Citation Nr: 21069491 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-38 691 DATE: November 18, 2021 REMANDED Entitlement to a rating in excess of 10 percent for atrophic rhinitis is remanded. Entitlement to a rating in excess of 10 percent for recurrent acute sinusitis is remanded. Entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD) of the cervical spine is remanded. Entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy is remanded. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease (DJD) with limited flexion is remanded. Entitlement to a rating in excess of 10 percent for left knee DJD with limited flexion is remanded. Entitlement to a rating in excess of 20 percent for left ankle DJD with limited motion is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a heart disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran had active service from February 1975 to February 1977 and January 1988 to November 1994. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video conference hearing. A transcript of his testimony is of record. These matters were last before the Board in May 2021, when they were remanded for additional development. 1. Entitlement to a rating in excess of 10 percent for atrophic rhinitis is remanded. 2. Entitlement to a rating in excess of 10 percent for recurrent acute sinusitis is remanded. 3. Entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD) of the cervical spine is remanded. 4. Entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy is remanded. 5. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease (DJD) with limited flexion i is remanded. 6. Entitlement to a rating in excess of 10 percent for left knee DJD with limited flexion is remanded. 7. Entitlement to a rating in excess of 20 percent for left ankle DJD with limited motion is remanded. 8. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. 9. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected disabilities, is remanded. 10. Entitlement to service connection for a heart disability, to include as secondary to service-connected disabilities, is remanded. 11. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. The evidence indicates there may be outstanding relevant VA treatment records. VA treatment records from April 21, 2021 and June 1, 2021 indicate that the Veteran was to return for follow up appointments in October 2021 and after June 15, 2021. VA treatment records after June 11, 2021 have not been associated with the claims file. A remand to obtain the outstanding records is required. See Jones v. Wilkie, 918 F.3d 922, 926 (Fed. Cir. 2019) (stating the duty to assist is not discharged "based on a mere belief that the likelihood of finding a record substantiating a veteran's claim is 'low' or 'extremely low'"). Unfortunately, there has not been substantial compliance with the Board's previous remand directives. The May 2021 remand requested opinions to address whether the Veteran's sleep apnea, heart disability, diabetes, and hypertension were caused or aggravated by his service-connected disabilities. While an addendum opinion was obtained in August 2021, the opinion was conclusory as the clinician's only rationale was that the Veteran's service-connected disabilities were "not risk factors for the development of hypertension, diabetes and heart disability." The clinician did not provide any citation or explanation in support of that finding. Additionally, the rationale did not address the aggravation prong of secondary service connection. Accordingly, another addendum opinion is required. The May 2021 remand also requested an opinion to determine whether the Veteran's sleep apnea was secondary to his service-connected disabilities. While an addendum opinion was obtained in August 2021, the clinician's rationale intermingled the requested secondary and obesity opinions and did not explain why the Veteran's sleep apnea was not caused or aggravated by his service-connected orthopedic, neurological, or sinus disabilities. Additionally, the clinician did not address the treatise evidence cited in the August 2020 VA clinician's opinion entitled an "Overview of obstructive sleep apnea in adults," which indicated that craniofacial and upper airway abnormalities were risk factors for the development of sleep apnea. Moreover, while the clinician cited treatise evidence entitled "Nasal involvement in obstructive sleep apnea syndrome" in support of his negative opinion, that article stated that "chronic nasal congestion [w]as a risk factor for OSAS [obstructive sleep apnea syndrome]." As the Veteran is service connected for sinusitis and rhinitis, that favorable evidence should be discussed. Accordingly, another addendum opinion is required. The May 2021 remand also requested opinions to determine whether the Veteran's obesity was an "intermediate step" between his service-connected disabilities and claimed sleep apnea, hypertension, diabetes, and heart disability. In rendering the requested opinion, the clinician did not address the August 2020 VA clinician's opinion that the Veteran's service-connected disabilities "may have contributed a small part" in his obesity. Accordingly, another addendum opinion is required. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records dated since June 11, 2021. If any requested records are unavailable, the Veteran should be notified of such. 2. After the above is completed to the extent possible, forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran's claims for hypertension, sleep apnea, diabetes, and heart disability. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine: (a.) Whether it is at least as likely as not (50 percent probability or greater) that obstructive sleep apnea was caused by the Veteran's service-connected disabilities. (b.) If not caused by the service-connected disabilities, is it at least as likely as not that the obstructive sleep apnea is worsened beyond natural progression (aggravated) by his service-connected disabilities? If the clinician finds that the Veteran's obstructive sleep apnea was aggravated by his service-connected disabilities, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the obstructive sleep apnea. The clinician should address the treatise evidence cited by the August 2020 VA clinician notating that the craniofacial or upper airway soft tissue abnormalities were important risk factors for the development of sleep apnea, the treatise evidence cited by the May 2021 VA clinician stating that "chronic nasal congestion [w]as a risk factor for OSAS [obstructive sleep apnea syndrome]," and reconcile that risk factor with the Veteran's history of septoplasty, bilateral inferior turbinate reduction, sinusitis, and allergic rhinitis. (c.) Whether it is at least as likely as not that the hypertension, diabetes, and heart disability were caused by the Veteran's service-connected orthopedic and/or neurological disabilities. (d.) If not caused by service or the service-connected orthopedic and/or neurological disabilities, is it at least as likely as not that the Veteran's hypertension, diabetes, and heart disability were worsened beyond natural progression (aggravated) by his service-connected orthopedic and/or neurological disabilities? If the clinician finds that any of these conditions were aggravated by his service-connected orthopedic and/or neurological disabilities, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the disabilities. (e.) If the claimed hypertension, sleep apnea, diabetes and/or heart disability were not directly caused or aggravated by the Veteran's service-connected disabilities, the clinician should address whether it is at least as likely as not that the Veteran's service-connected disabilities caused him to become obese or aggravated his obesity. The clinician should address the August 2020 VA clinician's statement that the Veteran's service-connected disabilities did not "severely affect his abilities to perform physical activity" and that his service-connected disabilities "may have contributed a small part" but his obesity was "mostly related to his diet." (f.) State whether it is at least as likely as not the Veteran's obesity or the aggravation of his obesity as a result of the service-connected disability was a substantial factor in causing his hypertension, sleep apnea, diabetes and/or heart disability. (g.) State whether it is at least as likely as not the Veteran's hypertension, sleep apnea, diabetes and/or heart disability would not have occurred but for his obesity caused or aggravated by his service-connected disabilities. A complete rationale should be provided for all opinions and conclusions expressed. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Anderson 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.