medical personnel assessed a pulled muscle. He returned for follow-up in early August 1984. Objectively, tenderness had decreased in the upper back and neck and he was assessed with a soft tissue injury. In September 1984, the Veteran reported that he had suffered from neck pain for 2 months following striking his neck on a commode. Objective examination revealed neck pain without cervical compression and tenderness to palpation of the trapezius muscle. Assessment was neck pain. X-rays of his cervical spine were obtained in October 1984 and were within normal limits. Physical examination that month revealed pain in the upper back muscles. Assessment was chronic recurrent muscle spasm. He was prescribed medication, treatment with heat, and told to return to clinic on an as needed basis. Although service treatment records document later reports of low back symptoms, those records do not document any reports of cervical spine or neck symptoms after October 1984. Following separation from active service, the Veteran filed a claim of entitlement to service connection for a back condition in November 1985. He referred to in-service treatment between February 1982 and April 1984, dates prior to when he reported the neck injury. That claim referred only to his low back. He again filed a claim of entitlement to service connection in October 1993, this time for a neuropsychiatric condition. Although post-service VA and private treatment records refer to both physical and psychiatric symptoms and conditions, including of his lumbar spine, the earliest post service evidence of cervical spine or neck symptoms or disorders is found in April 2009 notes of treatment by "A.R.M.," M.D. Those notes document that his neck pain following a fall on his neck one year earlier. Dr. A.R.M. stated that an MRI study revealed disc herniation. The reports of numerous physical conditions other than a cervical spine condition in the post service treatment notes before 2009 and the fact that the Veteran claimed entitlement to service connection for other conditions but not for a cervical spine disorder in the years between separation from service and 2009 is evidence that no cervical spine condition manifested within one year of separation from active service. It is also evidence that he did not have symptoms of a cervical spine condition continuously since service. Silence in regard to a disorder or symptoms of a disorder, in records where it would be expected that the disorder or its symptoms would have been recorded if present, is evidence against a finding that the disorder or its symptoms existed during such period. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). In this regard, if the Veteran had symptoms of a cervical spine condition continuously since service the Board would reasonably expect to find some mention of such, either in the records or by the filing of a claim, given that he reported other symptoms and filed claims of entitlement to service connection for other conditions during the period between separation from service and when he filed his current claim which is the subject of this appeal. Dr. A.R.M.'s documented report that the Veteran's cervical spine symptoms followed an injury one year prior to April 2009 is evidence against a grant of service connection for a cervical spine disorder because it is evidence that a post service injury resulted in the cervical spine disorder for which he seeks service connection. If the Veteran had cervical spine symptoms present since service, it does not follow that Dr. A.R.M.'s report would refer only to an injury one year prior to April 2009. The Veteran would have had a compelling reason to provide to Dr. A.R.M. an accurate history of his condition for which he was seeking medical treatment. This is not only a logical conclusion but reflects an established legal principle (as reflected in the Federal Rules of Evidence 804 exception to the hearsay rule for statements made in the course of seeking medical treatment) that reports made to a medical professional in the course of seeking treatment are highly likely to be accurate because a person realizes that proper treatment is more likely if an accurate history is provided. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (citing to Federal Rule of Evidence 702 and stating that reference to the Federal Rules of Evidence "would more thoroughly elucidate the necessary "reasons and bases" for the Board's decision"). As to any argument that he had symptoms involving his neck continuously since service the Board assigns significant weight to the fact that the Veteran filed claims of entitlement to service connection for conditions other than a cervical spine disorder many years prior to when he filed his claim of entitlement to service connection for a cervical spine disorder, Dr. A.R.M.'s notes referring to an injury many years after service giving rise to cervical spine symptoms without mention of longstanding symptoms or an earlier injury, and to the absence of any reported neck symptoms for the period after 1984 to 2008. This evidence outweighs any contention that he had symptoms involving his neck continuously since service. In March 2012, the Veteran underwent a VA examination of his cervical spine. The examiner indicated that the Veteran's claims file had been reviewed and listed relevant evidence found in the claims file. Diagnoses were arthritis and degenerative disc disease. The examiner provided an expert opinion that it is less likely than not that the Veteran's cervical spine condition was caused by or is the result of his active service. He explained that the in-service injury was acute and transitory and improved with treatment. He also explained that his current cervical disorder was secondary to normal aging process. This is medical evidence against the claim of entitlement to service connection for a cervical spine condition. There is no medical evidence to the contrary. Although the Veteran has filed a claim of entitlement to service connection for this condition, he has not provided any other evidence, such as his own opinion of etiology or an assertion that he had continuous symptoms since service. The post service treatment records, including Dr. A.R.M.'s report of a post service cervical spine injury and symptoms extending back only to 2008, and the March 2012 examination report are evidence against this claim. This evidence outweighs evidence favorable to his claim which consists of the fact that he did complain of neck pain during service. Based on this analysis, the Board finds that the preponderance of evidence is against his claim. Hence, the appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a cervical spine condition is denied. REMAND In February 2012, the Board remanded the issues of entitlement to a separate compensable rating for left-sided radiculopathy and to service connection for a psychiatric disorder. In that Remand, the Board directed that VA provide relevant examinations and obtain expert opinions. VA provided the examinations but the opinions provided are inadequate. Implicit in those directives is that the adequate opinions must be provided. The opinions obtained are not adequate and therefore there has not been compliance with those directives and another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that an appellant has a right to compliance with the Board's remand directives and the Board errs if it fails to ensure such compliance.) More fundamentally, an additional remand is required because VA has not yet met its duty to assist the Veteran in providing an adequate examination with regard to these issues. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board requested that the examiner provide an opinion as to whether it is at least as likely as not that the Veteran's left sided radiculopathy is due to or aggravated by his service-connected paravertebral lumbar myositis and directed that the examiner should include all possibilities as to the etiology of his radiculopathy, to include his service-connected paravertebral lumbar myositis and his nonservice-connected diabetes mellitus. The examination report includes the questions posed to the examiner but does not include the complete question as asked by the Board in its Remand. The question listed in the report does not mention diabetes mellitus and does not direct the examiner to explain all possibilities of the etiology of his radiculopathy. The opinion provided by the examiner was that the Veteran's paravertebral lumbar myositis is an inflammation of lumbar paravertebral muscles and not related to a disc condition and that it is impossible for a paravertebral lumbar myositis to have caused a left side lumbar radiculopathy because it did not involve a disc condition or a spine condition. This opinion does not address aggravation. Simply stating that the question was whether his radiculopathy was caused or aggravated by the myositis and then concluding that the radiculopathy is not caused by or the result of the myositis does not adequately address the question of aggravation given that the reasoning stated is solely in terms of causation. Hence, another remand is necessary so that the examiner can address the aggravation aspect of this issue. Given the previous remand instructions, the examiner must also provide a comprehensive explanation as to all possibilities of the etiology of his radiculopathy, including specific mention of whether it is caused by his diabetes mellitus. The examiner must interview the Veteran as to when his radiculopathy had onset and whether it worsened since its onset, and, if so, the nature of that worsening. Now the Board turns to the issue of entitlement to service connection for a psychiatric disorder. In the February 2012 Remand, the Board directed that the examiner provide an opinion as to whether it is at least as likely as not that the Veteran's claimed psychiatric disorder is due to or aggravated by his service-connected lumbar myositis. Although there is a preprinted section of the examination report for addressing aggravation of a condition for which service connection has not been established by a service-connected condition, the examiner did not complete that section. What the examiner did complete was a section for addressing whether a nonservice-connected condition was "due to or the result of" a service-connected condition. Here, the examiner provided a negative opinion. The rationale provided is stated in terms of "aggravation" in one sentence, but that sentence addresses causation, not aggravation. In that regard, the examiner stated that the service-connected physical conditions preceded the Veteran's psychiatric condition and therefore his psychiatric condition could not be aggravated by his service-connected physical condition. On its face this is not an explanation as to whether or not his physical condition aggravated his psychiatric condition. In simple terms, what the Board is asking is if an existing psychiatric condition was permanently made worse by his service-connected lumbar paravertebral myositis. For example, did the pain from his lumbar condition or limitations due to his lumbar condition cause a permanent worsening of his psychiatric condition. Because the opinion is inadequate as to the aggravation issue, another remand is necessary. During the examination, the examiner should specifically elicit from the Veteran whether his psychiatric symptoms have worsened since their onset and, if he reports that they have worsened, elicit from him an explanation as to that worsening including why the Veteran believes his lumbar paravertebral myositis has contributed to such worsening. Finally, the most recent VA treatment records associated with the claims file are from May 2011, on remand, any more recent relevant records of treatment of the Veteran through the VA San Juan VAMC or associated outpatient treatment clinics should be associated with the record. Accordingly, the case is REMANDED for the following action: 1. Obtain all relevant records of treatment of the Veteran at the San Juan VAMC and associated outpatient treatment clinics since May 2011 and associate any obtained records with the claims file. 2. Schedule the Veteran for a VA neurological examination to determine if his service-connected paravertebral lumbar myositis has aggravated his left sided radiculopathy and to determine the etiology of his left sided radiculopathy, to specifically include whether it is related to his diabetes mellitus. The claims file to include a copy of this Remand should be provided to the examiner, the examiner should review the claims file in conjunction with the examination. In particular, the examiner should review the narrative portion of this Remand to aid in understanding as to what was deficient in the last examination report. The examiner should annotate his or her report as to whether the claims file was reviewed. The examiner is asked to accomplish the following: (a) Provide a comprehensive explanation as to all possibilities of the etiology of his left sided radiculopathy, including specific mention of whether it is caused by his diabetes mellitus. (b) Interview the Veteran as to when his left sided radiculopathy had onset and whether it worsened since its onset, and, if so, the nature of that worsening. Document the Veteran's response, if any. (c) Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's left sided radiculopathy has been made permanently worse, beyond its natural progression, by his paravertebral lumbar myositis. A complete rationale must be provided for any opinion rendered. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In doing so, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Schedule the Veteran for a VA mental disorders examination to determine if his service-connected paravertebral lumbar myositis caused or aggravated a psychiatric disorder. The claims file to include a copy of this Remand should be provided to the examiner, the examiner should review the claims file in conjunction with the examination. In particular, the examiner should review the narrative portion of this Remand to aid in understanding as to what was deficient in the last examination report. The examiner should annotate his or her report as to whether the claims file was reviewed. The examiner is asked to accomplish the following: (a) The examiner should specifically elicit from the Veteran whether his psychiatric symptoms have worsened since their onset and, if he reports that they have worsened, elicit from him an explanation as to that worsening including why the Veteran believes his lumbar paravertebral myositis has contributed to such worsening. (b) Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any psychiatric disorder that the Veteran has had at any time since he filed his claim was permanently worsened, beyond it natural progression, by his paravertebral lumbar myositis. The examiner is asked to specifically address whether pain or physical limitation caused by his paravertebral lumbar myositis examiner permanently worsened a psychiatric disorder beyond the natural progression of the psychiatric disorder. A statement of the date of onset of the paravertebral lumbar myositis and the date of onset of a psychiatric disorder is not, standing alone, a sufficient rationale for any opinion provided. A complete rationale must be provided for any opinion provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In doing so, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Then, readjudicate the issues that are the subject of this Remand. If the Veteran's left-sided radiculopathy is found to be associated with his service-connected paravertebral lumbar myositis, it should be evaluated, under an appropriate diagnostic code. If the benefits sought on appeal are not granted, he and his representative should be provided with an appropriate Supplemental Statement of the Case, to include the appropriate laws and regulations, and should be given an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs