Citation Nr: 21076660 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 19-19 891 DATE: December 27, 2021 ORDER Entitlement to service connection for tension headaches as secondary to service-connected obstructive sleep apnea (OSA) is granted. Entitlement to service connection for chronic bronchitis as secondary to service-connected OSA is granted. REMANDED Entitlement to service connection for a left knee condition, to include as secondary to service-connected bilateral pes planus, metatarsalgia with plantar fasciitis of the left foot, left foot calcaneal heel spurs, and tinea pedis, corporis and cruris is remanded. FINDINGS OF FACT 1. The Veteran's tension headaches are at least as likely as not secondary to service connected OSA. 2. The Veteran's chronic bronchitis is at least as likely as not secondary to service connected OSA. CONCLUSIONS OF LAW 1. The criteria for service connection for tension headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for chronic bronchitis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to July 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from April 2018 and January 2019 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board has issued two prior remands on these claims in September 2019 and October 2020. 1. Entitlement to service connection for headaches, to include as secondary to service-connected depressive disorder, OSA, IVDS, SLAP tear with paralabral cysts and impingement of the left shoulder, and tinnitus. 2. Entitlement to service connection for chronic bronchitis, to include as secondary to service-connected OSA. Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 44849 (1995). The October 2020 remand directives were not substantially complied with. Specifically, the Board notes that the April 2021 VA examiner (who was the same examiner that rendered the inadequate February 2020 opinions), failed to provide adequate rationale for the opinions reached and/or failed to consider evidence of the Veteran's prior diagnoses and all of his theories of entitlement. Therefore, these opinions are also inadequate. In November 2021, the Veteran, through his representative provided a private medical opinion, wherein it was opined "it is at least as likely as not that the Veteran's service-connected condition of obstructive sleep apnea contributed to the development of tension headaches and chronic recurrent bronchitis." Dr. A.G. provided a thorough supporting rationale for her positive opinion. Thus, the Board finds that there is sufficient evidence to substantiate the claims. Accordingly, service connection for tension headaches and chronic bronchitis as secondary to OSA is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a left knee condition, to include as secondary to service-connected bilateral pes planus, metatarsalgia with plantar fasciitis of the left foot, left foot calcaneal heel spurs, and tinea pedis, corporis and cruris is remanded. The Board regrets further delay in deciding this claim, however, the October 2020 remand directives were not substantially complied with. Accordingly, another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding remand by the Board confers on the claimant the right to compliance with the remand requests). Specifically, the Board notes that the April 2021 VA examiner (who was the same examiner that rendered the inadequate February 2020 opinions), failed to provide adequate rationale for the opinions reached and/or failed to consider evidence of the Veteran's prior diagnoses and all of his theories of entitlement. Therefore, these opinions are also inadequate and new opinions must be obtained. The matters are REMANDED for the following action: 1. Update the electronic file with any new VA treatment records and private treatment records. 2. Obtain an addendum opinion based on a review of the record only, by an orthopedic, M.D. regarding the Veteran's left knee condition and the relationship to his service-connected bilateral pes planus, metatarsalgia with plantar fasciitis of the left foot, left foot calcaneal heel spurs, and tinea pedis, corporis and cruris. The examiner should be given a complete copy of the Veteran's electronic file and a note that such was reviewed should be included in his or her report. The examiner should answer the following questions: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's left knee condition was caused or aggravated by his service-connected bilateral pes planus? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's left knee condition was caused or aggravated by his service-connected metatarsalgia with plantar fasciitis of the left foot? (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's left knee condition was caused or aggravated by his service-connected left foot calcaneal heel spurs? (d.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's left knee condition was caused or aggravated by his service-connected tinea pedis, corporis and cruris? A detailed rationale for the opinion must be provided. If the reviewing clinician is unable to offer the requested opinion, it is essential that the reviewing clinician offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Ruiz, 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.