Citation Nr: 21022675 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-19 392A DATE: April 19, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to weight gain caused by a service-connected right ankle disability, is remanded. Entitlement to service connection for a low back disability, to include as secondary to a service-connected right ankle disability, is remanded. Entitlement to a disability rating in excess of 10 percent for a right ankle disability, from October 10, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from July 1977 to April 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a December 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board again observes that the Veteran requested a hearing by live videoconference on his VA Form 9s in May 2016 and June 2020. However, his attorney waived the Veteran’s hearing request in a letter received in August 2020. The Board therefore considers the Veteran’s hearing request to have been withdrawn. The Veteran’s appeal was remanded for further development by the Board in September 2020. However, for the reasons explained below, that development has not been adequately completed. A remand by the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for sleep apnea, to include as secondary to weight gain caused by a service-connected right ankle disability, is remanded. In September 2020, the Board remanded the issue of sleep apnea for an addendum opinion to consider specific questions related to the Veteran’s contention that obesity, attributable to service-connected disabilities, served as a critical intermediate step in his development of obstructive sleep apnea. In her October 2020 opinion, the VA examiner determined that the Veteran’s obstructive sleep apnea did not have onset in service, but was instead most likely attributable to obesity. The examiner noted that obesity results from a combination of causes and contributing factors, including individual factors such as behavior and genetics, and cannot be etiologically linked to one cause solely, as a matter of medical principle. The examiner noted that non-obese people can have depression and orthopedic problems, which would be considered proof that obesity cannot be attributable to these conditions. The examiner concluded that the Veteran’s sleep apnea was not caused or aggravated by obesity that is attributable to service-connected disabilities. The examiner’s reasoning is incompatible with VA precedent, however, because it does not allow for the possibility that service-connected disabilities can serve as an intermediate step in the development of obesity and, thereafter, subsequent disabilities attributable to obesity. This renders the examiner’s opinion inadequate. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board notes that, although obesity itself is not considered a disability for VA purposes, when obesity has been caused by a service-connected condition, and subsequently causes another disability, obesity may be considered an “intermediate step” for establishing service connection on a secondary basis. See VAOPGCPREC 1-2017 (January 6, 2017). This inquiry extends both to causation and to aggravation. See Walsh v. Wilkie, at 306 (2020). A remand is again necessary to provide the Veteran with an examination to consider the nature and etiology of his obstructive sleep apnea, so that the Board can make a fully informed decision on this matter. 2. Entitlement to service connection for a low back disability, to include as secondary to a service-connected right ankle disability, is remanded. In September 2020, the Board requested an addendum opinion addressing whether the Veteran’s low back disability was aggravated by a right ankle disability. 38 C.F.R. § 3.310 (b). The Board also requested that the examiner provide an explanation/rationale to supplement the February 2020 medical opinion. Concerning aggravation, in her October 2020 addendum opinion, the examiner provided a conclusory statement: “There is no aggravation in his back problems.” The examiner provided no reasons or bases for this opinion, other than an observation that the Veteran has a lumbosacral strain that has followed its natural progression. The October 2020 addendum opinion is inadequate because it is unsupported by sound reasons and bases. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An addendum opinion is, therefore, necessary, to address whether the Veteran’s ankle disability aggravated his back disability. Concerning the extent to which the October 2020 addendum opinion provided an explanation/ rationale to supplement the February 2020 opinion, the examiner relied primarily on lack of evidence of a longstanding abnormal gait due to the Veteran’s ankle disability, and, instead, attributed the Veteran’s back disability to gait adjustments made following a right knee injury sustained in a 2005 motor vehicle accident. The Board notes that there is evidence of an abnormal gait resulting from the Veteran’s ankle disability, independent of the Veteran’s right knee injury, that the examiner has not resolved. See, e.g., February 2020 Lay Statement (“constant swelling in my ankle and not being able to walk straight… I try to use my other leg to help along with my walking stick.”); February 2020 C&P Examination Report (“Veteran states his right ankle has intermittent swelling and has had an impact on his gait. He states he still has trouble with the right knee as well which has also had an impact on his gait.”); October 2020 VA Primary Care Nursing Note (“Walking w/ [with] cane d/t [due to] R [right] ankle pain.”). On remand, the open medical questions pertaining to the impact, if any, of the Veteran’s abnormal gait attributable to his ankle injury must be resolved, as well. An addendum opinion is required. 3. Entitlement to a disability rating in excess of 10 percent for a right ankle disability, from October 10, 2018, is remanded. In its September 2020 remand instructions, the Board requested a new medical opinion, in compliance with the holding of Sharp v. Shulkin, to supplement the Veteran’s March 2020 examination, during which the Veteran reported flare-ups but the examiner did not provide an estimation of the Veteran’s loss of range of motion during his flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) (holding that flare-ups must be factored into an examiner’s assessment of functional loss). Similarly, the March 2020 examiner did not provide an estimation for loss of range of motion following repetitive use over time. Although the Veteran was examined in January 2021, this examination is inadequate because the examiner did not provide an opinion as to the Veteran’s loss of range of motion during flare-ups. Instead, notwithstanding the Veteran’s reports of experiencing flare-ups in March 2020, the January 2021 examiner reported that the Veteran did not experience flare-ups. Because the examiner did not provide an estimation of the Veteran’s loss of range of motion during flare-ups, this renders the examination inadequate. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The January 2021 examination and January 2021 addendum opinion are also inadequate because the examiner did not provide an estimate of the Veteran’s loss of range of motion following repetitive use over time. The Board notes that although the examiner stated that it is not possible to determine the loss in range of motion without direct measurement “as a basic principle of the medical science,” the examiner did not provide any evidence to support this assertion. The matter must again be remanded to procure an estimation of the Veteran’s loss of range of motion during flare-ups and following repetitive use over time. The matters are REMANDED for the following action: 1. Schedule the Veteran for examination by an appropriate clinician, if deemed necessary, or procure an addendum opinion, to determine the nature and etiology of his obstructive sleep apnea. After reviewing the record, the examiner is asked to respond to the following questions: i) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s obstructive sleep apnea is directly related to his service? ii) Is it at least as likely as not that the Veteran’s service-connected residuals of a right ankle fracture and/or depressive disability caused the Veteran to become obese, or aggravated his obesity? iii) If so, was the obesity that resulted from or was aggravated by these service-connected disabilities a substantial factor in causing the Veteran’s obstructive sleep apnea? iv) Would the Veteran’s obstructive sleep apnea disability not have occurred, but for the obesity caused or aggravated by service-connected disabilities? The impact of medication on the Veteran’s level of physical activity as a mediating factor must be considered. The clinician is asked to consider and discuss relevant lay and medical evidence, to specifically include: i) Lay statements submitted by J.F. in February 2020, contending that he witnessed the Veteran snoring and stopping breathing at night during military service. ii) The attorney’s letter received in August 2020, including contentions that the Veteran’s sleep apnea is related to weight gain associated with a service-connected ankle or psychiatric disability. iii) VA treatment records, including the sleep study performed in April 2018. 2. Schedule the Veteran for examination by an appropriate clinician, if deemed necessary, or procure an addendum opinion, to determine the nature and etiology of his low back disability. After reviewing the record, the examiner is asked to respond to the following questions: i) Is it at least as likely as not that the Veteran’s low back disability is proximately due to or a result of a service-connected disability, to include a right ankle disability?   ii) Is it at least as likely as not that the Veteran’s low back disability is aggravated by a service-connected disability, to include a right ankle disability? The clinician is asked to consider and discuss relevant lay and medical evidence pertaining to adjustments the Veteran made to his gait, to specifically include: i) The lay statement submitted by the Veteran in February 2020, noting “constant swelling in my ankle and not being able to walk straight… I try to use my other leg to help along with my walking stick.”) ii) The February 2020 C&P Examination Report, noting “Veteran states his right ankle has intermittent swelling and has had an impact on his gait. He states he still has trouble with the right knee as well which has also had an impact on his gait.” iii) The October 2020 VA Primary Care Nursing Note, documenting “Walking w/ [with] cane d/t [due to] R [right] ankle pain.”). 3. Schedule the Veteran for examination by an appropriate clinician to assess the current nature and severity of his service-connected right ankle disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating it under the rating criteria. i) The examiner is asked to elicit information on the characteristics, severity, frequency, and duration of the Veteran’s flare-ups, and then estimate the extent of any additional functional loss, in terms of range of motion, during such periods, even in the absence of direct observation during such periods. ii) The examiner is asked to elicit information on the functional loss the Veteran experiences following repetitive use over time, and then estimate the extent of any additional functional loss during such periods, in terms of range of motion, even in the absence of direct observation during such periods. If such an estimate cannot be provided, the examiner must indicate that he or she has considered all procurable and assembled data, and that the inability to provide an estimate results from limitations in the knowledge of the medical community at large, and not limitations of his/her personal knowledge. The examiner is asked to provide citations to relevant medical evidence if this is the case. A complete rationale, supported by sound medical reasoning, must accompany all opinions provided. 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL.  IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED.  IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION.  T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hennessy, 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.