Citation Nr: 21025052 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 12-33 687 DATE: April 27, 2021 REMANDED The issue of entitlement to service connection for sleep apnea is remanded. The issue of entitlement to service connection for a headache disability, to include as secondary to sleep apnea, is remanded. The issue of entitlement to service connection for a respiratory disability, to include allergies, is remanded. The issue of entitlement to service connection for residuals of blunt trauma to the chin, to include temporomandibular joint (TMJ) dysfunction, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1975 to December 1978. This appeal to the Board of Veterans’ Appeals (Board) arose from March 2010, May 2012, and February 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO, inter alia, denied service connection for sleep apnea and allergies, migraines, and blunt force trauma to the chin. The Veteran disagreed with those denials and subsequently perfected an appeal of the issues to the Board. In December 2016, the Veteran testified during a Board hearing before a Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. Via letter dated in February 2021, the Veteran was notified that the VLJ who conducted the December 2016 hearing was no longer with the Board. The Veteran was advised of his right to request another hearing before a different VLJ and was notified that if he did not respond within 30 days from the date of that letter, the Board would assume that he did not desire another hearing and would proceed accordingly. The Veteran responded that same month, stating that he did not wish to appear at another Board hearing. As such, the Board will proceed with adjudication of the Veteran’s claims. The instant matters were previously before the Board in May 2018. At that time, the Board noted that based on a review of the Veteran’s records, it appeared that the Veteran had experienced respiratory and headache disabilities other than allergies and migraines. It was also noted that he had been diagnosed as having TMJ dysfunction, which the Veteran claimed was a residual of blunt trauma to the chin. The Board thus recharacterized the claims for service connection for allergies, migraines, and blunt trauma to the chin as set forth above. See generally Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim, the symptoms described and the information submitted or developed in support of the claim). The matters were then remanded to the agency of original jurisdiction (AOJ) for further development. Upon completion of that development, the AOJ issued a supplemental statement of the case (SSOC) in July 2020 in which it continued to deny service connection for sleep apnea, a respiratory disability, a headaches disability, and residuals of blunt trauma to the chin. The matters were thereafter returned to the Board for further appellate consideration. Unfortunately, the Board finds that additional remand is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, when the VA Secretary provides the claimant with a VA medical examination or otherwise obtains a medical opinion, he must ensure that the examination provided or opinion obtained is adequate for purposes of the determination being made. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A VA medical examination or opinion is adequate if it is “thorough and contemporaneous,” considers the veteran’s prior medical examinations and treatment, and “describes the disability . . . in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.’” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Indeed, a “medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The medical opinion must also “support its conclusions with an analysis that the Board can consider and weigh against contrary opinions.” Stefl, 21 Vet. App. at 124; see Nieves-Rodriguez, 22 Vet. App. at 304 (“most of the probative value of a medical opinion comes from its reasoning”). As indicated above, in May 2018, the Board remanded the claims for service connection for sleep apnea, a respiratory disability, a headaches disability, and residuals of blunt trauma to the chin for further development. Specifically, the Board determined that additional medical examinations and opinions were necessary, noting that the Veteran had not been provided with a VA examination to assess the nature and etiology of his TMJ dysfunction and finding that a March 2016 VA examiner’s opinion regarding the likelihood that the Veteran had sleep apnea, a respiratory disability, and/or a headache disability that was attributable to service was inadequate to rely upon for adjudication purposes. As to the opinions proffered, the Board determined that the March 2016 opinion was deficient regarding the etiology of the Veteran’s diagnosed sleep apnea because the examiner did not provide any specific explanation or rationale for why the Veteran’s sleep apnea was not related to service, other than to generally note the risk factors for sleep apnea. The Board thus directed that a new opinion was to be obtained on remand, which opinion was to take into account all relevant medical and lay evidence, to specifically include May 2013 and June 2016 statements from those who observed that the Veteran experienced snoring and fatigue in service and immediately upon his separation from service, as well as the Veteran’s reports of sleep problems in the years since service. In January 2020, the Veteran underwent a VA sleep apnea examination. A review of the examination report shows that the VA examiner noted that the Veteran had been diagnosed with sleep apnea in 2002. Upon review of the record, the examiner then opined that it is less likely than not that the Veteran’s sleep apnea had its onset in service, or is otherwise related thereto, to include the Veteran’s reported sleep problems in service. As rationale for the opinion, the examiner explained that the diagnosis of sleep apnea requires a sleep study and cannot be made on history alone. The examiner further stated that “[w]hile snoring and fatigue as noted in the letter by the claimant’s mother in 2013 can be symptoms of sleep apnea neither symptom can be used to make a definitive diagnosis of sleep apnea,” noting that [t]he sleep study was completed post military service and snoring and fatigue is not definitive of sleep apnea.” Unfortunately, the Board finds that the January 2020 VA examiner’s opinion is also inadequate to rely upon for adjudication purposes. Notably, although the examiner explained that sleep apnea cannot be diagnosed in the absence of a sleep study, the examiner provided no rationale for why the Veteran’s sleep apnea is not at least as likely as not related to service. Indeed, the examiner discusses no incidents in service, or lack thereof, that could have contributed to the later development of sleep apnea; nor does the examiner discuss the likely etiology of the Veteran’s sleep apnea. Rather, it would appear that the examiner has relied solely on the fact that sleep apnea was not diagnosed during service to conclude that the Veteran’s sleep apnea is less likely than not related to service. However, as directed by the Board in the 2018 remand, the absence of evidence of diagnosis of and/or treatment for sleep apnea during service should not, alone, serve as the sole basis for a negative opinion. Indeed, service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Here, as the Board cannot discern what evidence, aside from the lack of an in-service diagnosis of sleep apnea, was relied upon to render the negative nexus opinion, the Board cannot conclude that the examiner’s opinion is adequate to rely upon to deny the claim. See Nieves-Rodriguez, supra. Accordingly, the Board finds it necessary to remand the Veteran’s claim for service connection for sleep apnea for the AOJ to obtain a new medical opinion that takes into consideration all relevant evidence of record and is supported by an adequate rationale. See Barr, supra. Regarding the Veteran’s claimed headache disability, the Board notes that during the 2016 Board hearing, the Veteran’s attorney raised the theory of secondary service connection. Specifically, the attorney suggested that the Veteran’s sleep apnea may have caused or aggravated the headache disability. Given the attorney’s argument in this regard, the Board has expanded the appeal to include the theory of secondary service connection. Further, as a favorable disposition of the sleep apnea claim could well impact the claim for service connection for a headache disorder, the claims are inextricably intertwined and all the claims should be adjudicated together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are “inextricably when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). Hence, the claim for service connection for a headache disorder is being remanded, as well. On remand, the Veteran is free to submit additional evidence regarding this theory of entitlement, such as medical opinion evidence suggesting an association between the Veteran’s sleep apnea and his headache disorder. Regarding the Veteran’s claimed respiratory disability, the Board noted the Veteran’s contention that his claimed disability is related to exposure to smoke and asbestos while he served aboard the USS Midway. The Board also noted that a March 2016 VA examiner diagnosed the Veteran as having allergic rhinitis and a September 2016 VA clinician had explained that there was no documented evidence to confirm a diagnosis of asthma or to suggest any respiratory condition. The Board noted, however, that the Veteran’s VA treatment records contained diagnoses of various respiratory disabilities, to include asthma, chronic obstructive pulmonary disease (COPD), and bronchitis. The Board pointed out that these disabilities were diagnosed during the pendency of the Veteran’s appeal, and thus, were to be considered for purposes of a current disability. See McClain v. Nicholson, 21 Vet. App. 319 (2008). The Board thus remanded the matter to obtain a new medical opinion addressing whether it is at least as likely as not that any respiratory disability diagnosed at any time since approximately June 2009, even if then in remission or resolved, had its onset during service or was otherwise related thereto, to include the Veteran’s respiratory symptoms in service, exposure to smoke from fires aboard the USS Midway during service, and/or to his exposure to asbestos during service. In January 2020, the Veteran underwent VA respiratory and sinusitis/rhinitis examinations. The examiner noted diagnoses of asthma and allergic rhinitis, as well as the Veteran’s complaints of a cough and chest and nasal congestion beginning in service and continuing since that time. Regarding the Veteran’s allergic rhinitis, the examiner opined that it is less likely than not that that condition had its onset in service or was otherwise related thereto. As rationale for that opinion, the examiner stated that the Veteran’s service treatment records “are not supportive of this claim,” noting that there are no records “document[ing] exposure to asbestosis [sic] and no post surgical [sic] diagnosis of asbestosis.” The examiner similarly provided a negative nexus opinion regarding the Veteran’s asthma, stating that “there is no documented medical record data provided by a specialist to support or add merit to this claim.” Additionally, the examiner stated that “there is no direct pathophysiologic correlation between the two conditions to substantiate a cause and effect relationship without resulting to mere speculation.” Here, the Board finds that the January 2020 VA examiner’s opinion is also inadequate to rely upon for adjudication purposes. Regarding asbestos exposure, the Board notes that the Veteran’s military occupational specialty (MOS) was that of Electrical/Mechanical Equipment Repairman; the Veteran also served aboard the USS Midway and has alleged asbestos exposure in connection with his military duties. Given the Veteran’s MOS and in consideration of his lay statements, the Board finds it as likely as not that the Veteran had at least some exposure to asbestos in service. As the Board previously directed that the opinion obtained should consider in-service asbestos exposure, the matter must again be remanded to obtain an opinion that provides such consideration. See Stegall, supra. The Board finds that the VA examiner’s 2020 opinion is also deficient in that the examiner seemingly considered only whether the Veteran’s respiratory disability was related to asbestos (exposure to which was found to be absent). However, as discussed in the Board’s prior remand, the Veteran’s service treatment records notes in-service treatment for a cough and chest and nasal congestion, and the Veteran also alleged exposure to smoke. There is no indication that the examiner considered the Veteran’s service treatment records, lay statements regarding onset and continuity of symptoms, or any evidence of record other than the lack of documented exposure to asbestos in service or diagnosis of asbestosis after service. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) (stating that “[t]he examiner must address the veteran’s lay statements to provide the Board with an adequate medical opinion”); Stefl, 21 Vet. App. at 124 (stating that it is incumbent on the VA examiner to consider all of the relevant evidence before forming an opinion). Additionally, as to the negative nexus opinion regarding asthma, it is unclear to the Board exactly what “two conditions” the examiner is referring to. Furthermore, as explained in Jones v. Shinseki, to rely on a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or be apparent upon a review of the record. 23 Vet. App. 382, 390 (2010). In the instant case, the examiner did not provide any indication of what facts could not be determined or whether additional testing or information could be obtained that would lead to a conclusive opinion. Overall, given these deficiencies, the Board finds it necessary to remand the Veteran’s claim for service connection for a respiratory disability for the AOJ to obtain a new medical opinion that takes into consideration all relevant evidence of record and is supported by an adequate rationale. See Barr, supra. As noted above, the Veteran’s claim for service connection for residuals of blunt force trauma to the chin, to include TMJ dysfunction, was remanded for the Veteran to be afforded a VA examination in connection with that claim. In the May 2018 remand action, the Board discussed that the report a September 2011 VA ear examination revealed that he had been diagnosed as having TMJ dysfunction; the examiner also attributed the Veteran’s complaints of left ear pain with the TMJ dysfunction. The Board also noted that the Veteran’s service treatment records show that in June 1976, he was struck on the left side of the chin and sustained a small laceration at the point of impact. Examination revealed a small amount of blood inside his mouth, pain over the right ramus of the mandible on motion, and point tenderness over the area. A diagnosis of blunt trauma was provided. Also, in March 1977, the Veteran was treated for a 4-day history of left ear pain; the Veteran further reported ear pain in service. The Board thus determined that it was necessary to obtain an opinion regarding the likelihood that the Veteran’s TMJ dysfunction had its onset in service or is otherwise related thereto, to include the 1976 facial injury and/or complaints of ear pain in service. The Veteran was afforded a VA examination in January 2020, the report of which notes a diagnosis of TMJ dysfunction in 1976. Upon examination of the Veteran and review of the record, the examiner opined that it is less likely than not that the Veteran’s headache disorder had its onset in service or is otherwise related thereto. As rationale for that opinion, the examiner stated that although the Veteran did receive blunt trauma to his chin in 1976, progress notes revealed that there was no significant injury. The examiner also noted that the report of a February 2017 VA dental examination indicated no diagnosis of blunt trauma. Regarding the September 2011 VA examiner’s opinion that the Veteran ear pain was due to TMJ dysfunction, the 2020 examiner stated that she could find no objective evidence to support a definitive diagnosis of TMJ disorder. Overall, the Board cannot conclude that the 2020 VA examiner’s opinion in adequate to rely upon in this case. Indeed, it appears that she has concluded that there is no evidence to support a definitive diagnosis of TMJ at the time of the September 2011 VA examination. However, the examiner’s own examination report would appear to support a diagnosis of TMJ. Further, although the examiner determined that the in-service blunt trauma injury resulted in no significant injury, the examiner gave no consideration to the Veteran’s complaints of ear pain in and since service, which has been associated with Veteran’s TMJ. Here, given the internal inconsistencies regarding a diagnosis of TMJ and the lack of consideration of the Veteran’s lay statements regarding onset and continuity of symptoms, the Board cannot rely on the examiner’s negative nexus opinion in this case. See Nieves-Rodriguez, supra. Accordingly, the Board finds that the claim for service connection residuals of blunt force trauma to the chin, to include TMJ, must be remanded for the AOJ to obtain a new VA medical opinion (and examination) if necessary. See Barr, supra. The matters are REMANDED for the following action: Arrange to obtain from an appropriate clinician (or clinicians) further etiology opinions for the Veteran’s sleep apnea, respiratory disorders, and TMJ based on claims file review. (Only arrange for the Veteran to undergo VA examinations if one is deemed necessary in the judgment of the clinician(s) designated to provide the addendum opinions.) The Veteran’s claims file must be made available to the designated individual, and the addendum opinion reports should reflect consideration of the Veteran’s documented medical history and assertions Upon review of the evidence, the clinician(s) should provide the following opinions” 1) Is it at least as likely as not (i.e., a 50 percent or greater probability), that the Veteran’s sleep apnea had its onset during service or is otherwise medically related to the Veteran’s service, to include his reported sleep problems in service. In providing the opinion, the clinician must consider all relevant medical and lay evidence of record, to specifically include the May 2013 and June 2016 statements from the Veteran’s mother and D.C.M. that the Veteran experienced snoring and fatigue in service and immediately upon his separation from service, and the Veteran’s reports of sleep problems in the years since service. If there is any medical reason to accept or reject the proposition that the Veteran’s reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 2) Is it at least as likely as not (i.e., a 50 percent or greater probability), that the Veteran has a diagnosed respiratory disability (present at any time since approximately June 2009, even if now resolved) that had its onset during service or is otherwise medically related to the Veteran’s service, to include his likely exposure to asbestos and his reported exposure to smoke from fires aborad the USS Midway during service. The clinician should consider the diagnoses of asthma, COPD, bronchitis, and allergic rhinitis. In providing the opinion, the clinician must consider all relevant medical and lay evidence of record, to specifically include all reports of and instances of treatment for respiratory problems in the Veteran’s service treatment records, his reports of exposure to smoke and asbestos while serving aboard the USS Midway in service, and his reports of respiratory symptoms in the years since service. The Board notes that the Veteran likely had some exposure to asbestos during service; thus, the absence of any documented exposure should not be considered as a factor against the claim. If there is any medical reason to accept or reject the proposition that the Veteran’s reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3) Is it at least as likely as not (i.e., a 50 percent or greater probability), that the Veteran has TMJ dysfunction (present at any time since approximately June 2009, even if now resolved) that had its onset during service or is otherwise medically related to the Veteran’s service, to include his June 1976 facial injury. The clinician is directed to consider the fact that the Veteran’s in noted to have complained of ear pain in service and a September 2011 VA examiner has concluded that the Veteran’s then complained of ear pain was related to his TMJ dysfunction. If the examiner disagrees with the diagnosis of TMJ dysfunction, the examiner must set forth specific reasons for such disagreement. In providing the opinion, the clinician must consider all relevant medical and lay evidence of record, to specifically include the Veteran’s assertions of ear pain in and since service. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his injury and symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? A complete, clearly stated rationale for all opinions expressed must be provided. Notably, the absence of documented evidence of the current disabilities in service or shortly after service should not, alone, serve as the sole basis for a negative opinion. Rather, if it is determined that the Veteran’s competent assertions as to the nature, onset, and continuity of symptoms do not support a finding of service connection, the clinician(s) must set forth specific reasons why not. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, 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.