Citation Nr: 21022703 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 11-24 046 DATE: April 19, 2021 ORDER Entitlement to service connection for a heart condition claimed as secondary to the Veteran's service-connected sleep apnea is denied. REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a right foot disability is remanded. FINDING OF FACT The preponderance of the evidence establishes the Veteran’s diagnosed heart conditions were not present until more than one year following his discharge from service and are not etiologically related to his active service, to include as secondary to his service-connected sleep apnea. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a heart condition as secondary to the Veteran's service-connected sleep apnea have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1976 to March 1983 with additional Reserve service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2011 and August 2015 rating decisions from a Department of Veteran’s Affairs (VA) Regional Office (RO). When this case was last before the Board in July 2020, it was remanded for additional development. Specifically, the RO was instructed to provide the Veteran with VA examinations to opine on the etiology of his claimed conditions and to attempt to locate missing records. Regarding the Veteran’s heart condition claim, he was provided with an appropriate examination. As such, the Board finds that the AOJ substantially complied with the directives in the July 2020 remand regarding the Veteran’s heart claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection—Legal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or is the result of a service-connected disease or injury, or that a service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that his claimed heart disabilities are etiologically related to his service-connected sleep apnea. The Board notes that the Veteran has current diagnoses of cardiomegaly of LVH, left atrial enlargement, and atrial fibrillation. See July 2020 VA Heart Acceptable Clinical Evidence (ACE) Review. Therefore, the central issue that must be resolved is whether the Veteran’s current disabilities originated in service or are otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Veteran has currently diagnosed heart conditions, competent medical evidence of record does not support that these disabilities were incurred in service or otherwise related to service. The Veteran’s available service treatment records (STRs) contain no complaints, treatment, or diagnoses of these conditions. Additionally, the Veteran is only claiming that the disability is secondary to his already service-connected sleep apnea. Accordingly, on these facts, the Veteran is not prejudiced by the Board limiting its consideration to secondary service connection, as alleged. The Board notes that the medical evidence of record contains multiple VA and private treatment records regarding the Veteran’s heart conditions in addition to multiple prior VA examinations. The Board additionally noted that the Veteran submitted a June 2015 private medical opinion which stated “[the Veteran’s] sleep apnea contributes to his cardiac conditions (hypertrophy and dilated cardiomyopathy).” However, the physician’s assistant providing this opinion does not provide a rationale, nor does she indicate a review of the Veteran’s medical records. Further, the Board notes the Veteran has submitted articles which indicate a relationship between sleep apnea and heart disabilities. In response to the Board’s July 2020 Remand, the RO provided the Veteran with a July 2020 ACE review regarding his claimed heart disabilities. The examiner noted that an ACE review was used as there was sufficient medical evidence in the claims file, and a further examination would likely provide no additional relevant evidence. During the review, the examiner noted that the Veteran does not have a diagnosis of heart failure supported by the medical evidence. After a review of the medical records and the claims file, the examiner noted that the Veteran does not have a diagnosis of heart failure or symptoms consistent with heart failure. The examiner does note that that heart failure was documented on a chronic problems list by a pulmonologist, however the diagnosis was not supported by the Veteran’s physical examinations and symptoms. Additionally, the examiner noted that the Veteran’s private and VA cardiologists had not diagnosed heart failure. Therefore, the examiner noted that heart failure is less likely than not (less than a 50 percent probability) related to his sleep apnea. Regarding the Veteran’s diagnosed Cardiomegaly of the LVH and left atrial enlargement (LAE) the examiner reviewed a history of the Veteran’s condition and his sleep apnea/CPAP compliance. Further, in response to the above noted June 2015 private opinion, the examiner noted that the Veteran had borderline mild cardiac enlargement on a chest x-ray in November 2005 and LVH and LAE on a 2010 echocardiogram. The examiner noted that the Veteran’s LAE is related to his LVH. The examiner continued that according to the Mayo clinic, the most common cause of LVH is high blood pressure; with other causes being aortic valve stenosis, hypertrophic cardiomyopathy, and athletic training; with additional risk factors being age, weight, family history, diabetes, and race. The examiner additionally cited to the peer reviewed medical reference UpToDate in order to further note causes of LVH. The examiner noted that the Veteran’s risk factors for LVH are: hypertension, age, race, and family history of heart conditions. Therefore, the examiner opined that it is less likely than not (less than a 50 percent probability) that the Veteran’s cardiomegaly of LVH/LAE is proximately due to, or the result of the Veteran’s sleep apnea. Regarding the Veteran’s atrial fibrillation, the examiner cited to the peer reviewed medical reference UpToDate for the various risk factors associated with this condition. The examiner noted that the Veteran’s risk factors are hypertensive heart disease, obesity, metabolic syndrome, sleep apnea, and chronic bronchitis/COPD. However, the examiner noted that the Veteran had severe sleep apnea that was successfully treated with CPAP and normal AHIs. Further, the Veteran’s pulmonologist indicated that his CPAP data showed compliance with CPAP use. Therefore, the examiner noted, the risk factor of sleep apnea is greatly reduced compared to his risk factors of hypertension, obesity, metabolic syndrome and chronic bronchitis/COPD. Commenting on a July 2015 private treatment record where the Veteran’s private physician noted they would consider adding nocturnal oximetry on CPAP for the Veteran’s sleep apnea treatment; the examiner stated that oximetry is used to measure O2 saturation and is not a treatment. The examiner continued that the Veteran was started on O2 supplement in November 2015 and discontinued in August 2017. Further, the examiner noted that the Veteran’s atrial fibrillation recurred in October 2016 while on the O2 supplement. The examiner clarifies that the Veteran had a recurrence of atrial fibrillation, not worsening of atrial fibrillation. The examiner continued that the Veteran’s atrial fibrillation was first noted during a March 2014 echocardiogram with no atrial fibrillation noted on a May 2014 ECG or a June 2014 echocardiogram. The examiner noted that in February 2015, the Veteran reported to his VA primary care provider that he “'was told afib once, then repeated EKG was fine only recommended aspirin 325mg daily for about 1 year, no palpitations'” and that he uses a CPAP nightly. An ECG performed that day showed atrial fibrillation at rate of 98. The examiner further noted that according to peer reviewed medical reference UpToDate, "the incidence of recurrence in different reports has ranged from 70 percent at one year (without antiarrhythmic therapy) to 90 percent at four years to 60 to 65 percent at five to six years." The examiner explained that the Veteran’s atrial fibrillation recurred one year after his cardioversion in 2015 and that The Veteran's recurrence of atrial fibrillation was a natural progression of the disease. Therefore, the examiner opined that the Veteran's claimed atrial fibrillation is less likely than not (less than 50% probability) proximately due to or the result of or aggravated by his sleep apnea. Regarding whether the Veteran’s sleep apnea caused him to become obese, the examiner noted that many factors contribute to the development of obesity over time including behavioral, medical, socioeconomic, lifestyle, diet, and genetic. The examiner further noted that weight gain is due to increased caloric intake and decreased caloric expenditure, which are lifestyle choices. The examiner further noted that the Veteran’s weight has remained stable in the 260s-270s range. Therefore, the examiner noted that the Veteran’s obesity is less likely than not etiologically related to, or aggravated by, his sleep apnea. When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician’s statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). Here, the Board gives greater weight to the July 2020 VA examiner’s opinions. The July 2020 VA examiner reviewed the entirety of the Veteran’s claims file and was supported by citations to appropriate medical authorities and to the record. Additionally, the July 2020 examiner reviewed the articles submitted by the Veteran in support of his contention. In contrast, the private June 2015 medical opinion was unsupported by any citations and did not note whether a review had been undertaken at all. The Board may afford greater weight to one opinion over another on the basis of such factors as the reasoning employed, whether the opinion is based on sufficient facts and data, and whether the opinion is based on medical principles applied to the facts of the case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The probative value of a medical opinion is usually based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings. Guerrieri v. Brown, 4 Vet. App. 467 (1993). As such, the Board affords the VA examiner’s opinion greater weight. The Board weighs the above-mentioned July 2020 VA ACE review against the Veteran’s lay contentions that his heart disabilities are due to his service-connected sleep apnea. While the Veteran is competent to testify to his symptoms, he is not competent to provide a medical opinion as to the etiology of his disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board finds the July 2020 VA ACE review, which opined against a link between the Veteran’s currently diagnosed heart disabilities and his service-connected sleep apnea, to be of high probative value. Thus, the probative evidence of record preponderates against the Veteran’s claim for service connection. In light of the above discussion, service connection for a heart disability, claimed as secondary to service-connected sleep apnea, must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the record includes no competent, probative evidence establishing required elements of the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. REASONS FOR REMAND Although the Board regrets further delay, remand is necessary to ensure compliance with previous remand directives and proper development. When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Bilateral Knee and Right Foot The Board notes that in the previous September 2018 and July 2020 Board decisions the Veteran’s claim for service connection for his bilateral knee and right foot were remanded because the Agency of Original Jurisdiction (AOJ) had not substantially complied with the remand directives instructing the AOJ to contact the Naval Reserve Center to attempt to obtain pertinent records regarding the Veteran’s service around March 1980. Following the most recent remand in July 2020, the AOJ again contacted the National Personnel Records Center (NPRC) but again failed to request records from the Naval Reserve Center as instructed to do so in three prior Board remands. The Veteran was additionally provided with a July 2020 Addendum opinion regarding his claimed bilateral knee disorder. However, during this examination the examiner noted that while the Veteran gives a credible history of being involved in a motor vehicle accident while stationed in Guam, these active duty records were not found, and it would be mere speculation to give an informed opinion without first reviewing those records. As such, the Board finds that a remand is necessary to attempt to obtain the Veteran’s missing records and comply with the Board’s remand instructions. As for the Veteran’s right foot disorder, the evidence of record suggests that the Veteran’s right foot disability may be secondary to his claimed knee disabilities. In this regard, during the April 2018 VA examination, the Veteran reported that his right foot started to hurt after his 1993 knee surgery and that he did not recall injuring his right foot in the March 1980 MVA. The April 2018 VA examiner also found that the Veteran’s swelling in the right foot was due to a tibialis anterior tenosynovitis as well as a common toe flexor tendon bursitis secondary to cast removal and subsequent motion over the ensuing two months from his surgery. Because the outcome of the service connection claims for a bilateral knee disorder could affect the outcome of the Veteran’s claim for service connection for a right foot disorder, the claims are inextricably intertwined, and a remand is required. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) The matters are REMANDED for the following action: 1. Contact the Naval Reserve Center and conduct a search for the Veteran’s service treatment records, service personnel records, and service clinical records and/or hospital reports dated in March 1980 showing treatment for injuries allegedly sustained in a car accident on March 7, 1980 while stationed in Guam. Associate any such records, as well as any response received, with the Veteran’s claims file. The RO must annotate the claims file and document all attempts made to locate these records. 2. Then, if the Veteran’s missing records are found, obtain an addendum medical opinion from an appropriate medical professional to determine the nature and origin of the Veteran’s bilateral knee disorders. The claims file, to include a copy of this Remand, should be made available to and be reviewed by the examiner. The examiner should address the following: (a) Identify all diagnoses associated with the Veteran’s service connection claim for a bilateral knee disorder. (b) For each diagnosis, is it at least as likely as not (50 percent probability or greater) that such had an onset in service or is otherwise related to service, to include the Veteran’s reports of injuring his knee during a March 1980 MVA in service? For the purpose of the opinion, the VA examiner should assume the Veteran’s statements regarding an in-service MVA in 1980 are credible. The examiner must also consider: (1) the Veteran and his spouse’s lay statements that after the 1980 MVA, he experienced popping in his knee that worsened over time; (2) the March 1992 treatment record assessing the Veteran with degenerative joint disease and reflecting that the Veteran’s knees popped and ached for the past 10 years; (3) the May 1992 VA examination finding that the Veteran’s right knee pain and swelling was gouty arthritis and that the Veteran’s MVA history and knee problems do not appear related; (4) the September 1992 private treatment record reflecting that the Veteran was diagnosed with knee bursitis related to the 1980 MVA; (5) the January 1993 private treatment record reflecting that the Veteran was assessed with an old knee injury and it was suspected that he had injured ligaments; and (6) the research articles and studies the Veteran submitted addressing causes of osteoarthritis, including an article entitled The Ligament Injury Connection to Osteoarthritis, which noted that it is well-established that injury to the joint increases the chances that the joint will develop osteoarthritis over time and an article entitled Post-Traumatic Arthritis: Definitions and Burden of Disease, which noted that recent evidence suggests that trivial joint injuries, often unappreciated when they occur, may account for a large percentage of osteoarthritis. The examiner should comment on all questions above and set forth a complete rationale for all opinions. The rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical findings and must reflect consideration of the competent lay assertions of pertinent symptomology. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.