Citation Nr: 21072633 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 11-05 616A DATE: December 3, 2021 REMANDED Entitlement to service connection for left hand arthritis is remanded. Entitlement to service connection for right hand arthritis is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served in the United States Army from July 1965 to September 1973, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in November 2018 and June 2021, and both times these matters were remanded for additional VA examinations. The Veteran originally requested a Board hearing when he filed his appeal in March 2011, and a hearing was scheduled for March 2016. However, earlier in that month, the Veteran requested that his hearing be rescheduled, and it was rescheduled for August 2016. In August 2016, prior to his hearing, the Veteran waived his hearing and requested that a Veterans Law Judge issue a decision via written correspondence. 1. Entitlement to service connection for left hand arthritis is remanded. 2. Entitlement to service connection for right hand arthritis is remanded. The Veteran contends that his bilateral hand arthritis is related to his service, including as due to frostbite while in service. The Veteran was afforded VA examinations in April 2010, January 2021, and September 2021. The Board previously found the April 2010 and January 2021 examinations to be inadequate. In the September 2021 addendum opinion, the examiner found that there was no evidence in the Veteran's service treatment records of arthritis in either hand, nor did he have any chronic symptoms during service or within a year after separation from service. Additionally, the examiner noted x-rays from 2009 did not show any evidence of prior fracture or dislocation, nor of any arthritic changes. The examiner also noted the Veteran was diagnosed with bilateral degenerative arthritis of the hands in 2021. In an additional addendum issued about a week after the first addendum opinion, the examiner stated that there was no evidence that being exposed to cold caused arthritis. The examiner provided the website address to the article "Why Does Cold Weather Trigger Arthritis and Joint Pain" as a reference to substantiate their rationale. The Veteran previously reported during his January 2021 VA examination that he "worked as pilot, flew aircraft, circuit popped to heat aircraft, had to fly in aircraft without heat in aircraft, occurrence happened in January in severe cold weather. Was not hospitalized or treatment for frost bite condition except for getting inside in warmer climate. Numbness instantly in fingers could not open door to aircraft, described he had to be carried out due inability to use hands or feet due to numbness." The Veteran further reported he experienced numbness that lasted for a day. In its June 2021 remand, the Board instructed the examiner to provide an opinion on whether the Veteran's bilateral arthritis was due to his service, to include his report of cold exposure and frostbite, as noted above. However, although the examiner stated that there is no evidence that cold exposure causes arthritis, the article referenced by the examiner does not discuss whether cold exposure causes arthritis, but instead merely discusses how cold weather and other weather changes can impact people with existing arthritis. Because the examiner failed to properly address the question of whether cold exposure could cause arthritis, the Board finds the September 2021 examination to be inadequate. Remand by the Board confers on the claimant a legal right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998) A failure by the Board to ensure that its remand orders are complied with constitutes legal error. Id. As such, the Board finds that these matters must again be remanded in order to obtain an addendum opinion addressing whether the Veteran's reported in-service cold exposure could have led to his bilateral hand arthritis. 3. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. The Veteran contends that his OSA is due to his service, to include as secondary to one of his service-connected disabilities. The Veteran was afforded examinations in April 2010, January 2021, and September 2021. The Board previously found the April 2010 and January 2021 examinations to be inadequate. In the September 2021 examination, the examiner noted that the Veteran was not diagnosed with OSA during service, nor did he experience any symptoms of OSA during service nor within a year after separation from service. Additionally, the examiner provided opinions on whether the Veteran's OSA was proximately due to or otherwise related to his service connected chronic lymphocytic leukemia, posttraumatic stress disorder, coronary artery disease, peripheral neuropathy of the right lower extremity, right upper extremity peripheral neuropathy, left upper extremity neuropathy, peripheral neuropathy of the left lower extremity, type 2 diabetes mellitus, trigger finger of the right hand, trigger finger of the left hand, sinusitis, tinnitus, erectile dysfunction, hypertension, and bilateral hearing loss. The examiner explained that OSA occurs when the muscles that support the soft tissues in the throat, such as the tongue and soft palate, temporarily relax, which causes the airway to narrow or close, momentarily preventing one from being able to breathe. However, there is no evidence that any of the Veteran's service-connected conditions would cause this relaxing of the throat muscles, and therefore the examiner found that the Veteran's OSA was less likely than not proximately due to any of these conditions. Additionally, even though the examiner noted that OSA was more prevalent in those with diabetes due to related obesity and that those with chronic sinusitis that do not receive proper treatment are more prone to developing OSA, neither condition actually causes OSA. While the examiner provided opinions on whether any of the Veteran's service-connected disabilities were the proximate cause of his OSA, the examiner failed to opine on whether any of these disabilities aggravated his OSA beyond its natural progression. When considering secondary service connection, the examiner must provide an opinion on both whether a disability is proximately due to a service-connected disability as well as whether it is aggravated by a service-connected disability. El Amin v. Shinseki, 26 Vet. App. 126, 150 (2013). Additionally, a remand by the Board confers on the claimant a legal right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998) A failure by the Board to ensure that its remand orders are complied with constitutes legal error. Id As such, the Board finds that the September 2021 examination is inadequate, and an addendum opinion is necessary in order to address whether any of the Veteran's service-connected disabilities aggravate his OSA beyond its natural progression. Accordingly, these matters are REMANDED for the following action: 1. Obtain an addendum opinion from a qualified examiner to determine the nature and etiology of the Veteran's bilateral hand arthritis. The examiner must provide a thorough discussion as to whether it is at least as likely as not that the Veteran's bilateral hand arthritis is due to his reported in-service cold exposure when piloting an aircraft in January 1968. The examiner is to provide a detailed rationale as to why cold exposure and/or frostbite does or does not cause arthritis. 2. Obtain an addendum opinion from a qualified examiner on the nature and etiology of the Veteran's obstructive sleep apnea. The examiner is to provide a thorough discussion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's OSA is aggravated beyond its natural progression by any of the Veteran's service-connected disabilities. The examiner is to provide a detailed rationale for each of the Veteran's service-connected disabilities. Additionally, the examiner must consider the effects on his OSA of any medications used to treat any of the Veteran's service-connected disabilities. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.