Citation Nr: 21076330 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-57 661 DATE: December 23, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for a prostate disorder, to include benign prostatic hypertrophy (BPH), is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1972 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record In a May 2021 decision, the Board remanded the claims for entitlement to service connection for OSA and service connection for a prostate disorder for further development. The case has been returned to the Board for appellate consideration. 1. Entitlement to service connection for OSA is remanded. 2. Entitlement to service connection for a prostate disorder is remanded. Issues 1&2. The Veteran contends that his OSA symptoms began during service and have continued since that time. The Veteran also contends that his prostate disorder symptoms, to include urinary urgency, began during service. See Hearing Transcript (February 2021). Although VA examinations were conducted in August 2021 and medical opinions obtained in August and September 2021, the Board finds that there has not been substantial compliance with the Board's May 2021 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). An August 2021 VA medical opinion concluded that the Veteran's OSA was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the Veteran's service treatment records (STRs) are silent for any complaints related to OSA, and the Veteran was diagnosed with OSA in 2012, which is more than 35 years after the Veteran left service. In asserting that his OSA symptoms had their onset in service, the Veteran testified that fellow servicemembers noticed he snored loudly and threw pillows at him to stifle the sound. See Hearing Transcript at 4 (February 2021). To this end, the examiner referenced an April 1973 STR reflecting that the Veteran had bilaterally enlarged tonsils when he was treated for an upper respiratory infection. The examiner determined that enlarged tonsils could have caused the Veteran to snore as a compensatory mechanism. The examiner concluded that it is more likely that symptoms such as snoring are due to other causes such as enlarged tonsils rather than OSA. The Board finds the August 2021 medical opinion is inadequate. The opinion quickly dismisses the Veteran's theory of entitlement (that he had snoring in service and this represented the onset of OSA in service although later diagnosed) without providing a complete rationale for the conclusion reached. Specifically, while the clinician linked the Veteran's snoring to enlarged tonsils in service, the clinician did not explain or discuss whether enlarged tonsils were an acute or chronic condition, nor explain why this is dispositive of the absence of OSA in service. Indeed, the opinion appears to rely heavily on the absence of documented in-service complaint or findings for OSA and the many years intervening service and the diagnosis of OSA to support the conclusion that in-service snoring could be due to enlarged tonsils. It is noted that an in-service diagnosis is not required to establish service connection. Cosman v. Principi, 3 Vet. App. 503 (1992); see also 38C.F.R. §3.303(d) (service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service). Further, the opinion's linkage of the Veteran's report of snoring to enlarged tonsil is entirely too speculative and without an adequate degree of certainty to adequately support the conclusion reached. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical statement using the term "could," "may," or "possibly," without supporting clinical data or other rationale, is too speculative to provide the degree of certainty required for medical nexus evidence). Although a September 2021 addendum opinion was obtained, the Board finds that it too is inadequate for adjudicative purposes. It stated that: During service, no symptoms or concerns for sleep apnea were documented. Hearing testimony initially says symptoms started in mid 70s but later in hearing not until 2016. Other testimony indicates breathing issues while awake but breathing issues during sleep started in 2016 when sleep study was in 2012, No treatment note shows chronicity of care or chronicity of symptoms remotely associated with OSA. The 5/7/12 note which initiated the sleep study shows no OSA symptoms but complaints of body jerking/twitching. Sleep study was most likely to asses lib movement. Sleep study found incidental mild OSA with AHI of 5. Given evidence, lay statements of chronicity not supported by evidence. A nexus has not been established. The Board notes that the rationale provided does not present an accurate picture of the Veteran's hearing testimony, which as it pertains to OSA indicated in relevant part that (1) he was told by fellow service members in service that he snored, (2) his wife told him in 1978, when they were initially married, that she noticed "I would stop breathing," (3) he was diagnosed with OSA around 2016 through VA and that it took him so long to get assessed because he did not pay a lot of attention to the symptoms until his wife around the 2015/2016 timeframe became concerned as he would "actually stop breathing." To the extent that the clinician believed that that the Veteran's history of symptoms and their onset is less than credible, this was not expressly stated or fully explained. The opinion referenced a May 2012 VA treatment record wherein the Veteran complained of body twitching/involuntary movements which ultimately led to the sleep study that confirmed OSA, the examiner did not acknowledge the Veteran's statement during that visit, reporting he had similar symptoms 40 years ago during service. The Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology, such as, snoring. If there is a medical basis to support or doubt the history provided by the Veteran, the clinician should provide a fully reasoned explanation. Here, the opinion is inadequate as it does not reflect a full and accurate discussion of the Veteran's lay statements. See McKinney v. McDonald, 28 Vet. App. 15, 24-5 (2016). Moreover, the September 2021 addendum opinion does not support the negative conclusion reached with any analysis that the Board may consider and weigh against other evidence of record. See Stefl v. Nicholson, 21Vet. App.102, 124-25. It simply cites to information, such as hearing testimony and lack of chronicity of symptoms, without any explanation as to why this information makes it less likely than not that the Veteran's OSA was first manifested in service. See Nieves-Rodriguez v. Peake, 22Vet. App.295, 301 (2008). Turning to the claim for service connection for a prostate disorder, the Veteran claims his urinary symptoms, specifically urinary urgency, began during service. While the Veteran initially claimed that his prostate disorder was related to his exposure to herbicide agents in Korea, in its May 2021 decision, the Board found that the preponderance of the evidence did not show that the Veteran was exposed to herbicide agents in the Korea DMZ. As such, that theory of entitlement to service connection will not be addressed further. In May 2021, the Board remanded the prostate claim for a medical opinion addressing whether the Veteran's BPH at least as likely as not (1) had its onset in service, or (2) is otherwise related to an in-service injury, event, or disease. The clinician was asked to consider whether in-service symptoms described by the Veteran, such as urinary symptoms, at least as likely as not represent the onset of BPH. An August 2021 Male Reproductive Organ Conditions Disability Benefits Questionnaire reflects a diagnosis of BPH and, by history, symptoms of urinary urgency and hesitation in 2008, diagnosed as BPH in 2012. The associated August 2021 medical opinion concluded that the Veteran's BPH was less likely than not incurred in or caused by the claimed in-service injury, event, of illness. The opinion's rationale was that: Vet had NO complaints, DX, RX for urinary symptoms to include e benign prostatic hypertrophy (BPH) at such a young age while he served doe a short period in 7/1972 and 9/1973. Was DX with BPH in 2012, which is more than 35 years when Vet left service. A NEXUS ahs not been established. The Board finds the opinion inadequate as it does not provide a reasoned rationale explaining why the lack of documented complaints/findings in the STRs and the absence of a BPH diagnosis until decades later, supports the negative conclusion. Nieves-Rodriguez, 22 Vet. App. 295, 301 (2008). Again, an in-service diagnosis is not required to establish service connection. Cosman,3 Vet. App. 503 (1992); see also 38C.F.R. §3.303(d). Although a September 2021 addendum opinion was obtained, the Board finds that it too is inadequate for adjudicative purposes. It provided as rationale for the negative conclusion the following: On AD there were no suspicions, concerns or complaints of BPH. Hearing testimony and lay statements noted however no prostate related issues are documented until 12/30/11 despite opportunity to do so at prior visits. In 2011, symptoms are described as present for 1.5 months not 30 yrs. No evidence shows a nexus to AD. This addendum is inadequate because it again relies on the lack of documented complaints/treatment in service without explaining why that would be medically incongruous with the Veteran having had BPH at that time. Also, the opinion appears to reject the lay evidence (testimony/statements) because of the lack of documentation of prostate issues until 2011 coupled with history of symptoms present for just over a month (not 30 years) when first medically evaluated for prostate problems. However, the opinion does not reflect consideration of the Veteran's testimony that, in his early 20's, he sought treatment for problems urinating, including painful urination. See Hearing Transcript at 16-17 (February 2021). An adequate medical opinion must be "accurate and fully descriptive," 38 C.F.R. § 4.1, and based on an accurate factual premise and consideration of a veteran's prior medical history, Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In addition, an adequate medical examination report or opinion must "sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Monzingo, 26 Vet. App. at 106. Here, the opinions offer no discussion of the nature of BPH and why the Veteran's history and clinical picture reflect that his BPH, diagnosed long after service, less likely than began in service or is related to in-service injury or disease, to include his reports of painful urination in his early 20's Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, as the Board has a duty to ensure compliance with the terms of its remand, remand is again required to obtain adequate medical opinions. Stegall, 11 Vet. App. 268. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician to address the nature and etiology of the Veteran's OSA. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with the diagnosed OSA. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion 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). The clinician should provide an opinion, with supporting rationale, as to: Whether the Veteran's OSA at least as likely as not (1) had its onset in service, or (2) is otherwise related to an in-service injury, event, or disease. Consider whether in-service symptoms described by the Veteran, such as snoring, at least as likely as not represent the onset of OSA in service and indicate whether such symptoms are more likely than not due to other causes. Explain. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): If any medical history is rejected, a complete explanation is required. 2. Obtain an addendum opinion from an appropriate clinician to address the nature and etiology of the Veteran's prostate disorder, to include BPH. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with the later diagnosed BPH. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion 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). The clinician should provide an opinion, with supporting rationale, as to: Whether the Veteran's BPH at least as likely as not (1) had its onset in service, or (2) is otherwise related to an in-service injury, event, or disease. Consider whether in-service symptoms described by the Veteran, such as painful urination, at least as likely as not represent the onset of BPH in service and indicate whether such symptoms are more likely than not due to other causes. Explain. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): If any medical history is rejected, a complete explanation is required. 3. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinion 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 S. Krunic, 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.