Citation Nr: 21011080 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 16-47 534 DATE: February 26, 2021 REMANDED Entitlement to service connection for cervical spine with degenerative disc disease (DDD) to include on secondary basis to service-connected disabilities is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1979 to March 2002. By way of history, in October 2019, the Veteran appealed the portion of the Board’s December 2018 decision that denied service connection for cervical spine DDD and service connection for sleep apnea to the United States Court of Appeals for Veteran Claims (Court) which granted a Joint Motion for Partial Remand (JMPR) filed by the parties. As part of the motion, the appellant expressly waived his appeal to the portion of the Board’s decision that denied a petition to reopen a claim of entitlement to service connection for Bell’s palsy and indicated that the Court dismiss the appeal with respect to that issue. In an October 2019 Order, the Court vacated, in part, the Board’s December 2018 decision with regard to the issue of cervical spine and sleep apnea and remanded the matter on to the Board. In May 2020, pursuant to the terms of the JMPR, the Board remanded the issues of cervical spine and sleep apnea for additional development. In July 2020, the Board combined the issues of left knee, psychiatric disorder, headaches, and erectile dysfunction (which were certified to the Board in a separate appeal and returned without accomplishment) with issues on appeal of cervical spine and sleep apnea and again remanded the matter for further development. In January 2021, the Board remanded the matter for issuance of a Supplemental Statement of the Case (SSOC). The Board notes the issues of left knee, psychiatric disorder, headaches and erectile dysfunction remain with the Agency of Original Jurisdiction (AOJ) on development ordered above. Unfortunately, the Board finds that further action on the remaining matters on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. 1. Entitlement to service connection for cervical spine with DDD to include on secondary basis to service-connected disabilities. The parties agreed that the Board did not address a theory of secondary service connection raised by the record. See JMPR at 2 (Appellant’s assertion that the Board did not fully address entitlement to service connection for cervical spine DDD as secondary to service-connected right shoulder disability). Thereafter, in compliance with the Board’s May and July 2020 remands, the Veteran was afforded VA contract examinations in November 2020 and medical opinions obtained for cervical spine on a direct basis and cervical spine secondary to service-connected right shoulder disability. However, in a recent correspondence, the Veteran stated that the November 2020 VA examinations were inadequate. See Appellant’s Brief dated December 2020 at 2. Specifically, the Veteran disagreed with the November 2020 VA examiner’s negative opinion on whether or not the right shoulder caused or aggravated his cervical spine injury asserting that the examiner failed to consider “other musculoskeletal disabilities caused any of those risk factors to exist in his life.” Id. at 3. Further, the Veteran also states there “was no consideration for this intermediate step or any specific discussion on what risk factors [he] has that cause his disability.” Id. Indeed, the Veteran is currently service connected for other musculoskeletal disabilities of low back, bilateral knee, left shoulder, and right ankle disabilities which have not been considered. Thus, an addendum opinion is necessary. 2. Entitlement to service connection for sleep apnea. Similarly, in compliance with the Board’s July 2020 remand, the Veteran was afforded a VA contract examination in November 2020 and a medical opinion obtained for sleep apnea on direct service connection. The record shows a November 2020 VA contract opinion where the examiner found no link between obstructive sleep apnea to service because the Veteran was diagnosed “9 years after” separation. The examiner noted “sleep apnea is not documented in the military medical records during his time of service. Medical records reflect diagnosis of obstructive sleep apnea in 2011. This is 9 years post-service.” See VA contract opinion dated November 4, 2020. The record shows another November 2020 VA contract opinion from a different examiner finding “no documentation of signs and symptoms or complaints of sleep apnea during, or within one year following active duty service” and “[b]ecause the record is quiescent for complaints of sleep apnea until 2011, a nexus can not be established.” See VA contract opinion dated November 11, 2020. However, the Veteran asserts that the opinions are inadequate as the examiner’s opinions are based on the absence of documentation and fail to discuss lay statements submitted to VA on his symptoms of sleep apnea and history. Specifically, the Veteran states that “while he was in service, he suffered from snoring, tiredness, and occasionally he stopped breathing while he was asleep.” See Appellant’s Brief dated December 2020 at 3; see also Statements in Support of Claim (VA Form 21-4138) received May 2016. Indeed, the Board’s prior May 2020 remand instructed that the examiner’s opinion “should reflect consideration of the Veteran’s contentions and report of symptoms in his May 26, 2016 statement.” See Board May 2020 remand at 7. Given the foregoing, the Board finds that an addendum opinion is needed which sufficiently addresses the Veteran’s contentions and takes into account his reported history and chronicity of symptomatology. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Arrange for the examiner who conducted the November 2020 VA examination to provide an addendum opinion. If the examiner is not available, the request may be referred to another, equally qualified medical professional, who must independently review the electronic claims folder. The Veteran’s electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. After reviewing the claims file, the examiner is to provide an addendum opinion on the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s cervical spine degenerative disc disease was caused by his service-connected disabilities to include musculoskeletal disabilities of low back, bilateral shoulder, bilateral knee, and right ankle? Is it at least as likely as not (50 percent or greater probability) that the Veteran’s cervical spine degenerative disc disease was aggravated by his service-connected disabilities to include musculoskeletal disabilities of low back, bilateral shoulder, bilateral knee, and right ankle? A complete rationale for all findings and conclusions is requested. 2. Arrange for the examiner who conducted the November 2020 VA examination to provide an addendum opinion. If the examiner is not available, the request may be referred to another, equally qualified medical professional, who must independently review the electronic claims folder. The Veteran’s electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. After reviewing the claims file, the examiner is to provide an addendum opinion on the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea began during active service or is causally related to service? Is at least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea symptoms manifested within one year of his service discharge and, if so, describe the manifestations. In rendering the opinion, the examiner is asked to consider both medical and lay evidence of record (to include the May 2016 statements submitted by the Veteran). A complete rationale for all opinions is requested. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, 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.