Citation Nr: 21030468 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 13-16 252 DATE: May 19, 2021 REMANDED Entitlement to service connection for Chiari malformation is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for narcolepsy is remanded. REASONS FOR REMAND The Veteran had active duty service from August 1982 to January 1993. These matters come before the Board of Veterans' Appeals (Board) from a December 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for sleep apnea and narcolepsy, and also denied a request to reopen a previously denied claim for service connection for Chiari malformation. In a February 2016 decision, the Board found that the Veteran had presented new and material evidence to reopen the Chiari malformation claim, and it remanded all three claims for further evidentiary development. The Board again remanded these claims in July 2017, February 2020, and January 2021. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a September 2014 hearing. A copy of the hearing transcript has been reviewed and associated with the claims file. 1. Entitlement to service connection for Chiari malformation is remanded. The Veteran's treatment records indicate that he was diagnosed with Type I Chiari malformation in 2008. He contends that his present disability is caused by, or is otherwise related to, his active duty service. A VA examination was conducted in April 2016, in which the examiner confirmed the Veteran's diagnosis of Chiari malformation but did not provide any opinion regarding its etiology. In a July 2017 addendum opinion, the 2016 examiner opined that the Veteran's Chiari malformation is less likely than not related to his service. He stated that headaches, which the Veteran has experienced since service and is now service connected for, are not a known cause of Chiari malformation, nor did they aggravate it. The examiner provided no further rationale for his opinion. Another addendum opinion was obtained in August 2018, from a different examiner. This examiner stated that the Veteran's Chiari malformation is less likely than not related to service, including as secondary to his headaches, because it is congenital. A final addendum opinion was obtained in February 2021, in which the examiner opined that the Veteran's Chiari malformation was less likely than not aggravated beyond its natural progression by his service or by a service-connected disability. The examiner found no evidence in the Veteran's service treatment records of any aggravating factor or event, or any chronic condition within 12 months of discharge that would be consistent with aggravation. The Board finds that the February 2021 addendum opinion did not fully comply with the Board's January 2021 remand instructions and is therefore inadequate for the purposes of adjudicating this claim. The examiner was asked to provide an opinion as to whether the Veteran's Chiari malformation was aggravated beyond its natural progression by his service or by a service-connected disability, to include headaches. The provided rationale does not fully consider the latter, as it addresses only chronic conditions presenting within 12 months of separation from service and does not specifically discuss his service-connected headaches. The Board notes the July 2017 addendum opinion stating that his Chiari malformation was less likely than not aggravated beyond its natural progression by headaches. However, the examiner provided no reasoning for his opinion and there are no other well-reasoned medical opinions regarding aggravation, as has been requested in the Board's July 2017, February 2018, and January 2021 remand instructions. Although the Board has already remanded this matter four times, an additional remand is necessary to obtain an addendum medical opinion, supported by adequate rationale, addressing whether the Veteran's Chiari malformation was aggravated beyond its natural progression by a service-connected disability, to include his headache disorder. Moreover, the Board notes that the August 2018 examiner indicated that the Veteran's Chiari malformation was congenital. Service connection may not be granted for congenital or developmental defects, as they are not considered a disease or injury for the purpose of service connection. See 38 C.F.R. §§ 3.303(c), 4.9. However, service connection may be granted for a congenital or hereditary disease, as opposed to a defect, where the disease first manifested during service (incurrence), or where it preexisted service but was worsened beyond its normal progression as a result of service (aggravation). See Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). For VA purposes, a "defect" is defined as a structural or inherent abnormality or condition which is more or less stationary in nature and is generally incapable of improvement or deterioration. In contrast, a "disease" is capable of improvement or deterioration. VAOPGCPREC 82-90, 55 Fed. Reg. 45, 711 (1990). To date, there has been no opinion specifying whether the Veteran's Chiari malformation is a congenital defect or a disease and, if a congenital disease, whether it was aggravated by service. 2. Entitlement to service connection for sleep apnea is remanded. 3. Entitlement to service connection for narcolepsy is remanded. The Veteran's treatment records indicate current diagnoses of obstructive sleep apnea and narcolepsy. He asserts that these disabilities are caused by, or are otherwise related to, his active duty service. An April 2016 VA examination confirmed the diagnoses of sleep apnea and narcolepsy but provided no etiology opinion. In a July 2017 addendum opinion, the examiner opined that the Veteran's sleep apnea and narcolepsy are less likely than not related to his service. The examiner stated that headaches, which the Veteran has experienced since service and is now service connected for, are not a known cause of narcolepsy or obstructive sleep apnea. He also indicated that his claimed disabilities were not aggravated by headaches but provided no rationale for that opinion. Another addendum opinion was issued in August 2018. The examiner opined that the Veteran's obstructive sleep apnea and narcolepsy are less likely than not related to service, stating that they did not occur until several years after service and are not related to headaches or Chiari malformation. In its February 2020 decision, the Board noted that the Veteran's medical records contained entries of obesity. Because obesity may act as an "intermediate step" between a service-connected disability and a current disability subject to secondary service connection under 38 C.F.R. § 3.310(a), the Board remanded the issues for an addendum opinion addressing obesity as an intermediate step in causing sleep apnea and/or narcolepsy. Another addendum opinion was issued in September 2020, in which the examiner was unable to state whether the Veteran's obesity was caused by a lack of exercise, secondary to his service-connected disabilities, because the "overwhelming cause" of obesity is caloric intake. The examiner stated that, while lack of exercise may be a factor in causing obesity, caloric intake is the main component (greater than 50 percent) contributing to weight gain. In a January 2021 decision, the Board found the September 2020 opinion inadequate because it found caloric intake to be the greatest cause of obesity without considering other substantial contributing factors in bringing about the Veteran's obesity. In a February 2021 addendum opinion, the examiner stated that the Veteran's obesity is less likely than not related to his service-connected musculoskeletal disabilities. The examiner stated that obesity is caused by intaking more calories than one expends, and dietary assistance with counting calories is the "mainstay" of weight loss. The examiner stated that exercise is suggested and can be achieved regardless of musculoskeletal disabilities with the help of a physical therapist. The February 2021 addendum opinion is inadequate for the same reason as the September 2020 addendum opinion: it is inconsistent with applicable law. Recently, the Court of Appeals for Veterans Claims (Court) held that service connection may be granted on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability. See Walsh v. Wilkie, No. 18-0495 (February 24, 2020). Additionally, obesity may serve as an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). In other words, service connection is warranted where a veteran's service-connected disabilities are a proximate cause of his obesity and his obesity is a proximate cause of his present claimed disability. When there are potentially multiple causes of a harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action. Whether there were other contributing factors to the Veteran's sleep apnea and narcolepsy is not dispositive of the questions being adjudicated. Under the analysis of the February 2021 examiner, no claimant could ever be granted service connection for a disability on the basis of the "intermediate step" theory, because any decrease in caloric expenditure attributable to service-connected disabilities could theoretically be offset by a corresponding decrease in caloric intake. The addendum opinion states that caloric intake is the main contributing factor to obesity, but it does not consider whether the Veteran's service-connected disabilities were substantial factors in causing his obesity, without which his obesity would not have manifested. The examiner also erred by not considering whether the Veteran's service-connected disabilities aggravated, or worsened (increased), his obesity. See Ward v. Wilkie, 31 Vet. App. 233, 237-38 (2019). This outcome is thus contrary to applicable law. See 38 C.F.R. § 3.310(a). Once VA undertakes the effort to provide an examination when developing a claim, the examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that the February 2021 addendum opinion is not in substantial compliance with the January 2021 remand instructions and is inadequate for the purpose of adjudicating these claims. On remand, a new VA medical opinion should be obtained, consistent with the applicable legal standards and addressing whether a causal relationship exists between the Veteran's service-connected disabilities and his sleep apnea and/or narcolepsy. Additionally, during the September 2014 hearing, the Veteran testified that medications he takes for his service-connected disabilities causes his sleep apnea, and no medical opinion of record appears to have considered that contention. Thus, the addendum opinion should also address the Veteran's claim that his sleep apnea is caused by medications for his service-connected disabilities. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records, from September 2020 to the present. 2. After completion of #1, obtain an addendum opinion addressing the nature and etiology of the Veteran's Chiari malformation. A new VA examination is only necessary if deemed so by the examiner. The entire claims file, including a copy of this remand, must be reviewed by the examiner, and such review should be noted in the addendum opinion. The examiner should respond to the following: (a.) Is the Veteran's Chiari malformation a congenital defect or disease? (Note: a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990).) (b.) If it is a congenital defect, is it at least as likely as not (a 50 percent or greater probability) that there was a superimposed injury or disease in service that resulted in an additional disability? (c.) If it is a congenital disease, is it clear and unmistakable that the disability preexisted the Veteran's military service? If so, is it also clear and unmistakable that the preexisting Chiari malformation was not aggravated (i.e., permanently worsened) during the Veteran's military service? (d.) If the Chiari malformation is not a congenital disease or defect, is it at least as likely as not (a 50 percent or greater probability) that the Chiari malformation had its onset in, and/or is otherwise related to, his period of active service? (e.) If the Chiari malformation is not a congenital disease or defect, and it is not directly related to service, is it at least as likely as not (a 50 percent or greater probability) that the Chiari malformation was caused and/or aggravated (any incremental increase in disability) by his service-connected disabilities, including headaches? (f.) If aggravation is found, is there medical evidence created prior to the aggravation at any time between the time of aggravation and the current level of disability that shows a baseline for the Chiari malformation prior to aggravation? If so, please identify. The examiner must provide a comprehensive rationale for each proffered opinion. The examiner's rationale should include discussion of the Veteran's hearing testimony, letters from his private treatment providers dated in June and October 2018, 2008 X-ray and MRI revealing degenerative disc disease, and 2008 treatment records noting that the Veteran has complained of back pain since 2005. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 3. After completion of #1 and #2, obtain an addendum opinion addressing the nature and etiology of the Veteran's obstructive sleep apnea. A new VA examination is only necessary if deemed so by the examiner. The entire claims file, including a copy of this remand, must be reviewed by the examiner, and such review should be noted in the addendum opinion. The examiner should respond to the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's obstructive sleep apnea had its onset in and/or is otherwise etiologically related to his period of active duty service? (b.) If not, is it at least as likely as not (a 50 percent or greater probability) that the Veteran's obstructive sleep apnea was caused by a service-connected disability, including any associated medications, and including the Chiari malformation if found to be service connected? (c.) If not, is it at least as likely as not (a 50 percent or greater probability) that the Veteran's obstructive sleep apnea has been aggravated (any incremental increase in disability) by any service-connected disabilities, including associated medications, and including Chiari malformation if found to be service connected? (d.) If aggravation is found, is there medical evidence created prior to the aggravation at any time between the time of aggravation and the current level of disability that shows a baseline for the obstructive sleep apnea prior to aggravation? If so, please identify. (e.) If aggravation is not found, please respond to the following: i. Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's obesity was caused and/or aggravated by his service-connected musculoskeletal disabilities? ii. If so, was the obesity as a result of the service-connected musculoskeletal disabilities a substantial factor in causing obstructive sleep apnea? iii. If so, is it at least as likely as not (a 50 percent or greater probability) that his obstructive sleep apnea would not have occurred but for the obesity caused and/or aggravated by his service-connected musculoskeletal disabilities? The examiner must provide a comprehensive rationale for each proffered opinion. The examiner's rationale should include discussion of the Veteran's hearing testimony, letters from his private treatment providers dated in June and October 2018, 2008 X-ray and MRI revealing degenerative disc disease, and 2008 treatment records noting that the Veteran has complained of back pain since 2005. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 4. After completion of #1 and #2, obtain an addendum opinion addressing the nature and etiology of the Veteran's narcolepsy. A new VA examination is only necessary if deemed so by the examiner. The entire claims file, including a copy of this remand, must be reviewed by the examiner, and such review should be noted in the addendum opinion. The examiner should respond to the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's narcolepsy had its onset in and/or is otherwise related to his period of active duty service? (b.) If not, is it at least as likely as not (a 50 percent or greater probability) that the Veteran's narcolepsy was caused by a service-connected disability, including any associated medications, and including the Chiari malformation if found to be service connected? (c.) If not, is it at least as likely as not (a 50 percent or greater probability) that the Veteran's narcolepsy has been aggravated (any incremental increase in disability) by any service-connected disabilities, including associated medications, and including Chiari malformation if found to be service connected? (d.) If aggravation is found, is there medical evidence created prior to the aggravation at any time between the time of aggravation and the current level of disability that shows a baseline for the narcolepsy prior to aggravation? If so, please identify. (e.) If aggravation is not found, please respond to the following: i. Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's obesity was caused and/or aggravated by his service-connected musculoskeletal disabilities? ii. If so, was the obesity as a result of the service-connected musculoskeletal disabilities a substantial factor in causing narcolepsy? iii. If so, is it at least as likely as not (a 50 percent or greater probability) that his narcolepsy would not have occurred but for the obesity caused and/or aggravated by his service-connected musculoskeletal disabilities? The examiner must provide a comprehensive rationale for each proffered opinion. The examiner's rationale should include discussion of the Veteran's hearing testimony, letters from his private treatment providers dated in June and October 2018, 2008 X-ray and MRI revealing degenerative disc disease, and 2008 treatment records noting that the Veteran has complained of back pain since 2005. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.