Citation Nr: 21061802 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-31 624 DATE: October 5, 2021 ORDER An initial rating in excess of 10 percent for left ankle sprain with tendonitis is denied. An initial rating in excess of 10 percent for right ankle sprain with tendonitis is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a headache disability is remanded. FINDING OF FACT Throughout the entire appeal period, the Veteran's bilateral ankle disabilities have, at worst, demonstrated moderate limitation of motion. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left ankle sprain with tendonitis have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5271. 2. The criteria for an initial rating in excess of 10 percent for right ankle sprain with tendonitis have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5271. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1976 to May 1982 and from January 1991 to May 1991. He had additional service in the Army Reserves including periods of active duty for training (ACDUTRA). These matters come before the Board of Veterans Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). These issues were most recently remanded by the Board in April 2019. Substantial compliance with the remand requests regarding the increased ratings claims having been accomplished, the Board may proceed to consider those claims. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that further development is necessary regarding the service connection claims and they are remanded below. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Service connection for the Veteran's bilateral ankle disabilities was granted at 10 percent respectively, effective December 30, 2014, under 38 C.F.R. § 4.71a, DC 5271, pertaining to limited motion of the ankle. He timely appealed. As such, the Board will consider the extent and severity of the ankle disabilities from December 30, 2014, to the present. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner's assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claims for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claims under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the AOJ. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claims. Prior to February 7, 2021, under DC 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. Effective February 7, 2021, under DC 5271, a 10 percent rating is warranted for moderate limited motion of the ankle, defined as less than 15 degrees in dorsiflexion or less than 30 degrees in plantar flexion. A maximum 20 percent rating is warranted for marked limited motion of the ankle, defined as less than 5 degrees in dorsiflexion or less than 10 degrees in plantar flexion. The normal ranges of motion of the ankle are 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II Other diagnostic codes relevant to the ankles include 38 C.F.R. § 4.71a, DC 5270 through DC 5274. Under DC 5270, a 20 percent rating is warranted for ankylosis of the ankle in plantar flexion, less than 30 degrees. A 30 percent rating is warranted for ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between zero degrees and 10 degrees. A maximum 40 percent rating is warranted for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. Under DC 5272, a 10 percent rating is warranted for ankylosis of the subastragalar or tarsal joint in good weight-bearing position and a 20 percent rating is warranted for ankylosis of the subastragalar or tarsal joint in poor weight-bearing position. Under DC 5273, a 10 percent rating is warranted for malunion of the os calcis or astragalus with moderate deformity. A maximum 20 percent rating is warranted for malunion of the os calcis or astragalus with marked deformity. DC 5274 provides a maximum 20 percent rating for astragalectomy. When such words such as "mild", "slight", "moderate", "marked", and "severe" are not defined in the VA Rating Schedule, rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Turning to the evidence of record, the Veteran underwent a VA examination in July 2015. Bilateral lateral collateral ligament sprain, deltoid ligament sprain, and tendonitis were diagnosed. He described worsening pain in both ankles but denied flare-ups. Functional impairment was noted to be difficulty standing or walking for prolonged periods of time. Tramadol and Meloxicam were taken as needed to relieve symptoms. Dorsiflexion was to 10 degrees and plantar flexion was to 30 degrees in both ankles. Pain was noted on both ranges of motion, causing functional loss. Moderate pain was observed on palpation, causing the Veteran to move away from touch. There was no evidence of pain with weight-bearing or crepitus. The Veteran was able to perform repetitive use testing with both ankles without additional loss of function or range of motion. No additional factors contributed to functional loss. Regarding repeated use over time, the examiner indicated that the examination was medically consistent with the Veteran's statements regarding functional loss and pain and fatigue would result. Less movement than usual would be expected following repeated use over time. As the Veteran denied flare-ups, no opinions were provided regarding additional functional loss during flare-ups. Additional contributing factors of disability were noted to be less movement than normal, disturbance of locomotion, and interference with standing bilaterally. Muscle strength testing yielded normal results in both ankles and there was no atrophy. Ankylosis was not present in either ankle. Ankle instability or dislocation was not suspected. The Veteran denied use of assistive devices. The examiner determined that the functional loss was difficulty with prolonged standing and walking, as described by the Veteran. An August 2016 private treatment record noted bilateral ankle pain, treated by Etodolac. The Veteran described worsened pain over the past two weeks associated with increased back pain radiating to his ankles. In October 2016, the Veteran reported a swollen left ankle to VA clinicians. Upon observation, it appeared noticeably larger than the right ankle. He was able to rotate the ankle in circular motion and side-to-side motion. An x-ray demonstrated no significant degenerative changes; mild soft tissue swelling; no fracture or dislocation; and heel spur at the posterior plantar aspect and Achilles tendon insertion. He was advised to ice and elevate and use his prescribed medications. Another VA examination was conducted in November 2019. Bilateral tendonitis and ankle sprain was diagnosed. A right ankle x-ray demonstrated no evidence of acute bone abnormality; findings suggestive of an old nondisplaced medial malleolus tip avulsion fracture, well-corticated and chronic-appearing; and findings suggestive of a possible talocalcaneal coalition, an anatomic variant. A left ankle x-ray revealed no acute bone abnormality and subtalar joint space not well-visualized, due to positioning or talocalcaneal coalition. The Veteran described constant sharp pains of 8 out of 10 severity with occasional swelling. He stated that he could no longer walk or stand for prolonged periods and no longer could drive. He treated his disabilities with Gabapentin, rest, elevation, ice, and heat. He described flare-ups occurring weekly with stiffness, further limiting walking and standing. Range of motion was to 10 degrees in dorsiflexion and 30 degrees in plantar flexion bilaterally. Pain was noted on all plains of motion and there was mild pain with palpation of the medial and lateral ankle joints consistent with ankle sprain with tendonitis in both ankles. Crepitus was observed bilaterally. The Veteran had evidence of pain with weight-bearing and on passive range of motion but no pain in nonweight-bearing in either ankle. He was able to perform repetitive use testing without additional loss of function or range of motion. The examiner determined that the examination was medically consistent with the Veteran's statements describing functional loss with repeated use over time and during flare-ups. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability. The examiner stated that after review of the records, prior examination, physical examination, history, and subjective complaints along with her medical knowledge and expertise, she had no basis to offer additional losses of function or motion with repeated use over time or during flare-ups. There were no additional contributing factors to disability in either ankle. Muscle strength testing was 4 out of 5 bilaterally with a reduction in muscle strength but no atrophy. There was no ankylosis observed in either ankle. Instability or dislocation was not observed bilaterally. The Veteran indicated that he constantly used a wheelchair and occasionally used a cane for ambulation. The examiner determined that the bilateral ankle disabilities impacted his ability to carry out routine tasks due to decreased endurance with prolonged standing and walking and ability to drive. 1. An initial rating in excess of 10 percent for left ankle sprain with tendonitis is denied. 2. An initial rating in excess of 10 percent for right ankle sprain with tendonitis is denied. The Board notes at the outset that the VA examinations of record, taken in conjunction with records of VA and private medical treatment, provide an adequate basis upon which to determine the extent and severity of the Veteran's bilateral ankle disabilities. Although whether there was pain with passive movement and nonweight-bearing and whether there was additional loss of range of motion with repeated use over time or during flare-ups was not elicited at the July 2015 examination, the November 2019 examiner described pain on passive range of motion but not in nonweight-bearing. The Veteran has not indicated that his ankle disabilities improved over time; as such, the November 2019 examination results represent the most severe limitations caused by the disability. Further, the November 2019 examiner provided a medically-based explanation as to why estimations of additional loss of range of motion in terms of degrees of motion with repeated use over time and during flare-ups could not be provided. An example of a flare-up of the left ankle disability in October 2016 demonstrated that the Veteran was able to move the ankle freely, despite pain and swelling, providing probative information regarding flare-ups. Given the totality of the information, including the Veteran's own descriptions of his limitations, the Board finds that the requirements of DeLuca, Sharp, and Correia have been adequately addressed. DeLuca v. Brown, 8 Vet. App. at 202; Sharp v. Shulkin, 29 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158. Additionally, as no medical evidence relevant to the left knee has been added to the record reflecting treatment since February 7, 2021, consideration under the amended criteria is not warranted. As such, the Board will consider the severity of the Veteran's left knee disability under the pre-amended criteria. Based on the foregoing, the Board finds that a rating in excess of 10 percent for either ankle sprain with tendonitis is not warranted. Range of motion in each ankle was consistent throughout the appeal period, limited at most to 10 degrees of dorsiflexion and 30 degrees of plantar flexion. The Board finds that movement that is half the normal range in dorsiflexion and better than half the normal range in plantar flexion best approximates moderate limitation of motion. The Veteran has described limitations with prolonged walking and standing and has over time transitioned from using no assistive devices to using a cane or wheelchair and no longer driving. However, this transition occurred along with the worsening of his other service-connected disabilities (i.e., bilateral knees, hips, lower extremity radiculopathy) that affected ambulation and function, not specifically a demonstrated increase in ankle symptomology or limitation of motion. As such, the Board finds that the bilateral ankle disabilities did not demonstrate marked limitation of motion at any point throughout the appeal period. The Board has considered whether additional or alternative ratings are warranted for the bilateral ankle disabilities. However, ankylosis or the functional equivalent of ankylosis of the ankle or the subastragalar or tarsal joint has not been demonstrated at any point warranting rating under DC 5270 or DC 5272; malunion of the os calcis or astragalus has not been observed at any time meriting evaluation under DC 5273; and astragalectomy has not been diagnosed at any point warranting rating under DC 5274. As such, no additional or alternative ratings are warranted under the other diagnostic codes pertaining to disabilities of the ankle. Accordingly, the Board finds that initial ratings in excess of 10 percent for left ankle sprain with tendonitis and right ankle sprain with tendonitis, respectively, are not warranted. In finding no increased ratings or further separate ratings warranted, the Board finds that the Veteran's disability is fully capable of evaluation under the rating schedule. REASONS FOR REMAND 1. Entitlement to service connection for OSA is remanded. The April 2019 Board remand requested that a VA examination be conducted to determine the nature and etiology of the Veteran's currently-diagnosed OSA. The examiner was specifically asked to offer opinions as to whether OSA was directly related to military service; whether OSA was caused or aggravated by any service-connected disability; or whether OSA was caused or aggravated by any treatment for a service-connected disability, to include the use of pain medication. Additionally, the Veteran had an ongoing claim for service connection for a psychiatric disability. Depending on the outcome of that claim, OSA secondary to any mental health condition was also to be considered. The Veteran is service connected for numerous disabilities, including thoracolumbar strain, limited extension of the left knee, left lower extremity sciatic radiculopathy, right lower extremity sciatic radiculopathy, left knee instability, left knee limitation of flexion, right knee degenerative joint disease (DJD), left hip trochanteric pain syndrome and iliopsoas tendonitis, right hip trochanteric pain syndrome and iliopsoas tendonitis, right ankle sprain with tendonitis, left ankle sprain with tendonitis, amputation of the left thumb distal tip, and residual scar from the amputation of the left thumb distal tip. He was granted service connection for an acquired psychiatric disability during the course of the appeal. A VA examination was conducted in November 2019. Sleep apnea was diagnosed and it was noted that the Veteran was obese with a body mass index (BMI) of 30.3. The examiner concluded that OSA was less likely than not the direct result of active service. In support, she stated that there are many different possible causes in adults of OSA, the most common being excess weight and obesity which is associated with soft tissue of the mouth and throat, and the Veteran's BMI was noted at some point to be 30.1. The examiner further determined that his OSA was not proximately due to or the result of his service-connected thoracolumbar strain, limited extension of the left knee, left lower extremity sciatic radiculopathy, right lower extremity sciatic radiculopathy, left knee instability, left knee limitation of flexion, right knee DJD, left hip trochanteric pain syndrome and iliopsoas tendonitis, right hip trochanteric pain syndrome and iliopsoas tendonitis, right ankle sprain with tendonitis, left ankle sprain with tendonitis, amputation of the left thumb distal tip, and residual scar from the amputation of the left thumb distal tip. In support, she stated that the conditions (OSA and each service-connected disability) were not medically related. The claimed disorder was a separate entity entirely from the service-connected condition, and unrelated to it. The medical literature did not support a medical relationship. Taking certain medications such as opioids including morphine, oxycodone, and or codeine could cause breathing to become irregular, to increase and decrease in a regular pattern, or to temporarily stop completely, leading to OSA. Researchers had discovered that opioids and opiates can worsen OSA. However, the medications used for pain management by the Veteran (Gabapentin, Etodolac, Colchicine, Divalproex, Prazosin, Ambien, Quetiapine, Sodium Chloride, Sildenafil, and aspirin) were not opioids. As such, a nexus was not established. OSA was also less likely than not aggravated by the service-connected conditions as he did not take medications including opioids. The Board finds that an addendum opinion is needed before a decision can be rendered on the claim. No opinion has been provided as to whether the Veteran's service-connected acquired psychiatric disorder caused or aggravated his OSA. Further, although the examiner stated that opioids and opiates can worsen OSA and the Veteran did not take such medications, VA treatment records clearly demonstrate that he was prescribed Hydrocodone (an opioid) for a short period in September 2016 for service-connected back pain. As such, the examiner should address, in light of the Veteran's onset and development of OSA, whether his use of Hydrocodone proximately caused or aggravated his OSA. She also did not address whether or not the other medications he is prescribed for his service-connected disabilities have any effect on the causation or aggravation of OSA. Finally, although the examiner did not use the particular terminology "permanently aggravated" in her opinions, she was directed to consider permanent worsening by the Board remand requests. However, the standard is not whether a condition was permanently aggravated when considering secondary service connection, but whether a condition underwent an incremental increase, regardless of permanence, due to the service-connected disability. See Ward v. Wilkie, 31 Vet. App. 233, 240-41 (2019). As such, the clinician providing the addendum opinion should be apprised of the correct standard upon remand. 2. Entitlement to service connection for a cervical spine disability is remanded. The April 2019 Board remand requested that a VA examination be conducted to determine the nature and etiology of any cervical spine disability. The examiner was asked to determine whether the cervical spine disability at least as likely as not was directly related to his service; was proximately caused by any service-connected disability; and was proximately aggravated by any service-connected disability. An examination was conducted in November 2019 at which cervical strain was diagnosed. Etiology opinions were provided in November 2019 and May 2020. The examiner determined that it was less likely than not that the neck condition was caused by military service. In support, she stated that the Veteran reported the onset of symptoms in 1997, which was 6 years, post-separation. The service treatment records (STRs) were silent as to a neck condition during active service or during the Reserves period. As such, there was no direct nexus established. Regarding secondary service connection, the examiner listed out each service-connected disability on separate medical opinion forms, noting that there was no medical research to support cervical strain secondary to service-connected thoracolumbar strain, limited extension of the left knee, left lower extremity sciatic radiculopathy, right lower extremity sciatic radiculopathy, left knee instability, left knee limitation of flexion, right knee DJD, left hip trochanteric pain syndrome and iliopsoas tendonitis, right hip trochanteric pain syndrome and iliopsoas tendonitis, right ankle sprain with tendonitis, left ankle sprain with tendonitis, amputation of the left thumb distal tip, and residual scar from the amputation of the left thumb distal tip. However, the rationale provided is not adequate for purposes of rendering a decision on the claim. The examiner stated that the two conditions were not medically related but the support provided for this statement was, "There is no inclusive research that indicates lower back conditions/injuries are secondary to or related to cervical strain. A nexus has not been established." This rationale does not provide any information as to whether the claimed cervical spine disability is caused or aggravated by the service-connected back disability, instead finding a (service-connected) back disability not secondary to a (nonservice-connected) cervical strain. As such, it does not provide an adequate basis as to service connection for a cervical spine disability secondary to the service-connected thoracolumbar strain, nor does it provide any rationale regarding the other service-connected disabilities. Further, as noted above, the Board remand requested an opinion based on permanent worsening. As that is not the proper standard for determining secondary aggravation, clarification upon remand is needed. 3. Entitlement to service connection for a headache disability is remanded. The claim for service connection for a headache disability was remanded as inextricably intertwined with the service connection claim for a cervical spine disability because in some medical records, the Veteran's headaches were noted to be associated with his neck condition. As the cervical spine disability claim is remanded herein, the claim for a headache disability is also further remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate VA clinician regarding the Veteran's claimed OSA. The clinician is asked to review the claims file and note that such review took place. The need for an in-person examination is left to the discretion of the clinician selected to write the opinion. Following a review of the record, the clinician is asked to determine: (a.) Whether it is at least as likely as not that the Veteran's currently-diagnosed OSA was proximately caused or aggravated (i.e., worsened beyond natural progression) by any of his service-connected disabilities or the treatment therefor. The examiner is specifically reminded to consider his service-connected acquired psychiatric disorder and to discuss whether the particular medications that he is prescribed for any of his service-connected disabilities proximately caused or aggravated his OSA, not merely which medications can do so. The examiner is particularly asked to address the September 2016 prescription of Hydrocodone for the Veteran's service-connected back disability and its effect on the onset and development of his OSA. (b.) The clinician is reminded 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. at 239. (c.) The clinician should specifically discuss the Veteran's medical history regarding the development and progression of his OSA in light of his service-connected disabilities and treatment therefor. If medical literature is relied upon in rendering this determination, the clinician should identify and specifically cite each reference material used. (d.) All opinions should be accompanied by supporting rationale explaining how the clinician arrived at the conclusions expressed. (e.) If the clinician determines that s/he cannot provide an opinion without resorting to speculation, the clinician should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 2. Obtain an addendum medical opinion from an appropriate VA clinician regarding the Veteran's claimed cervical spine disability. The clinician is asked to review the claims file and note that such review took place. The need for an in-person examination is left to the discretion of the clinician selected to write the opinion. Following a review of the record, the clinician is asked to determine: (a.) Whether it is at least as likely as not that the Veteran's cervical spine disability was proximately caused or aggravated (i.e., worsened beyond natural progression) by any of his service-connected disabilities. (b.) If the clinician determines that the Veteran's cervical spine disability was at least as likely as not proximately caused or aggravated by any of his service-connected disabilities, the clinician is asked to determine whether the cervical spine disability is related to or a cause of his reported frequent headaches. (c.) The clinician is reminded 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. at 239. (d.) The clinician should specifically discuss the Veteran's medical history regarding the development and progression of his cervical spine disability in light of his service-connected disabilities. If medical literature is relied upon in rendering this determination, the clinician should identify and specifically cite each reference material used. (e.) All opinions should be accompanied by supporting rationale explaining how the clinician arrived at the conclusions expressed. (f.) If the clinician determines that s/he cannot provide an opinion without resorting to speculation, the clinician should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 3. After the above development and any additionally indicated development has been completed, readjudicate the issue on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, 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.