Citation Nr: 21040251 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-31 289 DATE: July 2, 2021 ORDER Service connection for obstructive sleep apnea, to include as secondary to the Veteran's service-connected sarcoidosis and acquired psychiatric disability, is granted. The appeal for an increased evaluation in excess of 10 percent for a right foot disability, to include hammertoes with corns, has been withdrawn. The appeal for an increased evaluation in excess of 10 percent for a left foot disability, to include hammertoes with corns, has been withdrawn. REMANDED Entitlement for service connection for a right knee disability is remanded. Entitlement for service connection for a left knee disability is remanded. FINDINGS OF FACT 1. The Veteran currently has a diagnosis of obstructive sleep apnea, and the evidence of record is in equipoise regarding whether it is causally related to his military service, to include as secondary to his service-connected sarcoidosis and acquired psychiatric disability. 2. In September 2019, prior to the promulgation of a final decision in the instant appeal, the Board received notification from the Veteran of his request to withdraw his claim for an increased evaluation in excess of 10 percent for a right foot disability, to include hammertoes with corns. 3. In September 2019, prior to the promulgation of a final decision in the instant appeal, the Board received notification from the Veteran of his request to withdraw his claim for an increased evaluation in excess of 10 percent for a left foot disability, to include hammertoes with corns. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for obstructive sleep apnea, to include as due to his service-connected sarcoidosis and acquired psychiatric disability, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. 2. The criteria for the Veteran's withdrawal of his claim for an increased evaluation in excess of 10 percent for a right foot disability, to include hammertoes with corns, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for the Veteran's withdrawal of his claim for an increased evaluation in excess of 10 percent for a left foot disability, to include hammertoes with corns, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the U.S. Army from October 1980 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in October 2013, August 2014, and June 2015 by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran withdrew his initial hearing request in March 2017. See 38 C.F.R. § 20.704(e). In any case involving a finally denied claim, the Board must first address whether new and material evidence has been received sufficient to reopen the claim before addressing the merits of the claim, regardless of whether the AOJ has already addressed the question. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). However, in this case, the August 2014 rating decision denying the Veteran's sleep apnea claim did not become final, as new evidence was received within the one-year appellate period following the June 2014 rating decision, including VA treatment records dated July 2014 and associated with the claims file in October 2014. Accordingly, as such evidence relates to the Veteran's sleep apnea claim and had not previously been submitted into the record, such evidence is considered to have been filed with the Veteran's original claim. See 38 C.F.R. § 3.156(b). Therefore, the June 2014 rating decision did not become final, and the issue of whether new and material evidence has been submitted sufficient to reopen the Veteran's sleep apnea claim need not be addressed by the Board. See id. In October 2019, the Board remanded this appeal for further development, including scheduling the Veteran for a VA examination to evaluate his bilateral knee condition. However, for the reasons set forth below, the January 2020 VA knee examination report and corresponding medical opinion falls short of substantial compliance with the Board's October 2019 Remand directives; therefore, the Veteran's service connection claim for his bilateral knee condition must once again be remanded for further development. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Service connection for obstructive sleep apnea, to include as due to the Veteran's service-connected sarcoidosis and acquired psychiatric disability, is granted. The Veteran contends that his current diagnosis of obstructive sleep apnea is causally related to his active military service, to include as due to his service-connected sarcoidosis and acquired psychiatric disability. For the reasons set forth below, the Board agrees and hereby grants the Veteran's appeal. Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disability. See 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that (1) a current disability exists; and (2) the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to a service-connected disability. See Velez v. West, 11 Vet. App. 148, 158 (1998). Where an approximate balance of positive and negative evidence exists regarding any issue material to the determination of a matter, and the evidence is in relative equipoise, the Board shall afford the claimant the benefit of the doubt. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must weigh against the Veteran's claim in order for it to be denied. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). In October 1982, the Veteran was awarded service connection for sarcoidosis and in September 2020, he was awarded service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), with major depressive disorder and substance use disorder. In addition, the evidence of record reflects that approximately one year following his separation from active service, in 1983, the Veteran was diagnosed with obstructive sleep apnea, and that subsequently, a December 2013 VA sleep study confirmed a diagnosis of moderate obstructive sleep apnea, for which he continues to be treated with a continuous constant airway pressure (CPAP) machine. Accordingly, the Board finds that the Veteran has established that he suffers from a current sleep disability, and the sole remaining issue for adjudication involves whether the Veteran's obstructive sleep apnea diagnosis is causally related to his service-connected sarcoidosis or acquired psychiatric disability. In support of his claim, the Veteran has submitted a January 2018 report prepared by a private medical expert (Dr. S) (Dr. S's January 2018 Report) opining that the Veteran's obstructive sleep apnea is causally related to his service-connected sarcoidosis and acquired psychiatric disability. As support for the positive nexus opinion, Dr. S's January 2018 Report relies upon the following evidence of record: (1) the Veteran is experiencing significant complications of psychological distress, including anxiety; (2) the Veteran has been receiving psychiatric treatment for several years; (3) a June 2011 VA discharge summary endorsed the Veteran's report of suicidal ideations with a history of suicide attempts; (4) a similar report dated August 2011 documents a history of multiple psychiatric hospitalizations with a history of suicide attempts, noting that the Veteran is considered a high risk for suicide; (5) an April 2015 VA psychiatry outpatient note documents a depression screening indicating severe depression with complaints of several chronic psychological problems occurring nearly every day; (6) a similar report dated May 2016 documents mood swings with angry outbursts and irritability with varying depressed and anxious moods; (7) a July 2016 report indicates that the Veteran "gets anxious and upset" with depression occurring "off and on with having no motivation and no pleasure in doing things"; (8) in November 2017, a private psychologist (Dr. H) conducted a psychiatric evaluation which culminated in a report (Dr. H's November 2017 Report) rendering a diagnosis of unspecified anxiety disorder causing occupational and social impairment in most areas of functioning with symptoms including the following: near-continuous panic and depression affecting the ability to function independently and appropriately; chronic sleep impairment; memory deficits; disturbances of motivation and mood; difficulty adapting to stressful circumstances; persistent delusions; and intermittent inability to perform activities of daily living, including maintaining minimal personal hygiene; (9) research published in the journal SLEEP cites a large cohort of more than four million veteran patients over a three-year period, and concludes that individuals with psychological impairments such as anxiety and depression are five times more likely to develop obstructive sleep apnea than individuals without such psychological distress; (10) the Veteran was afforded a December 2013 VA examination which culminated in a report documenting worsening complications of the Veteran's sarcoidosis, resulting in worsening history of persistent constant shortness of breath, tiredness, fatigue, night sweats, and weight loss which hinders and prevents functionality of employment; (11) the December 2013 VA examination report also concludes that the Veteran requires daily inhalation of bronchodilator therapy, which does not improve his FVC pulmonary functioning above 52 percent, or his FEV-1 function above 50 percent predicted; and (12) an April 2015 VA examination report noted very similar findings and complications, including fatigue, shortness of breath, and even pulmonary infiltrates, but failed to render pulmonary testing results; and (13) according to findings published in the journal Chest, a significantly high prevalence of sleep apnea in patients with sarcoidosis is appreciated even when such evaluations are adjusted to include external risk factors such as weight, tobacco consumption, and age. Accordingly, based upon the foregoing evidence, including a review of the Veteran's complete VA claims file, his Social Security records, his medical treatment records, and Dr. H's November 2017 Report, as well as conducting related research and speaking with the Veteran, Dr. S opined that the Veteran's obstructive sleep apnea is more likely than not both caused and permanently aggravated by the Veteran's service-connected sarcoidosis and acquired psychiatric disability, both independently and in tandem. The Board finds that as a licensed physician, Dr. S is credible and competent to render an opinion regarding the etiology and onset of the Veteran's obstructive sleep apnea, to include its relationship to his service-connected sarcoidosis and acquired psychiatric disability. See 38 C.F.R. § 3.159(a)(2). Accordingly, in light of the foregoing, the Board finds that the evidence of record in this case is in relative equipoise regarding a causal relationship between the Veteran's service-connected sarcoidosis and acquired psychiatric disability, including the following: (1) the December 2013 VA sleep study confirming the Veteran's diagnosis of obstructive sleep apnea; (2) the October 1982 rating decision awarding the Veteran service connection for sarcoidosis; (3) the September 2020 rating decision awarding the Veteran service connection for an acquired psychiatric disability, to include PTSD with major depressive disorder and substance use disorder; (4) VA treatment records reflecting the Veteran's medication treatment for his service-connected sarcoidosis and acquired psychiatric disability; and (4) Dr. S's January 2018 Report and positive nexus opinion linking the Veteran's obstructive sleep apnea to his service-connected disabilities. Accordingly, in light of the foregoing, the Board finds that the evidence of record reflects an approximate balance of positive and negative evidence regarding whether the Veteran's current diagnosis of obstructive sleep apnea is proximately caused by his service-connected sarcoidosis and acquired psychiatric disability. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993). Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for the Veteran's obstructive sleep apnea as secondary to his service-connected sarcoidosis and acquired psychiatric disability is warranted in this case. See 38 C.F.R. § 3.310. Withdrawal of Claims 2. The appeal for an increased evaluation in excess of 10 percent for a right foot disability, to include hammertoes with corns, has been withdrawn. 3. The appeal for an increased evaluation in excess of 10 percent for a left foot disability, to include hammertoes with corns, has been withdrawn. In November 2019, prior to the promulgation of a decision in the instant appeal, the Veteran submitted a VA Form 21-4138 stating that he wished to withdraw his formal appeals for increased evaluations for his bilateral foot disabilities, to include hammertoes with corns. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed, and an appeal may be withdrawn by the appellant or by his or her authorized representative as to any or all issues involved in the appeal at any time before the Board promulgates a decision. See 38 U.S.C. § 7105; 38 C.F.R. § 20.204. In order to be effective, a withdrawal of an appeal must be received by the Board prior to the issuance of a decision regarding the claims being withdrawn and must include the name of the Veteran, the applicable claim number, and a statement that the appeal is being withdrawn. See 38 C.F.R. § 20.204(b). In addition, an effective withdrawal of claims must be explicit, unambiguous, and accomplished with a full understanding of the consequences of such action. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). In this case, the Board finds the Veteran's November 2019 notice of withdrawal to be effective as it communicated the information required by VA regulations, and it expressly and unambiguously communicated the Veteran's intention to withdraw his claims for his bilateral foot disabilities, thereby indicating a full understanding of the consequences of such actions. Accordingly, because the Veteran has withdrawn the appeal of his pending claims for increased evaluations for his bilateral foot disabilities, and no allegations of errors of fact or law remain pending for appellate consideration, the Board lacks jurisdiction over such claims; therefore, both claims must be dismissed. See 38 U.S.C. § 7105. REASONS FOR REMAND 1. Entitlement for service connection for a right knee disability is remanded. 2. Entitlement for service connection for a left knee disability is remanded. Unfortunately, the Veteran's service connection claim for a bilateral knee disability must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran contends that his current bilateral knee disability is causally related to his military service; however, as stated above, pursuant to the Board's October 2019 remand directives, the Veteran was afforded a VA examination in January 2020, which culminated in a report declining to find a nexus between the Veteran's claimed bilateral knee disability and his active military service on the grounds that the Veteran's records are "silent for complaints, treatment or a diagnosed bilateral knee condition . . . during service," and was therefore "less likely than not incurred in service." When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate, see Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007), which in this context requires that a medical opinion report sufficiently inform the Board of a medical expert's judgment on a medical question, rely upon accurate factual premises, including the Veteran's lay statements regarding symptomatology and the relevant medical evidence of record, conduct any necessary testing, and present a fully articulated, sound rationale relating to all potential theories of entitlement. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Moreover, a remand by the Board confers upon the claimant a legal right to substantial compliance with the remand order; thus, when the Board's remand directives are not satisfied, the Board errs as a matter of law if it fails to ensure substantial compliance with such directives. See Stegall, 11 Vet. App. at 271. In this case, the January 2020 VA examination report falls short of the requisite compliance with the Board's October 2019 remand directives by failing to address whether the Veteran's claimed bilateral knee condition is causally related to his service-connected disabilities, to include his bilateral foot disability, diagnosed as bilateral hammertoes with corns. See Combee, 34 F.3d at 1043-44. Accordingly, in light of the foregoing, Veteran's claim for a bilateral knee disability must once again be remanded for further development, to include an additional medical opinion to determine whether the Veteran is entitled to service connection on either a direct or a secondary basis. See Barr, 21 Vet. App. at 311; see also Stegall, 11 Vet. App. at 271. Accordingly, these matters are REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file. The AOJ should undertake the appropriate efforts to obtain and associate with the claims file any outstanding service treatment records, as well as any relevant and outstanding VA or private treatment records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. After the above development and any additionally indicated development has been completed, forward the claims file to an appropriate clinician, different from the January 2020 examiner, to determine the nature and etiology of the Veteran's claimed bilateral knee disability. The entire claims folder should be made available and reviewed by the examiner. An examination should not be scheduled unless deemed necessary by the examiner. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's bilateral knee disability is due to or otherwise causally or etiologically related to his military service. The examiner must also address whether the Veteran's bilateral knee disability is causally related to his service-connected disabilities, to include his service-connected bilateral foot disabilities, diagnosed as hammertoes with corns. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Marsdale 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.