Citation Nr: 21000835 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 06-21 763A DATE: January 6, 2021 REMANDED Entitlement to service connection for a neck or cervical spine disorder is remanded. Entitlement to service connection for sleeping problems, including on account of obstructive sleep apnea, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from July 1971 to July 1991. He appealed to the Board of Veterans’ Appeals (Board/BVA) from a December 2003 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). However, he died in January 2016, during the pendency of this appeal, but his surviving spouse since has been recognized as the substitute appellant for the purpose of processing these claims to completion. 1. Entitlement to service connection for a neck or cervical spine disorder is remanded. 2. Entitlement to service connection for sleeping problems, including on account of obstructive sleep apnea (OSA), also is remanded. A remand by the Board confers on the Veteran or other claimant, as a matter of law, the right compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Following a prior September 2020 Board remand, the case file was sent back to the RO, i.e., agency of original jurisdiction (AOJ) for further development of these claims. Unfortunately, however, it does not appear that all the development directed in that prior remand was completed, so another remand is required. Specifically, these claims were remanded for an addendum opinion that does not rely solely on the absence of evidence of treatment as a reason for not finding a correlation (“nexus”) between these claimed disabilities and the Veteran’s service or a service-connected disability(ies). The remand also was to consider whether his service-connected disabilities even temporarily worsened his OSA, instead of just considering permanent worsening beyond its natural progression. Unfortunately, the addendum opinions obtained in October 2020 did not comply with these directives – in turn meaning still more medical comment is needed before deciding the appeal of these claims. Accordingly, these claims are again REMANDED for the following still additional development and consideration: 1. Again forward the Veteran’s file to an appropriate clinician for additional review and supplemental comment (another addendum opinion) regarding the nature and etiology of the Veteran’s neck/cervical spine disability. All relevant evidence must be reviewed by the examiner, including a complete copy of this most recent remand. The examiner should specifically provide responses to the following: (a) Identify (by diagnosis) each neck disability shown during the pendency of this claim. The September 2014 VA examiner determined the Veteran had cervical fusion and degenerative disc disease.   (b) Regarding each neck disability confirmed to exist, indicate whether it at least as likely as not (a 50% or greater probability) it is etiologically related to (incurred in or aggravated by) the Veteran’s military service. When responding, while it is permissible to consider the absence of documented treatment (as reflected in actual treatment records) as one of the reasons for disassociating this claimed neck/cervical spine disability from the Veteran’s service (as the September 2014 VA examiner did), this cannot be the sole or exclusive reason for this disassociation. In other words, there must be explanation of why it is reasonable to have this expectation of documented treatment and must consider the Veteran’s lay statements regarding the history of this claimed condition. 2. Also obtain supplemental comment (another addendum opinion) concerning the likelihood the Veteran’s sleeping problems, including on account of his OSA, were either directly related to his service (including started during his service) or were secondary to his service-connected sinusitis with cluster headaches (meaning caused OR aggravated by this service-connected disability). The opinion must address both causation and aggravation and in the context of direct and secondary service connection. Also, when responding, the examiner must remain mindful that a rather recent precedent case clarified that secondary service connection does not require “permanent” worsening of the condition being claimed   by the service-connected disability. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Secondary service connection is warranted for “any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence.” (citing Allen v. Brown, 7 Vet. App. 439, 448 (1995)). Thus, contrary to what the March 2019 and October 2020 addendum opinions indicate, it is not enough to conclude there has not been aggravation merely by saying the sleeping problems/OSA has not worsened “beyond its’ normal or natural progression”. In other words, any incremental increase in disability owing to aggravation by the service-connected disability, even if only temporary (so not permanent) would be sufficient. The opinion therefore must be provided in this context. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Baronofsky 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.