Citation Nr: 20022483 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 17-61 902 DATE: April 1, 2020 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for deviated nasal septum is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1981 to June 1984. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In December 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the claims file. The VLJ held the record open for 90 days for the submission of supporting medical evidence. Evidence was subsequently received from the Veteran. In December 2019, the Veteran’s representative submitted an agency of original jurisdiction (AOJ) waiver. 1. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran, and his representative, contends that his current lumbar spine disability stems from his military duties. In this regard, the Veteran testified that during active duty he was instructed to carry 200-pound projectiles approximately 50 yards on harsh terrain. He additionally stated that he would have these fire exercises three or more times a day. See Hearing Transcript at 3-4 (December 2019). Correspondences from the Veteran, received after the Board hearing, similarly show that he maintains that his lumbar spine disability stems from military duties while in the United States Marine Corps. See Correspondence (December 2019). For reasons explained below, the Board finds that remand is necessary. Service separation examination report, dated in June 1984, reflects that the Veteran was evaluated as having a clinically normal spine. Marine Corps Reserve enlistment examination report, dated in April 1986, likewise reflects that the Veteran was evaluated as having a clinically normal spine. In the corresponding report of medical history, the Veteran denied having, or ever having, recurrent back pain, arthritis, rheumatism, and bursitis. The Veteran described his overall health as good and denied any current medication. VA examination report, dated in October 2017, shows that the Veteran was diagnosed with lumbosacral strain and degenerative arthritis of the spine. In the corresponding medical opinion, the examiner found the Veteran’s current lumbar spine disabilities were less likely than not incurred in or caused by service. The Board finds the VA medical opinion to be inadequate. Hayes v. Brown, 5 Vet. App. 60, 69 (1993). First, the medical opinion is inadequate because it relied, almost entirely, on lack of evidence in the service treatment records (STRs) to provide the negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Next, it does not address the Veteran’s contentions that his lumbar spine disability stems from the heavy physical activities while on active duty. Lastly, the opinion is inadequate because the essential rationale is not discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). The opinion notes the lack of objective evidence, such as continuous medical valuation, management, or treatment, in the Veteran's STRs, but makes no attempt to connect the lack of objective evidence to its conclusion. It is noted that a medical opinion or “medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Second, remand is also necessary to obtain complete service records. The record appears to be incomplete insofar as it does not include service personnel records or STRs from the Veteran’s period of service in the Marine Corps Reserve or Air Force Reserve. In this regard, the record reflects that the Veteran reported service in the Air Force Reserve, and, as mentioned above, there is evidence that the Veteran also enlisted in the Marine Corps Reserve. The AOJ, however, has not attempted to obtain any STRs or service personnel records related to those periods of reserve service. Such information is relevant in the sense that it could help the Veteran establish the onset, or continuity of symptoms, of his lumbar spine disability. Therefore, remand is necessary for the AOJ to attempt to verify the Veteran’s Marine Corps Reserve and Air Force Reserve service dates, to include any periods of active duty for training and inactive duty for training, and attempt to obtain any STRs or service personnel records related to those periods of service. Also, remand is necessary to obtain an addendum an adequate VA medical opinion to determine the nature and etiology of his lumbar spine disability. 2. Entitlement to service connection for deviated nasal septum is remanded. 3. Entitlement to service connection for OSA is remanded. Issues 2-3. The Veteran, and his representative, contends that his deviated nasal septum and OSA stem from an in-service assault. See Hearing Transcript at 10, 14 (December 2019). In this regard, the Veteran testified that while at Camp Lejeune he was attacked; a military police report was filed; he went to the emergency room and was subsequently assessed with a broken nose. Id. at 10. The Veteran has also raised the argument that his OSA is secondary to his deviated nasal septum. Id. at 2. The record reflects that the Veteran has current disabilities for deviated nasal septum and OSA. Next, the Board finds that there is competent and credible evidence that the Veteran sustained a broken nose injury while in service. In this regard, the Board notes that the Veteran tried to obtained copies of the military police report and emergency room report at Camp Lejeune; however, he was advised that they did not have the records. Given that the record shows service at Camp Lejeune, and the Veteran’s statements have been consistent throughout the appeal period, the Board finds competent and credible evidence that the Veteran sustained an in-service injury, described as a broken nose. The record, however, does not reveal a VA examination or medical opinion opining on whether the Veteran’s current deviated nasal septum or OSA are related to his in-service injury, described as a broken nose. Therefore, given the above, there is sufficient competent and credible evidence to warrant remand for a VA examination and medical opinion. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). VA has not yet obtained an examination or medical opinion in these matters. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Lastly, the Board notes that in December 2019, the Veteran notified the Board that he was exposed to contaminants in the water supply while stationed in Camp Lejeune. Military service personnel records show that he served on active duty at Camp Lejeune from October 1981 to October 1983. Therefore, the Veteran is presumed to have been exposed during such service to the contaminants in the water supply. 38 C.F.R. § 3.307(a)(7)(iii). However, the provisions pertaining to presumptive service connection based on exposure to contaminants in the Camp Lejeune water supply are not applicable here because a deviated nasal septum and OSA are not enumerated diseases listed under 38 C.F.R. § 3.309(f). It is further noted that the Veteran has not specifically stated that his disabilities stem from the contaminants in the water supply. Indeed, his sworn testimony and lay statements are all consistent, in the sense that he argues that his disabilities stem from an in-service personal assault while stationed at Camp Lejeune. The matters are REMANDED for the following actions: 1. Verify the dates of the Veteran’s service in the Marine Corps Reserve and Air Force Reserve. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). (a) Obtain the Veteran’s complete service personnel records pertaining to his service in the Marine Corps Reserve and Air Force Reserve. Document all requests for information as well as all responses in the claims file. (b) Obtain the Veteran’s complete STRs pertaining to his service in the Marine Corps Reserve and Air Force Reserve. Document all requests for information as well as all responses in the claims file. (c) If necessary, notify the Veteran if service personnel records and/or STRs are unavailable through official sources and provide him an opportunity to provide copies of those records. 2. Obtain the Veteran’s VA treatment records for the period from September 2017 to the Present. 3. Schedule the Veteran for an examination(s) by an appropriate clinician(s) to determine the nature and etiology of any (1) deviated nasal septum and (2) OSA. The reports of examination should, among other things, include a discussion of the Veteran’s documented history and assertions. The examiner(s) must opine on: (a) Whether any deviated nasal septum disability is at least as likely as not related to an in-service injury, event, or disease, to include the in-service injury, described as a broken nose. (b) Whether any OSA is at least as likely as not related to an in-service injury, event, or disease, to include the in-service injury, described as a broken nose. (c) If the Veteran is found to have a deviated nasal septum disability etiologically related to in-service broken nose, then opine on whether the Veteran’s a OSA is at least as likely as not (i) proximately due to service-connected deviated nasal septum disability, or (ii) aggravated beyond its natural progression by service-connected deviated nasal septum disability. 4. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s lumbar spine disability. The clinician must opine: (a) Whether it is at least as likely as not that the Veteran’s claimed lumbar spine disability is related to an in-service injury, event, or disease, to include his military duties, described as carrying 200-pound projectiles approximately 50 yards on harsh terrain. (b) To the extent that there is arthritis of the lumbar spine, whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 5. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, 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.