Citation Nr: 21024668 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 15-18 264 DATE: April 23, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to chronic kidney disease with hypertension and migraines, is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from February 1985 to April 1996. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, this matter was previously before the Board in October 2018. In its decision, the Board remanded the claim to obtain for an addendum opinion as the August 13 VA opinion was found to be inadequate. This matter is now before the Board again. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of service connection for obstructive sleep apnea, as secondary to chronic kidneys disease with hypertension and migraine headaches. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection for obstructive sleep apnea, to include as secondary to chronic kidney disease with hypertension and migraines, is remanded. The Veteran contends that he is entitled to service connection for his current diagnosis of obstructive sleep apnea, claimed as secondary to his service-connected chronic kidney disease with hypertension and service-connected migraine headaches. See Statement in Support of Claim (2013). He does not contend that his obstructive sleep apnea was incurred in service and there is no evidence of sleep apnea or other sleep disorders in his service treatment records. See VA Form 9 (2015). In June 2012, the Veteran underwent a VA sleep study and was diagnosed with obstructive sleep apnea. The Veteran received a VA examination for sleep apnea in August 2013, confirming the current diagnosis of obstructive sleep apnea. However, the August 2013 examiner opined that it was less likely as not that the Veteran’s sleep apnea was caused by his service-connected disabilities, including chronic kidney disease with hypertension and migraine headache. The examiner provided a brief rationale for this opinion. The August 2013 examiner simply stated that “sleep apnea has no association with hypertension, migraines, or kidney disease” and “they are not causes or risk factors for the condition.” In its October 2018 decision, the Board found the August 2013 examination inadequate. Specifically, the Board stated that August 2013 examiner did not address aggravation in the opinion, which rendered the examination incomplete. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). Subsequently, the Board remanded for an addendum medical opinion to address whether the Veteran’s sleep apnea is proximately due to or the result of his service-connected disabilities or is aggravated by his service-connected disabilities. Additionally, the Board noted the medical literature the Veteran submitted with his May 2015 VA Form 9. The Veteran submitted a link to the medical treatise regarding chronic kidney disease and sleep apnea. Adeseun, Gbemisola A., & Sylvia E. Rosas, The Impact of Obstructive Sleep Apnea on Chronic Kidney Disease, Current Hypertension Reports 12.5: 378-383 (2010). The Board stated that the requested addendum medical opinion should consider this medical treatise. Along with the previously mentioned treatise that the Veteran submitted, the Board notes that the Veteran submitted a link to DaVita the Kidney Care Resource, which provides education on life with kidney disease and lifestyle changes with kidney disease. DaVita’s article on sleep issues and chronic kidney disease lists sleep apnea as a sleep issue corresponding with chronic kidney disease. In October 2019, an addendum medical opinion was provided. The examiner was asked to opine whether it is at least as likely as not that the Veteran’s sleep apnea is proximately due to or the result of his service-connected chronic kidney disease with hypertension; or aggravated by his service-connected chronic kidney disease with hypertension. The examiner opined that the Veteran’s sleep apnea is less likely than not proximately due to or the result of the Veteran’s service-connected chronic kidney disease. As rationale, the examiner stated that “the two conditions are not medically related” and “the claimed disorder is a separate entity entirely from the service-connected condition and unrelated to it.” Additionally, the examiner stated that “the medical literature does not support a medical relationship” and noted that “an association of some increased risk is not equal to causality.” The October 2019 examiner then listed common risk factors associated with obstructive sleep apnea. For the aggravation prong of secondary service connection, the October 2019 medical examiner opined that the Veteran’s claimed condition was not aggravated beyond its natural progression by the Veteran’s service-connected condition. As rationale, the examiner vaguely stated, “felt by this examiner to show no permanent aggravation in the specifics for this case.” In October 2019, another addendum medical opinion was provided. The examiner was asked to opine whether it is at least as likely as not that the Veteran’s sleep apnea is proximately due to or the result of his service-connected migraine headaches; or aggravated by his service-connected migraine headaches. The examiner opined that the Veteran’s sleep apnea is less likely than not proximately due to or the result of the Veteran’s service-connected migraine headaches. As rationale, the examiner stated that “the two conditions are not medically related” and “the claimed disorder is a separate entity entirely from the service-connected condition and unrelated to it.” Additionally, the examiner stated that “the medical literature does not support a medical relationship” and noted that “an association of some increased risk is not equal to causality.” The October 2019 examiner then listed common risk factors associated with obstructive sleep apnea. For the aggravation prong of secondary service connection, the October 2019 medical examiner opined that the Veteran’s claimed condition was not aggravated beyond its natural progression by the Veteran’s service-connected condition. As rationale, the examiner vaguely stated, “there is no medical plausibility for headaches impacting OSA.” Although further delay is regrettable, another medical opinion must be requested as the October 2019 addendum opinions are inadequate for the reasons discussed below. First, the Board’s October 2018 decision requested addendum opinions to address whether the Veteran’s sleep apnea was related to her service-connected disabilities or was caused or aggravated by his service-connected disabilities. With respect to aggravation, the October 2019 examiner stated the wrong legal standard when he used the term “permanent” in opining whether the Veteran’s chronic kidney disease with hypertension aggravates his sleep apnea. The October 2019 examiner specifically stated, “felt by this examiner to show no permanent aggravation in the specifics for this case.” The Court of Appeals for Veteran’s Claims (Court) has held that permanent worsening is not a requirement for secondary service connection of a non-service-connected injury or disease. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). Additionally, the Court held that “any” increase in disability of a non-service-connected condition resulting from service-connected conditions is compensable. Allen v. Brown, 7 Vet. App. 439, 445 (1995). Thus, the October 2019 addendum opinion is inadequate for failure to evaluate aggravation under the appropriate legal standard. Additionally, the Board finds the rationale provided in the October 2019 addendum opinions to be conclusory, rendering it insufficient to resolve this appeal. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a mere conclusion statement is insufficient to allow the Board to make an informed decision to the weight to be assigned to the medical statement). Although the October 2019 examiner provided a general overview of obstructive sleep apnea by providing list factors that relates to causality, the examiner did not apply the risk factors or the espoused medical principles to any of the Veteran’s specific medical history or circumstances. Moreover, the October 2018 Board remand directed the examiner to consider the medical treatise that the Veteran provided but it is unclear whether the examiner did so. Although the examiner stated, “the medical literature does not support a medical relationship” and “there is no medical plausibility in the medical literature,” it is unclear whether these references are to the medical treatises that the Veteran provided or other medical literature. Even if the statements made in the addendum opinions pertain to the treatises that the Veteran provided, the examiner’s opinion is conclusory at best. The examiner does not specify why the medical principles in the treatises does not apply to the Veteran’s specific case, nor did he provide an articulated explanatory rationale that relates to the evidence in the electronic claims file. Accordingly, the claim shall be remanded for an addendum medical opinion that corrects the issues identified above and that specifically complies with the Board’s October 2018 remand directives. See Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s sleep apnea. Following a complete review of the electronics claims file, including a copy of this REMAND, the VA examiner is requested to opine as to the following: (a.) Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran’s sleep apnea is proximately caused by his service-connected chronic kidney disease with hypertension? (b.) Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran’s sleep apnea is aggravated (worsened beyond the natural progression) by his service-connected chronic kidney disease with hypertension? (c.) Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran’s sleep apnea is caused by his service-connected migraine headaches? (d.) Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran’s sleep apnea is aggravated (worsened beyond the natural progression) by his service-connected migraine headaches? In answering these questions, the examiner should consider any incremental increase in disability any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence. 38 C.F.R. § 3.310(b). (Continued on the next page)   The examiner must consider and address the medical literature provided by the Veteran: Adeseun, Gbemisola A., & Sylvia E. Rosas, The Impact of Obstructive Sleep Apnea on Chronic Kidney Disease, Current Hypertension Reports 12.5: 378-383 (2010); and DaVita the Kidney Care Resource, life with kidney disease, sleep issues and chronic kidney disease. The examiner must also consider and address the April 2008 treatment note for the Veteran’s migraine headaches indicated “sleep affected.” The examiner must provide a complete and fully articulated explanatory rationale for any opinion expressed that is based on the examiner’s clinical experience and medical expertise; established medical principles; and the evidence in the electronic claims file. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Law Clerk for the Board N. Jamordee 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.