Citation Nr: 21007041 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-13 002 DATE: February 8, 2021 REMANDED 1. Entitlement to service connection for sleep apnea, to include as secondary to gastroesophageal reflux disease (GERD) is remanded. 2. Entitlement to service connection for a left ankle disability is remanded. 3. Entitlement to service connection for a right ankle disability is remanded. REASONS FOR REMAND The appellant is a Veteran who had active service from June 1986 to March 1987 and from January 1991 to May 1991. The issues of service connection for ankle disabilities are before the Board of Veterans Appeals (Board) on appeal from a March 2013 rating decision. The issue of service connection for sleep apnea is on appeal from an October 2016 rating decision. In November 2017 a hearing was held before a Veteran’s Law Judge (who is no longer with the Board: a transcript is in the record. In July 2018 the matters were remanded for development. A final January 2015 rating decision had denied service connection for sleep apnea. The Board’s July 2018 remand implicitly reopened the claim by considering it de novo. A September 2020 letter to the Veteran and his representative notified them that the Judge who presided over the November 2017 hearing is no longer employed by the Board, and offered another hearing before a Judge who would decide the appeal. The Veteran’s response indicated that he did not want another Board hearing. 1. Entitlement to service connection for sleep apnea, to include as secondary to GERD. The July 2018 Board remand sought development for a medical nexus opinion addressing whether the Veteran’s diagnosed sleep apnea was incurred in/caused by his service. In a March 2019 VA medical opinion, the provider concluded that the Veteran’s current sleep apnea was less likely than not incurred in or caused by service; the provider explained that sleep apnea was diagnosed with via sleep study in 2018, more than 20 years after separation from service. The provider explained that apnea/hypoxia indexes less than 5 are normal, and people will have episodes of gasping or brief times where they stop breathing, and that insomnia is not a sign of sleep apnea and that the two are mutually exclusive. In his November 2017 VA Form 9 (substantive appeal), the Veteran expressed a belief that his sleep apnea is secondary to GERD (which was not then service connected, and so the secondary service connection claim lacked legal merit). A June 2020 rating decision granted service connection for GERD, and that theory of entitlement must now be addressed. A medical opinion addressing the matter is now necessary. 2., 3. Entitlement to service connection for left and right ankle disabilities. The July 2018 Board remand sought a VA medical opinion in this matter. The consulting provider was to consider records of a left ankle injury in service and the Veteran’s lay statements regarding onset, and address the Veteran’s contentions that ill-fitting boots in service caused his current ankle problems. The record shows that the Veteran injured his left ankle in service in 1986. A 2013 VA examiner noted that the Veteran started experiencing ankle pain in 1995, but did not offer an opinion as to whether the disability was related to the Veteran’s service/an injury therein. A January 2015 VA opinion, based on review of the medical record, noted the diagnoses of bilateral ankle sprain and bilateral ankle degenerative joint disease. The provider opined that the disabilities were less likely than not incurred in or caused by service, explaining that there was no evidence that the Veteran had any residual pain from his ankle sprain in-service, and that on March 2013 examination it was noted that the Veteran reported not having ankle pain until 1995. At the November 2017 Board hearing, the Veteran clarified that he told the examiner that his ankle first began manifesting in symptoms that were debilitating as far as activity [emphasis added]. He stated that he had continuing ankle pain since the 1986 injury in service, but that it did not become really bad until 1995. On March 2019 VA examination (pursuant to the Board’s remand) , the examiner (a nurse practitioner) opined that the claimed condition was less likely than not incurred in or caused by service, explaining essentially that there is no evidence that a grade 1 sprain of the left ankle in 1986 was a chronic condition, and no evidence that a [chronic] bilateral ankle condition was present in service or at discharge in 1991. That opinion is inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). It is well-established that the absence of finding of a chronic disability in service does not preclude a finding of service connection. To the extent that the 2019 VA opinion may be suggesting that there is no current chronic ankle disability, the March 2013 VA ankle examination report notes a diagnosis of bilateral ankle sprain, and X-rays then showed minimal degenerative spurring and small plantar and posterior calcaneal enthesophytes (which appear to show a chronic ankle disability). Furthermore, no VA medical opinions in the record addresses the Veteran’s lay reports that he had continuing ankle pain that began in service and continued after service. The March 2019 opinion also did not (as the 2018 Board remand requested) address the Veteran’s allegations that wearing ill-fitting boots caused his current ankle disabilities. See Stegall v. West, 11 Vet. App. 268, 271 (1998). An addendum medical opinion is necessary. The matters are REMANDED for the following action: 1. Arrange for the Veteran’s claims file to be returned to the March 2019 sleep apnea consulting provider for review and an addendum opinion regarding the etiology of his now-diagnosed sleep apnea (if that provider is unavailable to another suitably qualified clinician). The consulting provider should respond to the following: (a) Is it at least as likely as not that the Veteran’s sleep apnea was caused or aggravated (the opinion must address aggravation) by his service-connected GERD. (b) If the response to (a) is that the sleep apnea was not caused or aggravated by GERD, identify the etiology for the sleep apnea that is considered to be more likely, and explain why that is so. All opinions should include a complete explanation of rationale that cites to citing to supporting factual data and medical principles (with citation to medical test or treatise, as deemed appropriate). 2. Arrange for the Veteran’s claims file to forwarded to an appropriate clinician for review and an addendum medical advisory opinion regarding the etiology of the Veteran’s diagnosed bilateral ankle sprain and degenerative joint disease. The consulting provider should respond to the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s left and right ankle disabilities were incurred in service (to include as due to noted ankle injury or as due to having to wear ill-fitting boots in service, as alleged). (b) If the response to (a) is no, identify the likely etiology for the current ankle disabilities that is considered to be more likely, and explain why that is so. All opinions must include a complete explanation of rationale, with citation to supporting factual data and medical principles. The rationale must reflect consideration of/address the Veteran’s (post-clarification) accounts that he had continuous ankle pain following the 1986 injury in service, and his allegation that the ankle disabilities developed due his wearing ill-fitting boots he was provided while in service. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, 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.