Citation Nr: 21001229 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-26 108 DATE: January 7, 2021 REMANDED Entitlement to service connection for a stroke, to include any residuals thereof, as secondary to service-connected major depressive disorder and hypertension, is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), as secondary to service-connected disabilities, is remanded. Entitlement to a total disability rated based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the United States Army on active duty from May 1961 to May 1967, with additional service in the United States Army Reserve. The issues come before the Board of Veterans’ Appeals (Board) on appeal from August 2016 and October 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The issues were previously before the Board in February 2018. The Board reopened and remanded the Veteran’s claim for service connection for sleep apnea, and also remanded the claims of entitlement to service connection for residuals of a stroke, and entitlement to a TDIU. The issues were again before the Board in July 2020. The Board remanded to provide further development. The Board additionally notes that the Veteran’s former attorney withdrew representation in January 2019 and informed the Veteran of the withdrawal. The Veteran is presently unrepresented. Although the Board regrets further delay, remand is necessary to provide the Veteran with every possible consideration. Further development is necessary prior to appellate review to provide the Veteran with VA medical opinions supported with adequate rationale in substantial compliance with previous Board remand directives. 1. Entitlement to service connection for a stroke, to include any residuals thereof, as secondary to service-connected major depressive disorder and hypertension, is remanded. Pursuant to the July 2020 Board remand, the RO provided an addendum opinion to address potentially favorable evidence showing the Veteran suffered from a stroke. Specifically, the Board requested an opinion addressing an October 2007 VA MRI report noting “[e]xtensive bilateral periventricular and subcortical microangiopathic changes;” the VA treatment records acknowledging the Veteran’s reported stroke history and noting “microangiopathic changes;” and the January 2018 VA computerized tomography (CT) evidence identifying “redemonstrations of bilateral remote basal ganglia infarcts.” The Board notes the July 2020 remand identified the CT scan in question occurred in January 2017. The record indicates the CT scan was noted in January 2018. The remand also instructed the examiner to address the February 2017 private etiology opinion noting that the Veteran’s treatment records show a diagnosis of stroke in 2005. In October 2020, a VA examiner reviewed the Veteran’s records and provided the addendum opinion that no clear evidence on examination showed the Veteran suffered a stroke. The VA examiner noted reviewing the January 2020 VA examination, the February 2017 private opinion, the 2007 VA MRI record, the 2018 CT scan evidence, and other records. In support, the examiner rationalized that the radiology studies showed small vessel disease but not stroke. Additionally, the examiner noted the Veteran’s VA treatment notes documented a history of stroke by the Veteran, but no radiologic determination or any clear findings of stroke were found in the record. The examiner noted the Veteran’s dementia but provided the Veteran’s dementia was not clearly related to a stroke. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Id. Additionally, the Board must ensure that an opinion adequately addresses competent material evidence favorable to the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the July 2020 remand directives identified specific favorable pieces of evidence found in the Veteran’s medical treatment records and directed the examiner to provide a comprehensive report, including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. Although the examiner noted specific records as evidence reviewed in the process of submitting the addendum opinion, the medical opinion failed to cite to the October 2007 MRI, January 2018 CT scan records, and the February 2017 private opinion. Moreover, the examiner failed to provide rationale for rejecting these pieces of evidence which are favorable to the Veteran. Accordingly, the Board finds that the October 2020 addendum opinion lacks the adequate analysis to substantially comply with the July 2020 remand directives. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); see also Dyment v. West, 13 Vet. App. 141, 147 (1999). Thus, remand is warranted to address medical records and opinions provided in the July 2020 remand instructions. Further, adequate rationale is necessary for the Board to adequately weigh the probative value of the VA medical opinion. 2. Entitlement to service connection for OSA, as secondary to service-connected disabilities, is remanded. The Veteran contends he suffers from OSA as a result of his service-connected disabilities, to include right foot hallux valgus, hypertension, hearing loss, tinnitus, and psychiatric disorder. Pursuant to the July 2020 Board remand, the RO provided medical opinions addressing the etiology of the Veteran’s OSA, including opinions regarding secondary causation and aggravation. Following a review of the Veteran’s claims file, the VA examiner opined that the Veteran’s claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected conditions. The VA examiner outlined several clinical risk factors associated with OSA, including age, gender, obesity, craniofacial and upper airway abnormalities, smoking, and family history. The examiner rationalized that medical literature did not show that the Veteran’s hallux valgus, hypertension, hearing loss, tinnitus, or psychiatric disorder are risk factors or causes of OSA. Additionally, the VA examiner provided the same rationale in support of the secondary aggravation opinion. Absent sufficient rationale, the July 2020 VA opinion is inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the VA examiner provided thorough review of the known risk factors for OSA, little to no evidence is given for rejecting the Veteran’s service-connected conditions as potential secondary causes for his OSA. Additionally, the same repeated rationale is given to support the examiners opinion that the Veteran’s service-connected disabilities did not aggravate the Veteran’s OSA. The Board finds the July 2020 addendum opinion lacks sufficient rationale to thoroughly address the Veteran’s secondary service connection theory of entitlement. Thus, remand is required to provide adequate addendum opinions as to whether the Veteran’s service-connected disabilities, to include medical treatments, proximately caused or aggravated the Veteran’s diagnosed OSA. 3. Entitlement to TDIU is remanded. The Board finds that the claim for a TDIU is inextricably intertwined with the remanded service connection claims, as the outcomes of the other claims could have a substantial effect on the merits of the claim for a TDIU. Therefore, it must also be remanded pending adjudication of these claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. Obtain an addendum opinion as to the etiology of the Veteran’s stroke and stroke residuals, from the examiner who provided the October 2020 VA opinion, or, if not available, another appropriately qualified VA medical professional. If the examiner deems it necessary, afford the Veteran a VA examination. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Provide the claims file, including a copy of this REMAND, to the examiner for review. Following a review of the entire record, including all available lay statements, private and VA medical treatment records, and examination reports, the examiner should opine as to: (i) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran currently has any stroke residuals, to include bilateral drop foot. In providing this opinion, the examiner should discuss the treatment records discussed in the body of the remand, including specifically the October 2007 VA Brain MRI Report noting “[e]xtensive bilateral periventricular and subcortical microangiopathic changes;” the VA treatment records acknowledging the Veteran’s reported stroke history and noting “microangiopathic changes” apparently due to “remote CVA,” see, e.g., VA Internal Medicine Notes dated in February 2017, December 2017, March 2018, and April 2018; and the January 2018 VA head CT scan, which revealed, “[r]edemonstrations of bilateral remote basal ganglia infarcts.” The examiner should also address the February 2017 private etiology opinion, noting that the Veteran’s treatment records “show a diagnosis of... stroke in 2005 which caused foot drop on the right” and finding that the Veteran’s service-connected psychiatric pathology “caused and permanently aggravated his... stroke.” (ii) Whether it is at least as likely as not (50 percent or greater probability) the Veteran had a stroke and/or stroke residuals that were proximately caused by, or the result of, any of the Veteran’s service-connected disabilities (i.e., major depressive disorder, recurrent, with anxious distress, mild neurocognitive disorder and posttraumatic stress disorder (PTSD); hypertension; left foot hallux valgus; right foot hallux valgus; tinnitus; bilateral hearing loss; bilateral hammertoe conditions; and a left toe scar), including as a result of treatment and/or medication taken for any service-connected disability. (iii) Whether it is at least as likely as not (50 percent or greater probability) the Veteran had a stroke and/or stroke residuals that were aggravated by, any of the Veteran’s service-connected disabilities (i.e., major depressive disorder, recurrent, with anxious distress, mild neurocognitive disorder and posttraumatic stress disorder (PTSD); hypertension; left foot hallux valgus; right foot hallux valgus; tinnitus; bilateral hearing loss; bilateral hammertoe conditions; and a left toe scar), including as a result of treatment and/or medication taken for any service-connected disability. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. 2. Obtain an opinion as to the etiology of the Veteran’s claimed sleep apnea, from an appropriately qualified VA medical professional. If the examiner deems it necessary, afford the Veteran a VA examination. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Provide the claims file, including a copy of this REMAND, to the examiner for review. Following a review of the entire record, including all available lay statements, private and VA medical treatment records, and examination reports, the examiner should opine as to: (i) Whether it is at least as likely as not (50 percent or greater probability) the Veteran’s sleep apnea was proximately caused by, or the result of, any of the Veteran’s service-connected disabilities (i.e., major depressive disorder, recurrent, with anxious distress, mild neurocognitive disorder and posttraumatic stress disorder (PTSD); hypertension; left foot hallux valgus; right foot hallux valgus; tinnitus; bilateral hearing loss; bilateral hammertoe conditions; and a left toe scar), including as a result of treatment and/or medication taken for any service-connected disability. (ii) Whether it is at least as likely as not (50 percent or greater probability) the Veteran’s sleep apnea was aggravated by, any of the Veteran’s service-connected disabilities (i.e., major depressive disorder, recurrent, with anxious distress, mild neurocognitive disorder and posttraumatic stress disorder (PTSD); hypertension; left foot hallux valgus; right foot hallux valgus; tinnitus; bilateral hearing loss; bilateral hammertoe conditions; and a left toe scar), including as a result of treatment and/or medication taken for any service-connected disability. In providing these requested opinions, the examiner should note that the Veteran is competent to report the onset and duration of his symptoms as well as his medical history. Additionally, the examiner is asked to consider and address the private February 2017 etiology opinion, including the referenced medical study concerning the relationship between sleep apnea and psychiatric disorders, “Association of Psychiatric Disorder and Sleep Apnea in a Large Cohort,” received by VA on December 28, 2017. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.V. Bona, Associate 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.