Citation Nr: 21013898 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-24 869 DATE: March 10, 2021 REMANDED 1. Entitlement to service connection for sleep apnea is remanded. 2. Entitlement to service connection for an anxiety and panic disorder is remanded. 3. Entitlement to service connection for a back disability, to include as secondary to the service-connected right foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from May 1987 to April 1991 as a mess specialist (cook). These matters are before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision. A December 2019 Board decision denied these matters. An October 2020 United States Court of Appeals for Veterans Claims (CAVC) joint motion for remand (JMR) vacated and remanded the December 2019 Board decision. Initially, the record reflects that the Veteran was admitted to the Oakland Naval Hospital from April 10, 1989 to April 21, 1989 following a motorcycle accident. However, a May 1989 medical board and attending physician’s summary is comprehensive. It summarized the injuries and treatment at the time that included a right ankle injury and superficial abrasions but was silent for any spinal manifestations or mental health symptoms. However, because a complete record of the Veteran’s hospitalization is not currently in the record, the parties to the JMR required VA to obtain the records without comment on the evidence already of record or its relevance. Entitlement to service connection for sleep apnea A February 2015 examiner referenced a September 2014 sleep study. The examiner refers to the sleep study and references results of “mild to moderate airway obstruction and it is noted that he has large adenoids. The examiner notes that such sleep study was conducted at the Temple VA Medical Center (VAMC). However, such sleep study is not currently included in the record. VA treatment records are considered constructively of the record, and must be sought. 38 C.F.R. § 3.159(c)(2). The Veteran contends that he has sleep apnea that is related to his service, to specifically include as due to enlarged adenoids (noted at service separation), or alternatively, as secondary to service-connected hypertension or allergic rhinitis, or as secondary to obesity (caused by service-connected right foot disability). See January 2021 Statement in Support of Claim. On February 2015 examination, the examiner opined that it was less likely than not that the Veteran’s sleep apnea was related to service. In December 2020 correspondence, the Veteran’s private provider opined (after a review of the Veteran’s medical records) that the Veteran’s severe obstructive sleep apnea was likely due to concurrent obesity and enlarged adenoids. However, the private provider does not include any rationale for such opinion. Accordingly, alone such correspondence is inadequate evidence in support of the Veteran’s claim. Accordingly, a medical opinion that considers all the Veteran’s theories of entitlement is necessary. Entitlement to service connection for an anxiety and panic disorder The Veteran contends that he has an anxiety and panic disorder related to his service. Specifically, in a January 2021 statement, he cited his experiences during hospital treatment for injuries in a motorcycle accident, a fall downstairs during rehabilitation, during an earthquake in October 1989 and aboard ship during a typhoon. He contends that the skin rashes treated in October 1990 were indications of extreme stress and anxiety. He provided internet articles to support the theories. In a March 1991 discharge examination, the Veteran denied depression, worry, trouble sleeping, or nervous trouble of any sort. No mental health abnormalities were noted by the examiner. On May 2014 examination, the examiner opined that the Veteran’s social anxiety disorder was not related to service. The examiner concluded that experiences of anxiety shown in service were not clinically significant, and that although the Veteran’s alcohol use disorder developed in service, it was likely “caused by other variables.” However, the examiner did not provide any rationale for the conclusion. Such opinion is therefore alone is inadequate for rating purposes. Whether or not the Veteran’s experiences with anxiety in service, or the Veteran’s alcohol use disorder (which began in service) were early manifestations of the Veteran’s currently diagnosed anxiety disorder is a medical question, which requires an adequate medical opinion. Accordingly, an addendum medical opinion which addresses the Veteran’s various stressors, and considers whether his experiences of anxiety and alcohol use disorder in service represented early manifestations of his current anxiety disorder is necessary. Lastly, a secondary service connection claim has been raised by the record. Namely, the question of whether the Veteran’s psychiatric disability has been caused or aggravated by his service-connected disabilities. Whether or not the Veteran’s psychiatric disability was caused or aggravated by his service-connected disabilities is a question, which requires a medical opinion. Accordingly, in obtaining an addendum medical opinion addressing the Veteran’s claim on a direct basis, the examiner must also be asked to opine whether the Veteran’s psychiatric disability was caused or aggravated by his service-connected disabilities. Entitlement to service connection for a back disability, to include as secondary to the service-connected right foot disability The Veteran contends that he has a low back disability related to either his motorcycle accident (MCA) in service, or (as the Veteran’s primary theory of entitlement) as secondary to his service-connected right ankle and/or foot disabilities (with an intermediate step of obesity caused by his right foot disability). In a March 1991 discharge examination, the Veteran denied an recurrent back pain, and no spinal abnormalities were noted by the examiner. On February 2015 back conditions DBQ, the Veteran reported that his back was stiff following his MCA, and reported that over the years the back has slowly gotten worse. The examiner noted that the Veteran broke his ankle and injured his back in his MCA, and noted that over the years pain in the lumbosacral area became constant and interfered with the Veteran’s ability to exercise and lead to severe obesity. A February 2017 medical opinion noted a 2004 workplace injury from a post-service civilian job. The examiner opined that the Veteran’s current back condition was related to a 2004 workplace injury and not to his MCA in service. On August 2017 medical opinion, the examiner opined that it was less likely than not that the Veteran’s low back disability was related to service. The examiner opined that the more likely etiology for the Veteran’s low back disability was age, use, and morbid obesity. As noted above, the Veteran’s primary theory of entitlement is one of secondary service connection with an intermediate step of obesity caused by his service-connected right foot disability. However, while the medical opinions of record acknowledge obesity as contributing to the Veteran’s low back disability, they fail to address whether the Veteran’s service-connected right foot disability contributed to the Veteran’s obesity through a limitation of mobility. Accordingly, a new opinion which adequately addresses obesity as an intermediate step between the Veteran’s service-connected right foot disability, and his current low back disability is necessary. The matters are REMANDED for the following action: 1. Arrange for development to secure for the record (1) complete clinical records of the Veteran’s hospitalization at the Oakland Naval Hospital from April 10, 1989 to April 21, 1989, and (2) the report from the Veteran’s September 2014 sleep study conducted at Temple VAMC. If such records are unavailable, it should be noted in the record, with explanation (e.g. that records were lost or destroyed), and the Veteran should be so notified. 2. Arrange for the Veteran’s record to be forwarded to an appropriate clinician for review and an addendum medical advisory opinion regarding the etiology of the Veteran’s sleep apnea. Upon review of the record (to specifically include the Veteran’s separation examination noting large adenoids, the September 2014 sleep study (obtained with the above directive), the December 2020 correspondence from the Veteran’s private provider, and the various lay statements submitted by the Veteran in January 2021), the consulting provider should respond to the following: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s sleep apnea was caused by service (to include the Veteran’s enlarged adenoids shown on the March 1991 service separation examination)? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s sleep apnea was caused or aggravated [the opinion must address aggravation] by his service-connected (1) right foot disability (with an intermediate step of obesity), and/or (2) his service-connected hypertension, and/or (3) his service-connected allergic rhinitis? If obesity is a cause for sleep apnea, was the obesity caused by an inability to exercise because of the right foot or are there other causes for obesity? (c.) If the opinion is that the Veteran’s sleep apnea was neither caused by service, or cause or aggravated by the Veteran’s service-connected disabilities, please provide the etiology considered more likely. The clinician must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Arrange for the Veteran’s record to be forwarded to an appropriate psychologist or psychiatrist to ascertain the nature and likely etiology of his psychiatric disability/ies. Upon review of the record, the clinician should provide opinions that respond to the following: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s currently diagnosed psychiatric disabilities are related to his service? Please specifically address whether the Veteran’s experiences with anxiety in service, or the Veteran’s experience with alcohol abuse disorder in service constituted early manifestations of a current psychiatric disability. The Board calls attention to his January 2021 statement describing the four events noted above that he contends caused his anxiety and the attached internet articles. (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s psychiatric disability was caused or aggravated [the opinion must address aggravation] by his service-connected disabilities? (c.) If the opinion is that the Veteran’s current psychiatric disabilities are unrelated to service, and not caused or aggravated by his service-connected disabilities please provide the etiology considered more likely. The clinician must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Arrange for the Veteran’s record to be forwarded to an appropriate clinician for review and an advisory medical opinion addressing the likely etiology of his low back disability. The Veteran’s record must be reviewed by the consulting provider. Upon review of the record, the clinician should respond to the following: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current low back disability was caused by service, including the Veteran’s noted in-service MCA? (b.) Is it at least as likely as not that the Veteran’s service-connected right foot disability caused him to become morbidly obese? (c.) If it is likely that the Veteran’s limited mobility from his service-connected right foot disability caused him to become morbidly obese, is the Veteran’s morbid obesity a substantial factor in causing the low back disability? Additionally, opine as to whether a low back disability would not have occurred but for obesity caused by the service-connected right foot disability. The clinician must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, 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.