Citation Nr: 21030511 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 08-11 720 DATE: May 19, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for headaches, to include as secondary to a service-connected disability, is remanded. Entitlement to a rating in excess of 20 percent for residuals of a right ankle sprain is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1980 to January 1983. This case has been before the Board multiple times, most recently in December 2019 when it was remanded for additional developments. There has not been substantial compliance with the remand directives and the claims must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). REASONS FOR REMAND Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for headaches, to include as secondary to a service-connected disability is remanded. The October 2020 VA examiner's opinions, obtained on remand, regarding the Veteran's sleep apnea, a cervical spine disability, and headaches are inadequate because the examiner used the wrong standard for aggravation; the examiner addressed both beyond natural progression and permanent aggravation, rather than the correct "any increase" in disability. 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439 (1995). Additionally, the October 2020 VA examiner's February 2021 addendum opinion is inadequate with regards to direct service connection for headaches as well. While the examiner noted the Veteran's lay report that he often hit his head while stationed in confined quarters and that he had had headaches continuously since service, the examiner provided a negative nexus opinion based on no specific injury in service specifically such as "hit head while confined." On remand, the examiner should consider the Veteran's competent lay reports that he often hit his head during service. Accordingly, new opinions are necessary on remand. Stegall, 11 Vet. App. at 271. Entitlement to a rating in excess of 20 percent for residuals of a right ankle sprain is remanded. While the record contains a contemporaneous VA examination regarding the Veteran's right ankle disability, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The November 2020 VA examiner noted the Veteran reported having flare-ups that were moderate in severity and occurred daily for 8 hours or more daily, but did not attempt to elicit relevant information regarding the description of the Veteran's flare-ups and any additional functional loss suffered during flare-ups Additionally, on January 2016 VA examination, the examiner noted that the Veteran's right ankle did not come to a neutral position and he was unable to stand erect due to limited ankle motion. On remand, the VA examiner should comment if this was evidence of functional ankylosis of his right ankle. See Chavis v. McDonough, No 18-2928 (Vet. App. Apr. 16, 2021). On remand, updated treatment records should be obtained. See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for sleep, neck, or headache complaints since service and for any right ankle complaints since January 2006 not already associated with the record. After securing the necessary release, take all appropriate action to obtain these records, including any VA treatment records since February 2021. 2. After the completion of the above, obtain an addendum opinion (with examination or telehealth interview if deemed necessary by the provider) from appropriate VA examiners other than the examiner who provided the October 2020 VA addendum opinion to determine the nature and etiology of the Veteran's sleep apnea. Copies of all pertinent records, including this remand, must be made available to the examiner for review. Based on the review of the record (and examination if needed), the examiner should answer the following: Is it at least as likely as not that the Veteran's sleep apnea is (i) caused or aggravated (defined as any increase in disability) by his service-connected disabilities? Why or why not? In answering these questions, the examiner should consider and discuss as necessary the August 2019 VA examiner's opinion which acknowledged medical research associating a relationship between depression and obstructive sleep apnea. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 3. After the completion of (1), obtain an addendum opinion (with examination or telehealth interview if deemed necessary by the provider) from appropriate VA examiners other than the examiner who provided the October 2020 VA addendum opinion to determine the nature and etiology of the Veteran's cervical spine disability. Copies of all pertinent records, including this remand, must be made available to the examiner for review. Based on the review of the record (and examination if needed), the examiner should answer the following: Is it at least as likely as not that the Veteran's cervical spine disability is (i) caused or aggravated (defined as any increase in disability) by his service-connected disabilities? Why or why not? The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 4. After the completion of (1), obtain an addendum opinion (with examination or telehealth interview if deemed necessary by the provider) from appropriate VA examiners other than the examiner who provided the October 2020 VA addendum opinion to determine the nature and etiology of the Veteran's mixed vascular/tension headaches. Copies of all pertinent records, including this remand, must be made available to the examiner for review. Based on the review of the record (and examination if needed), the examiner should answer the following: (a.) Is it at least as likely as not that the Veteran's diagnosed mixed vascular/tension headaches is related to an in-service injury, event, or disease? Why or why not? (b.) If the answer to (a) is no, is it at least as likely as not that the Veteran's diagnosed mixed vascular/tension headaches is (i) caused or aggravated (defined as any increase in disability) by his service-connected disabilities? Why or why not? In answering these questions, the examiner should consider and discuss as necessary the Veteran's lay statements that due to his height he often hit his head while stationed in confined quarters in service and that he has experienced headaches continuously since service. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 5. After the completion of (1), schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) of the current severity of his service-connected right ankle disability. Copies of all pertinent records must be made available to the examiner for review. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups throughout the entire period on appeal. To the extent possible, the examiner should identify any symptoms and functional impairments due to his right ankle disability alone and discuss the effect of the Veteran's right ankle disability alone on any occupational functioning and activities of daily living. The examiner should identify if the functional limitation of the Veteran's right ankle disability more nearly approximates ankylosis at any point during the period on appeal. In answering this question, the examiner should specifically discuss the notation on January 2016 VA examination that the Veteran's right ankle did not come to a neutral position and he was unable to stand erect due to limited ankle motion. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. 6. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Eric Struening 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.