Citation Nr: 22015016 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 16-44 416 DATE: March 16, 2022 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. Entitlement to service connection for headaches is granted. Entitlement to service connection for right ankle fracture residuals is granted. REMANDED Entitlement to service connection for a left shoulder condition is remanded. Entitlement to service connection for a right shoulder condition is remanded. FINDINGS OF FACT 1. The Veteran's OSA is etiologically related to his service-connected acquired psychiatric disorder. 2. The Veteran's headaches are etiologically related to his service-connected acquired psychiatric disorder and tinnitus. 3. The Veteran's right ankle fracture residuals are etiologically related to active service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for OSA have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria to establish service connection for headaches have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria to establish service connection for right ankle fracture residuals have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2004 to December 2004, January 2008 to June 2008, and September 2010 to March 2011. The Veteran appealed November 2014 and August 2015 rating decisions by the Agency of Original Jurisdiction (AOJ). In November 2018, the Board of Veterans' Appeals (Board) remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives regarding OSA, headaches, and a right ankle condition. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the November 2018 Board decision also remanded the issue of service connection for an acquired psychiatric disorder. Service connection was granted for an acquired psychiatric disorder in a September 2020 rating decision. The issue of a higher rating for the Veteran's acquired psychiatric disorder is on appeal and will be addressed in a separate Board decision under the Appeals Modernization Act (AMA). See June 2021 VA Form 10182. A veteran is entitled to Department of Veteran Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. OSA The Veteran is diagnosed with OSA. See August 2015 examination report. The Veteran is also service connected for an acquired psychiatric disorder, diagnosed as an anxiety disorder. As to nexus, Dr. H.S.'s January 2017 DBQ noted that individuals with psychological impairments are likely to develop sleep-disordered breathing. Therefore, Dr. H.S. found the Veteran's sleep apnea is more likely than not caused by his anxiety. The Board finds Dr. H.S.'s opinion probative as he provided thorough rationale. The Board finds that there is persuasive evidence of record establishing a link between the Veteran's OSA and his service-connected acquired psychiatric disorder. Accordingly, the Board finds that a grant of service connection is warranted for OSA. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Headaches The Veteran is diagnosed with migraine headaches. See August 2019 examination report. The Veteran is service connected for tinnitus and an acquired psychiatric disorder, diagnosed as an anxiety disorder. As to nexus, Dr. H.S.'s January 2017 DBQ noted that anxiety and tinnitus are well documented as positive cause and effect correlations in the development of migraines. Therefore, Dr. H.S. found the Veteran's headaches are more likely than not caused by the Veteran's anxiety and tinnitus. The Board finds Dr. H.S.'s opinion probative as he provided thorough rationale. The Board finds that there is persuasive evidence of record establishing a link between the Veteran's headaches and his service-connected tinnitus and acquired psychiatric disorder. Accordingly, the Board finds that a grant of service connection is warranted for headaches. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Right Ankle The November 2018 Board decision raised the issue of whether the Veteran's right ankle condition existed prior to his last period of active service. The Veteran's service treatment records (STRs), received June 16, 2015, included a pre-deployment health assessment dated September 19, 2010. The Board construes this pre-deployment health assessment as the Veteran's entrance examination for his last period of active service. The health assessment did not note any ankle conditions. Therefore, the Board finds the Veteran sound as to his right ankle condition for his last period of active service. The Veteran is diagnosed with a right ankle fracture. See August 2019 examination report. October 2010 STRs noted right foot and ankle issues. January 2012 STRs noted an October 2010 right ankle fracture. The August 2019 opinion found the Veteran's right ankle condition is at least as likely as not related to service. The opinion noted there was not issues prior to service and the onset was during service. The Board finds the August 2019 opinion probative. The Veteran's post-deployment health assessment, dated February 24, 2011, noted stiff or painful joints and numbness or tingling in hands or feet. The Board finds that there is persuasive evidence of record establishing a link between the Veteran's right ankle condition and service. Accordingly, the Board finds that a grant of service connection is warranted for a right ankle fracture. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The November 2018 Board decision noted symptoms of withdrawal from psychiatric medications which led to the Veteran's fall and his shoulder injuries. See December 2012 treatment records. The Veteran is service connected for an acquired psychiatric disorder. Therefore, secondary service connection has been raised. Secondary causation opinions were rendered in June 2021. The opinions did not find that the Veteran's psychiatric disorder caused the Veteran's shoulder condition. However, the opinions rendered did not give adequate rationale. The opinions noted the Veteran's complaints, the taking of psychiatric medications, and possible medication withdrawal symptoms, to include dizziness, vertigo, headaches, nausea, and confusion. The opinions then noted additional shoulder injuries in 2013, but also highlighted the Veteran had prior shoulder issues in 2012. Overall, the opinion stated without reasoning that the Veteran's shoulder injury did not occur as a result of documented withdrawal symptoms. As such, the Board finds the June 2021 opinions conclusory and inadequate. Additionally, secondary aggravation was not addressed. Therefore, remand is required for new opinions that properly address the Veteran's secondary service connection contentions and provide adequate rationale. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his left and right shoulder conditions that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's left and right shoulder conditions. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician should identify all left and right shoulder disabilities present. Then, the reviewing clinician is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran's left shoulder condition was incurred in, or otherwise related, to his time on active service? Is it at least as likely as not that the Veteran's left shoulder condition was CAUSED by his service-connected acquired psychiatric disorder, to include a fall due to symptoms of withdrawal from medication taken for his acquired psychiatric disorder? Is it at least as likely as not that the Veteran's left shoulder condition was AGGRAVATED by his service-connected acquired psychiatric disorder, to include a fall due to symptoms of withdrawal from medication taken for his acquired psychiatric disorder? Is it at least as likely as not that the Veteran's right shoulder condition was incurred in, or otherwise related, to his time on active service? Is it at least as likely as not that the Veteran's right shoulder condition was CAUSED by his service-connected acquired psychiatric disorder, to include a fall due to symptoms of withdrawal from medication taken for his acquired psychiatric disorder? Is it at least as likely as not that the Veteran's right shoulder condition was AGGRAVATED by his service-connected acquired psychiatric disorder, to include a fall due to symptoms of withdrawal from medication taken for his acquired psychiatric disorder? In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, Associate 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.