Citation Nr: 18154021 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-28 216 DATE: November 28, 2018 ORDER Entitlement to service connection for low spine disability, to include lumbosacral sprain, is granted. REMANDED Entitlement to service connection for a left hip disability, to include arthritis, including as secondary to service-connected disabilities, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, is remanded. FINDING OF FACT The weight of the evidence establishes that the Veteran’s low spine disability, to include lumbosacral sprain, was aggravated by her service-connected left foot disability. CONCLUSION OF LAW The criteria for entitlement to service connection for lumbosacral strain secondary to service-connected left foot disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty with the United States Navy from August 1984 to June 1992. The Board notes that the Veteran currently has two separate cases pending appellate adjudication. The Board has not merged these cases because the Veteran has appointed separate representatives in each matter. A July 2015 VA Form 21-22 appointed Disabled American Veterans (DAV) as the Veteran’s general power of attorney. In August 2016, the Veteran submitted a VA Form 21-22a appointing Kathy A. Lieberman, Esq., as her limited power of attorney with regard to the issues of entitlement to disability ratings in excess of 10 percent for left thigh varices and amputation of the left second toe. However, a limited power of attorney does not revoke a prior, general power of attorney. 38 C.F.R. § 14.631 (f). As such, Ms. Lieberman maintains limited power of attorney over the Veteran’s claims for increased ratings for left thigh varices and amputation of the second left toe, and DAV retains power of attorney over all additionally existing issues, including the service connection claims addressed in this decision. These matters were most recently before the Board in April 2017, at which time it was remanded for further development. The case has since been returned to the Board for adjudication. Entitlement to service connection for a low back disability, to include as secondary to service-connected disabilities. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran has consistently attributed her chronic low back pain to the change in gait caused by her service-connected left foot disability. The evidence shows the Veteran has a currently diagnosed low back disability - specifically, a lumbosacral sprain and degenerative disc disease of the lumbosacral spine. Therefore, she meets the first requirement of service connection, a current disability. The Board finds that the evidence is, at the very least, in equipoise on the question of whether the Veteran’s low back disability is etiologically related to her service-connected left foot disability. The Veteran was afforded a VA examination in connection with her claim in March 2016. The examiner diagnosed the Veteran with a lumbosacral strain and degenerative disc disease of the lumbosacral spine but opined that it was “not likely” proximately due to or the result of her left foot disability. For a rationale, the examiner wrote, “Veteran has current documented medical records diagnosis of Degenerative Disc Disease of Lumbosacral Spine as of 2013.” The Veteran was afforded another VA examination concerning her low back disability in March 2018. The examiner concluded that the Veteran’s low back disability was at least as likely as not aggravated by her service-connected left foot disability. The examiner noted the Veteran’s reports of low back pain associated with gait difficulties due to her left foot condition, as well as available medical treatment records documenting gait abnormalities since at least as early as 2013. The examiner noted that the Veteran’s “very significant” foot abnormalities have necessitated the use of orthotics, which have not completely corrected her gait abnormality. The examiner also found that the Veteran had recently developed a mild degenerative spine condition that was “not felt to be related” to her service- connected foot condition, and that it was “not possible” to differentiate symptoms from the lumbar strain (related to the left foot) and those from the mild degenerative spine condition. However, overall, the examiner found that the Veteran’s low back symptoms were “primarily due to muscle imbalance/effects related to gait abnormality and asymmetry” due to her left foot condition. Overall, the Board finds the evidence to be, at the very least, in equipoise on the question of whether the Veteran’s current low back disability is etiologically related to her left foot disability. The Veteran is competent to report the circumstances surrounding the onset and nature of her low back disability symptoms, and the Board finds her lay testimony to be credible in this regard. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran’s account has been consistent. Moreover, the record contains other credible evidence to corroborate her contentions concerning the nature of her back disability. Specifically, the March 2018 VA examiner concluded that the Veteran’s low back disability was at least as likely as not aggravated by her service-connected left foot disability and supported this conclusion with a detailed rationale that cited to the medical and lay evidence of record. For these reasons, the Board finds the March 2018 VA examiner’s opinion to carry more probative weight than that of the March 2016 VA examiner, who provided a negative nexus opinion without a detailed rationale. Under such circumstances, and granting the Veteran the benefit of any doubt in this matter, the Board concludes that service connection for a low back disability is warranted because the disability was aggravated by the Veteran’s service-connected left foot disability. 38 C.F.R. § 3.310. REASONS FOR REMAND Although the Board regrets the delay, the Veteran’s claims of entitlement to service connection for a left hip disability and obstructive sleep apnea must again be remanded for additional development. 1. Entitlement to service connection for a left hip disability, to include arthritis, to include as secondary to service-connected disabilities, is remanded. In March 2018, the Veteran was afforded a VA examination to determine the nature and etiology of her claimed left hip disability. The examiner was unable to diagnose the Veteran with a left hip disability and therefore declined to offer an opinion as to etiology. While it is true that the Veteran may not have a diagnosed left hip disability at this time, service connection may be granted upon competent evidence that a claimed disability existed at any time during the appeal period. McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, the Veteran was diagnosed with trochanteric pain syndrome and a chronic left hip strain during a March 2016 VA examination. Therefore, on remand, the Veteran must be afforded another VA examination to determine the etiology of any left hip disability diagnosed at any point during the period on appeal. 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, is remanded. The Veteran contends that her sleep apnea was caused or aggravated by her service-connected disabilities. Specifically, she asserts that her disabilities have precluded her from exercising, which has caused her to become obese and develop sleep apnea. Initially, the Board notes that VA’s acting general counsel recently found that obesity may act as an “intermediate step” between a service-connected disability and a disability for which secondary service connection is sought under 38 C.F.R. § 3.310 (a). See VAOPGCPREC 1-2017 (Jan. 6, 2017). Therefore, while obesity itself cannot be service-connected, it is possible that a disability like sleep apnea can be service connected as secondary to a service-connected disability that caused the development of obesity, with obesity serving as an “intermediate step” as described in the January 2017 acting general counsel’s opinion. In this case, in accordance with the Board’s April 2017 remand instructions, the Veteran was afforded a VA examination concerning her diagnosed obstructive sleep apnea in March 2018. The examiner found that the Veteran’s sleep apnea was less likely than not proximately due to or the result of her service-connected disabilities. The examiner noted that “obesity is known to be the most common risk factor for the development of obstructive sleep apnea” but reasoned generally that the Veteran had gained a significant amount of weight gradually over the years, but she was not diagnosed with sleep apnea until 2012. The examiner listed the Veteran’s multiple service-connected disabilities and wrote that while some conditions “may result in a decrease in certain forms of physical activity,” none would preclude physical activity in general or affect dietary intake. The Board finds that the March 2018 VA examiner did not adequately explain the relationship or (lack thereof) between the Veteran’s current service-connected disabilities, her development of obesity, and the onset of her sleep apnea. The examiner acknowledged obesity as the most common risk factor for the development of sleep apnea and acknowledged that some of the Veteran’s service-connected conditions could result in decreased physical activity, but he did not offer any discussion of the specific impact each of the Veteran’s service-connected disabilities have had on her weight, nor did he adequately address the extent to which the Veteran’s weight may have caused, or at least aggravated her sleep apnea. Therefore, remand for a new VA opinion is warranted. Accordingly, the matters are REMANDED for the following actions: 1. Obtain an addendum opinion to the March 2018 VA examination regarding the likely etiology of the Veteran’s diagnosed left hip disability. The Veteran’s claims file, including this decision, must be reviewed by the examiner in conjunction with the examination. Upon review of the pertinent medical history, the examiner should provide opinions responding to the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s left hip disability was caused or permanently aggravated by a service-connected disability? The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. The examiner is reminded that service connection may be granted upon competent medical evidence that a claimed disability existed at ANY time during the period on appeal. Therefore, the examiner is to consider the etiology of any diagnosis of a left hip disability made during the period on appeal. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 2. Obtain an addendum opinion to the March 2018 VA opinion concerning the relationship between the Veteran’s current service-connected disabilities, her development of obesity, and the onset of her sleep apnea. The Veteran’s claims file, including this decision, must be reviewed by the examiner in conjunction with the examination. The examiner is requested to provide an opinion as to the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was caused or permanently aggravated beyond its natural progression by the Veteran’s service-connected disabilities? In answering this question, the examiner is asked to specifically consider whether the Veteran’s obesity acted as an “intermediate step” between her service-connected disabilities and her sleep apnea—that is, whether the service-connected disabilities caused the Veteran to develop obesity, and whether the obesity, in turn, caused or aggravated her sleep apnea. This opinion should include a discussion of any pertinent studies or medical literature, as well as pertinent evidence on file. For instance, the examiner should discuss the functional impairment caused by the Veteran’s service-connected disabilities, and whether the functional impairment was severe enough to preclude exercise or movement sufficient to cause obesity. A complete rationale must be provided for any opinion expressed. (Continued on the next page)   3. Thereafter, readjudicate the Veteran’s claims. If the claims remain denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case (SSOC) and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel