Citation Nr: 21067843 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 13-16 252 DATE: November 5, 2021 REMANDED Entitlement to service connection for Chiari malformation is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for narcolepsy is remanded. REASONS FOR REMAND The Veteran had active duty service from August 1982 to January 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2016 decision, the Board found that the Veteran had presented new and material evidence to reopen his claim of service connection for Chiari malformation, and it remanded all three claims for further evidentiary development. These matters were previously before the Board in July 2017, February 2020, January 2021, and May 2021 and were remanded each time for development. 1. Entitlement to service connection for Chiari malformation is remanded. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran's entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991); 38 C.F.R. § 3.304(b). The presumption of soundness is only rebutted where the evidence clearly and unmistakably shows that the veteran's disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby, 1 Vet. App. at 227; VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The Board remanded the issue of entitlement to service connection for Chiari malformation for a medical opinion adequately addressing whether the Veteran's disability was aggravated beyond its natural progression by his service-connected disabilities. In addition, the Board requested an opinion as to whether his Chiari malformation is a congenital defect or a congenital disease. An addendum medical opinion was issued in June 2021. The examiner stated that the Veteran's Chiari malformation is a congenital disease, not a defect. He opined that it is at least as likely as not that the Chiari malformation preexisted the Veteran's active duty service and that it is less likely than not that his Chiari malformation was aggravated beyond its natural progression by his active duty service. The Board finds that the June 2021 medical opinion is inadequate because it applies the incorrect evidentiary standard regarding aggravation of a preexisting disability. See Wagner, 370 F.3d at 1096. Accordingly, an addendum opinion is warranted to determine whether the Veteran's Chiari malformation clearly and unmistakably preexisted his active duty service and clearly and unmistakably was not aggravated beyond its natural progression by his service. 2. Entitlement to service connection for obstructive sleep apnea is remanded. 3. Entitlement to service connection for narcolepsy is remanded. The Veteran has claimed service connection for obstructive sleep apnea and narcolepsy. He asserts that these disabilities were caused or aggravated by his service-connected disabilities and/or the medications used to treat them. In its February 2020 decision, the Board noted that the Veteran's medical records contain entries of obesity. Because obesity may act as an "intermediate step" between a service-connected disability and a current disability subject to secondary service connection under 38 C.F.R. § 3.310(a), the Board remanded the issue for an addendum opinion addressing obesity as an intermediate step in causing sleep apnea. Medical opinions issued in September 2020 and February 2021 both found that the Veteran's obesity is less likely than not related to his service-connected disabilities because obesity is caused by intaking more calories than one expends. The Board found each of these opinions inadequate in its decisions issued in January 2021 and May 2021, respectively. Another addendum medical opinion was issued in August 2021, wherein the examiner opined that the Veteran's obstructive sleep apnea and narcolepsy are both less likely than not related to his service. He stated that the Veteran's service treatment records and medical records for over one year after his separation are silent for evidence of obstructive sleep apnea. The examiner also indicated that the Veteran's sleep apnea is less likely than not caused by his service-connected disabilities, stating that he could not find peer-reviewed studies supporting a nexus between obstructive sleep apnea and any of the Veteran's service-connected disabilities. Regarding narcolepsy, he stated that environmental and genetic factors play important roles in the development of the disability. The examiner also opined that the Veteran's service-connected disabilities would not cause obesity, stating that obesity is a matter of excess calories in versus calories used. The August 2021 examiner's opinion regarding obesity is inadequate for the same reasons as the September 2020 and February 2021 opinions: it is inconsistent with applicable law. Under the examiner's analysis, no claimant could ever be granted service connection for a disability on the basis of the "intermediate step" theory, because any decrease in caloric expenditure attributable to service-connected disabilities could theoretically be offset by a corresponding decrease in caloric intake. The addendum opinion states that caloric intake is the main contributing factor to obesity, but it does not consider whether the Veteran's service-connected disabilities were substantial factors in causing his obesity, without which his obesity would not have manifested. The examiner also erred by not considering whether the Veteran's service-connected disabilities aggravated (worsened or increased) his obesity. See Ward v. Wilkie, 31 Vet. App. 233, 237-38 (2019). Thus, this outcome is contrary to applicable law. See 38 C.F.R. § 3.310(a). On remand, a new VA medical opinion should be obtained, consistent with the applicable legal standards. The Board also finds that the August 2021 examiner did not substantially comply with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). With regard to obstructive sleep apnea, the examiner did not address whether the Veteran's disability was aggravated beyond its natural progression by his service-connected disabilities or by the medications used to treat them. Regarding narcolepsy, the examiner did not discuss secondary service connection or give an adequate rationale for his opinion regarding direct service connection. He stated that environmental factors play an important role in developing narcolepsy; however, he did not elaborate as to what types of environmental factors contribute to narcolepsy. The medical opinion states that aggravation was not found but gives no rationale for that conclusion and does not address whether the narcolepsy was caused by a service-connected disability. Therefore, the August 2021 VA medical opinion is inadequate, and an addendum opinion is warranted on remand. The Board notes that these matters have already been remanded five times, and VA examiners have provided the same inadequate rationale regarding obesity on three separate occasions. Accordingly, the RO should take special care to ensure compliance with the Board's remand actions. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records, from May 2021 to the present. 2. After completing #1, obtain an addendum medical opinion from the examiner who issued the June 2021 Chiari malformation opinion or, if he is unavailable then another similarly qualified examiner may respond instead. The entire claims folder, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. A new VA examination is only necessary if deemed so by the examiner. The examiner is asked to respond to the following: (a.) Is it clear and unmistakable that the Veteran's Chiari malformation preexisted his active duty service? (b.) If so, is it also clear and unmistakable that the Chiari malformation was not aggravated (i.e., permanently worsened) during the Veteran's military service? The examiner must provide a comprehensive rationale for each proffered opinion. 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 completing #1, obtain an addendum medical opinion from the examiner who issued the June 2021 obstructive sleep apnea opinion or, if he is unavailable then another similarly qualified examiner may respond instead. The entire claims folder, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. A new VA examination is only necessary if deemed so by the examiner. The examiner is asked to respond to the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's obstructive sleep apnea was aggravated (any incremental increase in disability) by any service-connected disabilities, including associated medications? (b.) If aggravation is found, is there medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the obstructive sleep apnea disability prior to aggravation? If so, please identify. (c.) If aggravation is not found, please respond to the following: i. Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's obesity was caused by his service-connected disabilities? If more than one cause is identified, is it at least as likely as not that the Veteran's service-connected disabilities were substantial factors in causing his obesity, without which his obesity would not have manifested? ii. Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's obesity was aggravated (i.e., permanently worsened) by his service-connected disabilities? iii. If causation and/or aggravation is found, was the obesity as a result of the service-connected disabilities a substantial factor in causing obstructive sleep apnea? iv. If so, is it at least as likely as not (a 50 percent or greater probability) that his obstructive sleep apnea would not have occurred but for the obesity caused and/or aggravated by his service-connected disabilities? The examiner must provide a comprehensive rationale for each proffered opinion. 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 completing #1, obtain an addendum medical opinion from the examiner who issued the June 2021 obstructive sleep apnea opinion or, if he is unavailable then another similarly qualified examiner may respond instead. The entire claims folder, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. A new VA examination is only necessary if deemed so by the examiner. The examiner is asked to respond to the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's narcolepsy had its onset in and/or is otherwise related to his active duty service? (b.) If not, is it at least as likely as not (a 50 percent or greater probability) that the Veteran's narcolepsy was caused by a service-connected disability, including associated medications? (c.) If not, is it at least as likely as not (a 50 percent or greater probability) that the Veteran's narcolepsy was aggravated (any incremental increase in disability) by any service-connected disabilities, including associated medications? (d.) If aggravation is found, is there medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the narcolepsy disability prior to aggravation? If so, please identify. (e.) If aggravation is not found, please respond to the following: i. Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's obesity was caused by his service-connected disabilities? If more than one cause is identified, is it at least as likely as not that the Veteran's service-connected disabilities were substantial factors in causing his obesity, without which his obesity would not have manifested? ii. Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's obesity was aggravated (i.e., permanently worsened) by his service-connected disabilities? iii. If causation and/or aggravation is found, was the obesity as a result of the service-connected disabilities a substantial factor in causing narcolepsy? iv. If so, is it at least as likely as not (a 50 percent or greater probability) that his narcolepsy would not have occurred but for the obesity caused and/or aggravated by his service-connected disabilities? The examiner must provide a comprehensive rationale for each proffered opinion. 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. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.