Citation Nr: 21077484 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 14-35 631 DATE: December 29, 2021 REMANDED Entitlement to service connection for a headache disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a heart disability is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1974 to August 1975. This matter originally came before the Board of Veterans' Appeals (Board) from August 2013 and November 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified at a December 2017 Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. This matter has previously been remanded by the Board for further development, most recently in December 2020. This matter is again before the Board. 1. Entitlement to service connection for a headache disability is remanded. 2. Entitlement to service connection for sleep apnea is remanded. 3. Entitlement to service connection for a heart disability is remanded. The Veteran believes that service connection for a headache disability, sleep apnea, and a heart disability is warranted. When this matter was last before the Board in December 2020, it was remanded based on a finding that there had not been substantial compliance with the Board's prior September 2020 remand directives. Unfortunately, the Board again finds that the December 2020 remand directives have not been substantially complied with for multiple reasons. See Stegall v. West, 11 Vet. App. 268 (1998). First, as noted in the December 2020 remand, the Board has instructed the AOJ on several occasions to obtain an opinion as to the Veteran's sleep apnea, with specific instructions to obtain such opinion from a sleep specialist dating back to the August 2019 remand. While an examination and opinion were obtained in March 2021, it appears that the examiner was a nurse practitioner, with no indication that (s)he was a sleep specialist as instructed. Second, the December 2020 remand also instructed that the opinions obtained should address whether the Veteran's obesity was an intermediate step between any of the Veteran's service-connected disabilities and the Veteran's headache disability, sleep apnea, and/or heart disability. See 38 C.F.R. § 3.310; VAOPGCPREC 1-2017 (January 6, 2017). Notably, while opinions were obtained as to each of the conditions in March 2021, none of the opinions addressed the Veteran's obesity as instructed. Third, each of the opinions are inadequate for adjudicative purposes, as they contain only conclusory opinions supported by no rationale. As to whether the Veteran's heart disability and headache condition were caused or aggravated by any of the Veteran's service-connected disabilities, the examiner stated only that the conditions were a separate entity entirely from the service-connected conditions and a thorough review of medical literature failed to demonstrate a causal relationship. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (reliance on the absence of medical literature supporting nexus without discussing the specific facts of the case renders an opinion inadequate). With regard to whether the Veteran's sleep apnea was related to service, the examiner stated that lapse in treatment and unexplained long periods of time between medical care does not support a finding that the condition is directly related to service. The examiner failed to explain why, as a medical matter, the Veteran would have sought treatment or complained of the condition during service, or why an absence of treatment and documented symptoms was otherwise medically significant. See, e.g., McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). As to whether his sleep apnea was caused or aggravated by a service-connected condition, the examiner explained the anatomical workings of sleep apnea itself, and then concluded that the condition was not secondary to any service-connected condition without applying any of the facts of the Veteran's specific disability picture or any potential relationship to his service-connected disabilities. In this case, such an analysis is particularly relevant as the Veteran contends that his is caused or aggravated by his service-connected nasal fracture with right deviated septum status post rhinoplasty. Based on the foregoing, the Board finds that remand is necessary to obtain adequate medical opinions as to the etiology of the Veteran's heart condition, headache condition, and sleep apnea. The matters are REMANDED for the following action: 1. Obtain an addendum opinion as to the etiology of the Veteran's heart, sleep apnea, and headache conditions. The sleep apnea examination MUST be conducted by a sleep specialist. The need for in-person examinations of the Veteran is left to the discretion of the examiners. Following a review of the claims file and a copy of this Remand, the reviewing examiners are requested to furnish opinions with respect to the following: a.) Identify all heart, sleep apnea, and headache disabilities existing at any point during the pendency of the appeal (i.e. since October 2014 for the heart and sleep apnea claims, and since March 2012 for the headache claim), even if they are currently asymptomatic or have resolved during the pendency of the appeal. b.) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability began during service, manifested to a compensable degree within one year following separation from service, or is otherwise etiologically related to the Veteran's service? The examiner should not rely on silence in the medical records as evidence weighing against the Veteran's claims unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. c.) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was caused by or aggravated beyond its natural progression by any or all of the Veteran's service-connected disabilities (including any medications taken for the service-connected disabilities)? For aggravation, state whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. The examiner must address the Veteran's contention that the currently diagnosed sleep apnea was caused or aggravated by his service-connected nasal fracture with right deviated septum. d.) Is it at least as likely as not (a 50 percent or greater probability) that any or all of the Veteran's service-connected disabilities (including any medications taken for the service-connected disabilities) caused or aggravated the Veteran's obesity/being overweight including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. e.) If yes, is it at least as likely as not (a 50 percent or greater probability) that the obesity/being overweight caused or aggravated any or all of the Veteran's heart, sleep apnea, and/or headache disabilities including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. f.) If any of the Veteran's identified disabilities are found to have begun during service, to have manifested to a compensable degree within one year following separation from service, to have been otherwise etiologically related to the Veteran's service, or are found to have been caused/aggravated by any or all of the Veteran's service-connected disabilities, is it at least as likely as not (a 50 percent or greater probability) that such disability/disabilities (including any medications taken for such disability/disabilities) caused or aggravated any or all of the Veteran's remaining identified disabilities beyond their natural progression? For aggravation, state whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. g.) If any of the Veteran's remining identified disabilities are found to have begun during service, to have manifested to a compensable degree within one year following separation from service, to have been otherwise etiologically related to service, or are found to have been caused/aggravated by any or all of the Veteran's service-connected disabilities, is it at least as likely as not (a 50 percent or greater probability) that such disability/disabilities (including any medications taken for such disability/disabilities) caused or aggravated any or all of the Veteran's remaining identified disabilities beyond their natural progression? For aggravation, state whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. In addition to the other relevant evidence of record, the examiners are asked to consider the following information with a caution that this list is not a substitute for a review of the record: Heart (1) A list of the Veteran's service-connected disabilities. See December 2019 Rating Decision Codesheet. (2) Medical records showing chronic diastolic heart failure; a body mass index of 47; that weight problems carried the risk of heart disease; the Veteran's 2014 report of stable angina; a history of myocardial infarction, congestive heart failure, coronary artery disease, angina, and two heart attacks; an enlarged heart with an impression of mild cardiomegaly; and a 2017 diagnosis of hypertensive heart disease with heart failure. See October 2020 CAPRI. (3) 2020 medical records showing that salt can worsen heart failure. See September 2020 CAPRI. (4) 2002 medical records showing ischemic heart disease. See January 2020 CAPRI. (5) 2014 medical records showing an assessment of stable and variant angina. 2013 medical records showed that the Veteran was obese and noted to be tachycardic. 2010 medical records showed that the Veteran did not take isosorbide for his coronary artery disease because it caused headaches. See November 2019 CAPRI. (6) The Veteran's 2017 report that shortly after service, in 1975, he was put on blood pressure medication at VA and had been on it ever since. See Hearing Transcript. (7) The Veteran's 2016 report that his heart problem was due to multiple years of untreated sleep apnea. See April 2016 Hearing Testimony. (8) The Veteran's 2014 report that his heart problem was due to sleep apnea. It was a proven medical fact that heart disease was related to sleep apnea. See October 2014 Statement in Support of Claim. (9) Research showing that risks from sleep apnea include heart attacks, strokes, an irregular heartbeat, high blood pressure, and heart disease. See October 2014 Web / HTML Documents. (10) The Veteran's 2013 report of a stressful job and stressful situations during service. When he was reminded of them, he had nightmares. See November 2013 Hearing Testimony. (11) The Veteran's 2013 report of being exposed to chemicals and petroleum products made for aircraft during service. See September 2013 NOD. (12) The Veteran's 2012 report that the heart problem was due to the nasal surgery during service, because he was not getting proper airflow. Before the procedure, he was an athlete and in good health, but after the procedure, he could tell that his health was going downhill because he couldn't run for as long. For years prior to using a bi-pap machine, he would wake up in the middle of the night because he couldn't sleep. Doctors told him that the heart problem was stress related. He had not been able to breathe properly since service. See December 2012 Hearing Testimony; October 2012 Statement in Support of Claim. (13) A 2011 medical record showing that the Veteran's heart problem was not related to diabetes. See March 2011 VA Examination. (14) The Veteran's 2010 report that because he could not breathe through the right side of his nose since the surgery during service, he had had 2 heart attacks. The Veteran had 0 percent airflow to the right nostril and 80 percent airflow to the left. See December 2010 Correspondence; June 2010 Statement in Support of Claim. (15) A 1996 medical record showing hypertensive ischemic heart disease with a recent myocardial infarction and anginal syndrome. See February 1996 VA Examination. (16) All other relevant lay and medical evidence (some may be found in the lists for the other conditions). Sleep apnea (17) A list of the Veteran's service-connected disabilities. See December 2019 Rating Decision Codesheet. (18) Medical records from 2017 to 2020 showing obstructive sleep apnea, a diagnosis of unspecified sleep apnea, a diagnosis of primary central sleep apnea, a body mass index of 47, and that weight problems created the risk of sleep apnea. The Veteran used a bi-pap machine, but could not use it for very long. The Veteran slept in a recliner. There was an impression of obstructive sleep apnea, allergic rhinitis, deviated nasal septum, and bilateral inferior turbinate hypertrophy. 2010 medical records showed that the Veteran needed a sleep study due to tiredness, snoring, and because he stopped breathing at night. His chances of dozing off were pretty high. See October 2020 CAPRI. (19) The Veteran's report that his sleep apnea began in 1974. He had nasal surgery during service and had breathing problems since that time, which also worsened over time. The 2010 sleep study showed a severe breathing disorder. See November 2019 C&P Exam. (20) 2016 medical records showing that the Veteran was sleeping with HOB elevated so that he could breathe better. See November 2019 CAPRI. (21) The Veteran's 2017 report that he couldn't breathe through the right side of his nose because it would collapse. He had problems with sleep ever since the nasal surgery during service. He decided to do a sleep study after his heart attacks. He used a bi-pap machine ever since the sleep study. See Hearing Transcript. (22) The Veteran's 2016 report that following the nasal surgery during service, he had problems with sleeping and snored like a freight train. His snoring would wake people up on the ship during service and they would complain. The sleep problems continued after service, which two former spouses could confirm. Ever since the nasal surgery during service, the Veteran had problems with snoring, gasping for air, waking, and having his breathing stop. See April 2016 Hearing Testimony. (23) Research showing that a deviated septum can cause loud breathing, breathing problems, snoring during sleep, and can cause sleep apnea and sleep disruptions. See October 2014 Web / HTML Documents. (24) Research showing that obstructive sleep apnea can be the result of nasal passage problems. The airway can be obstructed at several possible sites. For severe sleep apnea, a bi-pap machine is used. Fixing a deviated septum can help to open nasal passages. Nasal passages can be obstructed by a deviated septum. Id. (25) A 2014 medical record showing that obstructive sleep apnea is related to obesity and that nasal congestion confers an approximately two-fold increase in the prevalence of obstructive sleep apnea regardless of the cause of nasal congestion. See May 2014 VA Examination. (26) The Veteran's report that his sleep apnea was due to his deviated septum, which was caused by the nasal surgery during service. See October 2014 Statement in Support of Claim. (27) The Veteran's 2012 report that following the nasal surgery during service, he was not getting the proper airflow. He could tell that his health was going downhill because he could no longer run for as long. He was an athlete and was in good shape prior to the procedure. Because of the deviated septum, he couldn't just use the nose bi-pap machine. He had to use the full facemask at night because he breathed through his mouth at night. For years prior to using the bi-pap machine, he would wake up in the middle of the night because he couldn't sleep due to the deviated septum. See December 2012 Hearing Testimony. (28) The Veteran's 2010 report that since service, he could not breathe through the right side of his nose. See December 2010 Correspondence. (29) 2002 medical records showing that the Veteran took Benadryl for sleep. See March 2010 Medical Treatment Record. (30) All other relevant lay and medical evidence (some may be found in the lists for the other conditions). Headache (31)A list of the Veteran's service-connected disabilities. See December 2019 Rating Decision Codesheet. (32) The Veteran's 2020 report of severe headaches, which began during service after running into an airplane, which resulted in a forehead laceration requiring 6 stitches. The Veteran reported being unconscious for about 10 minutes. In 2020, the headaches occurred2 to 3 times per week. See February 2020 C&P Exam. (33) 2019 medical records showing headaches and that the Veteran used hydrocodone for headaches. In 2018, the Veteran reported migraine headaches. See January 2020 CAPRI. (34) The Veteran's 2013 report of headaches, which came and went and lasted for a very short time. 2013 medical records showed that the headaches began about 40 years prior and came and went. 2012 medical records showed headaches with a sharp, stabbing pain constantly. 2010 medical records showed that the Veteran did not take isosorbide for his coronary artery disease because it caused headaches. See November 2019 CAPRI. (35) The Veteran's 2017 report that he went to VA in 1975 because of headaches. Blood pressure medication did not solve his headaches. He had diagnoses of tension headaches and migraine headaches. The tension headaches became migraine headaches at some point. The headaches could have been related to his head scar. He got the head scar from running into an airplane during service. He tried to duck under the airplane as he was running but did not get low enough and hit the airplane's pylons, which are very sharp points on the back of the airplane. He was knocked off his feet and probably was knocked out for a time. He received 6 stitches. The Veteran believed that he complained about headaches during service, but they just sent him back to work. He had headaches ever since the airplane incident. Generally, the Veteran treated the headaches with pain medication. The Veteran thought that the headaches were related to the airplane incident as well as to his high blood pressure, which had existed from around the time that he left service. See Hearing Transcript. (36) May 1976 medical records showing frontal headaches. See June 1975 Medical Treatment Record. (37) Research showing that a deviated septum can result in headache symptoms. It can also cause nasal pressure. See October 2014Web / HTML Documents. (38) Research showing that obstructive sleep apnea can result in headaches. Id. (39) The Veteran's 2013 report that after the airplane incident during service, he awoke and found himself being carried on a stretcher to sickbay. See November 2013 Hearing Testimony. (40) The Veteran's 2013 report that he was exposed to chemicals and petroleum products made for aircrafts during service. The airplane injury was much more than just a laceration. The Veteran had had headaches frequently ever since the airplane incident. See September 2013 NOD. (41) A 2013 medical record showing that the Veteran's headache problem began in 1975and that the Veteran was diagnosed with migraines at the time. See July 2013 VA Examination. (42) The Veteran's 2012 report that the headache problem was related to the head laceration scar. See March 2012 Veteran Supplemental Claim. (43) The Veteran's 2005 report of a major head injury with loss of consciousness in 1975. See March 2011 Medical Treatment Record. (44) A 1977 medical record showing a headache problem, which began after being hit on the head during service. The headaches did not respond to medication. See March 1977 VA Examination. (45) 1976 medical records showing a diagnosis of tension headaches. The Veteran was admitted for headache problems. See January 1977 VA 10-1000. (46) The Veteran's 1976 report of headaches and dizziness during service, and that he was treated by VA in 1976. See November 1976 Veterans Application for Compensation. (47) Service records showing that the Veteran was in a fight and had a few contusions to the face. The Veteran also had a laceration to the right frontal area of his skull, which required sutures. Finally, the Veteran had a sprained neck. See September 1975 STR Medical. (48) All other relevant lay and medical evidence (some may be found in the lists for the other conditions). A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions, including but not limited to, reports of continuity of symptomatology since service. All necessary tests and studies should be conducted. If the examiners cannot provide opinions without resorting to mere speculation, the examiners should provide an explanation stating why. In so doing, the examiners should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiners' medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. 2. Readjudicate the issues on appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, 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.