Citation Nr: 22016455 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-17 263A DATE: March 22, 2022 ORDER Entitlement to service connection for headaches is denied. Entitlement to service connection for obstructive sleep apnea (OSA) is denied. Entitlement to service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for a nerve disability is remanded. Entitlement to service connection degenerative arthritis of the thoracolumbar spine is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran has had a diagnosis of headaches at any time during or approximate to the pendency of the claim. 2. The evidence of record persuasively weighs against finding that the Veteran's OSA or an acquired psychiatric disability began during active service, or are otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1971 to November 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June and October 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The claims were most recently remanded by the Board in December 2021 for adjudication of new evidence by the Agency of Original Jurisdiction (AOJ). There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether the evidence weighs persuasively against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for headaches The Veteran asserts that he is entitled to service connection for headaches. The Board concludes that the Veteran does not have a current diagnosis of headaches and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board notes that the Veteran has not been afforded a VA examination for this claim. A VA examination or opinion is deemed necessary only if the evidence of record (a) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of a disability; (b) establishes that the appellant suffered an event, injury, or disease in service; (c) indicates that the claimed disability or symptoms may be associated with the appellant's service or other service- connected disability, and (d) does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the requirement to examine the Veteran is not triggered regarding his headache claim, as the evidence weighs persuasively against a finding of a current headache disability or that he experienced an in-service event, injury, or disease related to his claim for headaches. As such, a VA examination is not required for the reasons discussed below. The Veteran has not provided any lay statements about when his headaches began and why he believes headaches are related to his active service. Service treatment records are silent for any complaints or diagnosis of headaches. Likewise, a review of the Veteran's post-service medical records shows no indication of a diagnosis for headaches. VA treatment notes document that the Veteran repeatedly denied experiencing headaches. As the record does not show a current diagnosis for headaches, the evidence weighs persuasively against the Veteran's claim of entitlement to service connection for headaches, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence weighs persuasively against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for obstructive sleep apnea (OSA) 3. Entitlement to service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD) The Veteran asserts that he is entitled to service connection for OSA and an acquired psychiatric disorder. The Board concludes that, while the Veteran has diagnoses of OSA and an acquired psychiatric disorder, the evidence of record persuasively weighs against finding that these conditions began during active service, or are otherwise related to an in-service injury, event, or disease. The Veteran has not provided any lay statements explaining why he believes either of these conditions are related to his military service. A review of the Veteran's service treatment records fails to show any complaints, treatment, or diagnoses related to the claimed conditions of OSA and/or an acquired psychiatric disorder. Medical records following service separation indicate the Veteran was diagnosed with OSA and an acquired psychiatric disorder. VA treatment notes document that the Veteran underwent a sleep study in January 2016 and was diagnosed with OSA. Social Security Administration (SSA) medical records from October 2011 detail that the Veteran was diagnosed with adjustment disorder with depressed mood. However, at no point within VA medical records was the Veteran noted to have any psychiatric disorder. Further, the psychiatric disorder and OSA diagnoses were issued 39 years and 44 years after service discharge, respectively. The Veteran has not been afforded VA examinations for either claim. Although he has established diagnoses for each condition, there is no indication of an in-service onset, persistent symptoms since service, or objective or lay evidence suggesting that either condition is related to the Veteran's active service. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). Thus, the requirement to afford the Veteran VA examinations was not triggered given that the evidence weighs persuasively against the claims. Accordingly, as the evidence weighs persuasively against the Veteran's claims of entitlement to service connection for OSA and an acquired psychiatric disorder, the claims must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection degenerative arthritis of the thoracolumbar spine is remanded. The Veteran also seeks service connection for degenerative arthritis of the thoracolumbar spine. In a July 2020 remand, the Board determined that a May 2016 VA medical opinion was inadequate. Therefore, a new VA examination and medical opinion were obtained in November 2020. During the November 2020 VA examination, the Veteran reported that his back pain began in service. The VA examiner opined that it was less likely than not that his back condition is related to service. As rationale, the VA examiner stated that service treatment records showed no back complaints, and the Veteran was not seen for a back condition for several years following military separation. The VA examiner did not address the Veteran's lay statements that his back pain began during service. The Board finds that the November 2020 medical opinion is inadequate because it is based upon an absence of contemporaneous documentation of treatment for back pain during active service. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible); Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that a VA opinion was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide a negative opinion). Therefore, remand is required to obtain a new medical opinion. 2. Entitlement to service connection for a nerve disability is remanded. During the VA spine examinations, the Veteran was noted to have radiculopathy of the lower extremities. VA treatment notes also indicate the Veteran experiences neurologic symptoms in his legs. A decision on the remanded issue of entitlement to service connection for degenerative arthritis of the thoracolumbar spine could significantly impact a decision on the issue of service connection for a nerve disability. Thus, the issues are inextricably intertwined, and a remand of the claim is required. The matters are REMANDED for the following action: 1. Provide the Veteran's file to an appropriate examiner to assess the etiology of his back condition. An in-person examination should be scheduled only if the examiner feels an opinion cannot be rendered without an examination. The examiner must confirm that the claims file was reviewed. (a.) The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back condition is related to an in-service injury, event, or disease, including the Veteran's lay statement regarding back pain that began during service. (b.) The opinion offered must be supported by a complete rationale. The examiner is advised that the opinion is inadequate if the supporting rationale is solely based on a lack of contemporaneous medical evidence of the condition. Additionally, the examiner must discuss the Veteran's lay statement regarding back pain that onset during service. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.