Citation Nr: 21030954 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 18-02 898 DATE: May 20, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (sleep apnea) is remanded. Entitlement to service connection for a lumbar spine condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 2003 to January 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions, dated June 2016 and April 2017, issued by a Department of Veterans Affairs (VA) regional office. These matters were previously remanded by the Board in May 2019. As an initial matter, the Board notes that, as discussed in the May 2019 Board remand, the Veteran's claim of entitlement to service connection for a lumbar spine condition was initially denied in the June 2016 rating decision. Though the Veteran did not appeal, within one year of that denial, he submitted a new claim for the same disability and new and material evidence was added to the file. Therefore, the June 2016 rating decision did not become final. 1. Entitlement to service connection for sleep apnea is remanded. The Board regrets the delay associated with this remand, particularly as this matter is the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. First, a remand is necessary as the evidence indicates that relevant VA treatment records have not been associated with the claims file. Specifically, the record indicates that the Veteran receives treatment within the South Texas VA Healthcare System (VAHCS). However, no records relating to treatment after March 2017 have been associated with the claims file. See South Texas VAHCS records, received October 2012, January 2017, March 2017, and October 2019 in CAPRI. As such, a remand is necessary to ensure that all relevant VA treatment records have been obtained and associated with the electronic claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); Bell v. Derwinski, 2 Vet. App. 611 (1992). Second, a remand is necessary to allow the AOJ to obtain an adequate opinion regarding the etiology of his diagnosed sleep apnea. In November 2019, the Veteran was afforded a VA examination regarding his sleep apnea, in which the examiner opined that the Veteran's sleep apnea was less likely than not related to his active duty service. In support of this opinion, the examiner noted that the Veteran denied frequent trouble sleeping on his separation evaluation, and that his service treatment records (STRs) contain no reports of sleep difficulty in service. The examiner also noted that the Veteran's sleep difficulty and snoring did not become a problem until his wife was having difficulty sleeping and urged him to get checked, which was in 2016. See November 2019 VA Sleep Apnea Disability Benefits Questionnaire (DBQ); November 2019 VA Medical Opinion DBQ. In other words, in finding that the Veteran's diagnosed sleep apnea was less likely than not related to his active duty service, the examiner essentially relied on the absence of in-service complaints. However, the lack of documented complaints, standing alone, is not an adequate basis for a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Further, the Veteran's medical records indicate that he reported sleeping difficulty as early as June 2009. See Community Medical Group of the West Valley records, received May 2012; South Texas VAHCS records. As such, the opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 5 Vet. App. 458 (1993). Additionally, an opinion is inadequate when, as indicated here, an examiner fails to consider the Veteran's prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Moreover, as discussed above, relevant VA records have not been associated with the claims file. As such, etiological opinion is inadequate as the examiner was unable to consider the Veteran's prior medical history. See Stefl v. Nicholson, supra. For these reasons, the Board finds the November 2019 etiological opinion to be inadequate for adjudication purposes. As such, a remand is necessary to obtain an adequate opinion regarding the etiology of the Veteran's sleep apnea. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for a lumbar spine condition is remanded. The Board regrets the delay associated with this remand, particularly as this matter is the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary to allow the AOJ to conduct additional development. As discussed above, a remand is necessary to allow the AOJ to obtain relevant VA treatment records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); Bell v. Derwinski, supra. Once these records are secured, an addendum opinion to assess the records should be ordered to determine if the examiner's opinion should be updated. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the claims file any outstanding pertinent medical records, whether VA or private, including records relating to treatment within the South Texas VAHCS from March 2017 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the development above, and any additional development warranted by the record, return this matter to the November 2019 examiner and obtain an addendum opinion regarding the etiology of the Veteran's sleep apnea. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, or if the November 2019 examiner is unavailable, an examination should be scheduled and any indicated tests, studies, or evaluations should be conducted. The examiner is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) Opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's sleep apnea had its onset during, or is otherwise related to, the Veteran's active duty service, to include exposure to toxins and other airborne particles during service in Iraq. (c.) In rendering the requested opinion, the examiner is instructed to consider and address: i. The Veteran's lay statements; ii. The spousal statement submitted in May 2020; and iii. The lay statement submitted by S.Q. in May 2020, reporting exposure oil refinery emissions, dust, black smoke, and burn pits. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner is further reminded that the mere absence of in-service evidence of a particular condition as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 4. After completing the development in Section One above, and any additional development warranted by the record, return this matter to the November 2019 examiner and obtain an addendum opinion regarding the nature and etiology of the Veteran's claimed lumbar spine condition. The entire claims file must be provided to, and reviewed by, the examiner. The examiner is asked to: (a.) Determine whether based on the additional records added to the record, whether the opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service, should be updated. (b.) In formulating the requested opinions, the examiner is instructed to consider and address: i. The Veteran's June 2004 report of back pain; ii. The Veteran's lay statements; iii. The spousal statement submitted in May 2020; and iv. The lay statement submitted by S.Q. in May 2020, reporting, inter alia, that the Veteran participated in over 250 combat operations and was required to wear full battle equipment all day, every day, for approximately one year. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner is further reminded that the mere absence of in-service evidence of a particular condition as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 5. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.