Citation Nr: 22014409 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 17-10 845A DATE: March 12, 2022 ORDER Entitlement to a compensable rating for service-connected left leg strain is denied. Entitlement to an initial 10 percent rating for service-connected chronic sinusitis, but not greater, is granted. Entitlement to a rating greater than 50 percent for chronic sinusitis from February 4, 2020, is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a right ankle disability is remanded. FINDINGS OF FACT 1. The appellant's left leg strain with calcaneal spur does not manifest as non-union or malunion of the tibia and fibula, nor does it manifest as medial tibial stress syndrome or shin splints. The appellant is already receiving separate disability ratings for instability and painful motion of the left knee and painful motion of the left ankle and the symptoms associated with those disabilities may not be considered in assigning the rating for left leg strain. 2. Prior to February 2, 2020, the appellant's chronic sinusitis manifested with symptoms of between 3 and 6 non-incapacitating episodes of sinusitis, with symptoms of headaches, pain, and purulent discharge, with no instances of prolonged, lasting 4 to 6 weeks, antibiotic treatment. The appellant, at no time prior to February 2, 2020, had residuals of radical surgery to include chronic osteomyelitis, or repeated surgeries on his sinuses. CONCLUSIONS OF LAW 1. Entitlement to a compensable rating for service-connected left leg strain with calcaneal spur under Diagnostic Code 5262 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5262. 2. Entitlement to an initial 10 percent rating for service-connected chronic sinusitis, but not greater, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6513. 3. The criteria for a rating in excess of 50 percent for chronic sinusitis from February 2, 2020, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant was a member of the South Carolina Army National Guard from December 1988 to November 1994. He had a period of initial active duty for training (IADT) from August 1989 to December 1989. He also served on active duty from November 1990 to April 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a several rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). An October 2015 rating decision denied entitlement to a compensable rating for left leg strain with calcaneal spur and denied service connection for a right ankle disability. A December 2015 rating decision denied service connection for sleep apnea. A July 2016 rating decision awarded service connection for sinusitis and assigned an initial noncompensable rating, effective from January 24, 2016. The Board previously remanded this matter August 2019 and August 2020. Supplemental Statements of the Case (SSOCs) were issued in November 2019 and November 2021. As an initial matter, the Board notes that in the time this claim has been pending, the RO issued a rating decision in January 2021 which assigned a 50 percent rating for the appellant's chronic sinusitis from February 4, 2020. In a second November 2021 rating decision, the RO also assigned a 10 percent rating for the appellant's chronic sinusitis for the period from January 7, 2020. As the highest allowable rating was not issued for the entire period on appeal, the Board notes that these issues remain in appellate status. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). As a final preliminary matter, the Board notes that two issues are being remanded for further adjudication. In so doing, the Board has referenced the appellant's assertions and contentions so that an adequate medical opinion addressing all those contentions and assertions might be obtained from the VA examiner. Neither the appellant, nor his representative, should infer that the inclusion of these statements is a determination regarding the appellant's credibility. Credibility determinations will be made if this case is later returned to the Board. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on the veteran's average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence used to decide whether an [initial] rating on appeal was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of an initial rating, staged ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. Entitlement to a compensable rating for service-connected left leg strain is denied. The appellant contends that his service-connected left leg strain is more disabling than currently rated. He asserts that a higher rating is warranted for this disability. The appellant's left leg strain with calcaneal spur is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5262, for impairment of the tibia and fibula. Previously, under Diagnostic Code 5262, a 10 percent rating is warranted for malunion of tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Marked" means having a distinctive or emphasized character. Effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg. The amended Diagnostic Code 5262 continues to provide a rating for impairment of the tibia and fibula. The rating criteria are split into three categories: medial tibial stress syndrome (MTSS), or shin splints; malunion; and nonunion. For MTSS, or shin splints, a noncompensable rating is warranted for treatment less than 12 consecutive months, one or both lower extremities. A 10 percent rating is warranted where treatment is required for no less than 12 months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent rating is warranted where treatment is required for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A maximum 30 percent rating is warranted where treatment is required for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. For malunion of the tibia and fibula, evaluate under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. A 40 percent rating is warranted for nonunion of the tibia and fibula, with loose motion, requiring brace. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board notes that the appellant's left knee has been assigned a 10 percent rating under Diagnostic Code 5257 for slight instability and a 10 percent rating for patellofemoral syndrome under Diagnostic Code 5260 for painful motion, with otherwise noncompensable limitation of motion. The appellant's left ankle disability has also been assigned a separate rating under Diagnostic Code 5271 for achilles tendonitis, which is rated 10 percent disabling for painful motion, with otherwise noncompensable limitation of motion. The Board finds that the evidence of record persuasively weighs against the assignment of a compensable rating for the left leg strain with calcaneal spur. The Board acknowledges the appellant's lay reports of symptoms and that there was functional loss due to this disability. However, during the entire period on appeal, the appellant has been in receipt of separate ratings for painful motion in both the left knee and the left ankle. A claimant may not be assigned separate ratings under both Diagnostic Codes 5260 or 5271 and 5262 as this would constitute impermissible pyramiding. These diagnostic codes overlap with Diagnostic Code 5262 in rating based on the symptoms of painful motion or limitation of motion, which is contemplated by Diagnostic Code 5262's rating criteria for knee or ankle disability, which is broad enough to encompass all symptoms, including pain, limitation of motion, stiffness, and instability. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also 38 C.F.R. § 4.14. Additionally, the Board notes that a compensable rating under the older version of this rating criteria requires findings of malunion or nonunion of the tibia or fibula. In this case, repeated examinations of the appellant's left lower extremity have found no such symptoms. The Board has also considered whether a compensable rating under the updated rating criteria is warranted. To that end, the Board notes that even if there were malunion of the tibia and fibula, this would be rated under the appropriate Diagnostic Code corresponding to the specific functional impact either on the knee or the ankle. As noted, separate ratings have already been given under several of these different diagnostic codes. Further, the Board notes that the appellant does not have a diagnosis of medial tibial stress syndrome or shin splints which required treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment. The appellant has not reported symptoms similar to these and symptoms similar to these have not been noted in his treatment records. In addition, he has not indicated that he has a diagnosis of medial tibial stress syndrome or shin splints, and one has not been diagnosed despite several lower extremity VA medical examinations of the lower extremities. In conclusion, the Board finds that the evidence of record persuasively weighs against the appellant's claim for a separate compensable rating for left leg strain with calcaneal spur under Diagnostic Code 5262. As the evidence of record persuasively weighs against the assignment of a compensable rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). 2. Entitlement to an initial 10 percent rating for service-connected chronic sinusitis, but not greater, is granted. 3. Entitlement to a rating greater than 50 percent for chronic sinusitis from February 4, 2020, is denied. The appellant contends that his sinusitis is more disabling than currently rated. At present, the appellant's sinusitis is rated as zero percent from January 24, 2016, as 10 percent disabling from January 7, 2020, and as 50 percent disabling from February 4, 2020. These ratings have been assigned under Diagnostic Code 6513 and are based upon the General Rating Formula for Sinusitis. He is also in receipt of a separate 10 percent rating for rhinitis, a 50 percent rating for obstruction of the pharynx associated with rhinitis, and a noncompensable rating for larynx stenosis associated with rhinitis. The General Rating Formula for Sinusitis calls for a noncompensable rating when the disability is detected by X-ray only. A 10 percent rating is assigned for one or two incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment; or, three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is assigned for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment; or, six or more non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis; or, near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, General Rating Formula for Sinusitis (DC's 6510 through 6514). The rating criteria defines an incapacitating episode of sinusitis as one that requires bed rest and treatment by a physician. Id. The appellant underwent an initial VA examination of his sinusitis in June 2016. At that time, he was noted to experience symptoms including headaches, tenderness, purulent discharge and 5 total episodes of sinusitis a year. However, the examiner noted the appellant only experiencing 2 non-incapacitating episodes in the prior 12 months with no incapacitating episodes (requiring bed rest, treatment by a physician, and a prolonged course of antibiotic treatment). It was noted the appellant had previously had surgery for his sinus issues in 2014, but that surgery was not considered a "radical surgery," and there had been no subsequent surgeries. Here, the Board notes that the disability benefits questionnaire describes "radical surgery" as an "open sinus surgery" with the examiner noting that the appellant's 2014 surgery was a "sinus lift" surgery and was thus considered a different type of surgery that does not meet the "radical surgery" definition. At his February 2019 Board hearing, the appellant reported that he experiences headaches with sinusitis that occur 10 times a year or more, with accompanying nosebleeds 5 to 6 times per year. The appellant did acknowledge that he does get medication outside the VA for his sinus issues, but did not indicate that he receives antibiotic treatment when he has episodes of sinusitis. At an October 2019 VA examination, the appellant reported current symptoms of nasal congestion with discharge, but the examiner failed to note any other symptoms of sinusitis. The examiner also found there were no non-incapacitating or incapacitating episodes of sinusitis in the prior 12 months. At a January 7, 2020 VA examination, the appellant reported symptoms of sinus drainage, sore throats, hoarseness, recurrent upper respiratory infections, sinus congestion, and frontal/maxillary tenderness or pressure. He reported headaches, pain of affected sinus, tenderness of affected sinus, and purulent discharge. The symptoms were not noted to be near constant or constant, but merely episodic. It was noted the appellant had had 6 non-incapacitating episodes in the prior year and no incapacitating episodes in the prior year. The appellant's previous 2014 sinus surgery was noted, and he did not report any additional procedures or surgeries. At a January 10, 2020, VA examination, the appellant was noted as having had no incapacitating or non-incapacitating episodes of sinusitis in the prior 12 months but was noted with symptoms of headache and pain of the affected sinus. His prior sinus surgery was not noted. At an August 2020 VA examination, the appellant reported symptoms of sinus congestion, coughing, sneezing, sore throat, nasal drainage, stuffiness, difficulty breathing, and head and eye aches. He reported receiving antibiotics three times in the prior year, although he does not indicate these were prolonged courses of antibiotics. He did not report being prescribed bedrest by a physician. The appellant indicated he was let go from his job because he would have several episodes a year where he would need to take between 3 and 5 days off when he would have symptoms of sinusitis. Upon examination, he was noted with episodic symptoms of sinusitis with purulent discharge. Despite reporting headaches, pain in the sinus, and tenderness of the area, the examiner did not note these symptoms as associated with the service-connected sinusitis. The examiner noted only 2 non-incapacitating episodes in the prior 12 months with no incapacitating episodes. The examiner also did not note the appellant's previous sinus surgery. A November 2020 VA medical opinion found the appellant did not have any work impairments due to his chronic sinusitis. A January 2021 VA examination of the appellant's sinusitis noted symptoms of sinusitis that were near constant, with a need for antibiotics 4 to 6 times per year but with near constant symptoms in early spring of headaches, pain and tenderness of the affected sinuses, and postnasal drainage. The examiner noted that the appellant had been experiencing 6 or more non-incapacitating episodes per year with no incapacitating episodes per year. The examiner noted that the appellant still had only required one surgery on his sinuses and that he had not developed any osteomyelitis. The examiner opined that the appellant would poorly tolerate outdoor work or work that required exposure to allergens, pollutants, or other triggers for his sinus condition. The examiner noted that indoor work without exposure to those allergens would be non-problematic. A VA medical opinion from November 2021 indicated that the appellant's records show 5 episodes of sinusitis a year and 3 antibiotics in a period of 5 months in 2016. The opining clinician indicated that the August 2020 VA examination was inconsistent with the other evidence of record and did not hold any probative weight. The appellant's VA treatment records show regular treatment for chronic sinusitis. The appellant regularly reported symptoms of congestion, nasal drainage and discharge, sinus pain, and headache. Records from 2014 through 2016 show fewer visits; however, the appellant was recorded as saying that he was not coming in every time he had an incident. Records from 2017 show 6 instances of the appellant seeking treatment for sinusitis symptoms. Notably, at an October 2017 treatment appointment, the appellant indicated that he generally experienced sinusitis 3 to 4 times per year, lasting about 3 days. In September 2020, the appellant submitted a personal statement in which he stated that he had recorded the August 2020 VA examination and that the examiner acknowledged he had incapacitating episodes despite marking that he had none on the examination. The appellant indicated that his VA doctor had signed FMLA letters and paperwork for him to provide to his employer with regards to his time missed for sinus issues, which he described as incapacitating. With this statement, he submitted a copy of the FMLA paperwork his treating VA physician had signed for him to provide his employer. Dated from October 2017, the letter indicated that the appellant was not able to perform the essential functions of his employment 3 to 4 times a year lasting for about 3 days per episode. It does not indicate that the appellant was being prescribed bed rest or that he was being prescribed prolonged antibiotic treatment with these episodes. In December 2020, VA received a portion of the appellant's treatment records, which were undated, which indicated that he experienced chronic sinus issues 4 to 5 times per year. Based on a review of all the evidence of record, the Board finds that the appellant's symptoms warrant a 10 percent rating for the entire period prior to February 2, 2020. The approximate balance of the evidence shows that, on average during the time from when the appellant filed his initial claim for service connection and February 2020, he regularly experienced somewhere between 3 and 6 non-incapacitating episodes of sinusitis a year during that time, with symptoms of headache, sinus congestion, post-nasal drip, and tenderness and pain of the sinus, along with other symptoms of coughing and sore throat. While the records show some of these years having more instances of sinusitis than others, the Board has relied on the appellant's own reports in October 2017 of having between 3 and 4 episodes per year lasting for about 3 days in making this determination. The most probative weight was given to this statement which he made to his treating clinician at a time when he was seeking assistance in getting FMLA documents approved to submit to his employer. The Board has considered the appellant's contentions that these incidences should be considered incapacitating rather than non-incapacitating episodes, as noted in his September 2020 letter. The result of this would be to require fewer episodes of sinusitis to trigger a higher rating. However, the appellant's apparent definition of incapacitating does not align with VA's. In these cases, VA defines an "incapacitating episode" as one which requires bedrest and treatment by a physician. While he was provided with an excusal letter from work, there is no indication that he was prescribed bed rest as treatment for the disability. The significance in the distinction between incapacitating and non-incapacitating episodes lies in how many episodes of sinusitis a claimant would need to experience in a year to trigger the next higher rating. Fewer incapacitating episodes are needed to reach each successive rating in the rating criteria. However, in this case, the distinction is not necessarily controlling and would not make a difference. While fewer incapacitating episodes are necessary to reach a higher rating level, in order to apply the higher rating, the rating criteria also requires that each incapacitating episode be accompanied by a prolonged (lasting 4 to 6 weeks) antibiotic treatment protocol. In this case, there is no evidence, and the appellant has not contended, that he has ever been placed on a prolonged course of antibiotic treatment for this disability. Without this type of prolonged antibiotic treatment, even if episodes of sinusitis do meet the definition of "incapacitating," requiring bedrest and treatment by a physician, the fewer number of incapacitating episodes would not warrant a higher rating. Ultimately, the approximate balance of the evidence weighs against finding that, prior to February 2020, the appellant's disability had manifested with three or more incapacitating episodes with prolonged antibiotic treatment or more than 6 non-incapacitating episodes with accompanying symptoms over a 12-month period. As such, the Board concludes that the evidence is persuasively against finding that a higher 30 percent rating is warranted for the period prior to February 2020. For the period from February 4, 2020, the Board notes that the appellant is already receiving the maximum schedular disability rating for his sinusitis during this period. As this is a claim for an increased rating, the Board has considered whether the issue of entitlement to a total disability rating due to individual unemployability has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for TDIU, either expressly raised by the appellant or raised by the record, is not a separate "claim" for benefits, but rather, is part and parcel of the claim for an increased rating). While the evidence shows the appellant had difficulty being available for work, the evidence is persuasively against finding the appellant is unable to obtain or retain substantially gainful employment. The appellant had been employed as a letter carrier by the United States Postal Service (USPS). The record shows that in that capacity, he regularly walked a mail delivery route that required him to spend most of his day outdoors, exposed to the types of allergens that trigger his episodes of chronic sinusitis. The VA medical opinions of record indicate little occupational impairment directly as a result of the appellant's sinusitis. The one that showed the highest level of occupational impairment indicated that the appellant would not have issues maintaining employment that did not require him to work outside when solely considering the impacts of his chronic sinusitis. The Board affords this opinion significant probative weight as it focuses only on the effects of the appellant's sinusitis. While it acknowledges that the appellant has lost work time and his job being outdoors due at least in part to his symptoms of sinusitis and needing to take time off, it notes that he is fully capable of other types of employment that would not put him in the way of aggravating triggers as frequently. The Board affords significant weight in making its findings to the fact that the appellant did not raise his sinusitis in his application for Social Security Disability benefits. Multiple nonservice-connected disabilities, in combination with a service-connected psychiatric disability, were the basis for his claim, and the Social Security Administration's finding that the appellant was disabled from March 2018. The Board further notes that TDIU is already in effect based upon the combined impairment caused by service-connected disabilities, from February 4, 2020. While the Board has considered the appellant's statements that he did lose his job at USPS due to his episodes of chronic sinusitis and the time it required him to miss, the Board finds that, taken in conjunction with the other evidence of record, it does not provide sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities prior to February 4, 2020. Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The appellant contends that his obstructive sleep apnea is at least as likely as not caused by, or aggravated beyond its normal progression by, his service-connected sinusitis and rhinitis. He asserts that he develops blockages and congestion at night which worsen his sleep apnea. Alternatively, he has asserted that his obesity is the cause of his sleep apnea and that his obesity is due to his service-connected lower extremity disabilities. See January 2016 Notice of Disagreement. While the Board regrets further delay, an addendum opinion is necessary prior to adjudicating this issue. In a September 2020 VA contracted medical opinion, the opining clinician indicated that the appellant's sleep apnea was more likely than not caused by his obesity. While the examiner acknowledged that sinusitis and rhinitis were possible causes of sleep apnea in general, the examiner stated that, with such significant obesity as in the appellant's case, it was more likely that obesity was the cause of the sleep apnea. Additionally, the examiner noted that there was no evidence that the baseline level of severity of the appellant's sleep apnea had worsened since its diagnosis, such that the question of whether it was aggravated beyond its normal progression could be answered. While this opinion did offer a reasonable and logical rationale for its conclusions, the Board notes that it failed to address the raised issue of whether obesity was an intermediary step between the appellant's sleep apnea and his other orthopedic disabilities. See VAOPGCPREC 1-2017. The Board notes this contention was raised in the appellant's January 2016 Notice of Disagreement. As such, the Board finds that remand for an addendum medical opinion is necessary so that an opinion can be obtained which addresses this contention raised by the appellant. In addition, the Board notes that the appellant submitted some medical journal evidence in December 2021 which indicates a strong connection between sinusitis and rhinitis and the development and symptoms of sleep apnea. On remand, the examiner should address that evidence and opine as to whether it impacts the finding that obesity is a more likely cause of the appellant's sleep apnea than his sinusitis and rhinitis. 2. Entitlement to service connection for a right ankle disability is remanded. The appellant contends that his right ankle disability is related to an injury during his period of active service. Alternatively, the record has raised the question of whether the appellant's right ankle disability is the result of his other service-connected lower body disabilities, by way of his obesity as an intermediary step. See December 2020 VA medical opinion and January 2016 Notice of Disagreement. While the Board regrets further delay prior to adjudicating this issue, the Board finds that remand is necessary in this case to obtain an addendum opinion prior to issuing a decision. In a December 2020 VA medical opinion, the opining clinician indicated that the appellant's right ankle issue was more likely due to his obesity and overuse as a postal employee than due to any incident in service. The examiner noted that the disabilities in the appellant's right ankle, which were diagnosed during the examination, were potentially caused by a range of factors to include activity levels, certain types of activities, and foot type. In making this determination, the examiner noted the lack of any report of an ankle injury during the appellant's period of active service or during a period of ADT or IDT, and the lack of treatment for the issue before a significant, documented ankle injury many years after the appellant's active service and while he was employed as a letter carrier for the United States Postal Service. Despite this opinion, and accompanying rationale, which itself is scattered over several different medical opinions in the appellant's claims folder, the Board notes that the question of secondary service connection, by way of obesity as an intermediary step, is raised by, but not addressed by, the medical opinion. As noted above, the appellant has previously contended that his obesity is due to his lower extremity disabilities. This does not mean direct causation, but rather that the obesity has developed and worsened because the appellant has been unable to exercise due to his orthopedic disabilities. In finding that the appellant's right ankle injury is at least in part due to his obesity, the December 2020 medical opinion raised the question of whether the right ankle disability is related to the other orthopedic injuries, by way of obesity as an intermediary step. As this contention was not addressed, remand is necessary to obtain an addendum opinion which addresses this contention. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the appellant's obstructive sleep apnea. The examiner should answer the following: Is sleep apnea approximately as likely as not proximately due to the appellant's service-connected orthopedic injuries, by way of obesity as an intermediary step? Why or why not? For reference, the appellant has at various times contended that his service-connected orthopedic and psychiatric disabilities have contributed to his obesity by preventing him from losing weight and maintaining a healthier lifestyle. In answering the above question, the examiner should consider this contention. A previous VA examination has indicated the appellant's sleep apnea is the most likely cause of his sleep apnea. As such, the examiner here should focus on not just the root causes of that obesity, but also disabilities that would limit the appellant's ability to reverse his obesity. Is sleep apnea approximately as likely as not proximately due to the appellant's service-connected sinusitis and rhinitis? Why or why not? The examiner should consider the medical research submitted by the appellant in December 2021 which indicates that about 80 percent of Obstructive Sleep Apnea patients have pathological rhino-sinus conditions. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the appellant's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the appellant'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 appellant's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the appellant's reports generally inconsistent with medical knowledge or implausible? 2. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the appellant's right ankle disability. The examiner should answer the following: Is the current right ankle disability approximately as likely as not proximately due to the appellant's service-connected orthopedic injuries, to include as by way of obesity as an intermediary step? Why or why not? The Board notes the appellant is currently service-connected for several lower extremity disabilities, all of which are considered to be secondary to his left leg strain with calcaneal spur. The appellant's right knee disability was previously opined to be due to this left leg strain and the resulting favoring of his right leg, leading to overuse. Additionally, the Board notes that in reading the opinions previously offered for the right ankle, the appellant's obesity was mentioned as a contributing factor. These opinions though did not consider whether the appellant's obesity is caused, aggravated, or continuing due to the appellant's orthopedic and psychiatric disabilities. To that end, this opinion should address obesity as an intermediary step in the chain of causation between the appellant's other orthopedic injuries and his current right ankle disability. (Continued on the next page) Provide a rationale to support the opinion(s). In providing the requested opinion, consider the appellant's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the appellant'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 appellant's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the appellant's reports generally inconsistent with medical knowledge or implausible? K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.