Citation Nr: 21067159 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 14-36 308 DATE: November 3, 2021 REMANDED Entitlement to an initial compensable rating for sinusitis is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for a right wrist and/or forearm disability is remanded. Entitlement to service connection for a left wrist and/or forearm disability is remanded. REASONS FOR REMAND The Veteran had active duty service from July 1998 to September 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2008 and July 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the July 2008 rating decision, the RO denied service connection for a left wrist/forearm disability. In a March 2019 decision, the Board denied this issue. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (CAVC), which vacated and remanded the issue of service connection for a left wrist and forearm disability in a June 2020 memorandum decision. In the July 2017 rating decision, the RO granted service connection for sinusitis and assigned a noncompensable rating, effective September 30, 2016, and denied service connection for OSA, GERD, and a right forearm disability. In a March 2021 decision, the Board reopened the issue of entitlement to service connection for a right forearm disability and remanded all issues for additional evidentiary development. 1. Entitlement to an initial compensable rating for sinusitis is remanded. Pursuant to the Board's remand instructions, a VA examination was performed in June 2021 to assess the severity of the Veteran's service-connected sinusitis. However, after a review of the evidence, the Board finds that this examination is insufficient to determine the present claim. In this regard, the examiner indicated that the Veteran did not have a sinus disability and did not assess the severity of the Veteran's sinusitis. The Board notes this is contrary to the lay and medical evidence of record, including the symptom log submitted by the Veteran in March 2017 and his treatment records in March 2019 noting an attack the previous week and in May 2021 noting that his sinuses were awful lately, and his continuous use of prescribed medications. Moreover, a May 2018 record indicated that his sinus symptoms were really bad and his face was red and he was blowing yellow discharge out of his nose. Accordingly, the Board finds that a new VA examination is warranted to assess the severity of the Veteran's service-connected sinusitis. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded; 3. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Pursuant to the Board's remand instructions, VA examinations were performed in June 2021 to assess the nature and etiology of the Veteran's GERD and OSA disabilities. The examiner concluded that his GERD was not related to service and not caused and/or aggravated by his prescribed medications for his service-connected disabilities. The examiner concluded that his GERD was caused by his increased weight. The examiner further concluded that his OSA was not incurred in service and not caused and/or aggravated by his service-connected allergic rhinitis. Again, the examiner noted that his OSA was due to his increased weight and that obesity was the leading cause of OSA formation. The Board notes that the Veteran is service connected for depression and right and left knee disabilities. His October 2014 treatment record revealed that his weight had escalated in the past two years due to his medication for depression and decreased activity due to his bilateral knee disability. He ingested excessive calories when he was depressed. He was assessed with obesity related to nutrition and less physical activity. The Board notes that VA's General Counsel (GC) has issued a precedential opinion on how the issue of obesity is to be assessed. One of the primary holdings of the opinion is that obesity is not a disability for purposes of VA benefits; hence, it cannot be the subject of service connection. VAOPGCPREC No. 1-2017 (Jan. 6, 2017); see also Marcelino v. Shulkin, 29 Vet. App. 155 (2018). The GC recognized further, however, that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310. Furthermore, a recent decision issued by CAVC indicated that the Board must consider whether obesity was caused or aggravated by a service-connected disability consistent with 38 C.F.R. § 3.310. 32 Vet. App. 300, 303-04 (2020). Accordingly, the Board finds that an addendum medical opinion is warranted to determine whether the Veteran's obesity was caused and/or aggravated by his service-connected depression and/or bilateral knee disability. 4. Entitlement to service connection for a right wrist and/or forearm disability is remanded; 5. Entitlement to service connection for a left wrist and/or forearm disability is remanded. Throughout the rating period on appeal, the Veteran has been assessed with bilateral ganglion cysts and left tricep tendonitis, lateral epicondylitis, medial epicondylitis, and forearm muscle strain. He asserts that his bilateral wrist and left forearm disabilities were incurred in service. The service treatment records reveal an assessment of a left forearm strain in February 1999. In May 2000 he complained of right arm pain after he was hit by an object in the right forearm and was assessed with a contusion. In an October 2014 statement, the Veteran confirmed that he injured his left wrist and forearm in service and indicated that he self-treated since that time by wearing a wrist splint, ice pack, and taking Ibuprofen for pain relief. In 2006 he re-injured his left wrist at work. In a March 2017 statement, the Veteran indicated that since the May 2000 injury, his right wrist disability had worsened and produced chronic pain. He also self-treated for his right wrist disability. Pursuant to the Board's remand instructions, a June 2021 examination was performed. However, after a review of the evidence, the Board finds that this opinion is insufficient to determine the present claims. In this regard, the examiner failed to acknowledge or discuss the Veteran's statements indicating that he had continued bilateral wrist and forearm pain since service and self-treated. Rather, the examiner relied solely on the lack of documented treatment before concluding that the Veteran's bilateral wrist and forearm disabilities were not related to service. Accordingly, the Board finds that addendum opinions are warranted on remand. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated treatment records from June 2021 to the present. 2. After completion of #1, schedule the Veteran for a VA examination to assess the severity of the service-connected sinusitis. The claims file, including a copy of this remand, should be reviewed and such review should be noted in the examination report. The examiner should assess the severity of the Veteran's sinusitis, including whether the Veteran has suffered from any incapacitating episodes of sinusitis requiring prolonged antibiotic treatment or non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting. If so, the examiner should note the number per year and how far back these results apply (one year, two years, etc.). The examiner should also indicate whether the Veteran has suffered from near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries or whether he has undergone radical surgery with chronic osteomyelitis. The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner should review and discuss the March 2017 symptom logbook and his associated treatment records. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 3. After completion of #1, forward the claims file, including a copy of this remand, to the June 2021 examiner for an addendum opinion regarding the etiology of the Veteran's OSA and GERD. If the examiner is unavailable, forward to an appropriate clinician. An examination is only necessary if deemed so by the examiner. A copy of the claims file, including this remand, should be reviewed by the examiner and such review should be noted in the examination report. The examiner should respond to the following: Is it at least as likely as not (probability of at least 50 percent) that the Veteran's obesity was caused and/or aggravated by his service-connected bilateral knee disability and/or depression, including prescribed medications? (ii) If so, indicate whether the obesity/weight gain as a result of the service-connected depression and/or bilateral knee disability was a substantial factor in causing OSA and/or GERD; and, (iii) Whether it is at least as likely as not that OSA and/or GERD would not have occurred but for the obesity/weight gain caused and/or aggravated by the service-connected depression and/or bilateral knee disability? The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner should review and discuss the October 2014 VA treatment record noting the Veteran's increased weight due to his depression, prescribed medication, and lack of activity due to his bilateral knee disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 4. After completion of #1, forward the claims file, including a copy of this remand, to the June 2021 examiner for an addendum opinion regarding the etiology of the Veteran's bilateral wrist and forearm disabilities. If the examiner is unavailable, forward to an appropriate clinician. An examination is only necessary if deemed so by the examiner. A copy of the claims file, including this remand, should be reviewed by the examiner and such review should be noted in the examination report. The examiner should respond to the following: Is it at least as likely as not (probability of at least 50 percent) that the Veteran's right wrist or forearm disability and/or left wrist or forearm disability was incurred in and/or etiologically related to his period of active service? With regard to any post-service accident or injury, the examiner should understand that as long as some level of disability existed prior to the intercurrent incidents, then a positive nexus to service should be made. Solely for the purposes of future rating, if a nexus to service is made, the examiner should then attempt to estimate the percentage of symptoms attributable solely to the in-service injuries. The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner should review and discuss the October 2014 and March 2017 statements indicating that the Veteran's left and right forearm and wrist disabilities were incurred in service and continued post-service, including the Veteran's report of self-treatment. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. (Continued on the next page) If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.