Citation Nr: 21010128 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-06 144A DATE: February 24, 2021 REMANDED Entitlement to service connection for a headache disability is remanded. Entitlement to service connection for acid reflux, also claimed as gastroesophageal reflux disease (GERD), is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for TMJ syndrome is remanded. Entitlement to an initial rating in excess of 70 percent for major depressive disorder with alcohol abuse is remanded. Entitlement to higher initial ratings for bilateral flat feet, currently rated at 10 percent prior to December 6, 2017, and at 50 percent from that date, is remanded. Entitlement to higher initial ratings for lumbosacral strain, currently rated at 20 percent prior to June 15, 2015, and at 40 percent from that date, is remanded. Entitlement to higher initial ratings for pansinusitis, currently rated at 10 percent prior to November 13, 2013; at 30 percent from November 13, 2013, to December 5, 2017; and at 50 percent from December 6, 2017, is remanded. Entitlement to higher initial ratings for left ankle strain with range of motion abnormality of the left ankle, currently rated at 10 percent prior to November 7, 2013, and at 20 percent from that date, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 18, 2012, is remanded. REASONS FOR REMAND The Veteran had active service from December 1978 to December 1982, from July 1992 to October 1994, and from August 1997 to April 1998. In December 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Veteran raised the issue of entitlement to a TDIU as part of his appeals for higher initial ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Agency of Original Jurisdiction (AOJ) granted the Veteran entitlement to a TDIU effective August 18, 2012, in a January 2019 rating decision. The issue of entitlement to a TDIU during the relevant rating period for the increased rating appeals prior to August 18, 2012, remains on appeal despite the AOJ’s finding in the January 2019 rating decision that the grant of a TDIU therein represented a full grant of the issue sought on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). In August 2020, the Veteran’s former representative submitted a letter and motion seeking to withdraw as the representative in this case. However, her representation of the Veteran was revoked in October 2018 when the Veteran executed a VA Form 21-22a, Appointment of Individual as Claimant’s Representative, in favor of another attorney at the same law firm. The August 2020 attempts to withdraw as the representative in this case were ineffectual because they were not submitted by the current representative of record. The Veteran’s current representative has not sought withdrawal from the case. Therefore, the Veteran continues to be represented by the attorney listed on the first page of this decision.   1. Entitlement to service connection for a headache disability is remanded. The Veteran seeks entitlement to service connection for a headache disability, which he contends is secondary to his service-connected pansinusitis and/or major depressive disorder. At the December 2020 Board hearing, he also testified that he first began having headaches during his active service when he was stationed in Germany. He was afforded a VA headaches examination in May 2014, and a VA addendum opinion as to the issue was obtained in August 2014. The Board finds the VA examination and the VA addendum opinion to be inadequate for decision-making purposes because they do not address the issue of direct service connection and do not adequately address the issue of secondary service connection. Specifically, the May 2014 VA examiner attributed the Veteran’s headaches to a combination of the Veteran’s significant history, including nonservice-connected head injuries and seizure disorder and service-connected pansinusitis. She did not provide a rationale for that opinion or clarify whether it is at least as likely as not that the headaches are proximately due to or aggravated by the service-connected pansinusitis. The August 2014 VA examiner found that the Veteran’s headaches are less likely than not proximately due to his service-connected pansinusitis because the record does not show any clear evidence of such a relationship. He did not provide any further rationale for that opinion and did not provide an opinion as to whether the Veteran’s headaches may be aggravated by a service-connected disability. Moreover, the Veteran’s ratings for pansinusitis are partially based on headaches associated with that condition. See 38 C.F.R. § 4.97, Diagnostic Code 6510. It is unclear from the record whether the Veteran has a headache disability separate and distinct from the headaches already recognized as a symptom of the service-connected pansinusitis and rated as part of that disability. Therefore, the issue must be remanded for an addendum opinion addressing whether there is a separate and distinct headache disability and, if so, whether that headache disability is directly related to the Veteran’s active service or is caused or aggravated by the service-connected pansinusitis and/or major depressive disorder. 2. Entitlement to service connection for acid reflux, also claimed as GERD, is remanded. The Veteran seeks entitlement to service connection for acid reflux or GERD. At the December 2020 Board hearing, he testified that he first had acid reflux during his active service while he was stationed in Germany. Based on that testimony, the Board finds that the threshold for provision of a VA examination have been met and that the issue must be remanded so that such an examination may be provided. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 3. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran seeks entitlement to service connection for obstructive sleep apnea, which he contends is secondary to his service-connected pansinusitis and/or major depressive disorder. He was afforded a VA sleep apnea examination in May 2014. The VA examiner opined that the Veteran’s sleep apnea is not caused by his service-connected pansinusitis because sleep apnea is caused by upper airway narrowing superimposed upon neurological control of upper airway muscle tone or ventilatory control during sleep. She added that the Veteran’s sinusitis “may exacerbate his sleep apnea but does not cause it, in my opinion.” The Board finds the examiner’s opinion to be inadequate for decision-making purposes because it does not address whether the Veteran’s service-connected major depressive disorder may have caused or aggravated his obstructive sleep apnea and because the examiner’s statement that the service-connected pansinusitis “may exacerbate” the obstructive sleep apnea is vague and equivocal. Therefore, the issue must be remanded for an addendum opinion. 4. Entitlement to a higher initial rating for major depressive disorder with alcohol abuse is remanded. At the December 2020 Board hearing, the Veteran testified that he began seeing a new psychiatrist when he moved the previous January. It is unclear from the hearing transcript whether the new psychiatric treatment is through VA or through a private source. The issue must be remanded so that efforts may be made to obtain records from the Veteran’s new psychiatrist. 5. Entitlement to service connection for TMJ syndrome is remanded. 6. Entitlement to higher initial ratings for bilateral flat feet is remanded. 7. Entitlement to higher initial ratings for lumbosacral strain is remanded. 8. Entitlement to higher initial ratings for pansinusitis is remanded. 9. Entitlement to higher initial ratings for left ankle strain with range of motion abnormality of the left ankle is remanded. 10. Entitlement to a TDIU prior to August 18, 2012, is remanded. The VA treatment records indicate that a number of non-VA treatment records have been scanned into VistA Imaging. Although it appears that some of those records have been submitted separately by the Veteran, it is unclear whether all of the non-VA treatment records scanned into VistA Imaging are of record. Therefore, the Board finds that the remaining issues on appeal must be remanded so that the documents scanned into VistA Imaging may be associated with the record. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private treatment he has received for the disabilities at issue on appeal and that is not currently of record. The Board is particularly interested in records from the psychiatrist he began seeing in or around January 2020. Inform the Veteran that if that psychiatrist is a private source, then a VA Form 21-4142 is required for VA to obtain records from the psychiatrist and if the psychiatrist is with VA, then VA will obtain the records. Make two requests for any private treatment records identified and authorized for review unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s updated VA treatment records and any records that have been scanned into VistA Imaging and that are not already of record. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran has a headache disability that is separate and distinct from the headaches that have been recognized as a symptom of the service-connected pansinusitis and considered as part of the ratings for that disability. If so, the clinician must provide an opinion as to whether the headache disability at least as likely as not (50 percent probability or greater) began during the Veteran’s active service or is otherwise related to an in-service event, injury, or disease. The clinician must consider the Veteran’s testimony at the December 2020 Board hearing that he had headaches during his active service due to sinus troubles and being “clogged up”. The clinician must note that lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. Therefore, the Veteran’s reports of in-service headaches may not be deemed not credible solely due to a lack of in-service complaints of or treatment for headaches. If the opinion as to direct service connection is in the negative, the clinician must also provide an opinion as to whether the headache disability is at least as likely as not proximately due to or aggravated beyond its natural progression by a service-connected disability, to include pansinusitis and major depressive disorder with alcohol abuse. 4. Schedule the Veteran for a VA examination for his claimed acid reflux, which he also claimed as GERD. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran’s acid reflux or GERD at least as likely as not (50 percent probability or greater) related to service, including the in-service acid reflux the Veteran reported at the December 2020 Board hearing? Provide a rationale to support the opinion. The clinician must note that lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. Therefore, the Veteran’s reports of in-service acid reflux symptoms may not be deemed not credible solely due to a lack of in-service complaints of or treatment for acid reflux. 5. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s obstructive sleep apnea is at least as likely as not (50 percent probability or greater) proximately due or aggravated beyond its natural progression by a service-connected disability, to include pansinusitis and major depressive disorder with alcohol abuse. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. J. Anthony, 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.