Citation Nr: 21002590 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 09-07 173A DATE: January 14, 2021 ORDER Service connection for a low back disability is granted. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to the service-connected low back disability or the service-connected right knee traumatic degenerative joint disease, is remanded. Entitlement to service connection for an acquired psychiatric disability, to include a neurological disability, is remanded. Entitlement to service connection for a chronic migraine headache disability is remanded. Entitlement to a total disability rating due to individual unemployability based on service-connected disability (TDIU) is remanded. FINDING OF FACT Affording the Veteran the benefit of the doubt, his low back disability is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1967 to January 1970. This matter was most recently before the Board of Veterans’ Appeals in May 2019. At that time, the Board remanded these claims for further development. Service Connection for a Low Back Disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran seeks service connection for a low back disability. His May 2017 and January 2020 VA examinations provide diagnoses of lumbar anterolisthesis, lumbar facet arthropathy; and spondylotic changes. Thus, the current disability prong of this claim has been met. Further, the Veteran reported noticing back pain during his time in service while he was stationed in Thailand and having to lift heavy items on a daily basis. See Private medical opinion from Dr. H.R., DC, CCSP, dated April 18, 2018 and associated with the claims file May 18, 2018. The Veteran is competent to report what he experienced in service. Thus, his lay statements establish the in-service element of his claim. In light of the above, the only issue left to discuss in the Veteran’s claim for service connection for a low back disability is that of a medical nexus linking his current back disability to his in-service event. As reasonable doubt is to be resolved in the Veteran’s favor, the Board finds that such a nexus has been shown in this case. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The medical evidence of a nexus includes an April 2018 written statement from Dr. H.R., DC, CCSP., the Veteran’s private treatment provider for his low back disability. In this statement, Dr. H.R. opined that it was more likely than not that the Veteran’s current back condition was related to the injuries sustained in his time in active service. He explained that the disease progression of the lumbar sprain injury to repetitive traumatic arthropathy to traumatic osteoarthritis is well-documented and that he had personally seen this progression hundreds of times in his 30 years as a Chiropractic Physician. He further explained evidence of this progression using the Veteran’s medical history in detail. The only other etiological opinions from medical experts in this case were presented in the May 2017 and January 2020 VA back conditions examination reports. However, these examiners both opined against service connection for the Veteran’s lumbar spine disability because of the lack of documentation in the Veteran’s service treatment records of any injury or complaints regarding his back. These two opinions are essentially the same. Further, Dr. H.R.’s opinion included a statement about how the Veteran told him he did not seek medical treatment in service because he was young and that he did not seek medical attention until several years later. Neither VA examiner considered the possibility that the Veteran experienced back pain in service despite his not having sought treatment. The evidence presented as to the medical nexus aspect of the Veteran’s low back disability is at least in equipoise, and the benefit of the doubt will be afforded to him. Accordingly, the Board finds that the medical nexus element of the Veteran’s claim has also been met and that service connection for a low back disability is warranted. REASONS FOR REMAND Entitlement to service connection for OSA, to include as secondary to the service-connected low back disability or to the service-connected right knee traumatic degenerative joint disease The Veteran seeks service connection for OSA. This claim was previously remanded by the Board in May 2019 for an opinion to be obtained regarding a link between the Veteran’s OSA and his service-connected back and knee disabilities, with obesity as an intermediate step. The subsequent opinion rendered by the January 2020 VA sleep apnea examiner was insufficient. The examiner concluded that the Veteran’s obesity was at least as likely as not caused by his poor dietary habits. Such an opinion does not sufficiently address whether an inability to exercise due to pain from service-connected disabilities could have also caused the Veteran’s obesity. One cause does not necessarily preclude the other. Further, the opinion of the May 2017 VA examiner which linked the Veteran’s OSA to his obesity was not rendered using the appropriate legal standard. As such, a new opinion is needed to sufficiently address these issues before the Board can decide this claim. Entitlement to service connection for an acquired psychiatric disability, to include a neurological disability The Veteran seeks service connection for an acquired psychiatric disability, to include a neurological disability. The May 2019 Board Remand directed the Regional Office (RO) to obtain VA examination(s) to address the etiology of any current psychiatric and neurologic disabilities. The Veteran underwent a subsequent VA mental disorders examination in January 2020. Although the May 2019 Remand directive specifically directed the examiner to address certain evidence in the claims file in rendering a nexus opinion regarding a psychiatric disability, the examiner did not discuss any of the specific evidence in his opinion. Further, he was unable to render an opinion linking the Veteran’s current psychiatric diagnosis to service, but his rationale seemed to be based on the fact that he was unable to determine whether any previous psychiatric diagnoses were actual diagnoses or results of substance abuse issues. Such a determination is not necessary, as he clearly found that the Veteran had a current psychiatric diagnosis of major depressive disorder. Thus, the January 2020 VA examiner’s opinion is insufficient, both due to its failure to comply with the Remand directive and due to its insufficient rationale. Further, the VA examiner’s opinion also stated that he was unable to opine on the etiology of any neurological disability, as the Veteran would need a separate neurological evaluation. No such examination was conducted. As the RO was directed to obtain the appropriate VA examination to address the etiology of any neurological disability, as well, there was also not substantial compliance with this part of the Remand directive. Compliance with remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board errs as a matter of law when it fails to ensure compliance with remand orders. Id. For the above reasons, the RO failed to comply with directive numbered “2” of the 2019 Board remand, and the Board has no recourse but to remand this claim again to ensure that the previously requested development is completed. See id. Entitlement to service connection for a chronic migraine headache disability The Veteran seeks service connection for a chronic migraine headache disability. VA examiners found that this condition pre-existed his active service because he indicated having had a history of headaches on his report of medical history when he entered active service. However, none of these opinions explained or addressed why a report of having had headaches prior to service indicated that the Veteran specifically suffered migraine headaches (a chronic headache disability) prior to service. As such, none of the opinions are sufficient in finding that the Veteran’s current migraine headache disability pre-existed active service, and an addendum VA opinion is needed to clarify and specifically address this issue. In addition, the May 2019 Board Remand directed the RO to obtain an opinion from the VA examiner regarding whether the Veteran’s migraine headache disability was caused or aggravated by a psychiatric or neurological disorder. However, no such opinion was obtained. Thus, there was not substantial compliance with this Remand directive. As previously stated, compliance with remand instructions is neither optional nor discretionary. Stegall, 11 Vet. App. at 271. The Board errs as a matter of law when it fails to ensure compliance with remand orders. Id. For the above reason, the RO failed to comply with directive numbered “3” of the 2019 Board remand, and the Board has no recourse but to remand this claim again to ensure that the previously requested development is completed. See id. Entitlement to a TDIU Because a decision on the above remanded issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. Therefore, a remand of the TDIU claim is required. Accordingly, these matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran’s OSA. The examiner must opine on the following questions: (a.) Is it at least as likely as not (a 50 percent probability or more) that the Veteran’s service-connected knee and/or back disability caused him to become obese? (b.) If yes, was the obesity a substantial factor in causing or aggravating (worsening beyond its natural progression) the Veteran’s OSA? (c.) If yes, would the OSA not have occurred but for the obesity caused by the Veteran’s service-connected knee and/or back disability? The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Also, schedule the Veteran for appropriate (and separate) VA examinations to address whether he has a psychiatric and neurological disorders related to service. The examiners should opine whether it is at least as likely as not that any diagnosed psychiatric or neurologic disorder (1) had an onset in service, or (2) is caused or aggravated by an injury or disease incurred in service. With regard to the psychiatric claim, the examiner, in reaching his or her conclusions, should review, consider and discuss the medical records from April 1973, February 1976, June 1977, July 1977, September 1978, October 1978, and September 1985 suggesting that the Veteran was suffering from a schizophrenic reaction or that his alcohol and substance abuse was a result of depression, anxiety or other underlying psychiatric symptoms in service. The examiner should also review, consider and discuss the November 2011 DRO hearing testimony of the Veteran and his treating physician, Dr. Ortiz, concerning the onset of symptoms in service and the use of alcohol and/or other substances as a method of self-medication. Both examiners should explain how the evidence of record supports his or her conclusions as to the etiology of the Veteran’s psychiatric and/or neurological conditions, as appropriate. The examiners are advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiners should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiners shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Also, obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran’s migraine headache disability. The examiner is asked to respond to the following questions: (a.) Did the Veteran’s migraine headache disability clearly and unmistakably preexist his active service? In rendering this opinion, the examiner must ensure to explain whether any pre-existing headache condition was clearly and unmistakably a migraine headache condition. (b.) If the Veteran’s migraine headache disability clearly and unmistakably pre-existed his active service, was such condition clearly and unmistakably permanently worsened beyond the natural progression of the disability during active service? (c.) If the Veteran’s migraine headache disability did not clearly and unmistakably preexist active service, is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s migraine headache disability had its onset during active service or was otherwise related to active service? (d.) Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s migraine headache disability was caused by an acquired psychiatric disability, to include a neurological disability? (e.) Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s migraine headache disability was aggravated (i.e., made worse) by an acquired psychiatric disability, to include a neurological disability? If so, the examiner should clearly identify the degree of impairment that is due to such aggravation. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.