Citation Nr: 21022612 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 16-20 525 DATE: April 16, 2021 ORDER Entitlement to service connection for osteopenia of the left femoral neck is dismissed. Entitlement to a disability evaluation in excess of 40 percent for service-connected lumbar spine ankylosis with degenerative disc disease (DDD) prior to July 25, 2019, and to a disability evaluation in excess of 50 percent thereafter, is dismissed. Entitlement to a disability evaluation in excess of 10 percent for service-connected headache disability is dismissed. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is dismissed. Entitlement to service connection for obstructive sleep apnea as secondary to service-connected major depressive disorder and to medications taken to treat service-connected disabilities is granted. REMANDED Entitlement to service connection for a left hip condition is remanded. Entitlement to service connection for a right hip condition is remanded. Entitlement to service connection for a left shoulder condition is remanded. Entitlement to service connection for a right shoulder condition is remanded. FINDINGS OF FACT 1. In a February 2021 Statement in Support of Claim, which contains the Veteran’s name and claim number and which was received by the Board prior to issuing a decision in this matter, the Appellant clearly expressed her wish to withdraw the appeal of the claims of entitlement to service connection for osteopenia of the left femoral neck, a disability evaluation in excess of 40 percent for service-connected lumbar spine ankylosis with DDD prior to July 25, 2019, and to a disability evaluation in excess of 50 percent thereafter, a disability evaluation in excess of 10 percent for service-connected headache disability, and TDIU. 2. There is probative evidence of record attributing the Veteran’s obstructive sleep apnea to his service-connected major depressive disorder and to medications taken to treat his service-connected conditions. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issues of entitlement to service connection for osteopenia of the left femoral neck, a disability evaluation in excess of 40 percent for service-connected lumbar spine ankylosis with DDD prior to July 25, 2019, and to a disability evaluation in excess of 50 percent thereafter, a disability evaluation in excess of 10 percent for service-connected headache disability, and TDIU have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for service connection for obstructive sleep apnea as secondary to service-connected major depressive disorder and to medications taken to treat service-connected disabilities have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1979 to November 2001. This matter again comes before the Board of Veterans’ Appeals (Board) on appeal from September 2013 and March 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (ROs) in St. Paul, Minnesota, and St. Louis, Missouri, respectively. The Board previously remanded this matter in October 2018 and March 2020. The Veteran died in April 2020. The Appellant (the Veteran’s surviving spouse) was substituted by the RO in August 2020. 1. Left Femoral Neck Osteopenia 2. Lumbar Spine Ankylosis with DDD 3. Headaches 4. TDIU An appeal may be withdrawn as to any or all issues at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Appeal withdrawals must be in writing and include the name of the Veteran, the Veteran’s claim number, and a statement that the appeal is withdrawn. 38 C.F.R. § 20.204(b)(1). Withdrawal may be made by the claimant or by his or her authorized representative. Id. In February 2021 the Board received a Statement in Support of Claim reflecting that the Appellant wished to withdraw her appeal of the issues listed in a September 2020 Supplemental Statement of the Case (SSOC). The September 2020 SSOC listed the following issues: service connection for osteopenia of the left femoral neck, a disability evaluation in excess of 40 percent for service-connected lumbar spine ankylosis with DDD prior to July 25, 2019, and to a disability evaluation in excess of 50 percent thereafter, a disability evaluation in excess of 10 percent for service-connected headache disability, and TDIU. See February 2021 VA Form 21-4138; September 2020 SSOC. The Statement in Support of Claim was written and included the Veteran’s name and claim number. Id. The Appellant’s withdrawal was received prior to a decision by the Board on this issue. Therefore, the criteria for withdrawal of the appeal of the above-listed issues are satisfied. See 38 C.F.R. § 20.204(b). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination being appealed. Accordingly, the claims of service connection for osteopenia of the left femoral neck, a disability evaluation in excess of 40 percent for service-connected lumbar spine ankylosis with DDD prior to July 25, 2019, and to a disability evaluation in excess of 50 percent thereafter, a disability evaluation in excess of 10 percent for service-connected headache disability, and TDIU, are dismissed. See 38 U.S.C. § 7105(d). 5. Obstructive Sleep Apnea Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires competent medical or lay evidence of three things: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and condition or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, a disability which is proximately due to or the result of a service-connected disease or injury may be service connected. 38 C.F.R. § 3.310(a). Establishing secondary service connection requires competent medical or lay evidence of: (1) a current disability that is not already service connected; (2) at least one service-connected disability; and (3) a nexus between the current disability and the service-connected disability, showing that the current disability was either proximately due to or the result of the service-connected disability or that the current disability was aggravated (increased in severity) beyond its natural progression by the service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995). In determining whether service connection is warranted for a disability, VA is responsible for deciding whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of evidence is against the claim, in which case the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran’s medical records note that he was diagnosed with obstructive sleep apnea in June 2011. See June 2011 Private Sleep Studies. On examination in July 2013, the examiner determined that the Veteran’s sleep apnea was less likely than not causally related to his service; however, as noted in the October 2018 Board remand, this opinion is inadequate to determine the etiology of the Veteran’s condition. See October 2018 Board Decision. However, there is an adequate private opinion of record concluding that the Veteran’s obstructive sleep apnea is at least as likely as not related to his service-connected major depressive disorder and to medications the Veteran takes to treat his service-connected disabilities. See August 2016 Opinion by H.S., M.D. Specifically, the provider cited to research and studies indicating a causal relationship between obstructive sleep apnea and depression. Furthermore, the provider noted that the Veteran was prescribed Morphine to treat his service-connected disabilities and that Morphine, as an opiate, results in respiratory pauses, irregular breathing, and shallow breaths. See id. There is no other adequate, objective, medical opinion of record contradicting the private clinician’s August 2016 opinion. The Board finds the determine of the August 2016 clinician concerning the relationship between the Veteran’s obstructive sleep apnea and his major depressive disorder to be especially probative. The finding is underpinned by sufficient rationale, citing to the fact that medical literature and studies support a relationship between depression and sleep apnea, the Veteran’s medical records, the Veteran’s and the Appellant’s competent lay statements, and a complete review of the claims file. The probative evidence shows that the Veteran’s service-connected major depressive disorder and medications taken to treat his service-connected disabilities caused and/or aggravated his obstructive sleep apnea. Therefore, service connection for obstructive sleep apnea, as secondary to service-connected major depressive disorder and medications taken to treat service-connected disabilities, is warranted. REASONS FOR REMAND 1. Left Hip Condition 2. Right Hip Condition 3. Left Shoulder Condition 4. Right Shoulder Condition In the October 2018 remand, the Board requested another examination to determine the natures and etiologies of the Veteran’s bilateral hip conditions and bilateral shoulder conditions. In March 2020, the VA facility notified the RO that the Veteran did not attend examinations that were scheduled for November 2019. See March 2020 VES Correspondence (labeled “C&P Examination”). However, review of the record does not show any attempt to contact the Veteran or notify him of the examination. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). As noted in the Board’s October 2018 remand, the July 2013 opinion of record is inadequate to determine the natures and etiologies of his bilateral hip and shoulder conditions. See October 2018 Board Decision. Consequently, the Board finds that adequate opinions to ascertain the causes of the Veteran’s bilateral hip and shoulder conditions must be obtained on remand. Because the Veteran died in April 2020, the Board finds that only opinions, not examinations, are warranted. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to determine the natures and etiologies of any and all bilateral hip conditions attributable to the Veteran throughout the appellate period. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. (a) The clinician should identify any and all bilateral hip condition(s) attributable to the Veteran throughout the appellate period. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s condition manifested during, or is the result of, his active service. (c) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s condition was either (i) caused or (ii) aggravated by his service-connected disabilities, including but not limited to lumbar spine ankylosis with DDD and major depressive disorder. NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require “permanent worsening” of the nonservice-connected disability. If aggravation is found, the clinician should attempt to identify the baseline level of severity of the disability prior to such aggravation. In formulating his or her opinions, the clinician should consider and address all competent medical and lay evidence of record, including, but not limited to: (i) The Veteran’s service treatment records, (ii) The Veteran’s post-service VA medical records, (iii) The Veteran’s post-service private medical records, (iv) Various articles submitted by the Veteran in November 2019 indicating a relationship between psychiatric conditions and physical pain, and (v) The Veteran’s and Appellant’s competent lay statements reflecting the Veteran’s first-hand experiences during service and the onset and continuity of his symptomatology. If the clinician determines that the Veteran’s bilateral hip condition(s) is/are less likely than not due to his active service and/or is/are less likely than not caused and/or aggravated by his service-connected disabilities, the clinician should discuss what other factor(s) caused the disorder(s). In other words, the clinician should determine the most likely etiology of the Veteran’s bilateral hip condition(s). A complete rationale must be provided for all opinions and conclusions reached. 2. Forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to determine the natures and etiologies of any and all bilateral shoulder condition(s) attributable to the Veteran throughout the appellate period. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. (a) The clinician should identify any and all bilateral shoulder condition(s) attributable to the Veteran throughout the appellate period. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s condition manifested during, or is the result of, his active service. (c) For each condition so identified, the clinician should opine as to whether there is clear and unmistakable (i.e., medically undebatable) evidence that the Veteran’s condition existed prior to service. If the clinician answers in the affirmative, the clinician should opine as to whether there is clear and unmistakable (i.e., medically undebatable) evidence that (i) there was no increase in disability during service or (ii) any increase in disability was due to the natural progress of the pre-existing condition. (d) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s condition was either (i) caused or (ii) aggravated by his service-connected disabilities, including but not limited to lumbar spine ankylosis with DDD and major depressive disorder. NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require “permanent worsening” of the nonservice-connected disability. If aggravation is found, the clinician should attempt to identify the baseline level of severity of the disability prior to such aggravation. In formulating his or her opinions, the clinician should consider and address all competent medical and lay evidence of record, including, but not limited to: (i) The Veteran’s service treatment records, (ii) The Veteran’s post-service VA medical records, (iii) The Veteran’s post-service private medical records, (iv) Various articles submitted by the Veteran in November 2019 indicating a relationship between psychiatric conditions and physical pain, and (v) The Veteran’s and Appellant’s competent lay statements reflecting the Veteran’s first-hand experiences during service and the onset and continuity of his symptomatology. If the clinician determines that it is less likely than not that the Veteran’s bilateral shoulder condition(s) is/are less likely than not due to and/or aggravated by his active service, and/or is/are less likely than not caused and/or aggravated by his service-connected disabilities, the clinician should discuss what other factor(s) caused the disorder(s). In other words, the clinician should determine the most likely etiology of the Veteran’s bilateral shoulder condition(s). A complete rationale must be provided for all opinions and conclusions reached. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.