Citation Nr: 21025525 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-21 584 DATE: April 28, 2021 REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy from March 1993 to March 1995. These issues come before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. 1. Entitlement to service connection for a low back disorder. The Veteran contends that he currently has a low back disorder that is the result of military service. He states that a pilonidal cyst was surgically removed during service in July 1994 at an Army hospital at Fort Monmouth in New Jersey while he was stationed aboard the USS Nitro AE23. See Veteran’s statement of July 1996. He also testified at his Board hearing that he has had back pain since the in-service surgery to the present. The Veteran’s mother also testified as to her personal observation that he did not experience any back issues before service and experienced consistent signs of back pain following service. Their testimonies were found to be truthful and credible by the undersigned. The Board notes that there are no contemporaneous service treatment records (STRs) of the pilonidal cyst surgery. However, at the bottom of the page for the Veteran’s self-report of medical history at separation, a clinician noted “pilonidal cyst” and “occasional low back pain since [illegible] 7/94.” In addition, the Veteran testified that, at some point, he was informed by the Fort Monmouth hospital that his surgical records had been destroyed because they were old. A review of the claims file reveals that these records were requested; however, VA was unable to obtain these records as the Fort Monmouth Army post was shut down. See October 2020 VA Report of General Information. This claim was remanded in July 2019 to afford the Veteran a VA examination to determine the nature and etiology of the low back disorder that addressed his credible complaints of low back pain. The VA examination was conducted in January 2021. He was diagnosed with lumbosacral strain. In addition, he reported experiencing back pain while stationed in New Jersey in 1993. The examiner noted that the Veteran was evaluated and prescribed pain medication. The examiner also noted complaints of recurrent back pain since service. She then gave a negative opinion that the low back disorder was the result of military service. The examiner noted that the STRs were silent for any back complaints during service. In addition, the examiner noted the Veteran’s cyst surgery would not cause a lumbar strain or residual lumbar pain, as the pilonidal cyst is a skin condition. Further, the examiner noted that the post-service records were silent for any back complaints. No other opinions or rationale were provided. The VA has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the VA opinion is inadequate as the examiner did not adequately address the Veteran's competent report of continuous back problems from active duty to the present. It was merely noted that the Veteran reported such complaints and that a pilonidal cyst is a skin disorder without further elaboration. The examiner did not address that the Veteran reported occaisional back pain at the time of discharge. The opinion is based on a lack of objective medical evidence without real consideration of the reported symptoms. The rationale provided cites to a lack of objective medical records of back symptoms three separate times. The examiner was directed to provide a reason if the Veteran's reports of continuous symptomology were found to not be warranted based on medical reasons. This was not done. This matter must be remanded for an addendum VA opinion that addresses all the evidence of record, including the Veteran’s credible pain complaints. 2. Entitlement to service connection for sleep apnea. The Veteran contends that his sleep apnea is the result of military service. He testified at his Board hearing that he began snoring during service, that his bunk mates complained to him that he snored loudly, and that the snoring has continued to the present. The Veteran’s mother also testified as to her personal observation that he did not snore before service and began his snoring following service. The Veteran also maintains that he first felt fatigued all day during service. He further reported that he has had a CPAP device for the last seven or eight years. Their testimonies were found to be truthful and credible by the undersigned. A review of the Veteran’s STRs reveals no complaints or issues related to sleep difficulties. The Board notes that an undated and unsigned service separation examination report is blank expect for the biographical information supplied by the Veteran at the top of the page. His self-report of his medical history at separation is of record. No examination findings were recorded by a clinician at separation. The Veteran answered “yes” to the form question, “Have you ever had, or have you now, frequent trouble sleeping?” The Board remanded this matter in July 2019 for a VA examination to determine the nature and etiology of the Veteran’s sleep difficulties. The VA examination was conducted in January 2021. He was diagnosed of obstructive sleep apnea. The examiner noted the Veteran’s reports of experiencing in-service restlessness with snoring and increased daytime sleepiness symptoms. She then gave a negative opinion that the sleep apnea is due to military service. She noted that a review of the medical literature revealed that obesity was the most likely cause of the sleep apnea, as the Veteran’s body mass index was 41.7. She also noted that the STRs are silent for complaints of sleep difficulties. No other opinions or rationale were provided. The Board finds the opinion is inadequate because it relies on a lack of medical evidence. Lack of evidence cannot be treated as substantive negative evidence. The examiner gave no real explanation for the rejection of the Veteran’s credible reports of sleep difficulties. As such, the Board finds that the examiner did not sufficiently address the Veteran’s credible sleep complaints. In addition, a review of the STRs reveals that the Veteran did indeed complain of sleep issues on his separation self-report of medical history. An opinion based on an inaccurate factual background has no probative value. Based on the inadequacies of the VA examination, this matter must be remanded for an addendum VA opinion that addresses all the evidence of record, including the Veteran’s credible sleep complaints. The matters are REMANDED for the following action: 1. Obtain updated VA and identified pertinent private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. After the above has been completed to the extent possible, obtain an addendum VA opinion regarding the nature and etiology of the Veteran’s low back disorder from a medical professional with appropriate expertise. The claims file must be reviewed by the examiner. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one (or a telehealth interview, if an in-person examination is not feasible). Based on a review of the record, and a new examination if necessary, the examiner must address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s low back disorder has its onset in service or is otherwise related to service? The examiner must address the Veteran’s continuous back pain complaints since active duty service. 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 certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Obtain an addendum VA opinion regarding the nature and etiology of the Veteran’s sleep apnea from a medical professional with appropriate expertise. The claims file must be reviewed by the examiner. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one (or a telehealth interview, if an in-person examination is not feasible). Based on a review of the record, and a new examination if necessary, the examiner must address the following: Whether it is as least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea manifested during service or is otherwise related to service? The examiner is to address the Veteran’s credible reports of sleep difficulties from service to the present date as well as snoring during service. 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 certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, 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.