Citation Nr: 21009086 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 18-25 109 DATE: February 18, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of service connection for residuals of wisdom teeth extraction (claimed as mouth pain) is granted. New and material evidence having been received, the application to reopen the previously denied claim of service connection for a back disability is granted. New and material evidence having been received, the application to reopen the previously denied claim of service connection for headaches is granted. Service connection for sinusitis is granted. Service connection for tinnitus is granted. Service connection for bilateral hearing loss is denied. Service connection for chronic obstructive pulmonary disease (COPD) is denied. REMANDED Service connection for a back disability is remanded. Service connection for headaches is remanded. Service connection for residuals of wisdom tooth extraction (claimed as mouth pain) is remanded. Service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. A March 2012 rating decision denied service connection for residuals of wisdom teeth extraction, a back disability and headaches. The Veteran was notified of the decision but did not appeal or submit new and material evidence within the applicable one-year appeal period. 2. Evidence submitted since the March 2012 rating decision was not previously of record and relates to unestablished facts necessary to substantiate the claims of service connection for residuals of wisdom teeth extraction, a back disability and headaches. 3. The Veteran's sinusitis cannot be satisfactorily disassociated from his service-connected allergic rhinitis. 4. Resolving all reasonable doubt in the Veteran’s favor, his tinnitus cannot be satisfactorily disassociated from his in-service noise exposure. 5. The preponderance of the evidence of record is against finding that the Veteran has had a hearing loss disability as defined by 38 C.F.R. § 3.385 at any time during or approximate to the pendency of the claim. 6. The Veteran does not have COPD. CONCLUSIONS OF LAW 1. The March 2012 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.20, 19.52, 20.1103. 2. As new and material evidence has been received, the previously denied claims for service connection for residuals of wisdom teeth extraction, a back disability and headaches are reopened. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156. 3. Resolving all reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for sinusitis have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303. 4. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 6. The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from June 2004 to June 2008. The Veteran also had Reserve service from June 2008 to July 2011. This appeal comes before the Board of Veterans’ Appeals (Board) from December 2015 and October 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In the December 2015 rating decision, the RO denied reopening the claims for service connection for residuals of wisdom teeth extraction, headaches and a back disability; and, denied service connection for tinnitus, and bilateral hearing loss. The Veteran’s notice of disagreement (NOD) was received in January 2016. The RO issued a statement of the case (SOC) in March 2018, and the Veteran’s VA Form 9, substantive appeal was received in May 2018. In the October 2018 rating decision, the RO denied service connection for obstructive sleep apnea, sinusitis and COPD. The Veteran’s notice of disagreement (NOD) was received in December 2018. The RO issued a statement of the case (SOC) in October 2019, and the Veteran’s VA Form 9, substantive appeal was received in October 2019. In November 2020, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. 1. Whether new and material evidence has been received sufficient to reopen the claim of service connection for residuals of wisdom teeth extraction (claimed as mouth pain). 2. Whether new and material evidence has been received sufficient to reopen the claim of service connection for a back disability. 3. Whether new and material evidence has been received sufficient to reopen the claim of service connection for headaches. In October 2011, the Veteran filed his original claim for service connection for residuals of wisdom teeth extraction, a back disability and headaches. The claims were denied in a March 2012 rating decision. The basis of the denial for the claim for service connection for residuals of wisdom teeth extraction was that the Veteran was not found to have a currently diagnosed disability and was not found to have experienced an event, injury or disease in service. The basis of the denial for the claims for service connection for a back disability and headaches was that no nexus was found between the Veteran’s current back and headache disabilities and his service. The Veteran was notified of the rating decision and his appellate rights in March 2012. The Veteran did not appeal the decision and did not submit new and material evidence within the one-year appeal period, and the March 2012 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.20, 19.52, 20.1103. In October 2015, the Veteran filed a claim for service connection for residuals of wisdom teeth extraction, a back disability and headaches. In December 2015, the RO issued one of the rating decisions on appeal, which denied reopening the claims for service connection for residuals of wisdom teeth extraction, a back disability and headaches. After a decision becomes final, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable probability of substantiating the claim. 38 C.F.R. § 3.156(a). Newly submitted evidence is generally presumed to be credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. Significantly, any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156(c); see also Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017) (accepting VA’s interpretation of the relevancy requirement of 38 C.F.R. § 3.156(c)). In this case, the March 2012 final rating decision indicates that the Veteran’s service treatment records (STRs) for his period of active duty were reviewed at the time of the decision and there is no indication that any outstanding relevant service department records exist or were associated with the claims file after the final decisions. Thus, 38 C.F.R. § 3.156(c) is not applicable and new and material evidence is required to reopen the claims. The evidence of record at the time of the March 2012 rating decision includes the Veteran’s STRs, VA treatment records from June 2008 to January 2011, March 2012 VA examinations and opinions concerning the nature and the etiology of the Veteran’s back and headache disabilities, a receipt showing chiropractor visits in 2011, the Veteran’s October 2011 lay statement, the Veteran’s spouse’s October 2011 lay statement and an October 2011 buddy statement. The evidence of record after March 2012 includes the Veteran’s July 2016 NOD and May 2018 VA Form 9, a May 2018 lay statement, and the Veteran’s November 2020 Board hearing testimony. These records indicate that the Veteran reports having a minor back disability prior to service which was aggravated by in-service back injuries. The Veteran also stated that he believes his headaches are linked to the concussion he suffered during service and that he has continued to experience headache since the concussion during service. The Veteran reported experiencing mouth pain in the bottom of his mouth since his bottom wisdom teeth were removed during service. STRs confirm that the Veteran’s bottom wisdom teeth were removed during service. The Veteran’s hearing testimony was not in existence at the time of the March 2012 rating decision and it relates to current disability and nexus, both unestablished facts necessary to substantiate the claims. Additionally, the credibility of this evidence is presumed for purposes of whether it is deemed to be new and material. Thus, the evidence received following the March 2012 rating decision is new and material. Overall, this evidence is not redundant or duplicative, and raises a reasonable possibility of substantiating the claims. Therefore, reopening of the claims for service connection for residuals of wisdom teeth extraction, a back disability and headaches is warranted. Service Connection 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(a). “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. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal “presumption” by showing that the disease manifested to a degree of at least 10 percent within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. 4. Entitlement to service connection for sinusitis, to include as secondary to service-connected allergic rhinitis. The Veteran contends that he has a current diagnosis of sinusitis that had its onset during service and has continued since that time. Notably, the Veteran’s allergic rhinitis is service connected. See October 2019 rating decision. The Veteran underwent a VA examination in September 2019. The examiner noted a diagnosis of allergic rhinitis in July 2005. The examiner further noted that the Veteran reported that he has constant sinus infections in all seasons and that the symptoms began in 2006. The examiner noted that the Veteran had repeated sinus infections and upper respiratory infections and was constantly treated with ibuprofen and decongestant. STRs confirm that the Veteran was treated for upper respiratory infections and allergies on several occasions during service. The examiner also noted that the Veteran was currently treated with Z-pak antibiotics when he experiences symptoms. Nevertheless, the examiner found that the Veteran did not have a diagnosis of sinusitis with films to confirm such a diagnosis. In a separate opinion regarding the etiology of the Veteran’s sleep apnea, the examiner stated that there is no documentation of chronic sinusitis utilizing treatment with antibiotics of films to substantiate a diagnosis of sinusitis. See September 2019 VA medical opinion. This is in direct contradiction to both the September 2019 VA examination and the November 2020 Board hearing testimony where the Veteran reported being prescribed a Z-pak (antibiotics) at least four times per year, and sometimes more. As such, the opinion is based on an inaccurate and incomplete factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (finding that a medical opinion based upon an inaccurate factual premise has no probative value). Therefore, the opinion has limited probative value with respect to the finding that the Veteran does not have a diagnosis of sinusitis. Nevertheless, the examiner’s reasoning for this finding, when combined with the fact that the Veteran takes antibiotics for his respiratory symptoms, indicates that the Veteran, at least as likely as not, has chronic sinus symptoms. The etiology opinion linking the Veteran’s current rhinitis with service was based on his documented treatment for respiratory infections and allergies during service and his continued treatment since then. The Veteran has reported that the same sinus symptoms he was treated for during service have persisted to the present. Thus, with resolution of all doubt in favor of the Veteran, the Board finds that the Veteran's sinus symptoms cannot be satisfactorily disassociated from his allergic rhinitis. As such, service connection for sinusitis is warranted. 5. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus is a result of noise exposure during service. Specifically, the Veteran reported being exposed to loud noises during his duties as a member of the military police during active service. He described flashbangs and weekly trips to the automatic weapons range. He stated that he did have foam ear protection but during some training environments he was without hearing protection and would be exposed to loud noises such as a flashbang going off right next to his head. He added that he has been experiencing hearing loss and ringing in the ears as a result of his exposure in service. See November 2020 Hearing Transcript at 8. During the December 2015 VA examination, the Veteran also reported noise exposure from aircraft and radar/radio. He stated that he wore hearing protection on the range, but not while he was serving on the special reaction team. The Veteran denied significant occupational noise exposure except for gunfire during annual weapons qualification and during hunting for both of which he used hearing protection. The Veteran’s STRs do not contain complaints or treatments for tinnitus. His entrance and discharge examinations indicate that his hearing was normal in his right ear. However, the Veteran’s separation examination documented low-frequency hearing loss at 500-1000 Hz in his left ear. In December 2015, the Veteran underwent a VA examination for his claim. He was diagnosed with tinnitus but did not have a hearing loss disability for VA purposes. The Veteran reported bilateral ringing in both ears which began in about 2008 or 2009. The VA examiner stated that the Veteran’s tinnitus is less likely than not a result of noise-related damage sustained during active service, as the evidence does not indicate that any such damage actually occurred. The examiner explained that examinations from the time of the Veteran's enlistment to and separation from service document no significant, permanent changes in hearing sensitivity consistent with overexposure to hazardous noise during active service. The examiner stated that a shift in low-frequency hearing is not consistent with the type of hearing loss typically caused by hazardous noise exposure. The examiner further stated that to render an opinion regarding tinnitus being related to any other cause would be outside the scope of this examiner's expertise. In September 2018, the Veteran underwent a private audio examination. The audiologist stated that the Veteran’s tinnitus was more likely than not related to service but provided no rationale for the opinion. A conclusory medical opinion that is unaccompanied by rationale is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Tinnitus, or ringing in the ears, is capable of lay observation, and the Veteran has offered competent, credible statements that he experiences tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). In his November 2020 Board testimony, the Veteran reported that he had tinnitus. Thus, the Veteran has met the current disability requirement. Additionally, and as noted above, the Veteran reported that he was subjected to noise exposure during his active service. The Veteran’s DD Form 214 reflects that his military occupational specialty (MOS) was military police and special reaction team. Thus, the nature of his active service is consistent with the testimony regarding the noise exposure he experienced in service. His statements have been found competent, credible, and consistent with the circumstances of his service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Therefore, the Veteran has met the in-service injury or event requirement. Hence, the dispositive issue is whether tinnitus is related to the in-service noise exposure. The Veteran has consistently reported that his tinnitus started during service or shortly thereafter. See, e.g. November 2020 Board hearing transcript at 8. The Board notes that, while the Veteran reported onset of his tinnitus in 2008 or 2009 during the December 2015 VA examination, tinnitus is an enumerated chronic disease and thus may still be service connected if shown to manifest to a degree of at least 10 percent within one year after separation from service. 38 C.F.R. §§ 3.307, 3.309. The December 2015 examiner’s negative nexus opinion is based on the premise that the Veteran experienced no noise-related damage during active service. This premise is in turn based on the absence of documented high frequency hearing loss during or since service. The Board affords the December 2015 VA examination report and opinion low probative value. The examiner does not address the possibility that the Veteran’s tinnitus is related to the documented head injury the Veteran suffered during service and does not address any of the Veteran’s credible reports of experiencing symptoms of tinnitus during, and/or shortly after discharge from, service nor his reports that he has continued experiencing symptoms since service. The examiner also does not provide an alternate etiology of the Veteran’s tinnitus. The Board acknowledges that at the time of the December 2015 VA examination, multiple lay statements from the Veteran and the November 2020 Board hearing testimony, indicating continued complaints of tinnitus since service and providing more details regarding the Veteran’s noise exposure were not of record. While the examiner noted that the Veteran had some recreational and occupational noise exposure with hearing protection post-service, there is no indication that any post-service exposure to noise caused his tinnitus more than his exposure to acoustic trauma during service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current bilateral tinnitus is related to service. Accordingly, after resolving all doubt in favor of the Veteran, service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 6. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he has a bilateral hearing loss disability that is related to service. During the November 2020 Board hearing, and as noted previously, he reported being exposed to loud noises during his duties as a member of the military police during active service. He described flashbangs and weekly trips to the automatic weapons range. He stated that he did have foam ear protection but during some training environments he was without hearing protection and would be exposed to loud noises such as a flashbang going off right next to his head. He added that he has been experiencing hearing loss and ringing in the ears as a result of his exposure in service. See November 2020 Hearing Transcript at 8. The question for the Board is whether the Veteran currently experiences a bilateral hearing loss disability that was incurred in or is otherwise related to service. The Board concludes that the Veteran does not have a bilateral hearing loss disability for VA purposes under the existing regulation. Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As previously noted, the Veteran’s entrance and discharge examinations indicate that his hearing was normal in his right ear. However, the Veteran’s separation examination documented low-frequency hearing loss at 500-1000 Hz in his left ear. In December 2015, the Veteran received a VA examination for his claimed bilateral hearing loss. During the December 2015 VA examination, the Veteran tested at an average puretone threshold of 21 Hertz for the right ear and 21 Hertz for the left ear across the 500, 1000, 2000, 3000, and 4000 Hertz frequencies. The puretone thresholds recorded during the VA examination are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 25 20 20 LEFT 25 20 25 20 20 Furthermore, speech discrimination scores were 98 percent in the right ear and 96 percent in the left ear. Based on the audiometric test results, the VA examiner opined that the Veteran had no hearing loss for VA purposes in the frequency range of 500 to 4000 Hz. In September 2018, the Veteran underwent a private audio examination. The puretone thresholds recorded during the examination are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 25 30 LEFT 20 25 20 20 30 Speech discrimination scores were 100 percent in both ears but the report does not indicate which speech discrimination test was used and thus the scores are not valid for VA purposes. The private audiologist stated that the Veteran’s bilateral hearing loss was more likely than not related to service but provided no rationale for the opinion. A conclusory medical opinion that is unaccompanied by rationale is inadequate. See Nieves-Rodriguez, 22 Vet. App. at 295; Stefl, 21 Vet. App. at 124. There is no indication that the audiometric testing from either the December 2015 VA examination or the September 2018 private audiogram is inaccurate, and there is no audiometric evidence to the contrary. Accordingly, they are afforded significant probative value as to the non-existence of a current hearing loss disability for VA purposes under the regulation. Moreover, the Veteran has not contended, and the evidence does not show, that his hearing acuity has worsened since the December 2015 VA examination or the September 2018 private audiology evaluation to a degree that would meet the criteria for a hearing loss disability pursuant to 38 C.F.R. § 3.385. The evidence supporting the existence of a bilateral hearing loss disability consists of the lay statements from the Veteran. Specifically, the Veteran contends that he has hearing loss due to active service. Although lay testimony is competent as to observable symptoms and some medical matters, the criteria for establishing a current hearing loss disability are specifically enumerated in 38 C.F.R. § 3.385 which requires minimum audiometric and speech recognition scores to meet those criteria. Cf. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran’s statements, therefore, cannot establish a current hearing loss disability for purposes of VA compensation benefits. While STRs from the Veteran’s reserve service are not of record, the medical evidence currently of record is sufficient to decide the claim. Even if such STRs showed hearing loss for VA purposes at that time, they would be insufficient to establish a current diagnosis of bilateral hearing loss for VA purposes as the Veteran’s reserve service ended in July 2011 and his claim for service connection for bilateral hearing loss was not received until October 2015. Notably, while the Veteran has some degree of hearing loss as evidenced by the above audiograms showing puretone thresholds above 20 decibels in several frequencies, his hearing loss does not reach a level of severity that is considered a hearing loss disability, for purposes of establishing service connection under 38 C.F.R. § 3.385. As explained above, a current hearing loss disability for VA purposes is defined in 38 C.F.R. § 3.385, and the Veteran’s audiometric findings do not meet that criteria because (i) the Veteran’s speech discrimination scores using the CNC word list are not less than 94 percent in either ear; and, (ii) because the Veteran does not have at least one puretone threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz that is 40 decibels (dB) or greater; and/or (iii) because the Veteran does not have puretone auditory thresholds of 26 decibels or higher in at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz. Based on the foregoing, the Veteran does not have a current bilateral hearing loss disability for VA purposes and therefore service connection for hearing loss must be denied. As the preponderance of the evidence is against an essential element of the claim, the benefit of the doubt doctrine is inapplicable. See Gilbert, 1 Vet. App. at 49; see also Ortiz, 274 F.3d at 1364. Accordingly, service connection for a bilateral hearing loss disability is not warranted. 7. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). The Veteran seeks service connection for COPD, but the preponderance of the most probative evidence of record shows that he does not have COPD. Notably, a September 2019 VA examination report indicates that the Veteran denied having COPD or any other respiratory disorder other than allergic rhinitis/sinusitis and upper respiratory tract infections. The examiner found that based on the Veteran’s history and available records, the Veteran has no diagnosis of COPD. When the Veteran was asked at his hearing whether he had COPD, he acknowledged that, “There is a diagnosis in the record.” See November 2020 Hearing Transcript, p. 13. However, the diagnosis of COPD in the record to which the Veteran refers, is an erroneous finding. In this regard, the Veteran submitted a series of private DBQs in October 2018 that were filled out by D.T., a nurse practitioner in September 2018. Attached to one of the DBQ’s was a February 2016 sleep study from St. Joseph’s Memorial at Marion Sleep Center indicating a diagnosis of sleep apnea. One of the DBQs received in October 2018 is for respiratory conditions (other than tuberculosis and sleep apnea). On it, D.T. checked a box indicating a diagnosis of COPD. D.T. listed the corresponding ICD (International Classification of Diseases) code of 647.33 and a February 17, 2016 date of diagnosis. However, on the second page of that same DBQ, D.T. specifically notes that the medical records reviewed in preparation of that report only include the sleep study; and, in Section 3A, the history of the Veteran’s respiratory condition was described as, “patient has chronic obstructive sleep apnea requiring CPAP.” Furthermore, the DBQ reflects that the Veteran does not use oral bronchodilators, and no pulmonary function testing has been performed. D.T. also indicated that the Veteran did not have multiple respiratory conditions, and once again referred to the sleep study of February 17, 2016 that confirmed a diagnosis of sleep apnea. So even though D.T. checked the box on page 1 corresponding to COPD, it was fully clarified on the subsequent pages that she was referring to chronic obstructive sleep apnea based on a February 2016 sleep study. Moreover, on the last page of the DBQ, only sleep study, sleep apnea, and CPAP are mentioned; the DBQ reflects that the Veteran does not receive any type of treatment for COPD; and, there are no pulmonary function tests to support a diagnosis of COPD. Also, as noted above, that DBQ form specifically indicates that it is to be used for respiratory conditions “other than tuberculosis and sleep apnea,” which explains why there was no option to check a diagnosis box that corresponded to sleep apnea.” Also, when the respiratory DBQ is compared to a sleep apnea DBQ received on the same day, it is even more clear that D.T. checked the box corresponding to COPD on the respiratory DBQ because it was the closest diagnosis to obstructive sleep apnea, and not because the Veteran actually has COPD. The other DBQ received on the same day, that is specific to sleep apnea only, and which is also filled out by D.T., indicates that the Veteran has a diagnosis of obstructive sleep apnea. D.T. listed the corresponding ICD code of 647.33 and February 17, 2016 as the date of diagnosis. The DBQ further indicates that the Veteran has long standing sleep apnea based on a February 2016 sleep study at St. Joseph’s Sleep Disorder Center. Most notably, the ICD code of 647.33 and the date of diagnosis listed on the sleep apnea DBQ are identical to those listed on the respiratory DBQ; however, COPD and obstructive sleep apnea are different disabilities, and therefore have different ICD codes. As the ICD code 647.33 corresponds to sleep apnea, it cannot also correspond to COPD. Moreover, the February 2016 date of diagnosis corresponds to the date of the February 2016 sleep study confirming a diagnosis of sleep apnea, not COPD. In light of the foregoing, the respiratory DBQ does not provide any basis to support a diagnosis of COPD, and, there is no other medical evidence of record that supports such a diagnosis. Rather, the September 2019 VA examination report reflects that the Veteran denied having COPD, and the examiner agreed. Absent the current disability element, there can be no valid service connection claim. As the preponderance of the evidence is against a finding that the Veteran has COPD, the criteria for service connection have not been met and the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a back disability. The Veteran contends that his back disability is related to service. STRs reflect that the Veteran’s entrance examination was negative for any abnormalities of the back or reports of back pain. On separation, the Veteran reported having had or currently having recurrent back pain or any back problems. He explained that he was diagnosed with genetic narrowing of the back at age 16 and has had recurrent back pain on and off since. The examiner stated that the Veteran had an uncertain diagnosis of narrowing of the spine which started at age 16. The examiner noted that the pain is intermittent and last treatment was three months ago by a chiropractor. The examiner stated that the Veteran had no current back pain, although a diagnosis of lumbago was listed under the summary of defects and diagnoses. The Veteran submitted an October 2011 buddy statement from a servicemember who served with the Veteran. The servicemember states that, while on a physical training exercise with the Veteran, he witnessed him strain his back while running and immediately go to the ground in pain. The servicemember stated that for the next several weeks the Veteran was placed on light duty and was very limited in the duties he could perform. He reported that the Veteran had to complete follow up appointments and physical therapy and that his back continued to bother him for the remainder of his service. The Veteran submitted a lay statement from his spouse in October 2011 wherein the Veteran’s spouse stated that since the incident in service, the Veteran has had to be treated by several doctors and chiropractors for his back pain and has trouble with everyday tasks because of the pain. Similarly, the Veteran submitted his own lay statement in October 2011 wherein he described experiencing intense low back and neck pain since service. A March 2014 VA treatment note indicates that the Veteran reported intermittent back pain. In a May 2018 lay statement, the Veteran acknowledged that he had minor back pain prior to service but stated that his back pain became worse after the incidents in service. The Veteran underwent a VA examination in connection with his claim for service connection for a back disability in March 2012. The examiner opined that the Veteran’s claimed back disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. For rationale, the examiner noted that the Veteran’s separation exam is negative for any back complaints or conditions and post-service records are negative for any ongoing back complaints or conditions. The examiner acknowledged that the Veteran reported symptomatology of mechanical back pain during the examination but stated that the Veteran's statement of back complaints is not properly diagnosed. The examiner stated that with evidence of back strain treated to resolution and no records of ongoing treatment or condition, it is less likely than not that his current mechanical back pain is related to his instance of back strain in military service. The examiner explained that back pain can be recurring and similar in presentation, but stated that his current back pain is not the same condition he was treated for in service and there is no continuity of condition to suggest this is a chronic condition. However, since that time, the Veteran has since submitted evidence of chiropractic treatment in 2011 and a March 2014 VA treatment note reflects treatment for intermittent back pain. Furthermore, given the Veteran’s May 2018 statement regarding a minor pre-existing back pain, as well as the Veteran’s Board hearing testimony as to the history of his back pain during, and since, service, a new medical opinion is necessary to decide the claim. 2. Entitlement to service connection for headaches. The Veteran contends that he experiences headaches related to service. STRs reflect that in October 2007, the Veteran suffered a head injury after standing up and hitting his head on a wood beam. He complained of a severe headache that was worse with motion. There was no loss of consciousness. Other STRs from October 2007 indicate the Veteran continued to complain of headaches, and he was assessed with post-concussion headaches. The Veteran was also diagnosed with post-concussive syndrome and placed on a temporary profile. The Veteran reported suffering a concussion on separation but did not specifically indicate that he continued to suffer from headaches. Post-service, a December 2009 medical history questionnaire indicates that the Veteran replied “yes” to a question asking whether the Veteran currently has or has had headaches. In various lay statements and most recently in his November 2020 Board hearing testimony, the Veteran has reported that his headaches began in service and have continued to the present. See, e.g. October 2011 lay statement. He reported self-medicating with over the counter painkillers. He stated that the headaches would cause him to become angry and irritated and eventually went to the VA and was prescribed anxiety/depression medication to control these symptoms. See, id. The Veteran’s spouse also provided a lay statement indicating that the Veteran has experienced intense headaches on a daily basis since the head injury in service and tried to self-medicate with over the counter painkillers until she talked him into seeing a doctor in 2008. The Veteran underwent a VA examination in March 2012. The VA examiner noted that the Veteran reported experiencing headaches about six months after his concussion. The examiner opined that the Veteran’s claimed headaches were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. For rationale, the examiner stated that there was no evidence of a headache condition after the concussion or in postmilitary records and thus there is no properly diagnosed headache condition. The examiner further stated that even if the Veteran’s reports are credible, no records indicate a current headache condition and the Veteran’s separation examination indicates a resolved concussion without complications. The examiner further stated that the current medical literature does not support latent onset of headaches after a resolved concussion. However, the STRs reflect that the Veteran reported headaches right after the concussion and has stated that they have continued ever since. Accordingly, the Board finds that an additional medical opinion is warranted. 3. Entitlement to service connection for residuals of wisdom tooth extraction (claimed as mouth pain). The Veteran contends that he has mouth pain that is related to service. In accordance with the duty-to-assist provisions codified at 38 U.S.C. § 5103A (d) and by regulation found at 38 C.F.R. § 3.159(c)(4), a medical opinion or examination is required if the information and evidence of record does not contain sufficient evidence to decide the claim, but there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). STRs reflect that in July 2004, the Veteran’s bottom wisdom teeth were removed. The Veteran has since reported mouth pain that he asserts is related to the wisdom teeth extraction that he underwent during service. See October 2011 lay statement, May 2018 VA Form 9 Board Appeal, November 2020 Hearing Transcript at 5. The Veteran has not yet had a VA examination to determine why he has mouth pain at the extraction sites; or, whether his current mouth pain is related to the wisdom teeth extraction. As the Veteran’s STRs reflect that his bottom wisdom teeth were removed during service and he has provided competent and credible testimony indicating that he suffers from mouth pain at the extraction sites, a remand for a medical evaluation and nexus opinion is warranted to decide the claim. 4. Entitlement to service connection for obstructive sleep apnea. The Veteran seeks service connection for obstructive sleep apnea which he contends began during active service. See November 2020 Hearing Transcript at 10. The Veteran has reported loud snoring and waking up gasping for air during service. Id. The Veteran has stated that he was told during service that his symptoms may be due to OSA but did not seek treatment until after separation from service. Id. A July 2008 VA treatment note reveals that the Veteran reported excessive tiredness/low energy and trouble falling asleep or staying asleep during a depression screening and a March 2014 mental health note indicates that the Veteran reported snoring/sleep apnea snores. The Veteran received a current diagnosis of obstructive sleep apnea in February 2016. See private outpatient polysomnography interpretation dated February 21, 2016. If VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran received an initial VA examination for his OSA in September 2019. In the examination report, the September 2019 examiner listed the onset of the Veteran’s sleep apnea as 2007 and noted that the Veteran reported being diagnosed by a sleep study in Jacksonville, NC. As noted below, no such sleep study is of record. The examiner concluded that the Veteran’s sleep apnea was less likely than not proximately due to or a result of allergic rhinitis, sinusitis or COPD. However, the examiner did not provide an etiology opinion addressing direct service connection. The only other medical opinion of record is the September 2018 private medical opinion submitted by the Veteran in October 2018. In the opinion, D.T., a nurse practitioner, stated that the Veteran's sleep study results had been reviewed, and in her opinion, the Veteran's current obstructive sleep apnea is related to his active service. The September 2018 private medical opinion on the Veteran's obstructive sleep apnea was a conclusory statement that did not explain how the private practitioner came to her conclusion. A conclusory medical opinion that is unaccompanied by rationale is inadequate. See Nieves-Rodriguez, 22 Vet. App. 295; Stefl, 21 Vet. App. at 124. For the forgoing reasons, an addendum etiology opinion should be obtained on remand. See 38 C.F.R. § 3.159 (c)(4)(i). Additionally, as noted by the September 2019 VA examiner, the Veteran reported being diagnosed earlier by a sleep study in Jacksonville, NC. This sleep study is not of record. Moreover, later during his Board hearing in November 2020, the Veteran testified that he was first diagnosed at Marion VA , and the February 2016 sleep study was conducted at St. Joseph Memorial at Marion, so it is not clear whether the Veteran was referring to the February 2016 sleep study, or whether there are outstanding VA records showing a diagnosis of sleep apnea prior to February 2016. Thus, the AOJ should attempt to obtain any outstanding VA and/or private treatment records. Additionally, the Veteran had reserve service from June 2008 to July 2011. However, service personnel and medical records documenting his reserve service have not been uploaded to the claims file. On remand, the RO should attempt to obtain complete records for the Veteran's period of reserve service. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA records pertinent to the Veteran’s claims and, with appropriate authorization from the Veteran, obtain any outstanding private treatment records (to include any sleep studies or other medical treatment in Jacksonville, North Carolina) identified by him as pertinent to his claims. 2. To the extent possible, obtain and associate with the claims file all outstanding service records, including from the Veteran’s period of reserve service. 3. Schedule the Veteran for an examination to determine the nature and etiology of his asserted back disability. The examiner should answer the following as definitively as possible: (a) If the Veteran has a disability manifested by back pain, indicate whether or not this disability is congenital in nature; and, if so, whether it is a congenital defect or disease. [Note: a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990)]. (b) If it is a congenital or developmental defect, please opine whether it is at least as likely as not that there was a superimposed injury or disease in service that resulted in additional disability. (c) If it is a congenital or developmental disease; or, if it is not congenital, but it clearly and unmistakably pre-existed service, please opine as to whether there was an increase in disability during service, and if so, whether the increase in severity was due to the natural progression of the disease. If the Veteran’s current back disability is neither congenital nor pre-existing, please opine whether it, as likely as not, had its onset during service or is otherwise related to any in-service disease or injury. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology and/or continuity, a reason for doing so must be provided. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. A complete rationale must be provided for any opinion expressed. A complete rationale must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. 4. Obtain an addendum VA opinion regarding the nature and etiology of the Veteran’s headaches. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. The need for another examination is left to the discretion of the medical professional offering the opinion. After a complete review of the claims file, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s headaches had their onset during service, manifested to a compensable degree within a year of separation or are otherwise related disease or injury in service, to include the documented head injury and post-concussive syndrome with headaches. The examiner is reminded that the Veteran is competent to report what occurred during service, to include observable symptomatology, such as headache pain. The examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding onset and persistence of his symptoms. A complete rationale must be provided for any opinion expressed. A complete rationale must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. 5. Obtain an addendum VA opinion regarding the nature and etiology of the Veteran’s obstructive sleep apnea. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. The need for another examination is left to the discretion of the medical professional offering the opinion. After a complete review of the claims file, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s obstructive sleep apnea had onset during or is related to service. The examiner is also reminded that the Veteran is competent to report what occurred during service, to include observable symptomatology. The examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding onset and persistence of his symptoms. In particular, in the opinion, the examiner should specifically address the Veteran’s reports of loud snoring and waking up gasping for air during service. A complete rationale must be provided for any opinion expressed. A complete rationale must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Modesto, Victor 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.