Citation Nr: 21005530 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-34 426 DATE: February 1, 2021 REMANDED The issue of entitlement to service connection for sleep apnea, to include as secondary to service-connected migraine headaches, depressive disorder with insomnia associated with degenerative joint disease (DJD), thoracolumbar spine, and/or DJD, thoracolumbar spine, is remanded. The issue of entitlement to an evaluation in excess of 10 percent disabling for service-connected urticaria vasculitis with perirectal abscess and scar, is remanded. The issue of entitlement to an initial evaluation in excess of 10 percent disabling for service-connected painful scar, perirectal abscess associated with urticaria vasculitis with perirectal abscess and scar, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1983 to November 2003. In May 2019, the Veteran testified under oath before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. In May 2019, the appeal was remanded for additional development. For the reasons outlined below, the Board finds that remand is again needed for the issues remaining on appeal. At the time of the May 2019 remand, the issue of entitlement to service connection for insomnia, to include as secondary to the service-connected depressive disorder, and/or degenerative joint disease, thoracolumbar spine, and/or urticaria vasculitis, was before the Board. Following the remand, in an April 2020 rating decision, the RO incorporated the insomnia into the Veteran’s already service-connected depressive disorder associated with DJD, thoracolumbar spine. The Veteran was given an earlier effective date of April 14, 2014 for the 50 percent disability evaluation, as well as an increased disability evaluation of 70 percent, effective December 20, 2019. The RO noted this to be a full grant of benefits sought on appeal for this issue and the Board agrees. Accordingly, the issue is no longer before the Board. 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected migraine headaches, depressive disorder with insomnia associated with DJD, thoracolumbar spine, and/or DJD, thoracolumbar spine. The Board finds that additional development is needed prior to final adjudication of the remaining issues on appeal. Regarding the claim for service connection for sleep apnea, the Board finds that a new VA opinion is needed. In the May 2019 remand, the Board requested a VA examination to address the etiology of the Veteran’s sleep apnea disability. The examiner was asked to address: (1) the Veteran’s contention that his sleep apnea began in service; and (2) the May 2019 statement from the Veteran’s spouse, in which she describes the Veteran, while in service, jolting while sleeping. However, the January 2020 VA opinion obtained that addresses direct service connection, does not address these lay statements as requested. Accordingly, a new opinion is needed. In addition, the examiner was asked to provide an opinion addressing potential aggravation of the Veteran’s claimed sleep apnea by his migraine headaches disability or insomnia. The Board acknowledges the January 2020 opinion; however, the Board finds that the opinion does not provide an adequate rationale to justify the conclusion reached. For example, the rationale given for why it was at least as likely as not that there was no aggravation was that “There is not evidence that Veteran’s sleep has been aggravated beyond the normal progression of the condition by any other condition.” The Board notes that at the videoconference hearing, the Veteran gave the following testimony: [Representative]: But how does the migraines affect-- when you’re having a migraine, how does it affect the sleep apnea? How does it make it worse? Veteran: You -- you cannot -- it -- it feels like you’re smothering. So, you almost want to take everything -- you don’t want anything next to your face, your -- your head, anything. If anything, you want ice around you. [Representative]: Okay. Veteran: And they, you know, it’s all I have to go and -- and put ice on my head for a while and go to a hot shower and then cold showers. It’s just -- it’s hard to sleep. [Representative]: Okay. So, you feel like the migraines make the sleep apnea worse. Veteran: Yes. [Representative]: Considerably worse. Veteran: Yes. Upon remand, the Board asks that an examiner address the Veteran’s contentions, including the suggestion that his migraines may interfere with his use of a CPAP machine. Further, the Board notes that in the sleep apnea VA examination report under the Veteran’s medical history, it states that his sleep apnea “began in 1996 after back injury and migraine headaches.” The Veteran also mentions his back injury in his notice of disagreement (NOD) regarding sleep apnea. See NOD, January 2016. The Board notes that the Veteran is presently service-connected for DJD, thoracolumbar spine. Accordingly, upon remand the Board asks that an examiner address a potential connection between the Veteran’s service-connected DJD, thoracolumbar spine disability and his claimed sleep apnea. 2. Entitlement to an evaluation in excess of 10 percent disabling for service-connected urticaria vasculitis with perirectal abscess and scar. 3. Entitlement to an initial evaluation in excess of 10 percent disabling for service-connected painful scar, perirectal abscess associated with urticaria vasculitis with perirectal abscess and scar. The Board remands the two remaining increased evaluation issues, as well. Outstanding private treatment records were identified at the May 2019 videoconference hearing. This was reiterated in the May 2019 Board remand, which directed that any outstanding records be obtained. The Board acknowledges that the Veteran was sent a development letter in November 2019, providing him with VA Forms 21-4142 and 21-4142a; however, it does not appear that a response was received. Nevertheless, as the Board is remanding this matter, it will again afford the Veteran the opportunity to identify any private treatment records to be obtained. The matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, obtain a VA opinion that addresses the etiology of the Veteran’s claimed sleep apnea. If necessary, schedule the Veteran for a VA examination. The examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the claimed sleep apnea was caused by the Veteran’s active duty service. The examiner is asked to address the Veteran’s contentions that he sustained a head injury in 1995 and that he was exposed to jet fuel and other cleaning agents while in service. See NOD, January 2016; see also VA Form 9, July 2016. In addition, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that claimed sleep apnea is proximately due to, or the result of, or aggravated (permanently worsened) beyond normal progression by the Veteran’s service-connected migraine headaches, depressive disorder with insomnia associated with DJD, thoracolumbar spine, and/or DJD, thoracolumbar spine disabilities. The examiner is asked to address: (a) the Veteran’s contentions, including the suggestion that his migraines may interfere with his use of a CPAP machine; (b) the January 2020 sleep apnea VA examination report under the Veteran’s medical history, where it states that his sleep apnea “began in 1996 after back injury and migraine headaches,” as well as the Veteran’s January 2016 NOD where he mentions his back injury. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided.   3. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Foster, 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.