Citation Nr: 21003381 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 11-32 905 DATE: January 21, 2021 REMANDED Entitlement to service connection for a cervical spine condition, to include as secondary to a service-connected right shoulder disability, is remanded. Entitlement to service connection for a right hip condition, to include as secondary to a service-connected bilateral knee disability, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected psychiatric disability, is remanded. REASONS FOR REMAND The Veteran had active military service from June 1983 to June 1993. This matter is on appeal from February 2008 and July 2009 rating decisions. The Veteran testified before the undersigned during a hearing in April 2014 and November 2020. This case was last before the Board of Veterans’ Appeals (Board) in February 2019, when it was remanded for further development. Prior to that, the case was remanded by the Board in December 2015 and June 2017, and then denied in a December 2017 Board decision. Thereafter, the Veteran appealed the Board’s decision only as to the issues listed above to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in October 2018, the Court granted a Joint Motion for Partial Remand (JMPR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board’s decision and remand the case for readjudication in accordance with the JMPR. 1. Entitlement to service connection for a cervical spine condition, to include as secondary to a service-connected right shoulder condition is remanded. The Veteran asserts that her cervical spine condition had its onset in service, or is otherwise related on a secondary basis to her service-connected right shoulder disability. Pursuant to the February 2019 Board remand, VA obtained a medical opinion in December 2019 to address the Veteran’s contentions, a service treatment record (STR) that noted minimal degenerative joint disease of the neck, and the Veteran’s assertions regarding secondary service connection. The Board finds that although the examiner addressed the STR and the causation prong of secondary service connection, aggravation was not addressed. Furthermore, the Veteran has submitted additional supporting evidence regarding the link between neck and shoulder conditions, which suggests aggravation could be a possibility in the Veteran’s case. As such, the Board finds that an addendum opinion (and examination, if found necessary) should be obtained that addresses the submitted articles regarding the relationship between neck and shoulder conditions and the issue of aggravation. 2. Entitlement to service connection for a right hip condition, to include as secondary to a service-connected bilateral knee disability, is remanded. The Veteran asserts that her right hip condition is related to service, or otherwise related on a secondary basis to her service-connected bilateral knee disability. Pursuant to the February 2019 Board remand, VA obtained a medical opinion in December 2019 to address the holding in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which recognized that pain that results in functional impairment could be considered a disability, even without a diagnosis. However, the December 2019 VA examination notes a diagnosis of degenerative arthritis of both hips. In addition, the Veteran has submitted additional supporting evidence that shows a possible relationship between hip arthritis and knee conditions. The Board finds that an addendum opinion (and examination, if found necessary) should be obtained upon remand that considers secondary service connection in light of the additional evidence submitted in July 2020. 3. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected psychiatric disability, is remanded. The Veteran asserts that her sleep apnea had its onset in service, or is otherwise related on a secondary basis to her service-connected psychiatric disability. Pursuant to the February 2019 Board remand, VA obtained a medical opinion in December 2019 to address the Veteran’s contentions, supporting evidence submitted in August 2016 regarding the relationship between the Veteran’s tonsillectomy and sleep apnea, and the Veteran’s assertions regarding secondary service connection. The Board finds that although the examiner addressed the Veteran’s contention and evidence regarding tonsillectomy, the examiner did not address whether the Veteran’s psychiatric disability aggravates her sleep apnea. Furthermore, the Veteran has submitted additional supporting evidence regarding the link between psychiatric disorders and sleep apnea, which suggests aggravation could be a possibility in the Veteran’s case. As such, the Board finds that an addendum opinion (and examination, if found necessary) should be obtained that addresses the submitted articles regarding the link between psychiatric disorders and sleep apnea and the issue of aggravation. The matters are REMANDED for the following action: 1. Arrange for an opinion (and examination, if necessary) from an appropriate medical examiner that addresses whether the Veteran’s cervical spine condition was at least as likely as not (a 50 percent or greater probability) caused or aggravated beyond its natural progression by her service-connected right shoulder condition. In providing a response, the examiner should review the entire claims file and address the research articles submitted in July 2020 regarding a possible relationship between shoulder and neck conditions. The VA examiner is cautioned that the term “aggravated,” as used in 38 C.F.R. § 3.310(b), does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence.” See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise, established medical principles, and references to the evidence of record, as appropriate. 2. Arrange for an opinion (and examination, if necessary) from an appropriate medical examiner that addresses whether the Veteran’s right hip degenerative arthritis was at least as likely as not (a 50 percent or greater probability) caused or aggravated beyond its natural progression by her service-connected bilateral knee conditions. In providing a response, the examiner should review the entire claims file and address the research articles submitted in July 2020 addressing the Veteran’s contention regarding a relationship between her right hip arthritis and bilateral knee disabilities. The VA examiner is cautioned that the term “aggravated,” as used in 38 C.F.R. § 3.310(b), does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence.” See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise, established medical principles, and references to the evidence of record, as appropriate. 3. Arrange for an opinion (and examination, if necessary) from an appropriate medical examiner that addresses whether the Veteran’s sleep apnea was at least as likely as not (a 50 percent or greater probability) caused or aggravated beyond its natural progression by her service-connected psychiatric disability. In providing a response, the examiner should review the entire claims file and address the research articles submitted in July 2020 regarding a possible secondary relationship between psychiatric conditions and sleep apnea. The VA examiner is cautioned that the term “aggravated,” as used in 38 C.F.R. § 3.310(b), does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence.” See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise, established medical principles, and references to the evidence of record, as appropriate. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ariasaif, 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.