Citation Nr: 22014010 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 14-00 132 DATE: March 11, 2022 REMANDED The appeal for service connection for a back disability is remanded. The appeal for service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from August 1975 to July 1978. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2016. Unfortunately, VA was unable to create a transcript of the hearing due to audio malfunctions. The Veteran was informed of the malfunction in January 2018 correspondence. The January 2018 correspondence informed the Veteran that he had 30 days to request a new hearing. The Veteran did not respond and has not submitted a request for a new hearing. As such, the Board considers the Veteran's request for a hearing to be satisfied. See 38 C.F.R. §§ 20.702 (e), 20.704(e). The appeal was previously remanded by the Board in September 2018. 1. Entitlement to service connection for a back disability. In September 2018, the Board remanded the appeal, in pertinent part, for a VA examination and opinion. As discussed in the September 2018 Remand, the Board determined that the prior examination, completed in December 2010, was inadequate because the examiner addressed an in-service lumbar strain but did not also address the Veteran's additional reports of back pain in service. The Board also found the December 2010 VA examination report inadequate because the examiner indicated that the Veteran may have had a congenital lumbar spine condition but did not provide the appropriate analysis in order to determine whether the disorder was a disability or disease, nor provide the appropriate analysis in order to rebut the Veteran's presumption of soundness on service entrance. The Veteran was provided with a new VA examination in August 2019. The Board appreciates the August 2019 VA examiner's explanation that the Veteran did not have a congenital lumbar spine condition. The Board finds that the examination is adequate with respect to the possibility of the congenital lumbar spine condition; however, an addendum VA opinion is required with respect to the question of entitlement to service connection on a direct basis. In this regard, the August 2019 VA examiner did not comply with the remand directive requiring the examiner to address the Veteran's in-service reports of back pain other than the diagnosed lumbar strain. As such, an addendum opinion is required. See Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to service connection for sleep apnea. In September 2018, the Board remanded the appeal, in pertinent part, for a VA examination and opinion. At that time, the Board noted that the December 2010 VA examination report was inadequate as the VA examiner determined that the Veteran had preexisting sleep apnea prior to service based on a finding of a congenital condition. The examiner determined that the Veteran's anatomical presentation would have been congenital and gave rise to the Veteran's symptoms prior to service. The Board found the report to be inadequate as the examiner did not provide the appropriate analysis in order to rebut the Veteran's presumption of soundness on service entrance. In accordance with the September 2018 Remand, the Veteran was provided with another VA examination in August 2019. The August 2019 VA examiner concluded that the Veteran did not have a congenital uvula disorder or clear and unmistakable evidence of a preexisting sleep apnea disorder. The examiner provided a detailed explanation for the conclusions reached. The Board appreciates the August 2019 VA examiner's explanation for the conclusion; however, the Board finds that a VA addendum opinion is required with respect to whether the Veteran's current sleep apnea is directly related to service. In this regard, the August 2019 VA examiner did not address the Veteran's lay statements that he not only had trouble sleeping in service, but that he also had daytime fatigue and incidents of not breathing at night, in service, as well as continuity of symptoms since service. See Veteran's statements during December 2010 VA examination report. As such, a VA addendum opinion is required. See Stegall v. West, 11 Vet. App. 268 (1998). While on remand, any outstanding treatment records should also be obtained. VA treatment records obtained on remand indicate that the Veteran continues to be treated by both VA and private physicians. See e.g. March 2019 VA treatment record. The Board also observes that when the Veteran sought to establish VA treatment in August 2009, he reported that he had been previously diagnosed with sleep apnea. The Veteran should be given another opportunity to submit any private treatment records or authorize VA to obtain them on his behalf. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all VA treatment records for the Veteran dated from April 2020 to the present. 2. Offer the Veteran the opportunity to submit any outstanding private treatment records (to include private treatment records dated prior to August 2009) or provide the appropriate authorization for VA to obtain them on his behalf. The RO must make two attempts to obtain any private records identified, unless the first attempt demonstrates that further attempts would be futile. If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain the records, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. 3. Following completion of items 1 and 2, obtain a VA addendum opinion regarding the nature and etiology of the Veteran's back disability. Following review of the electronic claims file, the examiner is asked to address the following: (a.) Is at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's degenerative disc disease disability began in service, was caused by service, or is otherwise related to the Veteran's active service. In providing an opinion, the examiner must address the Veteran's reports of recurrent back pain in service in addition to the diagnosed lumbar strain, as well as reports of continuity of symptoms since service. (b.) A complete rationale must be given for all opinions and conclusions expressed. If in the opinion of the reviewing clinician answers to the questions above cannot be provided without an in-person or virtual examination or interview, such should be scheduled. 4. Following completion of items 1 and 2, obtain a VA addendum opinion regarding the nature and etiology of the Veteran's sleep apnea. Following review of the electronic claims file, the examiner is asked to address the following: (a.) Is at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's sleep apnea began in service, was caused by service, or is otherwise related to the Veteran's active service. In providing an opinion, the examiner must address the Veteran's reports of had trouble sleeping in service, but that he also had daytime fatigue and incidents of not breathing at night, in service, as well as continuity of symptoms since service. (b.) A complete rationale must be given for all opinions and conclusions expressed. If in the opinion of the reviewing clinician answers to the questions above cannot be provided without an in-person or virtual examination or interview, such should be scheduled. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Donna D. Ebaugh, 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.