Citation Nr: 21062677 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 17-21 584 DATE: October 8, 2021 ORDER Entitlement to service connection for a low back disorder is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The preponderance of the evidence is against finding that a low back disorder began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a low back disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1993 to March 1995. In April 2021, the Veteran testified at a Board hearing. The transcript is of record. In July 2019 and April 2021, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for low back condition The Veteran contends he is entitled to service connection for a low back condition stemming from an in-service excision of a pilonidal cyst. For the following reasons the Board finds that service connection is not warranted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran 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' the so-called "nexus" requirement." Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Board concludes that while the Veteran has a current diagnosis of lumbar strain and the evidence shows that the Veteran had a pilonidal cyst removed during service, the preponderance of the evidence weighs against finding that lumbar strain began during service or is otherwise related to an in-service injury, event, or disease. Post-service treatment records reveal that the Veteran also underwent minor surgery for pilonidal cyst excision in July 1996. He received a cane for temporary use due to decreased balance from the cyst removal, which he reported only needing for a short time. In December 1999 a treatment note reported a surgical history of six pilonidal cysts, examination revealed that the Veteran's sensory evaluation and motor ability was within normal limitations. In January 2021, the Veteran attended a VA examination and was diagnosed with lumbosacral strain. He reported an onset of back pain in-service in 1993 for which he received pain medication with recurrent back pain ever since that has worsened. Physical examination revealed limited range of motion with pain but no signs or symptoms of radiculopathy. The examiner opined that it was less likely than not that the Veteran's current lumbar strain was related to service, to include the pilonidal cyst surgery. The examiner noted that the service treatment records and post-service records were silent as to any back complaints. The examiner explained that pilonidal cyst is a skin condition that cannot cause a lumbar strain or any residual lumbar spine pain. This opinion was found inadequate by the April 2021 remand; thus, no weight is given to this opinion. Another VA medical opinion was obtained in July 2021. The examiner opined that it is less likely than not that lumbar strain incurred in or was caused by service. The examiner reported that there is no evidence of a back condition in service. The Veteran underwent an excision of a pilonidal cyst, as documented by the records. The separation examination reported that the Veteran had "low back pain" related to the procedure and residuals with continued drainage; however, the mental health record only noted the pilonidal cyst with no back issues. The examiner explained that a pilonidal cyst is a skin condition, anatomically located superficially near the coccyx. It does not functionally affect the lumbar spine. While tenderness and discomfort in that area may have limited the Veteran to some extent through separation at no time was there evidence of a lumbar spine condition. Currently, the Veteran has a diagnosis of lumbar spine strain, which is muscle and soft tissue related cephalad (toward the head or anterior end of the body) to the level of the pilonidal cyst excision and residuals. The lumbar strain would be adjacent to the bony spine in the paraspinal tissue; thus, the two condition are separate both anatomically and patho-physiologically. Additionally, at the time of the VA examination there was no tenderness to palpation for the pilonidal cyst to exert any impact on function of the lumbar spine, localized pain and tenderness would be evident. Also, the pilonidal cyst would not impact initial range of motion, especially in the absence of localized pain and tenderness. Therefore, it is less likely than not that the Veteran had a spinal condition in service and it is less likely than not that the current spinal condition is due to service to include the pilonidal cyst as his current diagnosis is different than that in service and unrelated. While the Veteran may still have residuals of the pilonidal cyst there was no evidence of such at the time of the VA examination. When making a decision, the Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). The Veteran testified before the Board that he had a lot of pain in his lower back during service and it was discovered that he had a pilonidal cyst on his lower back. After the surgeries, he reported that his back got worse explaining that if he sat too long his right leg would get numb and burn and if he stood up his left leg would burn as well. The Veteran stated that prior to military service he did not have any back pain but he has had back pain ever since his pilonidal cyst excision. The Veteran and his mother were found to be competent and credible to provide testimony as to the presence of his observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The record also includes buddy statements describing the Veteran as being in constant pain since discharge. The Veteran provided additional statements reporting that after discharge he underwent several more surgeries at a private institution, which weakened his back and he discovered his L3 and L4 were compressed. The Board notes that on October 22, 2020 and May 17, 2021 development letters were sent to the Veteran requesting names of all care providers who provided treatment related to the claimed low back condition, which included a medical release to allow the Regional Office to obtain the relevant medical records. To date there has been no response to the requests for additional evidence. The duty to assist is a two-way street, which requires the Veteran's active participation in a claim for benefits. As the Veteran failed to respond, the VA was unable to obtain any private medical treatment records. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board finds the negative nexus opinion of the July 2021 VA examiner to be probative. The examiner provided a reasoned medical rationale explaining why the in-service pilonidal cyst is unrelated to the current diagnosis of lumbar strain as they are both anatomically and physiologically separate. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, the examiner's findings are consistent with the physical examination revealing no tenderness or pain on palpation or signs or symptoms of radiculopathy and the service treatment records noting an unremarkable physical and neurological examination in February 1995. The Veteran is competent and credible to report his observable symptoms of back, but he is not competent to determine that these symptoms were manifestations stemming from an excision of a pilonidal cyst during service as that requires knowledge of multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, the Board gives greater weight to the July 2021 VA examiner who reviewed the record and provided an opinion that is well supported by adequate rationale. Accordingly, the claim for entitlement to service connection for back condition is denied. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea In April 2021 the Board remanded for an addendum opinion to address the nature and etiology of sleep apnea. In July 2021 the VA examiner opined that sleep apnea is less likely than not incurred in or caused by service as there is no evidence of sleep apnea in service. The examiner reported that the separation examination was negative for sleep disturbances and the Veteran's medical history was negative for frequent trouble sleeping. The examiner noted that the Veteran reported snoring, which was supported by lay witnesses but stated that while almost all obstructive sleep apnea embodies snoring, not all snoring indicates sleep apnea. Snoring, difficulty sleeping, easy awakening, insomnia, difficulty falling asleep, gasping, choking, daytime somnolence and fatigue, fitful sleep and movements during sleep are general symptoms and may be attributable to other conditions, sleep hygiene, sleep position, etc. The examiner stated that the Veteran was not diagnosed with obstructive sleep apnea until February 20, 2009 and concluded that it is highly unlikely an individual could endure more than 10 years with sleep apnea and not have sought care had its origins been in service. Thus, it is less likely that sleep apnea had its nexus in service; the separation examination make this almost certain as the question is unambiguous. The Board finds this opinion inadequate for adjudication. While the VA examiner acknowledged the Veteran's reports of snoring in-service, the examiner did not discuss the reports of daytime fatigue and somnolence and relied on a lack of evidence of sleep apnea in-service. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). The examiner also relied on the amount of time from separation of service to when the Veteran received a diagnosis of sleep apnea. While evidence of a prolonged period without medical complaint and the amount of time that elapsed since service can be considered, the examiner failed to provide a reasoned medical explanation as to the significance of the length of time between separation and the complaints documented in the post-service medical records. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As such, a remand is necessary to obtain an addendum opinion. The matters are REMANDED for the following action: 1. Obtain an addendum VA opinion regarding the nature and etiology of the Veteran's sleep apnea from a medical professional with appropriate expertise. The claims file must be reviewed by the examiner. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one (or a telehealth interview, if an in-person examination is not feasible). Based on a review of the record, and a new examination if necessary, the examiner must address the following: Whether it is as least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea manifested during service or is otherwise related to service? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner is to address the Veteran's credible reports of sleep difficulties from service to the present date as well as snoring during service. The examiner is not to improperly discount the Veteran's lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. If a negative opinion is offered based primarily on the length of time between separation and the current diagnosis the examiner should explain the medical significance of this fact, i.e., why this is indicative that any current sleep apnea is not related to service. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional 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). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.