Citation Nr: 21057133 Decision Date: 09/15/21 Archive Date: 09/15/21 DOCKET NO. 17-17 030A DATE: September 15, 2021 ORDER Entitlement to service connection for unspecified depressive disorder with anxious distress on the basis of secondary aggravation is granted. Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to a compensable disability rating for costochondritis is remanded. FINDINGS OF FACT 1. The Veteran's unspecified depressive disorder with anxious distress is aggravated by his service-connected physical disabilities. 2. The Veteran's sleep apnea is causally related to his unspecified depressive disorder with anxious distress. CONCLUSIONS OF LAW 1. The criteria for service connection for unspecified depressive disorder with anxious distress on the basis of secondary aggravation are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for sleep apnea as secondary to unspecified depressive disorder with anxious distress are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served with the United States Army from August 1998 to November 2001. This matter was previously remanded by the Board of Veterans' Appeals (Board) in February 2019. At that time, the issues for an increased rating for costochondritis, service connection for sleep apnea and an acquired psychiatric condition were remanded for further development. These issues have been returned to the Board for further appellate consideration. Service Connection In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2020). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2020); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. In this case, because as explained below, the evidence supports a finding of secondary service connection, the Board will not address direct service connection. 1. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities The Board previously remanded this claim in order to obtain missing treatment records, lay statements, and schedule a VA examination. See February 2019 Board Decision. The Veteran contends that his acquired psychiatric disorder was caused or aggravated by his service-connected conditions. With regard to a current disability, the Veteran is diagnosed with unspecified depressive disorder with anxious distress. See December 2019 VA examination. Thus, the first element of Wallin is met. With regard to evidence of a service-connected disability, the Veteran is service connected for right shoulder impingement and rotator cuff tendonitis, left shoulder impingement, left knee retropatellar pain syndrome, costochondritis, residual scars of laparoscopic appendectomy, and pseudofolliculitis barbae. See October 2014 Rating Decision Codesheet. Thus, the second element of Wallin is met. The remaining question is whether there is a medical nexus between the Veteran's current psychiatric disorder his service-connected conditions. On this matter, the evidence conflicts. In April 2018, the Veteran submitted a private nexus opinion and a disability benefits questionnaire. This examiner concluded that the Veteran's service-connected conditions were more likely than not aggravating his depressive disorder. The examiner reasoned that the Veteran struggled with his service-connected medical conditions. For example, the Veteran reported that his symptoms of daily pain, limitation, and mobility frustrated and depressed him. See April 2018 Correspondence. Following the February 2019 Board decision, the Veteran was afforded a VA examination in December 2019. The examiner opined that the Veteran's psychiatric disorder was less likely than not caused or aggravated by any service-connected conditions. The examiner reasoned that the Veteran's symptoms were more likely related to current situational stressors, like family related issues or financial stress, rather than service-connected disabilities. See December 2019 VA examination. Additionally, in contrast, following the December 2019 examination, the Veteran submitted a private medical opinion in July 2020. The examiner opined that the Veteran's unspecified depression with anxious distress was more likely than not aggravated by his service-connected conditions. The examiner reasoned that the Veteran's bilateral shoulder conditions and left knee pain aggravated his depressive disorder. See July 2020 Correspondence. Thus, the Board finds that the probative evidence of record, namely, the April 2018 opinion, the December 2019 opinion and the July 2020 private opinion, are in relative equipoise. When the evidence for and against a claim is in relative equipoise, the Board has an obligation to resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In resolving all reasonable doubt in the Veteran's favor, the Board finds that the third element of service connection is established. Thus, service connection for unspecified depressive disorder with anxious distress as aggravated by service-connected conditions is warranted. The Board notes that although 38 C.F.R. § 3.310(b) indicates that VA will not concede aggravation unless the baseline severity of the nonservice-connected disease or injury is established, the next sentence indicates that the rating activity will determine the baseline and current levels of severity and determine the extent of aggravation. Given that the Board does not assign ratings in the first instance, the Board reads 38 C.F.R. § 3.310(b) as permitting it to determine whether service connection on an aggravation basis is warranted, with the AOJ having the responsibility for determining the degree of aggravation in assigning the rating. Therefore, the AOJ will determine the baseline and current levels of severity under the Rating Schedule and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. The Board further finds that a preponderance of the evidence is against service connection as directly related to service or as caused by the Veteran's service-connected conditions. The evidence does not support service connection on the basis of causation, rather than aggravation, by the Veteran's service-connected disabilities. Both the April 2018 and the July 2020 private examiners opined only that the Veteran's depressive disorder was more likely than not aggravated by his service-connected medical conditions. Neither offered an opinion that his depressive disorder was caused by any of his service-connected medical conditions. The December 2019 VA examiner opined that the Veteran's unspecified depressive disorder with anxious distress was less likely than not caused by his service-connected medical conditions. Thus, there is no medical opinion evidence supporting causation rather than secondary aggravation. Also, the evidence does not support that the Veteran's unspecified depressive disorder with anxious distress was directly caused by service. The Veteran has not contended, and the evidence does not suggest, that the veteran's unspecified depressive disorder with anxious distress onset in or was directly caused by his service. Thus, based on the forgoing, the Board finds that service connection based on secondary aggravation is warranted. 38 C.F.R. § 3.310(b). 2. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder The Board previously remanded this claim in order to obtain missing treatment records, lay statements, and schedule a VA examination. See February 2019 Board Decision. The Veteran contends that his sleep apnea was caused or aggravated by his acquired psychiatric disorder. With regard to a current disability, the Veteran is diagnosed with obstructive sleep apnea. See December 2019 VA examination. Thus, the first element of Wallin is met. As to a service-connected condition, the Board herein granted service connection for the Veteran's acquired psychiatric disorder. Thus, the second element of Wallin is met. The remaining question is whether there is a medical nexus between the Veteran's sleep apnea and his service-connected acquired psychiatric disorder. Following the February 2019 Board decision, the Veteran was afforded a VA examination in December 2019. The examiner concluded that there was insufficient medical evidence that the condition was related to any of his current service-connected conditions, either secondarily or by way of aggravation. The examiner reasoned that the service treatment records did not reveal symptoms or findings consistent with obstructive sleep apnea. The examiner noted that while the Veteran reported that he snored while in service, that does not necessarily mean he had obstructive sleep apnea while in service. The examiner stated that there is "insufficient evidence that the condition is related to any of his current service connected conditions (either secondarily or by way of aggravation)" but offered no additional explanation. See December 2019 VA examination. In contrast, the Veteran submitted a disability benefits questionnaire for his sleep apnea dated April 2018. The examiner found the Veteran had a diagnosis of depressive disorder which was known to aggravate obstructive sleep apnea. The examiner explained that research has shown that psychiatric disorders are commonly associated with obstructive sleep apnea. She further cited to a study that suggested that sleep deprivation and sleep fragmentation leads to a higher upper airway collapsibility which can contribute to the pathogenesis of obstructive sleep apnea. She concluded that the Veteran's depressive disorder aided in the development of and permanently aggravates his sleep apnea. The Board notes that chronic sleep impairment is among the Veteran's symptoms of his unspecified depressive disorder as noted on his December 2019 VA examination. The Board finds that the probative evidence of record, namely, the December 2019 opinion and the April 2018 private opinion, are in relative equipoise. When the evidence for and against a claim is in relative equipoise, the Board has an obligation to resolve all reasonable doubt in favor of the Veteran. In resolving all reasonable doubt in the Veteran's favor, the Board finds that the third element of service connection is established. Accordingly, affording the Veteran the benefit of the doubt, secondary service connection for obstructive sleep apnea is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56. REASONS FOR REMAND 3. Entitlement to a compensable disability rating for costochondritis is remanded. Although the Board regrets the additional delay, the Board finds that remand is once again warranted. In particular, remand is required to obtain a medical opinion that complies with a prior Board remand instruction. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (requiring substantial compliance with remand directives). The Veteran contends that his service-connected costochondritis is more severe than his noncompensable (zero percent) rating would indicate. The Board previously remanded this matter in February 2019, for further development including a VA examination which considered the applicable diagnostic criteria including diagnostic codes (DC) 5299-5021 and 5321. In particular, the examiner was specifically directed to comment on whether the Veteran had tenderness or pain of the costosternal junction, or if he experienced any functional loss due to pain on use and/or during flare ups and to what extent the Veteran's costochondritis may have had on his respiration. See February 2019 Board Decision. Following the Board remand, the Veteran was afforded a new VA examination in December 2019. The examiner first noted that the Veteran had pain to both sides of his sternum. Additionally, the examiner noted that the Veteran's condition did not interfere with his respiration. However, the examiner failed to discuss whether the Veteran experiences functional loss due to pain on use or during flare ups. See December 2019 VA examination. Thus, because the examiner did not substantially comply with the terms of the February 2019 Board's remand directive, remand is required. See Stegall, supra; see also Miller v. Wilkie, 32 Vet. App. 249 (2020) (reiterating that a VA medical opinion is inadequate where the examiner fails to address the veteran's relevant lay statements); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that most of the probative value of an opinion is derived from its reasoning). The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current nature and severity of his service-connected costochondritis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to costochondritis alone and discuss the effect of the Veteran's costochondritis on any occupational functioning and activities of daily living. (Continued on the next page) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Further, the examiner must address whether the Veteran's reported chest pain can be considered a cardinal sign or symptom. The examiner must comment on whether the Veteran had pain or tenderness of the costosternal junction. The examiner should note the cardinal signs or symptoms of muscle disability include, loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). Amanda Christensen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Emily A. Kotroco 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.