Citation Nr: 21069399 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-11 165 DATE: November 18, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from December 1980 to June 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran and his wife testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. The Board previously remanded this case in May 2020 for additional development. Unfortunately, as explained below, the Board is not satisfied that there was substantial compliance with its most recent remand. Therefore, the appeal must be remanded once again. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims so that the Veteran is afforded every possible consideration. The Board notes that when the above claims were remanded for additional development, the Board also remanded an additional claim for service connection for a posttraumatic stress disorder (PTSD). In a July 2021 rating decision, service connection for PTSD was granted. As that is a full grant of the disability that was on appeal, it is no longer before the Board. Ab v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran contends that he injured his lower back during service when he fell against a metal bed frame. The Veteran and his spouse testified at the February 2020 Board hearing that he did not have any back problems prior to service, and that he has continued to experience pain ever since the in-service injury. The Veteran's service treatment records confirm that the Veteran's suffered a soft tissue injury to his lower back in September 1982 after hitting his back on a bed frame while wrestling with friends. An x-ray of his lumbar spine showed no fracture or subluxation, however, a large Schmorl's nodule was noted on each superior end plate of the L2, L3, and L4 vertebrae; a transition vertebra was noted to have bilateral sacralization; and a cordical defect was observed at L5. The Veteran underwent a VA examination in December 2017. A diagnosis of lumbar spine degenerative joint and disc disease was confirmed. The VA examiner observed that the in-service injury was a soft tissue injury and that the Veteran denied back pain on his separation examination in October 1985. As such, the examiner opined that since there was no evidence of ongoing back pain in service or of chronicity from discharge to the present, the Veteran's lumbar spine disability is less likely than not incurred in or caused by service. The Board found the opinion inadequate because the examiner did not consider or address pertinent service treatment records, such as the September 1982 x-ray which showed evidence of lumbar spine issues beyond just a soft tissue injury, nor did the examiner consider the Veteran's competent reports of experiencing pain continuously since the in-service injury. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992) (an opinion based on the absence of medical records without consideration of a veteran's competent reports is inadequate). Pursuant to the May 2020 remand, the Veteran underwent an additional VA examination in December 2020 to determine the nature and etiology of the Veteran's lumbar spine disability. The examiner confirmed diagnoses of degenerative disc disease, a lumbar strain and degenerative arthritis. On examination, the Veteran reported that he injured his lower back falling onto a steel bed frame while stationed in Japan during service and that he has continued to experience lower back pain ever since. The examiner opined that the Veteran's lumbar spine conditions are less likely than not incurred in or caused by an in-service injury, event, or illness, to include the injury sustained in service in 1982. She reasoned that the Veteran's service treatment records do not show continued back pain following injury, making a chronic condition "unlikely", and that the Veteran's separation examination is silent for back pain, therefore, the veteran's military service records support that the currently diagnosed conditions. The examiner further stated that the Schmorl's nodules noted on the September 1982 x-ray following the injury were likely pre-existing, stating that though traumatic injury can result in the development of Schmorl's nodes, an x-ray isn't expected to detect Schmorl's nodes acutely but did not provide an explanation for this conclusion. The Board finds this examination to be inadequate for adjudication purposes for two reasons. First, it does not appear that the examiner considered the Veteran's lay statements regarding the in-service onset of symptoms of a lumbar spine condition and continuous symptoms since service. Instead, she based her negative opinion solely on the lack of an in-service diagnosis of a lumbar spine disability. An opinion based on a lack of in-service treatment or diagnosis without consideration of a veteran's competent reports is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). Next, the VA examiner stated a conclusion about the Veteran's Schmorl's nodules without explanation giving the opinion minimal probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a mere conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to a medical opinion). As the December 2020 opinion did not adequately comply with the Board's May 2020 remand directives, this matter must once again must be remanded for compliance. See Stegall, 11 Vet. App. at 268. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, remand is required to afford the Veteran a new VA examination and medical opinion to determine the nature and etiology of his lumbar spine disability. Additionally, the Board notes that Dr. J.W.D. indicated in his April 2021 private medical opinion that the Veteran's lumbar spine disability may be due to the antalgic gait caused by a bilateral knee injury. As such, service connection as secondary to the lumbar spine disability has also been raised by the record and this theory of entitlement must be adequately addressed in a medical opinion before the Board can make an informed decision on the Veteran's claim. See Szemraj v. Principi, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004) (when a theory of entitlement is raised by the record, the Board must consider it). The Veteran's appeal for a bilateral knee disability is currently pending and the claim is being adjudicated under the new modernized decision review system created by the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). A hearing has been requested in that appeal and has yet to be scheduled. Following the hearing and any other development deemed necessary, a separate decision will be issued in that matter. As the two claims are inextricably intertwined and Veteran's claim for service connection for a bilateral knee disability is pending in a separate appeal stream, the Board must defer adjudication of the Veteran's lumbar spine disability claim pending adjudication of that claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 2. Entitlement to service connection for sleep apnea is remanded. The Veteran seeks entitlement to service connection for sleep apnea, which he contends was incurred in or caused by military service. At the February 2020 Board hearing, the Veteran testified that he believes his sleep apnea is related to an in-service incident in which he was kicked in the face during a swim test, inhaled water, and nearly drowned. He has argued he suffered a deviated septum in service which caused his sleep apnea, or, alternatively, the condition simply began in service and can be identified by the onset of several sleep-related symptoms such as snoring. His wife testified that he would stop breathing during the middle of the night in the 1980s and that his symptoms continued to get progressively getting worse. The Board notes that the Veteran's medical records show that in March 2005, he underwent elective surgery (uvulopalatopharyngoplasty, tonsillectomy, septoplasty, and direct laryngoscopy) to treat longstanding obstructive sleep apnea, right septal deviation, and chronic hoarseness. A February 2010 VA treatment note indicates that the Veteran's sleep apnea resolved after the surgery. However, the Veteran was diagnosed with obstructive sleep apnea following a September 2020 sleep study and was prescribed a CPAP machine for sleep. The Veteran was afforded a VA examination in December 2020 to assess the nature and etiology of his obstructive sleep apnea. Upon examination, a diagnosis of obstructive sleep apnea was confirmed. The Veteran told the examiner that his roommates would complain about his snoring during service. The VA examiner found that the Veteran's sleep apnea was less likely than not related to service, stating that the Veteran's current sleep apnea is not a continuation of a condition during service as STRs are silent for sleep apnea, the Veteran's records also negative for facial ororopharynx injury and the Veteran's chest x-ray following the incident during the swim test was normal. It does not appear that the examiner considered the Veteran's lay statements regarding the in-service onset of symptoms of sleep apnea and continuous symptoms since service. Instead, she based her negative opinion solely on the lack of an in-service diagnosis of sleep apnea. An opinion based on a lack of in-service treatment or diagnosis without consideration of a veteran's competent reports is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). The examiner further stated that in the absence of history of a traumatic brain injury, she cannot clinically relate sleep apnea to the episode of near drowning. However, she did not provide an explanation for this statement, therefore it is of minimal probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a mere conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to a medical opinion). Accordingly, the claim must be remanded once again because the RO did not comply with the Board's prior remand directive to obtain an adequate medical opinion on the Veteran's behalf. See Stegall, 11 Vet. App. at 268. On remand, an addendum medical opinion must be obtained that is adequate for the Board to make an informed decision on the Veteran's claim. In this regard, the RO should obtain an opinion from a qualified medical professional who fully assesses the nature and etiology of the Veteran's sleep apnea as outlined in the directives below. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas, 23 Vet. App. at 26. Moreover, the Board notes that Dr. J.W.D. indicated in his April 2021 private medical opinion that the Veteran's obstructive sleep apnea may be due to residuals of a deviated septum incurred in service following a training incident. As such, service connection as secondary to a deviated septum has also been raised by the record and this theory of entitlement must be adequately addressed in a medical opinion before the Board can make an informed decision on the Veteran's claim. See Szemraj v. Principi, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004) (when a theory of entitlement is raised by the record, the Board must consider it). As noted above, the Veteran has an additional appeal stream pending that includes a claim for service connection for a deviated septum. The claim is being adjudicated under the new modernized decision review system created by the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). A hearing has been requested in that appeal and has yet to be scheduled. Following the hearing, a separate decision will be issued in the matter. In light of the foregoing, the issue of entitlement to service connection for obstructive sleep apnea is inextricably intertwined with the service connection claim for a deviated septum pending in the additional appeal stream. Thus, the adjudication of this claim must be deferred pending resolution of the pending claim for service connection for a deviated septum. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the matters are REMANDED for the following action: 1. Forward the Veteran's claims file to a qualified VA physician (M.D.) WHO HAS NOT YET PROVIDED AN OPINION IN THIS CASE to provide an addendum medical opinion with regard to the claims for service connection for a lumbar spine disability and obstructive sleep apnea. A full VA examination need not be scheduled unless deemed necessary by the examiner(s) or otherwise required by the evidence. The examiner(s) must review the claims file in its entirety, to include a copy of this REMAND, and that review must be noted in the report. Thereafter, the examiner is asked to provide a fully articulated medical opinion that sufficiently addresses the following: Lumbar Spine Disability (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's lumbar spine disability was incurred in or caused by an in-service injury, event, or illness? (b) IF SERVICE CONNECTION FOR A BILATERAL KNEE DISABILITY IS GRANTED, is it at least as likely as not (50 percent probability or greater) that the Veteran's lumbar spine disability, to include degenerative arthritis, is caused OR aggravated (increased in severity beyond its natural progression) by the Veteran's service-connected bilateral knee disability? In answering the foregoing, the examiner must specifically consider and address the Veteran's service treatment records, which show that he injured his lower back when he fell onto a metal bedframe during service in September 1982. The examiner should also review the September 1982 lumbar spine x-ray report, as well as the favorable nexus opinion provided in an October 2019 VA pain medicine clinic consultation note. Obstructive Sleep Apnea (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea was incurred in or caused by an in-service injury, event, or illness? In answering the foregoing, the examiner must specifically consider and address the Veteran's service treatment records, including the March 1982 record detailing an incident in which the Veteran swallowed water after having his head pushed down in the water by a shipmate. (b) If it is determined that there is another likely etiology for the Veteran's sleep apnea, that should be stated. (c) IF SERVICE CONNECTION FOR A DEVIATED SEPTUM IS GRANTED, is it at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea, is caused OR aggravated by (increased in severity beyond it natural progression) by the Veteran's service-connected deviated septum? In answering the foregoing, the examiner must specifically consider and address the Veteran's service treatment records, including the March 1982 record detailing an incident in which the Veteran swallowed water after having his head pushed down in the water by a shipmate. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is advised that the lack of documented treatment for the claimed disability during service cannot serve as the sole basis for a negative finding. The examiner is advised that the Veteran is competent to report his medical history and must be considered and weighed in making the determination as to whether a nexus exists between the claimed diseases and military service. (Continued on the next page) The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.