Citation Nr: 21027607 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 14-05 348 DATE: May 6, 2021 REMANDED 1. Entitlement to service connection for obstructive sleep apnea, to include as due to service-connected anxiety disorder, NOS (with posttraumatic stress disorder (PTSD) traits) is remanded. 2. Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from July 1978 to November 1998. These matters are before the Board of Veterans' Appeals (Board) on appeal from October 2012 and June 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2016, a Travel Board hearing was held before a Veterans Law Judge who is no longer employed by the Board. The Veteran was offered a hearing before another Veterans Law Judge, and declined in October 2017 correspondence. In January 2018 and September 2019, these matters were remanded for additional development. 1. Entitlement to service connection for obstructive sleep apnea, to include as due to service-connected anxiety disorder, NOS (with PTSD traits) Th Board finds that there has not been substantial compliance with the previous remand directives, and that corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran contends that his sleep apnea is related to his service or is secondary to his service-connected anxiety. On January 2018 remand, the Board referenced the Veteran's contentions that his sleep apnea was related to his service either by (1) being trained to be a light sleeper, (2) allegations that he was abused and mistreated by drill sergeants, (3) alleged involvement in numerous vehicle accidents, or (4) falling tools hitting his face and nose. Whether the Veteran's sleep apnea may be caused by these reported injuries and/or incidents in service is a medical question. However, the medical opinions of record have not considered the Veteran's allegations relating his sleep apnea directly to service, and have not adequately provided rationale for the Veteran's claim of service connection on a secondary basis. Accordingly, a new medical opinion is necessary. 2. Entitlement to service connection for a low back disability The Veteran contends that his current low back disability is related to recurring back pain he experienced in service. On August 1998 general medical examination, the Veteran reported a sore back from constantly lifting boxes and heavy equipment in 1989. It was noted that the Veteran had not gone to sick call, but reported lower back pain at a 4-5/10 once every month with lifting of heavy parts and machinery (usually lasting three to six hours). The diagnosis was recurring low back strain. An April 2000 Johns Hopkins treatment record notes that the Veteran was seen with complaints of low back pain for four days. The Veteran reported a history of back problems, and reported recently completing physical therapy at the University of Maryland. An August 2008 new patient treatment record notes a history of some chronic backache for which the Veteran sometimes took Advil. On May 2014 back conditions DBQ, the examiner opined that the Veteran's low back disability was more likely related with aging, obesity and/or development scoliosis (preceding his military service). At the March 2016 Travel Board hearing, the Veteran testified to first injuring his back approximately five years into service in a jeep roll-over. The Veteran noted reporting recurrent back pain prior to his retirement from service. The Veteran testified to receiving treatment for his back from 1999 to 2008 at Johns Hopkins Medical Center. In May 2016 correspondence, the Veteran's representative submitted correspondence from the University of Maryland Medical Center which indicated that records from 1998 to 2001 had been destroyed. As the Board noted in the 2018 decision, the Veteran has consistently reported that he injured his back during active service. The evidence of record does shows that the Veteran sustained a post-service low back injury in March 2012. Nevertheless, the Veteran is competent to report that he injured his low back during active service and that he has continued to experience low back pain since his separation from active service. The May 2014examiner did not consider the Veteran's competent and credible reports that he had been suffering from low back pain since service. Most significantly, it is symptoms, not treatment, that is relevant for the determination of whether there is a relationship between the in service injury and subsequent symptomatology and the current disability. The May 2014 examiner appears to have relied more on lack of treatment than the credible evidence of symptomatology, and did not adequately address the Veteran's lay statements of continuity. On February 2020, a VA contract physician filed several medical opinions. In one document, the examiner opined that the Veteran's back disability clearly and unmistakably existed prior to service, and found it less likely than not that the Veteran's low back disability was aggravated beyond the natural progression by service. In a separate February 2020 opinion, the examiner selected a box on the form indicating that it was less likely than not that the Veteran's low back disability was related to service. However, the rationale provided states there is at least as likely as not that the claimed condition was incurred in or caused by in service injury. A final February 2020 opinion attributed the Veteran's low back disability to wear and tear, and attributed age as the primary risk factor for degenerative diseases. The examiner found that there was no evidence of either a congenital defect or disease but rather only the degenerative disease As previously noted by the Board in January 2018, the Veteran is entitled to the presumption of soundness with respect to his low back. See January 2018 Board Remand pg. 12. Accordingly, as the May 2014 and February 2020 opinions provided are (at least in part) based on an inaccurate factual premise, they are inadequate for rating purposes. Whether the Veteran's low back disabilities are related to service is a medical question. The current medical opinions of record are mostly against the Veteran's claim. However, such opinions are either based on an inaccurate factual premise, fail to consider the Veteran's lay statements of continuity (and private as well as service treatment records that support such statements), or are internally conflicting. Accordingly, a new medical opinion which adequately considers the Veteran's lay statements of continuity is necessary. See Miller v. Wilkie, No. 16-3046, 2019 U.S. App. Vet. Claims LEXIS 923. The matter is REMANDED for the following action: 1. Arrange for the Veteran's record to be forwarded to an appropriate clinician for review and an advisory medical opinion regarding the etiology of the Veteran's sleep apnea. Upon review of the record (to include the Veteran's lay statements and allegations of in-service incidents), the consulting provider should respond to the following: (a.) Identify the likely etiology for the Veteran's sleep disorder including sleep apnea. Specifically, is it at least as likely as not (a 50 percent probability or greater) that it is etiologically related to service (to include the Veteran's allegations of in-service incidents cited in the text above)? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's sleep disorder including apnea was caused or aggravated [the opinion must address aggravation] by his service-connected anxiety, or did his anxiety disorder cause obesity as an intermediate step to causation of sleep apnea? (c.) If the Veteran's sleep apnea is determined to be unrelated to service, and not caused or aggravated by his service connected anxiety, identify the etiology considered to be more likely and explain why that is so. The clinician must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Arrange for the Veteran's record to be forwarded to an appropriate clinician for review and a medical opinion regarding the etiology of the Veteran's low back disability. On review of the record (to include the Veteran's lay statements noted above, as well as private treatment records noting ongoing low back pain in 2000), the consulting provider should respond to the following: (a.) Identify the likely etiology for the Veteran's current low back disabilities. Is it at least as likely as not (a 50 percent probability or greater) that it is etiologically related to service (to include the Veteran's noted complaints of recurring low back pain prior to separation from service)? (b.) If the Veteran's low back disability is determined to be unrelated to service, identify the etiology considered to be more likely and explain why that is so. The clinician must address the Veteran's contentions of a continuity of back pain since service. The clinician must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.