Citation Nr: 21014995 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 12-18 513 DATE: March 16, 2021 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for radiculopathy of the left lower extremity is denied. Entitlement to service connection for radiculopathy of the right lower extremity is denied. Entitlement to service connection for a dental disability due to dental trauma for the purpose of Veterans' Administration (VA) compensation is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows that Veteran’s back disability as well as his right and left lower extremity radiculopathy did not have their onset in service, arthritis of the spine did not manifest to a compensable degree within one year of discharge, and a back disability as well as his right and left lower extremity radiculopathy are not causally or etiologically related to any disease, injury, or incident in service, and right and left lower extremity radiculopathy are not caused or aggravated by a service-connected disability. 2. The preponderance of the evidence shows that the Veteran did not lose any teeth due to bone loss of the body of the maxilla or the mandible as a result of trauma or disease during service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability as well as his right and left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a dental disability for VA compensation purposes have not been met. 38 U.S.C. §§ 1110, 1131, 1712, 5107; 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1988 to April 1990. In his July 2012 substantive appeal, the Veteran requested a Travel Board hearing. In March 2014, the Veteran withdrew his hearing request. The claims were previously before the (Board of Veterans’ Appeal (Board) in January 2015 and December 2016, when they were remanded to for additional development. In December 2016, the Board referred the matter of eligibility for VA dental treatment to the Agency of Original Jurisdiction (AOJ). This issue is not currently before the Board. The Board notes that the appeal had also originally included a claim for service connection for acquired psychiatric disorder, to include PTSD. However, during the pendency of the appeal, the AOJ granted that appeal in August 2019 rating decision. Therefore, this issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The Service Connection Claims The Veteran contends that he developed his back and radiculopathy disabilities while on active duty. Specifically, he reported that he injured his back in motor vehicle accident (MVA) during service in October 1989 and the condition remained symptomatic since that time. He also asserts that he developed radicular symptoms in the lower extremities as a result of the back disability. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Initially, the Board notes that the competent evidence of record confirms that the Veteran has been treated for back pain and he has been diagnosed with degenerative arthritis of the spine and intervertebral disc syndrome. He has also been diagnosed with bilateral leg radiculopathy of the sciatic nerves associated with the back disability. As to the in-service records and the MVA, the service treatment records in 1988 reflect assessments of muscle strain and “muscle skeletal pain,” the complaints were associated with right lower quadrant pain and/or symptoms in the lower extremities. In July 1988 the Veteran complained of low back pain. Imaging studies at that time revealed no abnormalities. A March 1989 report noted complaints of tenderness in the right thigh after a run. The service personnel records show that the Veteran was involved in an MVA in October 1989. Reportedly, his vehicle went off an elevated ramp at high speed which caused his vehicle to flip. The records indicated that the Veteran tested positive for a high blood alcohol content. An October 1989 service treatment record noted complaints of a cut on the finger incurred in an MVA three days earlier, along with a head injury. Examination showed that the Veteran was alert and oriented times three, pupils were reactive to light, and Valsalva’s maneuver was normal. No abrasion to the head was noted. His vision, reflexes, and neurologic signs were reported as normal. The assessment was “normal exam.” There was no mention of a back or leg injury and given the thoroughness of the physical examination report. The remainder of the service treatment records contain no complaints, history or findings consistent with a chronic back disability or bilateral leg disorders. After service, in September 1996, the Veteran was seen in the emergency room for acute lumbar radiculopathy after he reportedly injured his back lifting. He had right L5 radiculopathy from a 4-5 herniated disc. He was treated conservatively. An April 1997 MRI of the lumbar spine revealed disc herniation at L4-5 which likely impinged the left L4 nerve root and the left L5 nerve root in its lateral recess. There was also mild canal stenosis at this level from the disc. In May 1998, the Veteran reported a history of back pain for two years. The pain radiated to the right foot. An October 1998 VA treatment record noted an assessment of lumbago, and although a history of lower back pain with radiation following a lifting injury in 1996 was noted. A January 2012 clinical treatment note recorded history of multiple falls at work after which one morning he felt unable to move his arms or legs. In February 2013, he reported back pain since 1996. Subsequent treatment records show complaints of back pain following two MVAs in 2002 and 2017. The Board also finds that the Veteran is competent to report on what he sees as well as the manifestations of his disabilities, such as pain, numbness, and tingling. See Davidson, supra. As to an in-service disease or injury under 38 C.F.R. §§ 3.303(a), the Board notes that service treatment records document a few occasions when the Veteran was seen for back problems. The Board also notes that they document an MVA in October 1989. However, neither the 1988 service treatment records which noted back pain and/or leg pain nor the 1989 service treatment records following the motor vehicle accident diagnosed a chronic back disability. In fact, the July 1988 back X-ray was normal. Likewise, the assessment following the 1989 motor vehicle accident was “normal exam” with no mention of a back or leg injury and given the thoroughness of the physical examination report. Moreover, the remainder of the service treatment records contain no complaints, history or findings consistent with a chronic back disability or bilateral leg disorders. Additionally, the Board finds it significant that when examined in 1989 following the MVA the Veteran did not report back or leg problems. See Owens, supra. Likewise, the Board finds it significant that the subsequent service treatment records are negative for complaints, diagnoses, or treatment for back or leg problems. Id. The Board finds the contemporaneous post-1989 service treatment records, including the July 1988 negative back X-ray and the October 1989 examination following the MVA, more probative than the post-service lay claims from the Veteran regarding having continued adverse symptomatology since service because medical professionals have greater medical training. See Owens, supra; Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). The detailed records in service provide particularly negative evidence against the claims, clearly indicating treatment for problems other than the issues before the Board. The records are highly detailed. Therefore, while the service treatment records show that the Veteran had back and leg problems in 1988 and a motor vehicle accident in 1989, over 30 years ago, the Board finds that the most probative evidence of record shows that any back and radiculopathy like symptoms resolved before he separated from military service despite the appellant’s claims to the contrary. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions); Hensley, supra. Next, the Board notes that the Veteran was not shown to have arthritis of the back or radiculopathy in service or within one year following discharge from service, as such, service connection cannot be established for arthritis or radiculopathy on a presumptive basis. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. As to continuity of symptomatology under 38 C.F.R. §§ 3.303(b), the record does not show that the Veteran had a continued problem with a back disability as well as radiculopathy of the left and right lower extremities in and since service. In fact, as reported above, the October 1989 examination three days after the in-service MVA, failed to mention of a back injury, and given the thoroughness of the physical examination report, the Board finds it unlikely that had the Veteran incurred some sort of back injury in the MVA, this would not have been noted in the service treatment records. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”). Likewise, and perhaps more importantly, the post-service record does not document his continued complaints, diagnoses, or treatment for the back disability as well as radiculopathy of the left and right lower extremities since his 1990 separation from service because it does not show any treatment for these disorders until 1996, at the earliest six after service. The Board also finds it significant that the first documented post-service treatment for the back disability as well as the radiculopathy in September 1996 includes the Veteran’s claims that his problems started a contemporaneous lifting injury. See Owens, supra. Likewise, the Board finds it significant that the Veteran thereafter had documented post-service treatment for back injuries following multiple falls at work as well as MVAs in 2002 and 2017. Id. We cannot ignore such evidence. The post-service medical treatment records provide significant evidence against these claims. At this point, the service medical records and the post-service medical evidence each provide evidence against these claims of high probative value. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with a back disability as well as radiculopathy of the left and right lower extremities in and since service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(b). Furthermore, on the question of a nexus between the current bilateral a back disability and related radiculopathies and service, there is evidence both for and against the claims. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In January 2021, the Veteran’s chiropractor, Dr. D.A., reported having treated the Veteran since November 2020. Dr. D.A. noted that the Veteran was involved in an MVA in 1989 in which he was the driver of a car that lost control and flew off of a bridge landing upside down. Dr. D.A. opined, given the magnitude of the drop and the injuries that were sustained, the claimed orthopedic conditions were related to the 1989 MVA. However, the Board finds that the medical opinions from Dr. D.A. is not supported by the evidence of record and ignores the fact that the service and post-service treatment records do not support a finding of a back injury in service or chronicity of back and legs symptoms from 1989 to 1996. Instead, the opinion appears to be based solely on the Veteran’s self-reported history of back and leg injuries and pain since the in-service MVA and ignores the lack of findings or treatment specific to the back or legs as due to the 1989 MVA, including the Veteran’s examination three days after the accident. Dr. D.A. also failed to acknowledge the fact that the Veteran was initially seen for back and leg problems in 1996 following a back injury. It is noteworthy that the opinion from Dr. D.A. appears to be based on an inaccurate factual premise, that is, that the Veteran injured his back in service, which is contradicted by the service treatment records. Therefore, it is afforded little probative value. See Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that a medical opinion is inadequate when it is unsupported by clinical evidence); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). In contrast, a VA examiner in November 2015, following a review of the claims file and an examination of the Veteran, opined that the back disability and related radiculopathies were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of the opinion, the examiner noted that while the service treatment records a thigh strain in March 1988, the records failed to document any back injuries or chronic back or bilateral leg disorders during active duty military records. The Board finds the opinion of the VA examiner in November 2015 to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran incurred the current back and bilateral leg disabilities in service. The examiner’s findings were based on a review of the evidence, including the service treatment records and examination, which did not substantiate a finding that the Veteran sustained a chronic back or leg disabilities in service. The examiner considered the complete record and the Veteran’s contentions and provided an explanation as to why the evidence does not support a finding that his claimed disorders were due to service, to include injuries incurred in the October 1989 MVA. Finally, the VA examiner's opinion was internally consistent and consistent with other evidence of record and are of significant probative value. Consequently, the Board finds the November 2015 VA medical opinion report more probative and outweigh the findings of Dr. D.A. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board’s statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran’s position It is important for the Veteran to understand that at this point both the factual evidence and the medical evidence (treatment records and the best medical opinions) provides highly probative evidence against the claims that the Board cannot ignore. In addition, the Board finds that the Veteran is not competent to provide the missing nexus opinions because he does not have the required medical expertise to provide answers to these complex medical questions (i.e., what caused his current back disability as well as radiculopathy of the left and right lower extremities). See Davidson, supra. In this regard, the Board finds that he simply does not have the medical qualifications to provide a nexus opinion given the negative service treatment records and the at least six year gap between active duty that ended in 1990 and the first complaints, diagnoses, or treatment for any of these disorders post-service. Therefore, the Board finds that the most probative evidence of record also shows that the Veteran’s post-service back disability as well as radiculopathy of the left and right lower extremities are not due to his military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau, supra. To the extent the Veteran’s bilateral lower extremity radiculopathy has been associated with the back disability, as service connection for a low back disability has not been established, there is no factual or legal basis upon which to award service connection for a disability that is claimed as secondary to a disability that is not service connected. See 38 C.F.R. § 3.310. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims for service connection for a back disability and right and left lower extremity radiculopathy. As such, that doctrine is not applicable in the instant appeal, and the claims must be denied. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); See Gilbert, 1 Vet. App. at 54. The Dental Disability Claim The Veteran contends that two of his top front teeth were knocked out during or due to service. In this regard, VA compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150. For Class I service-connected dental conditions for which disability compensation may be provided, the types of dental conditions covered are loss of teeth due to bone loss of the body of the maxilla or the mandible due to trauma or disease such as osteomyelitis, but not periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes Diagnostic Codes 9900-9916; 38 C.F.R. § 17.161(a). In this regard, the Veteran’s service treatment records show that on enlistment examination in January 1988 he had an upper fake tooth central incisor. An April 1988 note reported tooth #9 was missing and referred to a “#8-x-10 temp bridge fabrication.” A November 1988 entry thereafter stated: “SC -> Bridge #8-10 Temp fell out.... Appointed for oper 4x Eval #8!” A December 1988 entry noted: “S/C -> Bridge #8-10 Temp fell out.” A February 1990 entry states: “S/C cc ‘loose temp bridge.” An April 1990 entry recorded “s/c cc - bridge irritating gums when broken ... . fabricate new acrylic shell #8....” An entry a week later reported: “S/C - cc temp bridge broken again.” On VA examination in January 2019, the Veteran reported that he was hit in the mouth by malfunctioning Howitzer during active duty training and the injury resulted in trauma to his teeth, including loss of bridge and supporting tooth structure. Reportedly, by the time he separated from service he was missing teeth #8, #9 and #10, with an intact bridge spanning from tooth #7 to tooth #11. On examination, the examiner found no evidence of loss of any top front teeth due to loss of substance of the body of the maxilla or mandible without loss of continuity, or; nonunion or malunion of the mandible, chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of whole or part of the ramus, loss of the condyloid process, or loss of any part of the hard palate. Following a review of the claims file and the examination the examiner thereafter opined that the service treatment records failed to document dental trauma. The examiner thereafter notes that the service treatment records showed that in April 1990, four days prior to separation from service, the Veteran was noted to be missing tooth #9 from a childhood injury and had an intact bridge. The examiner further noted that markings in the dental service treatment records were consistent with standard dental charting practices. It was also opined that the service treatment records dental markings failed to show that part of either tooth #8 or #10 was missing or suffered injury. The January 2019 VA examiner’s medical opinion is supported by both a review of the record on appeal and an examination of the Veteran as well as not contradicted by any other medical evidence of record. Therefore, the Board finds that it is the most probative evidence of record. See Owens, supra; Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In reaching this conclusion, the Board has not overlooked the Veteran’s above claims regarding being hit in the mouth by malfunctioning Howitzer during active duty training and the injury resulted in trauma to his teeth, including loss of bridge and supporting tooth structure. However, while the Veteran is both competent and credible to report on observable incidents and symptomatology because it comes to him via his own senses (see Davidson, supra), the Board finds his lay claims are less probative than the contemporaneous service dental record which do not document the claimed injury and treatment and the VA examiner’s opinion because opining as to whether he had loss of teeth due to bone loss of the body of the maxilla or the mandible due to trauma is a medical opinion and the claimant does not have the required medical training. See, Davidson, supra; Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Applying the relevant regulatory provisions to the facts of this case, the Board concludes that the January 2019 VA examiner’s medical opinion is the most probative evidence of record and service connection for a dental disability for VA compensation purposes is not warranted. See Owens, supra. As the Veteran does not have the type of dental condition for which compensation is payable, his claim must be denied. Clearly, the service dental records do not show that he lost any teeth due to bone loss of the body of the maxilla or the mandible as a result of trauma or disease. Even assuming, without conceding, that the Veteran sustained trauma to teeth #8 and #10 during service, because there is no evidence to show that the loss of such teeth was due to bone loss of the maxilla or mandible, the loss of teeth is not compensable under the provisions in 38 C.F.R. § 4.150. Accordingly, the preponderance of the evidence is against the claim of service connection of loss of teeth for VA compensation purposes, the benefit of doubt doctrine does not apply, and the appeal in this matter is denied. 38 U.S.C. § 5107 (b); Gilbert, supra; Ortiz, supra. REASONS FOR REMAND Entitlement to service connection for sleep apnea is remanded. The Veteran contends that he is entitled to service connection sleep apnea as secondary to the service-connected posttraumatic stress disorder (PTSD). As an initial matter, the Board finds that the competent evidence of record confirms that the Veteran has obstructive sleep apnea. Moreover, while the Veteran’s service treatment records, contain no complaints, treatment, findings or diagnosis consistent with a sleep disorder, his post-service records, starting in 2013, show a diagnosis of mild obstructive sleep apnea following a sleep study. As to the etiology of the Veteran has obstructive sleep apnea, the VA treatment records during the pendency of the appeal show that the Veteran did not use his CPAP machine as prescribed due to feeling claustrophobic while wearing the mask. Moreover, in an August 2016 VA Sleep Apnea Disability Benefits Questionnaire (DBQ) Dr. H.S. opined that the Veteran’s psychiatric disability aided in the development of, and aggravate, the Veteran’s obstructive sleep apnea. By way of rationale, Dr. H.S. pointed to research that he shows that those who suffer from depression have a higher prevalence of sleep apnea. Dr. H.S. also noted the Veteran’s report that he often failed to use of his CPAP machine due to claustrophobic feelings associated with his psychiatric disability and that this led to increased severity of symptoms and impairment. On the other hand, a VA examiner in July 2019 opined that the Veteran’s obstructive sleep apnea was less likely than not caused or aggravated by the service connected PTSD, explaining that obstructive sleep apnea was caused by physical airway obstruction, as opposed to a mental health disorder. Initially, the Board finds that Dr. H.S.’s opinion does not contain sufficient explanation or medical rationale to support an award of service connection for sleep apnea on a secondary basis at this time. See Guerrieri, supra. The Board has reached this conclusion because, although it may be true that the Veteran’s claustrophobic symptoms interfere with his use of the CPAP machine, Dr. H.S. does not indicate how, from a medical perspective, this impediment aggravates the underlying sleep apnea disability beyond its natural progression, as opposed to simply aggravating symptoms when a CPAP is not used. Likewise, the Board finds that the July 2019 VA examiner’s opinion does not contain sufficient explanation or medical rationale to deny an award of service connection because the examiner failed to address the Veteran’s contention that his service-connected psychiatric disorder caused the Veteran to not use his CPAP thereby aggravating his sleep apnea. See El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). Therefore, the Board finds that this issue needs to be remanded to obtain a medical opinion addressing whether the Veteran’s sleep apnea is caused or aggravated by psychiatric disability, to specifically include an inability to tolerate his CPAP machine as due to claustrophobic feelings. See 38 U.S.C.§ 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In provided the new medical opinion and again adjudicating the appeal, the examiner and the regional office (RO) should be mindful of the fact that the Court in Ward v. Wilkie, 31 Vet. App. 233 (2019) provided a new definition of aggravation which now includes a temporary worsening of a disability. While the appeal is in remand status, any outstanding VA and private treatment records should also be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). This issue is REMANDED for the following actions: 1. Associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s and/or his representative should submit any new pertinent evidence that the Board does not have. This would greatly help the Board. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the etiology of the Veteran’s sleep apnea. The claims file should be sent to and reviewed by the VA examiner. The examiner should take a history from the Veteran as to the progression of his sleep apnea disability. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that sleep apnea is due to a disease or injury while on active duty. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was caused by his service-connected PTSD. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea is aggravated by his service-connected PTSD to specifically include an inability to tolerate his CPAP machine as due to claustrophobic feelings. In providing answers to all the above questions the examiner should consider and discuss the Veteran’s competent lay claims regarding observable symptomatology In providing answers to all the above questions the examiner should consider and discuss, among other things, the August 2016 medical opinion of Dr. H.S., and the treatise evidence referenced by Dr. H.S. and attached to the opinion. In providing the aggravation opinion the examiner should specifically consider and discuss the Court in Ward, supra, new definition of aggravation which now includes temporary worsening of a disability. In providing answers to all the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. (Continued on the next page)   In answering all the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.