Citation Nr: 21008239 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 17-64 099 DATE: February 12, 2021 REMANDED Entitlement to service connection for a neck disability, including as secondary to a service connected back disability or bilateral foot disability, is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1961 to October 1986. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). A hearing was held before the undersigned in April 2019. In July 2019 and August 2020, the Board remanded the claim for additional development. A December 2020 rating decision allowed service connection for a back disability. This represents a complete grant as to the benefit claimed and the issue is no longer before the Board. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a neck disability, including as secondary to a service connected back disability or bilateral foot disability, is remanded. In August 2020, the Board remanded the Veteran’s claim of entitlement to service connection for a neck disability. The Board directed the RO to obtain additional a medical opinion as to whether the Veteran’s neck disability was secondary to his service connected back disability or bilateral foot disability. In October 2020, a VA contract examiner reviewed the claims file and opined the Veteran neck condition was less likely than not secondary to his back condition because “[t]he cervical spine is separate from the thoracic spine” and “[t]here is no pathophysiology to support a mechanism for aggravation” of the neck condition by the back condition. No additional rationale was included to support these opinions. The examiner did not discuss the Veteran’s foot disabilities. The claims file includes a December 2019 VA back examination. The December 2019 examiner describes a back condition with reduced range of motion and lower extremity radiculopathy. Pain, fatigue, weakness, and lack of endurance were indicated with repetitive use of the back over time. The examiner observed the Veteran’s back disability resulted in functional limitations, including a reduced ability to lift, stand, and walk. These findings are similar to those documented in a February 2019 back disability benefits questionnaire, completed by a private physician. The Board finds the October 2020 examiner’s rationale is insufficient to support her opinion. She did not discuss how the Veteran’s back symptomatology and related physical limitations may impact the use and movement of his neck. She did not explain whether, or not, weakness and pain in the Veteran’s back and lower extremities may have placed additional stress on his neck. In particular, she did not discuss how, or if, the Veteran’s limited ability to lift with his back and legs would change the way he used his neck in lifting objects. As the October 2020 examiner did not fully explain the possible interactions between the Veteran’s back and neck disabilities, her opinion inadequate to evaluate the claim. See Stefl, supra. In addition, the examiner did not provide any opinion addressing whether the Veteran’s neck condition was caused by or aggravated by his bilateral foot disabilities. There has not been substantial compliance with the Board’s prior remand directives. See Stegall, supra. The Board also notes, VA treatment notes from September 2019 indicate the Veteran receives private medical care for foot pain. These private treatment records may be relevant to his claim for service connection for a neck condition and there is no indication VA has attempted to obtain them. Under its duty to assist, VA must attempt to obtain these records. 2. Entitlement to service connection for sleep apnea is remanded. In August 2020, the Board remanded the Veteran’s claim of entitlement to service connection for sleep apnea. The Board directed the RO to obtain a medical opinion as to whether the Veteran’s sleep apnea was directly related to his active service, including reports of in-service snoring and daytime fatigue, exposure to herbicide agents, or contaminated water at Camp Lejeune. In October 2020, a VA contract examiner opined the Veteran’s sleep apnea was less likely than not causally related to his active service. In support of this opinion, she stated the reports of “snoring, unrestful sleep, gasping and trouble sleeping are not pathognomic for sleep apnea,” She also observed that a sleep study, formally diagnosing sleep apnea, was obtained more than 25 years after the Veteran separated from active service and the service treatment records did not include any diagnosis of sleep apnea. The examiner did not provide any comments as to herbicide agents or contaminated water at Camp Lejeune. In April 2019, the Veteran testified, after returning from serving in Vietnam, he experienced problems with daytime fatigue. As a result of this fatigue, he changed his military occupational specialty (MOS) so that his duties did not involve using equipment and ammunition. He also testified that his first wife told him that he snored. In December 2017 and August 2020, the Veteran provided statements where he recalled his first wife, second wife, children, and in-service bunk mates told him that he snored. He also remembered not sleeping well and waking up gasping for air while on active duty. He stated that he did not initially go to a doctor about his fatigue and snoring because he did not realize he had a medical condition. The file also includes statements from the Veteran’s friend (September 2015) and the Veteran’s daughter (December 2015) recalling that the Veteran snored during his active service. The Board find’s the October 2020 examiner’s rationale is insufficient to support her opinion. The examiner did not explain why the Veteran’s symptomatology (snoring, gasping, daytime fatigue) is not indicative of sleep apnea. Moreover, her reliance on the absence of a sleep study during active service is not sufficient to show the condition, or symptoms of the condition, were not present during service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible.) The October 2020 etiology opinion is insufficient to evaluate the claim. See Stefl, supra. In addition, the examiner did not provide any opinion addressing whether the Veteran’s sleep apnea was caused by in-service exposure to herbicide agents or contaminated water at Camp Lejeune. There has not been substantial compliance with the Board’s prior remand directives. See Stegall, supra. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private medical treatment provider who may have records related to his service-connected foot disabilities. Make two requests for the authorized records from any medical treatment provider identified, unless it is clear after the first request that a second request would be futile. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s neck disability is at least as likely as not proximately due to his service connected back and/or bilateral foot disabilities or aggravated beyond its natural progression by his service-connected back and/or bilateral foot disabilities. Prior to providing this opinion, the examiner should fully review the claims file, including the December 2019 VA back examination and the February 2019 back condition disability benefits questionnaire (submitted in April 2019). The examiner must include a complete discussion of the limitations associated with the Veteran’s back condition (including limited motion, painful motion, weakened motion, reduced ability to lift, stand, and walk) and bilateral foot conditions. He or she should explain how those limitations may interact with or place additional stress on the Veteran’s neck. If the examiner concludes that there is no interaction between the Veteran’s back or foot conditions and his neck, he or she should fully explain why this is so. Aggravation and causation are distinct are distinct theories and must be addressed separately and independently of each other. If aggravation is found the examiner must attempt to establish a baseline of severity of the neck condition prior to aggravation by the service-connected back condition. A complete rationale for all opinions expressed must be provided. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s sleep apnea is at least as likely as not related to his active service, including reports of inservice symptoms of snoring and daytime fatigue. The examiner should fully review the claims file, including the Veteran’s April 2019 testimony, August 2020 statement, and December 2017 statement. The examiner should also review supporting statements from the Veteran’s friend (submitted in September 2015) and daughter (submitted in December 2015). The examiner is advised that the Veteran and other lay persons are competent to report hearing snoring, being told that they are snoring, and feeling fatigued. If the examiner dismisses any lay reports of snoring or fatigue, a complete rationale for doing so must be provided. The examiner is also advised that the absence of contemporaneous treatment records is insufficient, without additional rationale, to dismiss reports of symptomatology. (Continued on the next page)   If the examiner finds the Veteran’s sleep apnea is less likely than not causally related to any in-service symptomatology, he should opine whether it is at least as likely due to in-service exposure to herbicide agents or contaminated water at Camp Lejeune. In providing this opinion, the examiner should discuss the February 2019 sleep apnea disability benefits questionnaire (submitted in April 2019) completed by Dr. K. M. A complete rationale for all opinions expressed must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks 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.