Citation Nr: 21008682 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 18-53 646 DATE: February 17, 2021 ORDER Entitlement to service connection for lumbar spine degenerative disc disease (claimed as lower back condition) is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The Veteran’s lumbar spine degenerative disc disease (claimed as lower back condition) is related to in-service trauma. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for lumbar spine degenerative disc disease, also claimed as a lower ack condition, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2000 to July 2004. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107 (a)(2) and 38 C.F.R. § 20.902(c). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004; 38 C.F.R. § 3.303. For some disabilities, VA may presume a nexus between an in-service incurrence or event and a current disability provided there is a showing of continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309(a). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154 (a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. Laypeople are competent to report symptoms and experiences observable by their senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for lumbar spine degenerative disc disease (claimed as lower back condition) is granted. The Veteran asserts that his back disability began during active duty service and has persisted since then. Specifically, the Veteran states that he injured his back in service in 2001 in survival training by being tackled from behind by someone that beat him for “training” purposes as a prisoner of war in S.E.R.E. training which the Veteran states is documented in his service record. The Veteran asserts that he then changed duty stations, but repeatedly went to sick call and told the doctors about his back pain and was prescribed pain medicine. See Form 9 Received November 2018. The Board’s interpretation of the Veteran’s statements is that the Veteran has consistently experienced back pain and ongoing related symptoms since the initial in-service injury which the Veteran repeatedly complained about while in service and since leaving service. The Veteran’s service treatment records include a medical record dated November 2001 that documents the Veteran’s in-service back injury. The record states that the Veteran complains of back pain mostly on the left side. It is also noted that the Veteran just left SERE school last Friday and was confined to a very small space being hunched over for nearly a day. Additionally, it is stated that the Veteran reported he left SERE complaining of his back hurting (mild). It is also noted that since being back, command wanted the Veteran to do a physical fitness test right away. It is noted that the Veteran experienced mild pain just sitting. It is also noted that the pain increases from sitting and sleeping hurts the most. Further it was noted that the Veteran could not get comfortable no matter where or how he rolled over. It was noted that the Veteran denied shooting pains to the neck/lower back or legs, numbness/tingling sensation to extremities. It was noted that the Veteran had abnormal curvatures of the spine and back strain. The Veteran was prescribed medication. See Medical Treatment Record Government Facility Received April 2014. Another treatment record dated July 2002 from the U. S. Naval Hospital in Rota, Spain, states that the Veteran was assigned light duty for 14 days and was prohibited from performing running exercises. Id. The Veteran denied recurrent back pain or any back problem on his separation Report of Medical History in June 2004; and the corresponding separation Report of Medical Assessment noted no current issues. The Veteran’s military personnel records note that he completed Marine Combat training, Survival Evasion Resistance Training (SERE), as well as other training courses during his time in the military. See DPRIS Response Received in May 2014. The Veteran’s post-service treatment records include several complaints of ongoing back issues. An October 2013 treatment record states that the imaging views demonstrates minimal convexity at mid and lower lumbar spine to the left. It was also noted that there are minimal degenerative changes at the facet joints at L3/4 through L5/S1 levels bilaterally. Furthermore, the impression showed minimal degenerative changes at the facet joints at the lower part of the lumbar spine are demonstrated. A December 2013 record states that the Veteran presents to Physical Therapy with chronic low back pain due to lumbar hyperlordosis and poor posture. See CAPRI treatment records Received May 2018. Another treatment record dated December 2013 states that the Veteran had low back pain radiating across the waist up b/l thoracic paraspinals requiring him to pop his mid thoracic and lumbar spine nearly 10-15 times daily. See CAPRI treatment records Received April 2014. An October 2013 treatment record states that the Veteran experienced many falls in the military including chronic mid-low back pain. A December 2013 treatment record states that the veteran has a history of back pain since approximately 2003 when he was in the service. It is noted that the Veteran reported carrying heavy backpacks and gear, lifting and carrying running with heavy gear, sitting in vehicles on bumpy roads and had no prior physical therapy for back pain. A January 2014 treatment record states that the Veteran has a provisional diagnosis of a backache. Treatment records dated June 2017, August 2017, October 2017, November 2017, May 2018, June 2018, August 2018, indicate that the Veteran had chronic back pain. See CAPRI treatment records Received September 2018. The Veteran was afforded an examination to evaluate his back disability in May 2018. The Veteran was diagnosed with degenerative arthritis of the spine. The examiner opined that it is less likely than not that the Veteran’s back issues were incurred in or caused by an in-service, injury, event, or illness. It was noted that the examiner could not find any service records linking his complaints to service. The examiner noted that on the May 2000 enlistment examination it does not note back problems. Additionally, the examiner noted that all of the Veteran’s complaints were mentioned after service and therefore the Veteran’s arthritis is less likely than not incurred in or caused by the treatment during service. As to nexus, the Board finds that the Veteran is competent to report experiencing an in-service injury and resultant symptoms. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson, 581 F.3d 1313. Additionally, the Board has considered presumptive service connection under 38 C.F.R. § 3.309 (a) for the Veteran’s back condition, including based on a continuity of symptomatology under 38 C.F.R. § 3.303 (b). The Veteran has consistently reported that he experienced back pain and related back issues as a result of an injury incurred in 2001 in SERE training during active service. The Board finds persuasive the Veteran’s consistently detailed report of the onset of his back injury and also finds that the nature of this injury is one that is highly likely to continue to persist and effect the Veteran even after its onset. The Board interprets the Veteran’s lay assertions broadly and finds that the statements imply that the Veteran has continued to suffer back pain and related back issues since the documented in-service back injury. Moreover, as stated above, the Veteran’s service treatment records document the injury and trauma it caused to the Veteran’s back. Accordingly, the Board finds the Veteran’s account of experiencing in-service back trauma and symptomatology to be credible and consistent with the injury as documented in the October 2008 medical record. 38 U.S.C. § 1154 (a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Additionally, the Board finds the Veteran to be credible in his report of having symptomatology since service. Thus, there is competent and credible lay evidence of record that the Veteran’s back disability occurred following trauma during duty training and has continued to progress since that time. The Board acknowledges there is a negative etiological opinion of record in the form of the May 2018 VA opinion. However, the Board affords this opinion no probative value because the examiner made his decision on the basis that there was no documentation regarding the Veteran’s back injury. However, the Veteran’s service medical records received in April 2014 document that the Veteran injured his back during duty SERE training. As a result, the May 2018 VA medical opinion forms an inadequate foundation upon which to base a denial of entitlement to service connection for a back disability. Reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for a back disability, is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). REASONS FOR REMAND Entitlement to service connection for sleep apnea is remanded. The Veteran asserts that his sleep apnea disability is related to service. The Veteran asserts that during service he had problems waking up in the middle of the night and was only prescribed medicine for insomnia. The Veteran noted that his claim was processed for sleep apnea as secondary to PTSD, but there was no opinion on service connection. The Veteran stated that as marines they were told not to say exactly what was wrong when they were injured. Additionally, the Veteran stated that he was hospitalized while in Rota, Spain, but this was not part of his medical record. See Form 9 Received November 2018. Additionally, the Veteran stated that he began having problems with sleep apnea in the Spring of 2001 and would fall asleep in the barracks during the weekend and during lunch and was told that he snored loudly and told that he would stop breathing in his sleep. The Veteran stated that he began going to the doctor regarding sleep apnea when he arrived at his duty station in Rota, Spain, and complained to his doctor about his sleep issues. The Veteran informed the doctor that he had a loud snore and would frequently feel tired and wakeup with a dry mouth and headache. The Veteran noted that he began going to the doctor for sleep apnea a little after service and was properly diagnosed with sleep apnea and given a CPAP. See Statement in Support of Claim Received September 2020. The Veteran’s service treatment records indicate that he experienced sleep issues in service. An October 2002 treatment record from Rota, Spain, stated that the Veteran complained of problems falling asleep since starting a medication for dental work that was done in service. This treatment note also states that the Veteran has insomnia and he was advised not to exercise prior to dinner especially if he could not sleep and to go to bed later if he was not tired. The Board received a statement from the Veteran’s roommate MN stating that while stationed with the Veteran’s Marine Corp group in Rota, Spain, he witnessed the Veteran snoring and having problems breathing in his sleep. MN noted that he and the Veteran were roommates in 2004. A November 2017 treatment record notes that the Veteran has moderate obstructive sleep apnea. The Veteran was afforded a VA examination in May 2018. The Veteran was diagnosed with sleep apnea. The examiner opined that the Veteran’s sleep apnea is less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. Additionally, the examiner stated that he could not find any service records linking sleep complaints to service. The examiner stated that the Veteran’s enlistment examination from May 2000 did not note any sleep issues and also stated that all complaints of sleep issues were mentioned after service and therefore the Veteran’s obstructive sleep apnea is less likely than not incurred in or caused by the treatment during service. The Veteran was afforded another examination in June 2020. The examiner opined that the Veteran’s sleep apnea disability was less likely than not due to or the result of the Veteran’s service-connected PTSD condition. As rationale, the examiner stated that obstructive sleep apnea is a physical obstruction in the airway that occurs when breathing is either stopped or reduced during sleep because of a narrowing or blockage of the upper airway. The examiner further noted that medical literature does not support that PTSD causes sleep apnea because PTSD does not cause a physical obstruction in the airway and therefore a medical nexus could not be established. There was no opinion provided by the June 2020 examiner regarding direct service connection. The Board finds that there is no adequate medical opinion of record to assess whether service connection for a sleep disability is warranted on a direct basis. The Board finds that the May 2018 examiner did not give due consideration to the Veteran’s account of the onset of sleep apnea in service and continuity thereafter, or to his credible and corroborated report of sleep issues in service. Instead, the May 2018 examiner based the opinion on an absence of sleep apnea in service and an absence of sleep apnea documented on the Veteran’s enlistment examination. The May 2018 examiner stated that there was no report of sleep issues in service; however, this is factually inaccurate as the Veteran’s in-service treatment records documented sleep issues including insomnia. Thus, the May 2018 examiner’s opinion is based on inaccurate factual information that was used to support a finding that the Veteran did not have sleep apnea or other sleep related issues that stemmed from active service. An adequate medical opinion must be based upon a consideration of the Veteran’s prior medical history and must describe the Veteran’s condition in sufficient detail so as to allow the Board to make a fully informed evaluation. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In short, an adequate medical opinion should contain sufficient information such that the Board is not required to rely on its own independent medical judgment. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A medical opinion based on an inaccurate factual premise must be dismissed as non-probative. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). Moreover, the Board finds that the May 2018 examiner based the opinion on the absence of evidence. A medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). For an opinion to be adequate, it must include consideration of the Veteran’s statements, be based on accurate factual premises, and contain a rationale sufficient to support its conclusions. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. Furthermore, it does not appear that the examiner broadly considered the Veteran’s claim to include any and all types of sleep issues that the Veteran experienced in service. Even if the Veteran did not experience sleep apnea in service, the evidence suggests that he experienced issues related to sleep difficulty and insomnia which may be related to a current sleep disorder. The Veteran has a present sleep disability that is potentially related to service in addition to in-service documentation related to a sleep disability. The requirements to secure a VA examination are a low bar, and this evidence triggers VA’s duty to assist. VA is required to provide examination when there is insufficient medical evidence to decide the claim, but the record otherwise contains competent evidence of a current disability or recurrent symptoms, evidence of an in-service event, and evidence of an indication of a nexus. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); 38 C.F.R. § 3.159(c)(4)(i). As such, the McClendon requirements are satisfied, and a VA medical opinion is required. See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The matters are REMANDED for the following action: 1. Obtain updated VA and private treatment records. 2. An addendum medical opinion should be provided with regard to the sleep disability claim, or provide the Veteran with a new examination if necessary. Prior to reaching an opinion, the examiner should review this remand decision and the case file in its entirety. The examiner should: a. Identify any and all sleep disorders (by medical diagnosis) that the Veteran has had during the period on appeal. b. For each identified sleep disorder, identify the likely etiology for each sleep disorder. Specifically, is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s sleep disorder had its onset in service? Is the sleep disorder at least as likely as not related to an in-service injury, event, or disease? The examiner must consider and address (1) the Veteran’s contentions regarding the onset of his sleep issues in service, including that he had a loud snore and was told that he would stop breathing in his sleep (see VA Form 21-4138, received September 2020); (2) the October 2002 in-service treatment records that documented sleep issues including difficulty falling asleep and insomnia when the Veteran was on active duty in Rota, Spain; and (3) the lay statements provided by the Veteran’s roommate MN who stated that he witnessed the Veteran snoring and having problems breathing in his sleep during active duty service. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for a sleep disability, alone, is insufficient rationale for a medical nexus opinion. In providing this opinion, the examiner is reminded that the Veteran is competent to report continuous symptoms since service, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports regarding current or past symptoms, the examiner must provide a reason for doing so. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner 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). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dorsey-Kwansa, 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.