Citation Nr: 21072127 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 10-26 172 DATE: December 2, 2021 REMAND Entitlement to service connection for headaches is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is remanded. Entitlement to a compensable disability rating for erectile dysfunction is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to an effective date earlier than February 5, 2008, for the award of total disability based on individual unemployability (TDIU) is remanded. Entitlement to an effective date earlier than February 5, 2008, for dependents educational assistance (DEA) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1984 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this claim again, additional development is required before the underlying claim can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). These claims have been ongoing for quite some time and the subject of multiple Board remands. For clarity's sake, only the most recent remand will be addressed. Any other relevant procedural history will be discussed below as it pertains to each individual issue. The most recent Board Decision was issued in November 2020. In this decision, the Board reopened claims of service connection for bilateral knee disabilities, remanded entitlement to service connection for (1) bilateral knee disabilities, (2) obstructive sleep apnea, (3) peripheral neuropathy of the bilateral upper extremities, (4) headaches, (5) radiculopathy of the right lower extremity, (6) a heart disability, (7) remanded entitlement to a compensable rating for erectile dysfunction, and remanded claims of entitlement to an effective date earlier than July 9, 2010, for the award of (8) TDIU and (9) DEA. A June 2021 Rating Decision awarded service connection for issues (5) and (6) above. Thus, those are considered full grants of benefits sought on appeal and will not be discussed further. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). It also awarded an effective date of February 5, 2008, for TDIU and DEA. Because that is not a full grant of benefits as to those issues (as will be explained below), further remand of these earlier effective date claims is required. In a July 2021 Remarks to Supplemental Statement of the Case Dated June 15, 2021 ("Brief"), Counsel makes an additional argument with respect to the claim of service connection for headaches. He points out what the Board will label a mere typographical error. The Board's November 2020 Decision indicates that entitlement to service connection for a headache disability is both "remanded" and "granted." Compare pp. 2, with pp. 15. The overall remand portion on page 2 lists that this issue is remanded but the heading for this issue under the "REASONS FOR REMAND" portion also lists that this issue is granted. Nevertheless, the discussion of this issue plainly and unambiguously shows that the Board was remanding it for an examination. No sensible reader could construe the above quoted language from page 15 as anything but a remand. Counsel's insistence that this typographical error "should go towards the Veteran," entitling him to service connection for headaches, defies logic and has no basis in law or regulation. If there is doubt as to the Board's previous determination regarding this claim, then one simply need read the Board's discussion of it which clearly reveals that remand was the intended outcome. Thus, the Board finds that Counsel's argument on this point in the July 2021 Brief is meritless. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the AOJ to re-certify this appeal to the Board without complying with the prior remand instructions. Given this error, another remand is required. Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated above. 1. Entitlement to service connection for headaches is remanded. With respect to this issue, the Board's most recent Decision stated the following: The Veteran has asserted that he gets tension type headaches as a result of muscle pain and spasms associated with his service-connected back disability. A review of the evidence of record shows that the Veteran has received treatment for headaches since his active service. In light of the Veteran's report of headaches resulting from muscle pain and spasms in his back, and post-service evidence of record showing treatment for headaches; the Board finds that the Veteran should be afforded a new VA examination to determine the nature and etiology of any currently present headache disability. See Board Decision dated November 17, 2020, at pp. 15 (citation omitted). A January 2021 VA examination diagnosed the Veteran as having headaches although the examiner also stated, "No chronic diagnosis is made for headache. Objective exam is normal. Symptoms are subjective only. A Nexus has not been established." In March 2021, an addendum opinion was obtained. This opinion stated: Please disregard previous diagnosis. There is no current diagnosis of headache. Veteran's report of headache pain is subjective only. Objective findings day of exam were normal. Combined with normal appearance of brain and associated structures on MRI noted in c- file dated 02/26/2003, there is no objective evidence of a headache condition warranted day of exam. Also, through VA notes 2020, no chronic diagnosis for a headache condition has been rendered. No diagnosis, no nexus. First, the Board does not find that the March 2021 VA examiner offered an adequate opinion. As the Board previously noted, the Veteran has headaches. There are documented incidents of headaches dating from active service into the timeframe of the Veteran's current appeal (as late as April 2020, with a March 2020 entry stating he was going to the emergency room due to headaches and feeling dizzy). The November 2020 examination report notes that the Veteran takes 800 milligrams (mg) of Tylenol and 1000 mg of Advil for his headaches. They worsen with physical activity, cause sensitivity to light, and last 1 2 days. During a headache flare-up, he reported being dizzy and unable to concentrate. Yet the examiner offered no discussion of these facts other than the fact that the Veteran's reports of headaches are subjective only. This does not account for the documentation for headaches throughout his medical records. Furthermore, because the examiner gave no opinion regarding whether headaches are related to active service or the service-connected back disability, the Veteran has not been afforded substantial compliance with the Board's prior remand directives and another remand is required. Second, the Board must give due consideration to contentions raised both by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Although not specifically claimed by the Veteran, the record indicates that his headaches could be caused by medication he takes for various service-connected disabilities. For example, an April 2020 VA Medical Center (VAMC) entry states that he complained of severe headaches due to his prescribed Venlafaxine. In May 2014, he reported experiencing headaches due to his prescribed Gabapentin. Thus, the Board also finds that VA should obtain a secondary opinion to determine whether headaches were caused or aggravated by a service-connected disability or any medication prescribed to treat it. See 38 C.F.R. § 20.904(a). 2. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. The Board previously instructed the AOJ to secure a new opinion concerning the nature and etiology of the Veteran's OSA as it deemed a March 2019 opinion inadequate. A new examination and opinion were obtained in January 2021. The opinion stated that, although OSA "is not directly connected to service, it can be connected as secondary service connection due to PTSD." In March 2021, the AOJ obtained an addendum opinion to address both direct and secondary service connection for OSA. That opinion stated: There is no objective evidence found to confirm that sleep apnea is directly related to the service. The Veteran [dates of active service were] 04/06/1987-02/09/1992. [The] Veteran was diagnosed with sleep apnea in 2007[;] this shows many years of gaps in care. No complaints or concerns of sleep apnea is noted in [service treatment records] during service. There is no chronicity of care during service. Therefore, [the] Veteran's diagnosis of [OSA] is less likely than not related to military service. A nexus has not been established. The claimed condition of sleep apnea is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service connected anxiety disorder (also claimed as post-traumatic stress disorder (PTSD) condition). Sleep apnea & PTSD are considered to be two distinct & separate medical conditions. Research has established an association between the two conditions due to common symptoms of disrupted sleep patterns and non-restful sleep which have been shown to affect outcome measures of health and wellbeing in Veterans. However, to date there is no established etiological basis for Obstructive Sleep Apnea (OSA) due to PTSD. The pathophysiology of Obstructive Sleep Apnea is characterized by narrowing or collapse of the pharyngeal airway during sleep. It is caused by anatomical variations in the craniofacial features and/or neck, and is often due to excess weight and the aging process. PTSD can interfere with sleep due to emotional and psychological issues, nightmares and hypervigilance with easy arousability during sleep. Obstructive Sleep Apnea has not been found to be proximately due to PTSD. There is no established medical nexus. In his Brief, Counsel has advanced for the first time the intermediate-obesity-theory for the Veteran's OSA which goes like this: His service-connected PTSD caused him to gain weight, which, in turn, caused him to develop OSA. The Board notes in this regard that, in VAOPGCPREC 1-2017, VA's Office of the General Counsel held that obesity may qualify as an "intermediate step" between a service-connected disability and a current disability. Thus, service connection for a current disability may be established under 38 C.F.R.§ 3.310(a) if it can be shown that (1) the service-connected disability in question "caused the Veteran to become obese," (2) the obesity "was a substantial factor in causing" the claimed disability, and (3) the claimed disability would not have occurred but for the obesity. Id. This opinion also explains that, when considering causation, 38 C.F.R.§ 3.310(a) requires that a claimed disability be "proximately due to or the result of a service-connected disease or injury." Id. This opinion then defines "Proximate cause" as "a 'cause that directly produces an event and without which an event would not have occurred.'" Id. It goes on to state that, "[w]hen there are potentially multiple causes of a harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action." Id. (emphasis added). Because the Board is bound by the precedential opinions of OGC, it is required to consider how the Veteran's service-connected PTSD potentially contributed to his weight gain and, in turn, his OSA. See 38 U.S.C. § 7104(c). The United States Court of Appeals for Veterans Claims (Court) has expanded this OGC opinion by holding that obesity can serve as an intermediate step both where it is caused or aggravated by a service-connected condition. Walsh v. Wilkie, 32 Vet. App. 300, 306 (2020) (emphasis added). Thus, as no opinion has been obtained regarding this theory of entitlement, the Board must remand this issue so that the AOJ can obtain an addendum opinion which addresses this matter. 3. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is remanded. In a December 2014 Decision, the Board remanded this claim and instructed the AOJ to determine whether the Veteran had peripheral neuropathy of the bilateral upper extremities and whether it was related either to service or his service-connected back condition. A March 2019 back examination was conducted but did not reveal any peripheral nerve condition of the upper extremities. This claim were returned to the Board after a September 2019 Supplemental Statement of the Case (SSOC). In December 2019, the AOJ afforded the Veteran a complete peripheral nerve examination which also did not show a diagnosis of any peripheral nerve condition of the bilateral upper extremities. Nevertheless, the November 2020 Decision remanded this claim so that the AOJ could issue another SSOC as the AOJ did not have the opportunity to consider the December 2019 nerve examination report in the first instance. The AOJ regrettably has repeated its mistake on this claim. The most recent SSOC was issued in June 2021; however, a July 2021 nerve examination was afforded to the Veteran. This time, the report confirms mild incomplete paralysis in the bilateral median nerves. Furthermore, there is no etiological opinion addressing the original questions posed in the December 2014 Board Decision. Thus, remand is required for the AOJ to secure the necessary opinions and consider them, along with the examination report, before adjudicating this claim. 4. Entitlement to a compensable disability rating for erectile dysfunction is remanded. Remand for this issue also is required for issuance of a SSOC. This issue last was addressed by the June 2021 SSOC. Since then, however, the Veteran was afforded a July 2021 examination for his erectile dysfunction. Thus, remand is required. See 38 C.F.R. §§ 19.37(b), 20.1305(c). 5. Entitlement to service connection for a bilateral knee disability is remanded. This claim requires remand because the Board is unsure whether all the Veteran's service treatment records have been associated with the electronic claims file. This reason for remand also applies to the remaining service connection claims as well. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). A June 1998 Rating Decision noted that the Veteran's service treatment records "showed a sports injury suffered in 1976. On 11-91, and again in 01-92, the [V]eteran had some pain discomfort in his right knee." A January 2021 VA examiner also confirmed the complaints of pain in 1991 and 1992. A March 2021 examiner, however, stated: The Veteran's Relevant Evidence file notes a complaint of right knee pain/discomfort in 11/91 and 11/92 however this was attributed to sports injury that Veteran had suffered prior to service date in 1976. Regardless right knee pain/condition was acute. There are no chronic records of complaints of knee pain during service noted in Veteran's [service treatment records]. The c-file is silent for right knee pain until five years post service in 1998. [Service treatment records] are silent for left knee pain until over a decade post service in 2008. The Board is unclear what to make of these contradictory statements. A review of the electronic claims file does not show any entries past November 1991. And there is no record of complaints for right knee pain, or even a separation examination (if one was performed). Furthermore, there are no records discussing the Veteran's potentially pre-service injury to his right knee. It is vital that the AOJ ensure that it has all the service treatment records as this completely can change the legal analysis for the Board: from compensation for service connection to compensation for aggravation of a preexisting condition. See 38 U.S.C. § 1111; 38 C.F.R. §§ 3.304(b), 20.904(a). Remand is required for an additional reason. Counsel similarly advances the obesity theory (discussed above) for the Veteran's bilateral knee disability. That is, that the Veteran's PTSD caused obesity which contributed, in turn, to his bilateral knee disability. Thus, remand is required to obtain an opinion to address this theory of entitlement. See Walsh, 32 Vet. App. at 306. 6. Entitlement to an earlier effective date than February 5, 2008, for the award of TDIU is remanded. The Veteran first was awarded a TDIU via a September 2012 Rating Decision and assigned an effective date of July 9, 2010. During the pendency of the multiple remands in this appeal, a June 2021 Rating Decision awarded an earlier effective date of February 5, 2008, and the AOJ classified this as a "total grant of the issue sought on appeal." The AOJ presumably assigned this date as it coincides with the date that the Veteran first filed his application for TDIU on his VA Form 21-8940. The AOJ, however, was incorrect in stating that this was a full grant of benefits on appeal. A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record in association with an increased rating, involves an attempt to obtain an appropriate rating for a disability and is part and parcel of the claim for the increased rating on appeal. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (per curiam). Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by AOJ for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373, 38889 (2019); Harper v. Wilkie, 30 Vet. App. 356, 35961 (2018). The Board's November 2020 Decision denied a disability rating greater than 20 percent prior to July 9, 2010, and greater than 40 percent thereafter, for the service-connected back disability. That claim stemmed from an August 29, 2006, statement, in which the Veteran sought an increase for his back and stated that his back "does stop [him] from getting particular jobs." While both the back and TDIU claims were adjudicated in a December 29, 2006, Rating Decision, the AOJ, through its own action, continued to toll the finality of that rating decision by producing new and material evidence. See 38 C.F.R. § 3.156(b). On December 1, 2007, VA afforded the Veteran another back examination and then readjudicated his appeal in a July 2008 Rating Decision. He timely appealed both the back and TDIU issues, with the former issue being disposed of in the Board's November 2020 Decision. Thus, the TDIU claim always has mirrored that of the increased rating claim for the back. The AOJ's failure to consider entitlement prior to February 5, 2008the date he filed for TDIUor, in other words, beginning August 29, 2006, was in error. Because the Veteran is not required to appeal separately any period of TDIU not granted when it reasonably has been raised by the record or expressly by the Veteran, this issue remains before the Board and requires adjudication. See Payne, 31 Vet. App. at 38889; Harper, 30 Vet. App. at 35961; Rice, 22 Vet. App. at 454. Prior to February 5, 2008, the Veteran had a combined 50 percent rating (30 percent for his psychiatric condition, 20 percent for his back condition and 10 percent for peripheral neuropathy of the right lower extremity). Thus, he does not meet the schedular criteria for TDIU. See 38 C.F.R. §§ 4.16(a), 4.25. The only remaining question is whether he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities on an extraschedular basis under 38 C.F.R. § 4.16(b). The Board does not have jurisdiction to authorize an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). It may determine that a particular case warrants referral to the Director, Compensation Service, for extraschedular consideration under 38 C.F.R. § 4.16(b). Here, the Board finds that such referral is warranted. The Veteran credibly has reported that his back pain interferes with his ability to obtain employment. Additionally, a May 2007 psychiatric examination report notes that he had a verbal altercation with a teacher which caused increased heart rate and anger. This signals to the Board that, at the very least, he displayed signs of an inability to work with others. Thus, the Board finds that there is at least an indication that he is unable to secure or follow substantially gainful employment due to his service-connected disabilities. Thus, remand is required to allow the Director to consider entitlement to TDIU on an extraschedular basis prior to February 5, 2008. See 38 C.F.R. § 4.16(b). 7. Entitlement to an earlier effective date than February 5, 2008, for DEA is remanded. Basic eligibility for DEA benefits for the child of a Veteran is established if: (1) the Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. Because the issue of TDIU prior to February 5, 2008, is being remanded, this issue is intertwined inextricably and requires remand. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Contact the appropriate Federal records repository and request any outstanding service treatment records which may be available for the Veteran, to include all records which document pain in the right knee dated between January 1, 1991, and December 31, 1992. A copy of any request(s) for records, and any reply, to include any records obtained, should be associated with the claims file. 2. Thereafter, forward the claims file and a copy of this REMAND to the clinician who provided multiple VA medical nexus opinions concerning the etiology of the Veteran's headaches, obstructive sleep apnea, and bilateral knee disability in March 2021 or another appropriate clinician. The Veteran should not be asked to report for examination. With respect to headaches, based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran currently experiences headaches which are related to active service. The clinician next is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a service-connected disability or any medication(s) prescribed to treat a service-connected disability caused or aggravated the Veteran's headaches. In answering this question, the clinician must consider documentation of the Veteran's headaches during and after active service, including his lay statements concerning his headaches. With respect to the Veteran's obstructive sleep apnea and bilateral knee disability, the clinician is asked to state whether it is it at least as likely as not (i.e., a 50 percent or greater probability) that the service-connected PTSD caused or aggravated the Veteran's obesity. If so, then the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's obesity was a substantial factor in causing either his obstructive sleep apnea or his bilateral knee disability. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for a headaches, obstructive sleep apnea, or a bilateral knee disability, alone, is insufficient rationale for a medical nexus opinion. 3. Forward the claims file and a copy of this REMAND to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran's peripheral neuropathy of the bilateral upper extremities. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that peripheral neuropathy of the bilateral upper extremities is related to active service. The clinician next is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a service-connected back disability caused or aggravated peripheral neuropathy of the bilateral upper extremities. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each of the Veteran's bilateral upper extremities, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for peripheral neuropathy of the bilateral upper extremities, alone, is insufficient rationale for a medical nexus opinion. 4. Review the medical evidence, once obtained, and determine whether it complies substantially with the terms of this REMAND. If not, please take appropriate corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, refer the issue of entitlement to TDIU on an extraschedular basis prior to February 5, 2008, to the Director, Compensation Service, for a decision. A copy of any referral request sent to the Director and the Director's decision should be associated with the claims file. 6. Thereafter, readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.