Citation Nr: 21020923 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-08 708 DATE: April 8, 2021 ISSUES 1. Entitlement to service connection for a left hip disability. 2. Entitlement to service connection for sinusitis. 3. Entitlement to service connection for sleep apnea, to include as due to sinusitis. 4. Entitlement to service connection for a low back disability. 5. Entitlement to service connection for a right shoulder disability. ORDER Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for sinusitis is granted. Entitlement to service connection for sleep apnea, to include as due to sinusitis is granted. Entitlement to service connection for a low back disability is granted. Entitlement to service connection for a right shoulder disability is denied. FINDINGS OF FACT 1. The Veteran’s pre-existing left hip disability was clearly and unmistakable not aggravated beyond its natural progression by service. 2. Resolving all doubt in his favor, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s sinusitis is related to his active duty service. 3. Resolving all doubt in his favor, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s sleep apnea is related to his active duty service. 4. Resolving all doubt in his favor, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s low back disability is related to his active duty service. 5. The Veteran’s right shoulder disability is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left hip disability, by way of aggravation, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.306. 2. The criteria for entitlement to service connection for sinusitis have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from May 1980 to May 1990, in the Air National Guard from September 2002 to December 2002, from December 2005 to March 2006, and from March 2012 to November 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in August 2019 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran’s claims file. In October 2019 the Board remanded this matter for further development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Veteran’s claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for a left hip disability. The Veteran is claiming that his left hip disability had pre-existed service and that it was permanently worsened due to his active duty service. He submitted a statement in July 2019 which stated that “in 1987 I aggravated my hip from running and performing perimeter checks on my duty station. I was told by my military doctor my only option was to have surgery. This is still a recurring condition.” As a rule, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304 (b). This is known as the presumption of soundness. Assuming the presumption of soundness has attached, the burden then shifts to the VA to rebut the presumption of soundness. To rebut the presumption of soundness, the VA must show that (1) the condition clearly and unmistakably existed prior to service; and (2) the condition clearly and unmistakably was not aggravated during service. Wagner v. Principi, 370 F.3d 1089, 1092 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that such increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Clear and unmistakable (obvious, manifest, and undebatable) evidence is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306 (b). The evidence must show a lasting worsening of the condition, meaning an increase in severity that existed at the time of separation from service and still exists currently. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). As noted above, the Veteran testified before the undersigned in August 2019. During the hearing, the Veteran’s Attorney argued that the Veteran had a pre-existing left hip injury. The Board notes that the Veteran’s Service Treatment Records contain evidence that the Veteran’s left hip disability pre-existed service. A medical examination from July 1987 notes that the Veteran had a “history of avulsion fracture of [left] anterior SUP iliac spine in 1978; had open reduction … fixation. Now feels like it did back then before diagnosis was made.” An additional medical record from August 1999 indicates that the Veteran had a history of an iliac spine surgery in 1978. The Veteran’s Attorney argued that since this pre-existing injury was “repaired [it was] not noted to be problematic at time of entry.” The Board recognizes that the hip injury was not noted upon entry, and thus the presumption of soundness has attached. Considering the noted iliac spine surgery in 1978, the Board finds that the left hip disability clearly and unmistakably existed prior to service. Turning to the criteria for entitlement to service connection, in the previous remand from October 2019, it was determined that the March 2015 VA examination and subsequent July 2015 addendum opinion were deemed inadequate, as they had not considered the Veteran’s testimony, and the Veteran was not seen in person for the exam, among other reasons. As such, the Veteran’s claim was remanded for a VA examination, which was to opine as to whether or not (1) the condition clearly and unmistakably existed prior to service; and (2) the condition clearly and unmistakably was not aggravated during service. Id. The examination was also to confirm the Veteran’s current diagnosis of a left hip disability, pursuant to Saunders. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). Thus, the Veteran was given a VA examination in January 2020. The Veteran was seen in person, and his claims file was reviewed. The examiner noted the Veteran’s lay statements, as well as the testimony provided by the Veteran and the Veteran’s spouse related to left hip pain. The examiner initially did not note a diagnosis of a left hip disability, however they later referenced the Saunders case, and identified a current diagnosis of “left hip pain.” The examiner then opined that the left hip injury, which pre-existed service, was clearly and unmistakable not aggravated during service. The following rationale was provided: STRs document in the 2/22/1980 enlistment examination: avulsion fracture ileac spine 1978 and surgical scar [left] hip avulsion fracture [left] anterior superior iliac spine (running) 0 open reduction and fixation march [1978]. The Veteran was seen during 1/1987 for an acute visit due to “tender left iliac area along surgical scar” however remainder of STRs are silent for complaints of, treatment for, or diagnosis of any left anterior superior ileac spine or left iliac area surgical scar condition. As such, a negative nexus opinion was provided. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran submitted a September 2020 private medical report from Dr. M.L. Dr. M.L. indicated that the Veteran’s claims file was reviewed, however the Veteran was not seen in person. The private examiner provided positive nexus opinions for issues related to sinusitis, sleep apnea, low back pain, right shoulder pain, and a left hip injury. As it relates to the left hip injury, Dr. M.L., the examiner noted the left hip problems from 1987, but also discussed a “knee/back injury while deployed,” and the Veteran’s weight and body mass index in 2013. The portion related to the left hip injury predominantly discusses a right knee injury. Dr. M.L. then provided a blanket positive nexus opinion for each identified disability, and there is some evidence that the opinion was taken exclusively from the Veteran. Considering that the Veteran was not seen in person, that the report was taken from the statements of the Veteran as opposed to from the claims file, and that the portion related to the left hip injury mainly discusses a right knee injury, the Board finds that the September 2020 opinion from Dr. M.L. is afforded little probative weight as to the etiology of the Veteran’s left hip. See, Nieves-Rodriguez, Id. The RO then sent the Veteran’s claims file to a VA examiner to provide an addendum opinion, which considered the report from Dr. M.L. The Veteran was not seen in person, however he was not requested to for the addendum opinion. An extensive list of relevant evidence is provided. The examiner again provided a negative nexus opinion, with the following rationale: It is less likely [than] not that the Veteran’s pre-existing left hip condition was permanently worsened beyond natural progression by his active duty service and/or [his service connected] left knee condition as evidence by STRs and [private medical examiner’s medical opinion]. The Veteran’s status post avulsion fracture left anterior superior iliac spine with open reduction and fixation did not affect hip joint function, affect gait or eligibility to join service and showed no evidence of worsening beyond its natural progression during service. Although the x-ray in 1987 was reported as negative, with subsequent positive x-ray for previous trauma to anterior superior iliac spine on left, there was no documentation or post service left anterior superior iliac spine complaints … post service STRs were silent for chronic left anterior superior iliac spine complaints as acute and transitory pain was noted in 1987 … the undersigned concurs with the negative medical opinion of [July 2015] and [January 2020]. The rationale for the positive private medical opinion … is unclear as the opinion lists a right hip surgery during service (not supported by the service treatment records) and right knee and back complaints post service. The examiner then cited to medical literature to further their negative etiological opinion. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the Veteran has not met the criteria for entitlement to service connection. To begin, the Veteran has a current left hip disability, as confirmed by the January 2020 VA examiner, and pursuant to Saunders. Thus, the first criteria for entitlement to service connection as been met. 38 C.F.R. § 3.303. Turning to the next criteria however, the Veteran has competently stated and testified that he had a left hip injury that pre-existed service, which the Board has confirmed. As such, the presumption of soundness has attached, and the burden has shifted to VA to rebut the presumption. The January 2020 VA examiner’s report found that the Veteran’s pre-existing left hip injury clearly and unmistakable was not aggravated as a result of his service. A rationale was provided that incorporated the Veteran’s in-service injury, but also the lack of any follow up complaints. The examiner also incorporated the Veteran’s testimony and lay statements, as well as that of his spouse. The Veteran submitted a private medical opinion from Dr. M.L., which the Board has afforded little probative weight for reasons discussed above. Finally, the RO requested an addendum opinion from another VA examiner, which was received in November 2020. That opinion continued to find that the Veteran’s pre-existing left hip injury clearly and unmistakable was not aggravated by his active duty service. The examiner also considered the Veteran’s testimony, discussed ample evidence from the Veteran’s claims file, and incorporated the private opinion from Dr. M.L. As such, the Board finds that based on the weight of the evidence, the Veteran’s currently-diagnosed left hip injury did pre-exist his active duty service, however the presumption of aggravation has effectively been rebutted, as the left hip injury clearly and unmistakably was not aggravated by his active duty service. 38 C.F.R. § 3.304 (b). See Wagner, Id. In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for sinusitis. The Board incorporates its discussion from the sections above by reference. The Veteran is claiming that his sinusitis is related to his active duty service. He submitted further correspondence in July 2019 that he has recurring “infections, irritations, and pain, which worsened while deployed in 2002. The air conditions greatly impacted my sinuses.” The Veteran testified in August 2019 that he was hospitalized during service for sinus issues in “1988 or … ‘89” and that ever since then, I’ve had reoccurring sinus infections all the time … I don’t necessarily report … when I’m reporting my yearly medical fitness that I’ve had sinusitis … all through the ‘90s, I’ve had infections … I’ve been given treatment for sinus infections along the way. I just always have. The Veteran further testified that his sinus issues are not allergies, and that they have been recurring since his first episode while on active duty. He stated that “my condition back in 1988 was so severe, they were going to drill a hole above my eye to drain the bacteria.” The Veteran’s spouse submitted a statement in August 2019, indicating that the Veteran struggles with “headaches from his severe sinus problems.” She also writes that he has had “multiple episodes of sinus infections year after year. He has struggled with this condition since 1987.” The Veteran and his spouse are competent to report symptoms associated with his claimed sinusitis. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Board notes that the Veteran’s STRs contain a record of hospitalization in June of 1988 for “maxillary sinusitis.” As noted above, the Veteran’s claim was previously before the Board in October 2019. In that Decision, the Board noted that the Veteran had undergone a VA examination in March 2015, however that examination did not include an etiological opinion. As such, the Veteran’s claim was remanded for an additional VA examination. 38 U.S.C. § 5103A (d)(2). See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). That VA examination occurred in January 2020. The Veteran was seen in person and his claims file was reviewed. The examiner noted the Veteran’s diagnosis to be “acute sinusitis – resolved.” Following clinical testing, the examiner opined that the Veteran’s sinusitis was less likely than not due to his active duty service. The following rationale was provided: No sinus condition as diagnosed on the enlistment examination. Available STRs document acute sinusitis 6/1988. 7/15/1988 STRs Otolaryngology appointment documents resolution of the acute sinusitis with normal sinus series. The remainder of STRs are silent for treatment for, or diagnosis of any sinus or chronic sinus condition. The significant delay between active duty service and treatment for acute sinusitis following service make any connection very unlikely. Although this Veteran and spouse have subjectively reported experiences and observations, they are not qualified to make a medical diagnosis or clinical nexus as the result of those experiences. Thus, a negative nexus was provided. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran’s claims file includes a private medical opinion from September 2020 from Dr. M.R. The Veteran was not seen in person, however the report provided by Dr. M.R. includes an extensive discussion of the available evidence. Dr. M.R. cited to the in-service hospitalization that the Veteran underwent for sinusitis, but also to follow up examinations in the Veteran’s medical records. See May 2002, August 2006, January 2012, May 2013, June 2015, August 2015, August 2016, and February 2018 VAMC treatment notes. The examiner also cited towards academic and medical literature indicated a heightened risk of sinus issues related to Gulf War Veterans. Dr. M.L. then opined that the Veteran’s sinus disability “began in or is directly … etiologically related to military service … it is more likely than not that [the Veteran’s] condition is military service related.” As such, a positive nexus opinion was provided. Although the Veteran was not seen in person, the private report from Dr. M.R. cites to a large portion of the Veteran’s claims file, incorporates the Veteran’s lay statements, and cites to relevant medical literature, before providing a nexus opinion. As such, the Board affords the September 2020 private opinion from Dr. M.R significant probative weight. See, Nieves-Rodriguez, Id. The Veteran’s claims file also includes a private opinion from September 2020 from Dr. M.L. The Veteran was not seen in person, however the report includes a discussion of the relevant evidence for the Veteran’s sinusitis. This includes citations to VAMC visits for “sinus congestion and pain,” among other symptoms. See March 2001, August 2006 February 2009 and January 2012 VAMC notes. The examiner then provided a blanket etiological opinion for five separate disabilities, one of which was sinusitis. As noted above, the Board had afforded the private opinion of Dr. M.L. little probative weight as it relates to the opinion they provided for the Veteran’s left hip disability. Having said that, and while the Veteran was not seen in person, the portion of Dr. M.L.’s report related to sinusitis includes a much larger amount of evidence cited to within the claims file. Furthermore, the portion of the report related to sinusitis only includes evidence relevant to sinusitis. As such, the Board affords the report from Dr. M.L. moderate probative weight. Finally, the RO sent the Veteran’s claims file for a VA addendum opinion in November 2020 to provide an etiological opinion, while incorporating the private medical evidence. The Veteran was not seen in person, however this was not required for the addendum opinion. The examiner included a list of evidence reviewed from the Veteran’s claims file. The examiner then stated that the Veteran’s sinusitis was less likely than not incurred in or due to the Veteran’s active duty service. The following rationale was provided: STRs noted an acute and transitory frontal sinusitis in 1988 that resolved completely. The Veteran’s current intermittent maxillary sinusitis episodes were not present on discharge and showed no evidence of chronicity during service. Sinusitis [is] not presumptive diagnosis of Gulf War service. As such a negative etiological opinion was given. The examiner also wrote that the opinions of Dr. M.L. “were not supported by the weight of medical evidence and medical literature.” While there is nothing to doubt the competence or credibility of the VA addendum opinion provided in November 2020, the Board finds that the opinion does not cite to the extensive record of VAMC visits that the Veteran undertook for his sinus problems. As noted above, these visitations were between periods of service, as well as after his service. As such, the Board affords the VA addendum opinion from November 2020 moderate probative weight. See Nieves-Rodriguez, Id. In consideration of the above, the Board finds that the Veteran has met the criteria for entitlement to service connection. The Veteran has a current diagnosis of sinusitis, as confirmed by the VA examiner’s and the private medical reports. The Veteran’s VAMC records also indicate that he is regularly seen for sinus problems. As such, the first criteria has been met. The second criteria has also been met, insofar as the Board has confirmed that the Veteran’s STRs contain a record of hospitalization in June of 1988 for “maxillary sinusitis.” Finally, the Board finds that the weight of the evidence demonstrates that his sinusitis is at least as likely as not due to his active duty service. The January 2020 VA examination provided a negative nexus opinion, which was predominantly based on the lack of in-service sinusitis complaints, aside from his 1988 hospitalization. Having said that, the Veteran’s claims file includes two private opinions, which both provided positive etiological statements. The first, from Dr. M.R. is afforded significant probative weight, as it cited to medical literature, and the Veterans’ extensive history of sinusitis both within periods of active duty service, and after his service had finished. The Board has afforded the second opinion from Dr. M.L. only moderate probative weight, but it also cited to the Veteran’s private and VAMC treatment records showing continued bouts of sinus problems. Finally, while the November 2020 has also been afforded moderate probative weight, the Board has noted it to not include discussion of the repeated sinusitis infections and symptoms within the Veteran’s claims file. Significantly, the evidence also includes competent testimony from the Veteran and his spouse confirming sinus related symptomatology since his hospitalization for the sinus condition in 1988. Therefore, reading the evidence in a way most favorable to the Veteran, and resolving any reasonable doubt in favor of the Veteran, the Board finds the evidence is at least in relative equipoise as to whether the Veteran’s sinusitis is related to his active duty service. As a result, the Veteran has satisfied the third criteria. 38 C.F.R. § 4.3. As such, affording the Veteran the benefit of the doubt, service connection for sinusitis is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to service connection for sleep apnea, to include as due to sinusitis. The Veteran is claiming that his sleep apnea is due to his military service. He also has submitted a statement in July 2019 that reads “in 2012 I experienced further sleep troubles because of traveling and managing installation crews in 7 countries, three of which were combat zones.” During the Veteran’s August 2019 hearing, his Attorney argued that “there is a relationship between the obstructive sleep apnea and the sinusitis.” Thus, the Veteran’s Attorney has argued that the Veteran’s sleep apnea may be secondary to his claimed sinusitis. Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). During the hearing, the Veteran testified that “I had a certain level of tiredness and fatigue, but I kind of attributed that to something else … I’ve had erratic sleep behavior for several years, so even a few years before my last deployment.” He further testified that “it was when I was overseas and got yelled at by my commander because I was being accused of falling asleep in a pretty important meeting, that I … subsequently did a sleep study and was told that I suffered from sleep apnea.” The Veteran’s claims file includes a statement from his spouse, stating that the Veteran has “struggled with daytime fatigue from erratic sleeping patterns and headaches from his severe sinus problems.” She claims to have “witnessed episodes where he was not breathing while asleep.” The Veteran’s claims file also includes a buddy statement from G.G., signed August 2019. G.G. indicates that he was deployed with the Veteran, and that he “traveled through several countries to support multiple combat zones during our deployment.” G.G. wrote that he “witnessed [the Veteran’s] fatigue from lack of sleep … he had trouble sleeping during the night.” The Veteran and his spouse are competent to report symptoms associated with sleeping difficulty and fatigue. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). G.G. is competent to report as to that which he has witnessed during his service. Id. The Veteran’s claims file includes a medical note from a private physician from March 2014. The medical note indicates that the Veteran, after being given a sleep study was diagnosed with “mild obstructive sleep apnea.” The private examiner did not render an etiological opinion. As noted above, the Veteran’s claim was previously before the Board in October 2019. In that Decision, the Board noted that the Veteran had not been given a VA examination, and therefore his claim was remanded. 38 U.S.C. § 5103A (d)(2). See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). That VA examination occurred in January 2020. The Veteran was seen in person and his claims file was reviewed. The examiner noted the Veteran’s diagnosis of obstructive sleep apnea. Following clinical testing, the examiner opined that the Veteran’s sleep apnea was less likely than not due to his active duty service. The following rationale was provided: Review of the evidence of record shows that the Veteran did not make complaint of, did not seek care for, was not diagnosed with, and was not treated for obstructive sleep apnea during military service. The examiner further noted that previous symptoms related to sleep apnea were not an official diagnosis, as they were not to the apnea-hypopnea index “gold standard.” The examiner therefore noted that the Veteran’s diagnosis “was confirmed by diagnostic polysomnogram … on 4/1/2015.” Thus, a negative nexus was provided. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran’s claims file includes a private medical opinion from September 2020 from Dr. M.R. The Veteran was not seen in person, however the report provided by Dr. M.R. includes an extensive discussion of the available evidence. Dr. M.R. cited to the Veteran’s testimony and lay statements, in addition to that of his spouse, and the buddy statement from G.G. Dr. M.R. also cited to sleep consultations in February 2015 which reported “waking up several times a night with snoring and/or gasping for air,” as well as medical literature from the National Institute of Health. Dr. M.R. then opined that the Veteran’s sleep apnea “began in or is directly … etiologically related to military service … it is more likely than not that [the Veteran’s] condition is military service related.” The examiner also likened the Veteran’s sleep apnea to his “chronic sinusitis which is service-related,” and she cited to examples of sinus problems, which the Board has identified in the preceding section. As such, a positive nexus opinion was provided. Although the Veteran was not seen in person, the private report from Dr. M.R. cites to a large portion of the Veteran’s claims file, incorporates the Veteran’s lay statements and testimony, and cites to relevant academic literature, before providing a nexus opinion. The testimony from the Veteran’s spouse and the buddy statement from G.G. are also incorporated. As such, the Board affords the September 2020 private opinion from Dr. M.R significant probative weight. See, Nieves-Rodriguez, Id. The Veteran’s claims file also includes a private opinion from September 2020 from Dr. M.L. The Veteran was not seen in person, however the report includes a discussion of the relevant evidence for the Veteran’s sleep apnea. This includes citations to the Veteran’s weight and BMI at various points between his active duty service, as well as the February 2015 sleep study. The examiner then provided a blanket etiological opinion for five separate disabilities, one of which was sleep apnea. As noted above, the Board had afforded the private opinion of Dr. M.L. little probative weight as it relates to the opinion they provided for the Veteran’s left hip disability. Having said that, and while the Veteran was not seen in person, the portion of Dr. M.L.’s report related to sleep apnea includes citation to substantially more evidence within the claims file, and it was also more relevant. As such, the Board affords the report from Dr. M.L. moderate probative weight. As distinguished from the issues in the preceding sections, the RO did not send the Veteran’s claims file for a VA addendum opinion. In consideration of the above, the Board finds that the Veteran has met the criteria for entitlement to service connection. The Veteran has a current diagnosis of obstructive sleep apnea, as confirmed by the VA examiner’s and the private medical reports. As such, the first criteria has been met. The second criteria has also been met, insofar as the Board may rely on the competent testimony of the Veteran and his spouse, to include the buddy statement from G.G., indicating that the Veteran snored, and frequently woke up during his active duty service. Finally, the Board finds that the weight of the evidence demonstrates that his sleep apnea is at least as likely as not was incurred during his active duty service. While the January 2020 VA examiner’s report is afforded significant probative weight in denying an etiological link, the report provided relied extensively on the lack of in-service complaints. The Veteran and his spouses testimony was largely dismissed, as they’re discussion of symptoms is not required for a diagnosis. Having said that, the Board recognizes that the Veteran, his spouse, and G.G. are each competent to report as to what they have witnessed or experienced. That was more incorporated into the findings of Dr. M.R. and Dr. M.L., which have been afforded significant and moderate probative weight, respectively. Those reports also cited to medical literature on sleep apnea in active duty service, and the Veteran’s complaints in between periods of active duty service. Further, Veteran’s law does not require the “gold standard” for purposes of establishing a relationship to service, only that such relationship be “as likely as not” related. Therefore, reading the evidence in a way most favorable to the Veteran, and resolving any reasonable doubt in favor of the Veteran, the Board finds the evidence is at least in relative equipoise as to whether the Veteran’s sleep apnea is related to his active duty service. As a result, the Veteran has satisfied the third criteria. 38 C.F.R. § 4.3. As such, affording the Veteran the benefit of the doubt, service connection for sleep apnea is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 4. Entitlement to service connection for a low back disability. The Veteran is claiming that he has a low back disability, which is related to his active duty service. The Veteran submitted a statement in July 2019 which notes that “while deployed in 2002 I began to experience back pain that fluctuated over the next few years … this escalated to extreme conditions during my 2012 deployment because I had to lift and transport over 75 lbs. of cable reels and installation equipment.” The Veteran testified in August 2019 that I periodically get back pain. I have back pain pretty much most of the time. I’ve got that somewhat controlled, somewhat manageable, so I see a chiropractor on a regular basis … I can tell you one specific episode in 2013, shortly after my 2012 deployment, it got so bad I had to have my wife take me to emergency and I actually felt like somebody was cutting my body in half. There have been various times when I bent over, I don’t know if it’s called a slipped disc or whatever, things just go out and then I can’t – I can’t move, I can’t walk, I can’t function … I know that one of my chiropractors did do a specific diagnosis … [but] they didn’t get into the service connected. This is a civilian chiropractor. During that same August 2019 hearing, the Veteran’s Attorney argued that when the RO denied the original claim for entitlement to service connection for a low back disability, they did not correctly identify notes in his STRs associated with “back problems and tenderness in the lower sacrum, so those were just simply overlooked.” The Veteran’s claims file includes a statement from his spouse from August 2019. The Veteran’s spouse writes that the Veteran has struggled with back pain “since 2006.” She wrote that this was aggravated “during his multiple deployments, where he was required to lift heavy materials of over 75 lbs. by himself.” She also wrote that she had to rush “him to the emergency room” in 2013. The Veteran’s claims file also includes an August 2019 buddy statement from G.G., who claims to have served alongside the Veteran. G.G. indicates that he witnessed the Veteran “struggle both physically and emotionally with a back-pain injury.” G.G. notes that this came from the Veteran helping a cable installation team “load and transport heavy equipment … often exceeding 80 lbs.” G.G. further wrote that this back pain “persisted for several weeks.” As noted above, the Veteran and his spouse are competent to report symptoms associated with the Veteran’s low back pain. G.G. is competent to report as to what he witnessed and heard the Veteran tell him about his lower back pain. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). In the Board’s prior remand from October 2019, it was noted that the Veteran’s March 2015 VA examination had not provided an etiological opinion as to the Veteran’s diagnosed lumbar strain, lumbar spondylosis and degenerative disc disease. As such, the claim was remanded for a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). That VA examination occurred in January 2020. The Veteran was seen in person, and his claims file was reviewed. The examiner confirmed the Veteran’s diagnosis of chronic lumbar strain, with lumbar spondylosis and degenerative disc disease. Following clinical testing, the examiner opined that the Veteran’s low back disability was less likely than not caused by his active duty service. The following rationale was provided: Low back was not aggravated by his military service as no back condition was diagnosed on the enlistment examination. All available STRs are silent for treatment for, or diagnosis of any chronic low back condition. [March 2015] lumbar spondylosis and degenerative disc disease were diagnosed by the C&P examiner. The diagnosis of these conditions several years following active duty service, without objective evidence for any chronic low back condition during service make any connection very unlikely. Although this Veteran, his spouse, and fellow service member have subjectively reported experiences and observations, they are not qualified to make a medication diagnosis or clinical nexus as the result of those experiences and observations. As such, a negative etiological opinion was provided. While the Board has no reason to doubt the competence or credibility of the report, the January 2020 VA examination did not discuss private treatment records, to include relevant chiropractor records that have since been added to the claims file. And while the examiner referenced the Veteran and his Spouse, saying that they were not qualified to make medical diagnoses, the Veteran and his spouse’s testimony do not appear to be incorporated. As such, the Board affords the January 2020 VA examination limited probative weight. Following that exam, the Veteran uploaded years of treatment notes from the Veteran’s private chiropractor. The notes generally discuss complaints of “lower back pain,” and that his “low back [was] stiff/tight.” While these records discuss frequent treatment for and complaints of low back pain, they do not provide an etiological opinion for the low back pain. The Veteran’s claims file includes a private medical opinion from September 2020 from Dr. M.R. The Veteran was not seen in person, however the report provided by Dr. M.R. includes an extensive discussion of the available evidence. Dr. M.R. cited to the Veteran’s testimony and lay statements, in addition to that of his spouse, and the buddy statement from G.G. Dr. M.R. also had access to the private chiropractor notes, and cited to these, as well as other VAMC treatment notes. See VAMC notes from October 2006, February 2007, November 2007, April 2008, May 2013; See further Urgent Care Visit note from May 2013, February 2015. Dr. M.R. then opined that the Veteran’s low back disability “began in or is directly … etiologically related to military service … it is more likely than not that [the Veteran’s] condition is military service related.” As such, a positive nexus opinion was provided. Although the Veteran was not seen in person, the private report from Dr. M.R. cite to a large portion of the Veteran’s claims file, incorporates the Veteran’s lay statements and testimony, and cites to relevant medical literature, before providing a nexus opinion. The testimony from the Veteran’s spouse and the buddy statement from G.G. are also incorporated. As such, the Board affords the September 2020 private opinion from Dr. M.R significant probative weight. See, Nieves-Rodriguez, Id. The Veteran’s claims file also includes a private opinion from September 2020 from Dr. M.L. The Veteran was not seen in person, however the report includes a discussion of the relevant evidence for the Veteran’s low back disability. This includes citations to a December 2007 radiological report that showed “disc space narrowing,” and the hospital visit to February 2015. The examiner then provided a blanket etiological opinion for five separate disabilities, one of which was a low back disability. As noted above, the Board had afforded the private opinion of Dr. M.L. little probative weight as it relates to the opinion they provided for the Veteran’s left hip disability. Having said that, and while the Veteran was not seen in person, the portion of Dr. M.L.’s report related to his low back pain includes more evidence cited to within the claims file, and it was also more relevant. As such, the Board affords the report from Dr. M.L. moderate probative weight. The RO requested that a VA examiner provide an addendum opinion as to the Veteran’s low back disability, which incorporated the private treatment records and opinions. That opinion was given in November 2020. Again, the Veteran was not seen in person, although this was not required for the addendum opinion. The examiner opined that the Veteran’s low back disability was less likely than not due to the Veteran’s active duty service. The following rationale was provided: STRs were silent for a back pain diagnosed during service; treatment records document a complaint of back pain in between service dates in 2007. 2015 C&P exam documented post service DDD of the lumbar spine. The private medical opinion rendered … based the rationale for the positive opinion on the Veteran’s subjective history, which is not supported by the service treatment records. There was no evidence of DDD or lumbar osteoarthritis … during service as this was noted post service on imaging in 2015. As such, a negative etiological opinion was provided. While the Board has no reason to doubt the competence or credibility of the examiner, the report provided does not incorporate the Veteran or his spouse’s testimony. The buddy statement is also not incorporated. Importantly, the rationale notes that the positive private medical opinions relied on the “Veteran’s subjective history,” however those opinions also cited to medical literature, VAMC treatment reports, and radiological findings from 2007, which was in between the Veteran’s periods of active duty service. As such, the Board affords the November 2020 addendum opinion limited probative weight. In consideration of the above, the Board finds that the Veteran has met the criteria for entitlement to service connection. Both the VA examinations and the private treatment records, to include chiropractic records, confirm that the Veteran has a current diagnosis. He has provided competent testimony as to in-service occurrences, such as lifting and transporting over 75 lbs. of cable reels and installation equipment, and this was further confirmed by the Veteran’s spouse, and the buddy statement from G.G. While chiropractor records do not include a nexus opinion, they do show regular complaints and treatment for a low back disability. The negative VA examinations of record have each been afforded limited probative weight, and while the positive September 2020 report from Dr. M.L. has only been afforded moderate probative weight, the opinion provided from Dr. M.R. has been afforded significant probative weight. Therefore, reading the evidence in a way most favorable to the Veteran, and resolving any reasonable doubt in favor of the Veteran, the Board finds the evidence is at least in relative equipoise as to whether the Veteran’s low back disability is related to his active duty service. As a result, the Veteran has satisfied the third criteria. 38 C.F.R. § 4.3. As such, affording the Veteran the benefit of the doubt, service connection for a low back disability is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 5. Entitlement to service connection for a right shoulder disability. The Veteran is claiming that he has a right shoulder disability which is related to service. The Veteran submitted a statement in July 2019, which notes that in 2002 the Veteran “aggravated my … shoulder while deployed in Kuwait … I was unable to seek military treatment because of my mission priorities.” During the Veteran’s August 2019 hearing, he testified that he suffered an injury “playing basketball, something happened … I experienced some pain … actually it was neck and shoulder pain. They had me go through physical therapy and do all kinds of things.” He then testified that it was during his “2002 deployment [where the shoulder] kind of got aggravated again.” The Veteran indicated that his 2002 deployment was “90 days in Kuwait.” The Veteran indicates that this was “professional military education,” and “there were a lot of physical activities involved with teams and things like that. So playing volleyball, basketball, various sports and something kind of pulled or got strained on my shoulder.” He stated that he waited to report the injury because “I didn’t want to get left behind in the training or have to start or take the training over again.” The Veteran is competent to report symptoms associated with a shoulder injury. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). As noted in the prior October 2019 Board Decision, the Veteran was given a VA examination in March 2015. The diagnosis was right shoulder rotator cuff tendonitis, however an etiological opinion was not given. As a result, the Veteran’s claim was remanded for a VA examination. That VA examination occurred in January 2020. The Veteran was seen in person and his claims file was reviewed. The examiner confirmed that the Veteran had a current diagnosis of right “shoulder strain – acute.” The examiner also noted the Veteran’s lay statements related to the in-service injury, including the “twisting injury while playing basketball.” Following clinical evaluation, the examiner opined that it is less likely than not that the Veteran’s diagnosed shoulder injury was related to his active duty service. The following rationale was provided: All available STRs and treatment records are silent for complaints of, treatment for, or diagnosis of any right shoulder condition. The Veteran’s rights shoulder was not aggravated during service as there is no right shoulder condition noted on the Enlistment examinations and no right shoulder condition during active duty service. The acute and transitory right rotator cuff tendonitis diagnosed [previously] … has resolved … the significant delay between active duty service and the current acute right shoulder strain make any connection very unlikely. Although this Veteran has subjectively reported his experiences, the Veteran is not qualified to make a medical diagnosis or clinical nexus as the result of those experiences. As such, a negative etiological opinion was provided. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran’s claims file also includes a September 2020 private medical opinion from Dr. M.L. The Veteran was not seen in person, however the report indicated that the Veteran’s claims file was reviewed. As it relates to the Veteran’s right shoulder disability, the examiner noted the Veteran’s report of the basketball injury. They also noted the Veteran’s report of having to “lift very heavy objects.” The examiner then provided a blanket positive etiological opinion for five separate disabilities, one of which was the right shoulder disability. Considering that the Veteran was not seen in person, that the report was predominantly taken from the statements of the Veteran as opposed to the remainder of the claims file, and that the nexus opinion is broadly applied to five different disabilities, the Board finds that the September 2020 opinion from Dr. M.L. is afforded little probative weight as to the etiology of the Veteran’s right shoulder. See, Nieves-Rodriguez, Id. In consideration of the above, the Board finds that the Veteran has not met all the criteria for entitlement to service connection. The Veteran does have a current diagnosis of a right shoulder disability, and he is competent to report as to both his symptoms, and that which he experienced during service. Having said that, the January 2020 VA examiner’s report, to which the Board has afforded significant probative weight, provided a negative etiological opinion. That exam considered the Veteran’s in-service medical records, but also his lay statements. The opinion discussed a previous rotator cuff injury which had resolved, but also provided an opinion for the current right shoulder strain disability. The Board also notes that the Veteran’s claims file includes the positive private opinion from Dr. M.L., however the Board has afforded that opinion little probative weight, for the reasons cited above. Furthermore, unlike the issues from previous sections, the Veteran’s claims file does not contain any additional positive nexus opinions, private or otherwise, nor does it contain relevant buddy statements that speak to the current right shoulder disability. As such, the Board finds that based on the weight of the evidence, the Veteran’s currently diagnosed right shoulder strain is not proximately due to or caused by his active duty service. As such, the Veteran does not meet the criteria for entitlement to service connection for the right shoulder disability. 38 C.F.R. § § 3.303(a). In reaching this conclusion, the Board finds that the preponderance of the evidence is against the claim of service connection for a right shoulder disability. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.