Citation Nr: 21000483 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 20-05 455 DATE: January 5, 2021 REMANDED Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1963 to August 1967, including overseas service in Vietnam. The Veteran appeals an October 2017 rating decision by the Agency of Original Jurisdiction (AOJ). A Board of Veterans’ Appeals (Board) hearing was held in November 2020. A transcript is of record. In the January 2020 statement of the case (SOC), the AOJ additionally denied service connection for chronic obstructive pulmonary disease (COPD). In February 2020, the AOJ received the Veteran’s VA Form 9, which indicated he only wished to appeal the denial of service connection for a low back condition and sleep apnea. Accordingly, the Board finds the Veteran did not perfect an appeal as to service connection for COPD and thus, that issue is not currently before the Board. 38 C.F.R. §§ 20.200, 20.202. VA treatment records note treatment for and a diagnosis of low back pain and sleep apnea. See December 2018 VA treatment records. The Veteran stated his back pain was due to the bouncing and jerking motion while riding in trucks in Vietnam, sleeping on uncomfortable canvas cots, and the lifting of heavy ammunition and sandbags during service. See November 2020 Board hearing tr. at 2-3. The Veteran additionally stated his back problems started during service and continued to present and that he had no back injuries after service. Id. at 3-4. The Veteran’s spouse noted the Veteran had back issues as long as she has known him. Id. at 9. The Veteran also stated he had no sleep problems prior to service, he had restless sleep in Vietnam, he got treated for fatigue in-service, and that his sleep issues started around when he was preparing to separate from service. Id. at 4-5. The Veteran’s spouse stated she noticed the Veteran’s snoring and gasping for air as long as she could remember and that some nights he did not get good sleep. Id. at 8-9. The Veteran also noted exposure to herbicide agents, water contaminants at Camp Lejeune, and the burning of human waste and jet fuel. See October 2017 Notice of disagreement (NOD). The Veteran stated his back continued to bother him since Vietnam and that he has had breathing problems since Vietnam. Id. Medical records note current issues with the Veteran’s back and the existence of sleep apnea. The Veteran and his spouse noted the existence of back and sleep apnea symptoms starting during service and continuing ever since. However, the Veteran has not been afforded VA examinations for his claimed conditions to assess their nature and etiology. Consistent with VA’s duty to assist, VA must obtain a medical opinion when there is evidence of (1) a current disability; (2) an in-service injury; (3) some indication that the claimed disability may be associated with the established injury; and (4) insufficient competent evidence of record for VA to make a decision. See McClendon v. Nicholson, 20 Vet. App. 79, 84 (2006). The third prong, which requires evidence that the claimed disability or symptoms “may be” associated with the established event, has a low evidentiary threshold. See 20 Vet. App. at 83. As such, the Veteran should be afforded VA examinations to determine the nature and etiology of his low back and sleep apnea conditions. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his low back condition and sleep apnea that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an examination to determine the nature and etiology of his low back condition. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. After the record review and examination of the Veteran, the examiner should identify all low back conditions present. Then, the examiner is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran’s low back condition was incurred in, or otherwise related, to his time on active service, to include the bouncing and jerking motion of riding in a truck, sleeping in uncomfortable cots, and the lifting of heavy ammunition and sandbags? For the purposes of this opinion, the examiner is to assume and accept as true and consider the Veteran’s lay statements of his back symptoms starting during service and continuing to present. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must 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. After the development in #1 above is completed, schedule the Veteran for an examination to determine the nature and etiology of his sleep apnea. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. After the record review and examination of the Veteran, the examiner is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran’s sleep apnea was incurred in, or otherwise related, to his time on active service, to include his sleep troubles in Vietnam, exposure to herbicide agents in Vietnam, exposure to Camp Lejeune water contaminants, exposure to the burning of human waste, and the exposure to the burning of jet fuel? For the purposes of this opinion, the examiner is to assume and accept as true and consider the Veteran’s lay statements of his sleep apnea symptoms starting during service and continuing to present, specifically daytime fatigue, snoring, and gasping for air during sleep. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must 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). (Continued on the next page)   4. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.