Citation Nr: 21039884 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 10-42 878 DATE: July 1, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a back condition is remanded. Entitlement to service connection for bilateral lower extremity radiculopathy, to include as secondary to a back condition is remanded REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from February 1988 to June 1988, from October 1990 to July 1991, and from January 2005 to May 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from January 2010 and March 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In March 2013, the Veteran testified before the undersigned at a videoconference Board hearing. The claims file contains a transcript of the hearing. In a February 2018 Board Decision, the above-referenced claims were remanded to the RO for further evidentiary development and readjudication. The RO did not substantially comply with the Board's remand instructions with respect to the back and sleep apnea claims, so they must be remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The February 2018 Board Decision also remanded a claim of entitlement to service connection for an acquired psychiatric disorder. The RO granted that claim after the development requested by the Board. Therefore, that claim is no longer on appeal. The Board acknowledges that the Veteran filed a Notice of Disagreement (VA Form 10182) with respect to the rating and/or effective date assigned. That appeal constitutes a separate appeal stream and will be adjudicated in a separate Board decision pursuant to the Veteran's elections in his Notice of Disagreement. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed.Cir. 1997) (clarifying that an appeal regarding downstream elements, i.e. the disability rating, is separate from any prior appeal regarding entitlement to service connection). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. In a February 2018 Board Decision, the Board found inadequate an August 2010 VA examiner's rationale for his opinion regarding the etiology of the Veteran's sleep apnea. The rationale for that opinion was: Veteran denied still feeling tired after sleep, as seen with sleep apnea, in 2005. No evidence in medical records of sleep complaints until 2008 when he was sent for sleep study. The Board remanded the claim for an opinion that addressed the etiology of the Veteran's sleep apnea. The Board instructed that "the examiner must acknowledge the Veteran's lay report of onset in service. Also, the examiner should address the February 2012 lay statement from D.M., as well as [the] April 2010 lay statement from W.H." Upon remand, a different examiner provided the following rationale for her negative opinion: Service treatment records do not support treatment for sleep disturbances. The veteran was diagnosed after discharge on 2/12/2008 by sleep study. There is no record of continued service in the c-file after 2/24/2005. There are lay statements to support the veteran's claim however there remains no evidence to support in the [sic] diagnosis prior to 2008 in the claims file. This rationale, while containing more words than the prior rationale, has little more content. The additional content it does have is favorable towards the Veteran's claim in that it acknowledges lay statements that support the Veteran's claim. However, it does not explain why the statements are supportive of the claim and why the statements were disregarded despite being supportive of the claim. When the Board requested that the examiner acknowledge the lay statements of D.M. and W.H., it expected the examiner would discuss whether the statements were medically consistent or inconsistent with the Veteran's allegations regarding the onset and development of sleep apnea and whether there were any medical principles that indicated that the statements were more or less plausible in light of the other evidence of record. The Board will ultimately address the credibility of the statements, but an expert opinion regarding the medical plausibility of the statements and how the examiner's opinion would be affected if the statements are deemed credible or if they are deemed not credible would be helpful in resolving the sleep apnea claim. The January 2020 VA examiner's opinion also does not directly address the Veteran's allegation of in-service onset of sleep apnea as directed in the February 2018 instructions. In addition, the new rationale does not mention one of the key factors used to support the prior 2010 opinion, namely that the Veteran explicitly denied "still feeling tired after sleep" subsequent to his final deployment on active duty. It would be helpful if the examiner discussed this fact and how it affects the ultimate opinion, including whether that in-service statement is consistent with the Veteran's assertion that he had sleep apnea during active service and whether it is consistent with the later lay statements of D.M. and W.H. and, if not, why not. An adequate medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The January 2020 VA examiner's opinion does not comply with the Board's February 2018 instructions and otherwise does not provide an adequate basis for a decision on the merits. See Stegall, 11 Vet. App. at 271; see also Dyment, 13 Vet. App. at 146-47. 2. Entitlement to service connection for a back condition The Veteran contends that his current back disability is related to two in-service back injuries in 1991, including a motor vehicle accident and a fall from a ladder. See March 2013 Board Hearing Tr. at 4-8. He alleges that, although he did not seek medical treatment for his back until "late 2005", that he "missed a lot of work" between 1991 and 2005 because of the back injury. The February 2018 Board Decision directed that the RO obtain an opinion "as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's ack disability began in service, was cause [sic] by service, or is otherwise etiologically related to his active service." In explaining the need for that opinion, the Board noted that the rationale was based on the fact that "the Veteran consistently denied back pain or a back condition during his periods of active service" but that the law does not permit the Board to rely on an opinion based solely on the absence of treatment or diagnosis in a Veteran's service treatment records. The January 2020 VA examiner's opinion obtained pursuant to the remand provides the following rationale: The Veteran has listed no complaints of back pain in his service records or an accident or injury in service to support his degenerative joint disease. There are no available STR providing support [sic] the current lumbar condition. There is no evidence of chronicity of care from discharge until 2008 three years later. The examiner did not discuss the Veteran's alleged in-service injuries in 1991. Implicit in the Board's prior remand is that it would be helpful for the examiner to comment on those allegations, to include whether the Veteran's contention that his current back disability is related to those injuries is consistent with his description of those injuries, his description of the course of his deterioration, and an initial diagnosis in 2008. The January 2020 VA examiner's opinion is inadequate. Notwithstanding that the Board has determined that a new medical opinion is necessary, the Veteran and his representative are hereby notified that the Board has not made a final credibility determination regarding whether the claimed in-service back injuries actually occurred. See Smith v. Wilkie, 32 Vet. App. 332, 334 (Apr. 27, 2020) ("the principles of fair process require the Board to provide claimants notice and an opportunity to respond when it purports to reverse prior assertions that evidence is credible or otherwise satisfactory to establish a fact necessary to the claim"). The Board recognizes that, because it found that a VA examination is warranted, the Veteran might assume that the in-service element of his claim has been established. See McLendon v. Nicholson, 20 Vet. App. 79, 82 (2006) (noting that, to warrant an examination, the evidence must establish that the claimant suffered an in-service event, injury or disease"). This assumption is not accurate in this case. The Board has remanded the matter in order to obtain medical information which will assist the Board in assessing the credibility of the Veteran's allegations regarding in-service back injuries. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) (holding that "medical opinions can inform credibility findings," so the duty to assist may require the Board to obtain a medical opinion before assessing the credibility of the lay evidence."). The back claim is being remanded to obtain a medical opinion in part because an adequate medical opinion will permit the Board to make a fully informed assessment regarding the credibility of the Veteran's claims regarding in-service injuries. If they have any additional evidence or can identify any records that might support the Veteran's contentions, the Veteran and his representatives should submit additional evidence and argument with respect to whether the in-service back injuries occurred. 3. Entitlement to service connection for bilateral lower extremity radiculopathy, to include as secondary to a back condition Finally, because a decision on the remanded issue of entitlement to service connection for a back condition could significantly impact a decision on the issue of entitlement to service connection for bilateral lower extremity radiculopathy, the issues are inextricably intertwined. A remand of the radiculopathy claim is required. The matters are REMANDED for the following action: 1. Obtain all VA treatment records for the Veteran dated from December 2019 to the present. 2. Obtain an addendum opinion from an appropriate clinician addressing whether the Veteran's sleep apnea is at least as likely as not incurred in or related to the Veteran's active service. The examiner should review the claims file and provide an addendum opinion addressing whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed sleep apnea began in service, was caused by service, or is otherwise etiologically related to his active service. Specifically, the examiner must acknowledge the Veteran's lay report of onset in service. Also, the examiner should address the February 2012 lay statement from D.M. and the April 2010 lay statement from W.H. 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 an against a conclusion is so evenly divided that it is medically sound to find in favor of the conclusion as it is to find against it. A clear rationale must be provided for any opinion. 3. Obtain an addendum opinion from an appropriate clinician addressing whether it is at least as likely as not (50 percent probability or greater) that the Veteran's back disability began in service, was caused by service, or is otherwise etiologically related to his active service. It would be helpful if the examiner addressed the February March 2013 Board hearing testimony alleging back pain during his active service following a January 1991 motor vehicle accident and then again following a February 1991 fall from a ladder. The Board has not determined whether these events occurred, but it would be helpful if the examiner opined regarding whether there is any medical evidence or principles that would support finding that they occurred and would be related to the later diagnosed back condition. 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 an against a conclusion is so evenly divided that it is medically sound to find in favor of the conclusion as it is to find against it. A clear rationale must be provided for any opinion. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the issues of entitlement to service connection for (a) sleep apnea, (b) a back condition, and (c) radiculopathy of the bilateral lower extremities, to include as secondary to a back condition. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.