Citation Nr: 1801947 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-10 631A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a bilateral knee disability, to include bursitis. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected deviated nasal septum with facial pain, headaches, and sinus infections. ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to June 1979 and from April 1985 to April 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Board remanded the current issues for further evidentiary development. In a January 2017 rating decision, the RO granted service connection for unspecified depressive disorder, to include anxiety, assigning a rating of 30 percent, effective March 1, 2010. To this date, the Veteran has not appealed his initial rating assignment or the effective date and the Board finds that this grant of service connection constitutes a full award of the benefit sought on appeal with respect to those issues. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development is required before the Veteran's claims may be decided. Bilateral Knee Disability The Veteran contends that service connection is warranted for his bilateral knees as a result of bursitis that was incurred in service. He reported that he has bouts of bursitis every three to four months, which was initially diagnosed as a left medial meniscal tear in service but was later determined to be bursitis. The Veteran's service treatment records document an April 1979 complaint of right knee weakness. Follow-up visits did not document complaints of any knee pain until 2001. In November 2001 and December 2001, the Veteran complained of left knee pain, with documented symptoms of mild effusion and crepitus. The clinician assessed the Veteran with a mild left medial meniscal tear and recommended over- the-counter medication and icing. In October 2015, the Board remanded the issue of service connection for a bilateral knee disorder, to include bursitis, for a VA medical examination. The Veteran was afforded a VA examination in July 2016. X-ray imaging taken at the time showed very mild age-related degenerative joint disease of the right knee. X-ray examination of the left knee revealed normal findings. The examiner determined the Veteran had normal objective findings of the bilateral knees, including range of motion, muscle strength, crepitus, and no pain with weight bearing, and did not have bursitis. The examiner determined that both knees had natural deconditioning. He diagnosed the Veteran with somatic joint dysfunction. The examiner opined that the Veteran's condition was not caused by service or the claimed episode of bursitis during service. He explained that the Veteran had no functional limitations, essentially normal x-ray examinations, and a negative sedimentation rate, which indicates no inflammatory processes and is inconsistent with bursitis. The examiner attributed the Veteran's pain as due to acute or chronic postural deviations or alterations of a body part or region. Significantly, however, the July 2016 VA examiner does not explain why "acute or chronic postural deviations or alterations of a body part" are not related to the Veteran's in-service injury. Furthermore, the examiner specifically references "claimed" bursitis but does not discuss the in-service impression of mild left medial meniscal tear. Based on the foregoing deficiencies, the Board finds that this opinion is inadequate and an addendum opinion is needed. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion."); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Sleep Apnea In October 2015, the Board remanded the issue of service connection for sleep apnea to obtain a VA medical opinion on whether the Veteran's service-connected deviated nasal septum caused or aggravated his currently diagnosed sleep apnea. The Board noted that a January 2011 VA examination revealed clinical evidence of obstructive sleep apnea, which the examiner determined was possibly associated with the Veteran's service-connected deviated septum. Additionally, the Board observed that sleep apnea evaluation center records from March 2015 to May 2015 show diagnoses of complex and obstructive sleep apnea, exacerbated by the Veteran's deviated septum and his posterior pharyngeal anatomy. In light of the Board's findings, the Veteran was afforded a VA sleep disorders examination in July 2016. The July 2016 VA examiner diagnosed the Veteran with central sleep apnea and opined that it was not caused by service or his service-connected deviated septum. He explained that there is no evidence to support that the Veteran's sleep apnea was caused by or incurred during service. According to medical literature, the examiner explained that there is no nexus to determine that a deviated septum is the etiology of central sleep apnea. The examiner also determined that there is no objective evidence to support that the Veteran's sleep apnea is aggravated by his service-connected deviated nasal septum. He further reasoned that central sleep apneas are periods of absent airflow due to lack of respiratory effort and recurrent central apneas are the hallmark feature of central sleep apnea. However, in an August 2016 statement, the Veteran's private physician at the sleep evaluation center explained that the Veteran has moderate to moderately severe obstructive sleep apnea (emphasis added). During a CPAP titration sleep study, the physician noted that the Veteran had increasing central sleep apneas and diagnosed him with complex sleep apnea. He explained that complex sleep apnea is a combination of obstructive sleep apnea and central sleep apnea. The physician determined that the Veteran's primary physiology is obstructive sleep apnea and that the central sleep apnea component only occurs when treated with CPAP titration instead of VPAP titration, which the Veteran requires as treatment. As the July 2016 VA examiner did not address the Veteran's diagnosis of obstructive sleep apnea (emphasis added) and only addressed central sleep apnea, the Board finds that this opinion is inadequate to decide the claim. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis); see also Barr v. Nicholson, 21 Vet. App. 303, 311(2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Accordingly, the case is REMANDED for the following action: 1. Forward the claims file, including a copy of this REMAND, to a clinician, other than the clinician who rendered the previous opinions, to provide an addendum opinion on the nature and etiology of the Veteran's bilateral knee disorder. The clinician should respond to the following: a. Identify all currently diagnosed knee disorders. In doing so, the clinician should note that the term "current" means occurring at any time during the pendency of the Veteran's claim; i.e., from March 2010 onward. The bilateral knee disorder need not be present at the time of the evaluation; rather it is sufficient if it previously existed during the pendency of the claim and then resolved prior to the evaluation. b. Is any current bilateral knee disorder at least as likely as not (probability of 50 percent or more) related to an event, disease, or injury in service? Please explain why or why not. In providing this opinion, please comment on the significance, if any, of the Veteran's in-service impression of mild left medial meniscal tear and July 2016 x-ray showing degenerative joint disease of the right knee. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 2. Forward the claims file, including a copy of this REMAND, to the individual who conducted the January 2011 examination, or another clinician if that individual is unavailable, to provide an addendum opinion regarding the nature and etiology of the Veteran's sleep apnea. The clinician should respond to the following: a. Is the Veteran's sleep apnea at least as likely as not (probability of 50 percent or more) related to an event, disease, or injury in service? Please explain why or why not. b. If not, is the sleep apnea at least as likely as not proximately due to his service-connected deviated nasal septum? If not, then is it at least as likely as not that the sleep apnea has been aggravated (worsened beyond it natural progression) by his service-connected deviated nasal septum? Please explain why or why not. In providing this opinion, please comment on the significance, if any, on the Veteran's diagnoses of obstructive sleep apnea exacerbated by the Veteran's deviated septum and his posterior pharyngeal anatomy. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims on appeal. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).