Citation Nr: 19123558 Decision Date: 03/29/19 Archive Date: 03/28/19 DOCKET NO. 15-17 278 DATE: March 29, 2019 ORDER Service connection for sleep apnea is granted. Entitlement to a rating higher than 10 percent for the service-connected left ankle arthritis is denied. REMANDED Service connection for atrial fibrillation is remanded. FINDINGS OF FACT 1. The Veteran’s central sleep apnea was caused by the medication he takes for his service-connected musculoskeletal disabilities. 2. The evidence shows, at worst, dorsiflexion to 10 degrees and plantar flexion to 20 degrees, with pain, limited range of motion compared to the contralateral ankle, use of an ankle brace, constant pain, and difficulty walking upstairs. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea on a secondary basis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for a rating higher than 10 percent for the service-connected left ankle arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5270-5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Service connection for sleep apnea is granted. The Veteran seeks service connection for sleep apnea secondary to the medication he takes for his service-connected musculoskeletal disabilities. After weighing the evidence, the Board finds that service connection is warranted. Relevantly, the Veteran is service-connected for severe left knee degenerative and posttraumatic arthritis, left ankle posttraumatic arthritis, right knee degenerative arthritis, and a lumbar strain. VA medical records show that he was prescribed four to eight Hydrocodone pills per day for his left knee pain as early as April 2004. In December 2012, he was diagnosed with severe obstructive sleep apnea. The study revealed 14 obstructive apneas, zero central apneas, two mixed apneas, and 75 hypopneas. In January 2013, however, testing revealed more than 50 percent of his respiratory events were central or mixed apneas. It was also noted that BIPAP titration was unsuccessful with high central events, and ASV titration was recommended. Another study was conducted in March 2013 and ASV titration was successful. In October 2017, the Veteran testified that he believes his sleep apnea is opioid-induced and submitted medical articles regarding the relationship between opioids and sleep apnea to support his contentions. The authors note that recent studies have shown that 75 to 85 percent of patients on opioids have at least mild sleep apnea, and 36 to 41 percent have severe sleep apnea, of which the severity is dose dependent. The articles also discuss how opioid-induced sleep apnea falls within the spectrum of complex sleep apnea, characterized by a combination of obstructive apneas and central sleep disordered breathing and ASV tended to be more successful treatment over CPAP. The Board sent the Veteran’s case to a sleep medicine specialist to assist in assessing the nature and etiology of his sleep apnea. Dr. Shamim-Uzzaman, Director of the Ann Arbor VA Sleep Disorders Center, reviewed the Veteran’s records and concluded that he “appears to have both types of sleep-disordered breathing–—obstructive sleep apnea and central sleep apnea—in the context of chronic atrial fibrillation and chronic opioid use.” He further wrote that “there is a higher prevalence of CSA (24%) in patients using opioids than in the general population (0.9%), with higher doses of opioids being associated with more severe CSA” and “the concurrent use of benzodiazepines with opioids maybe have an additive effective on the prevalence of CSA.” The Board notes that, as of June 2013, the Veteran was taking Temazepam, which is a benzodiazepine. See Temazepam, U.S. Nat’l Library of Med., https://medlineplus.gov/druginfo/meds/a684003.html. He was prescribed Temazepam for his persistent insomnia related to stress and chronic pain, and he is service-connected for a mood disorder with depressive features related to his musculoskeletal disabilities. Dr. Shamim-Uzzaman concluded that, “while the current scientific literature shows a clear association between opioid use and sleep apnea, clear causative links have yet to be delineated, thereby making it [] difficult to state definitively” whether the Veteran’s sleep apnea was caused or aggravated by his opioid use. He opined, however, that “it is reasonable to say that it is as likely as not that the [Veteran’s] central sleep apnea is related to his chronic opioid (hydrocodone) use.” The Board also considered the VA medical opinions in October 2014, November 2014, and December 2014, but afforded them little probative value. The October 2014 opinion did not address the Veteran’s opioid usage, the November 2014 opinion did not include a rationale, and the December 2014 opinion did not address that the Veteran was diagnosed with obstructive sleep apnea, central sleep apnea, and mixed sleep apnea. Based on the Veteran’s VA medical records, statements, medical articles, and Dr. Shamim-Uzzaman’s opinion, the Board finds that Veteran’s opioid medication for his service-connected musculoskeletal disabilities as likely as not caused his central sleep apnea. Accordingly, the claim of service connection for sleep apnea is granted. 2. Entitlement to a rating higher than 10 percent for the service-connected left ankle arthritis is denied. The Veteran seeks a higher rating for his left ankle ability because he experiences daily pain, weakness, and difficulty performing normal movements. For example, he testified that he has difficulty walking upstairs and he cannot lay his foot flat against the ground while sitting. He was afforded a VA examination in October 2014, at which time he reported 10/10 pain most of the week but denied flare-ups. Range of motion testing showed plantar flexion to 35 degrees, dorsiflexion to 15 degrees with pain, and no additional limitation of motion after repetitive use. The right ankle was normal and had plantar flexion to 45 degrees and dorsiflexion to 20 degrees. Muscle strength and joint stability tests were normal and there was no evidence of muscle atrophy. The examiner opined that the Veteran’s left ankle disability did not impact his ability to perform any type of occupational task. He also noted that there was “less movement than normal due to ankylosis, adhesions, etc.” but did not provide a response in the section for ankylosis. Consequently, the Veteran was afforded another examination in December 2014. Range of motion testing showed left ankle plantar flexion to 20 degrees and dorsiflexion to 10 degrees. There was no additional limitation of motion after repetitive testing. The examiner noted that his ankle disability impacted his functional ability, including causing incoordination, weakened movement, and pain on movement, disturbance of locomotion, interference with sitting, and interference with standing, but it did not significantly limit his functional ability during flare-ups or after repetitive use. Muscle strength testing revealed reduced muscle strength entirely due to the ankle disability, but there was no muscle atrophy. Importantly, the examiner indicated that neither ankle had ankylosis. He concluded that the Veteran’s disability affects his ability to perform occupational tasks, but that he can perform activities of daily living such as walking, transporting himself from one place to another, and basic activities such as feeding and bathing himself. VA medical records show complaints of left ankle pain in June 2013. He described his pain as constant and sharp and rated it 11/10 at worst. He also reported that his functional limitations vary – some days he can walk for long periods before his ankle hurts, and some days his ankle hurts instantly. The record shows he walked normally (non-antalgic) with a cane, was able to engage in activities of daily living like driving, showering, and shopping, and fell occasionally due to his knee. He denied balance issues. An examination revealed mild effusion/deformity, tenderness to palpation, no laxity, and limited range of motion compared to the right ankle, but the range of motion was not specified. Ankylosis was not noted and he was prescribed an ankle brace. In consideration of the evidence, the Board finds that a 20 percent rating is not warranted. While the rating schedule does not define “moderate” or “marked” limited motion, guidance from VBA’s M21-1 Adjudication Procedures Manual states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. See VBA Manual M21-1, III.iv.4.A.3.k. Marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See id. The M21-1 is not binding on the Board and, to rely on the M21-1, the Board must conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. See Overton v. Wilkie, 30 Vet. App. 257 (2018). The Board finds that the M21-1 may be relied upon as a factor based on VA’s proposed revisions to Diagnostic Code 5271 made in February 2003 and August 2017. See 68 Fed. Reg. 6998 (Feb. 11, 2003); See 82 Fed. Reg. 35719 (Aug. 1, 2017). In February 2003, VA hired an outside consultant, who convened a panel of non-VA specialists, to review the portion of the rating schedule dealing with the musculoskeletal system to formulate recommendations. VA proposed to adopt many of the recommendations, including defining “moderate” and “marked” similarly to the current M21-1 guidelines to ensure consistent evaluations. See 68 Fed. Reg. at 7018. In August 2017, VA proposed to redefine “moderate” and “marked” exactly as listed in the M21-1 and the proposal noted that “as VA currently uses these standards to define marked and moderate, this change is intended as a clarification of current policy and would ensure consistent application of these criteria among rating personnel.” See 82 Fed. Reg. at 35723. The Board finds that the bases underlying VA’s proposed rules, which were created with non-VA specialists, are persuasive reasons to partly rely on M21-1 in rating ankle disabilities under Diagnostic Code 5271. As the evidence shows dorsiflexion to 10 degrees and plantar flexion to 20 degrees, with pain, the Veteran’s range of motion is moderate pursuant to the M21-1. The Board also considered the left ankle’s limited range of motion compared to the contralateral ankle, the prescribed ankle brace, and the Veteran’s reports of constant pain and difficulty walking up stairs. The Board finds, however, that these symptoms do not justify the higher rating in the context of his entire disability picture. The Veteran has enough range of motion to engage in typical activities of daily living and can drive, shop, and walk long distances, albeit with pain at times. The Board thus finds that the evidence does not support that his left ankle disability causes marked limitation of motion; instead, the evidence supports moderately limited motion at worst. The Veteran also contended that his ankle disability warrants a higher rating based on ankylosis, but the Board finds that the evidence does not show he has ankylosis or similar symptoms. Instead, it is clear that the October 2014 examiner merely checked a response on the examination form that included the term ankylosis without clarifying that the Veteran did not have ankylosis. The subsequent examination, VA medical records, and lay statements indicate that the Veteran’s ankle is not ankylosed or similarly immobilized. Accordingly, the claim for an increased rating for the left ankle is denied. REASONS FOR REMAND 1. Service connection for atrial fibrillation is remanded. The Board finds that a remand for a VA medical opinion is necessary. Initially, the Veteran contended that his atrial fibrillation was caused or aggravated by the hydrocodone he takes for his service-connected disabilities. In December 2018, the Board sent the Veteran’s case to a cardiology specialist to assist in assessing the nature and etiology of his sleep apnea. Dr. Hummel, Section Chief of VA Ann Arbor’s Cardiology division, reviewed the Veteran’s records and concluded that it was less likely than not that the Veteran’s hydrocodone usage caused or aggravated his atrial fibrillation. He noted that studies from large community cohorts “indicate that male sex, hypertension, obesity, and alcohol use are some of the strongest risk factors for incident atrial fibrillation” and opined that his atrial fibrillation “relates to the combination of risk factors cited above, namely male sex, hypertension, morbid obesity, severe sleep apnea, and apparent heavy alcohol use.” Regarding aggravation, he wrote that “these risk factors are likely to continue aggravating atrial fibrillation.” He pointed to studies that showed weight and alcohol use reduction contributed to overall symptom burden and severity in patients with atrial fibrillation and “given that the Veteran’s morbid obesity and alcohol use were documented for at least several years after the diagnosis, it is less likely than not that the Veteran’s atrial fibrillation was aggravated by hydrocodone.” While Dr. Hummel rendered a negative nexus opinion regarding the Veteran’s hydrocodone usage, he raised the issue of whether the Veteran’s now service-connected sleep apnea caused or aggravated his atrial fibrillation. Furthermore, VA records show that the Veteran’s early heavy alcohol usage was possibly related to pain for his service-connected musculoskeletal disabilities. For example, a January 2008 medical record and the August 2010 VA mental health examination noted that the Veteran regularly drank alcohol to help with his pain. Accordingly, the Board finds that a remand for a medical opinion is necessary prior to rendering a decision on the merits. The matters are REMANDED for the following action: 1. Forward the Veteran’s claims file to an appropriate VA examiner for a medical opinion on the etiology of his atrial fibrillation. After review of the claims file, the examiner should respond to the following questions: (a.) Is it at least as likely as not that the Veteran’s alcohol usage and/or sleep apnea caused his atrial fibrillation? (b.) Is it at least as likely as not that the Veteran’s alcohol usage and/or sleep apnea aggravates his atrial fibrillation? The examiner must consider the December 2018 cardiologist VHA response and provide a rationale for any opinion reached. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel