Citation Nr: 22016115 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 11-24 046 DATE: March 21, 2022 REMANDED Entitlement to service connection for a heart condition, to include as secondary to service-connected sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from February 1976 to March 1983 with additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Board denied the Veteran's claim for service connection for a heart condition, to include as secondary to service-connected sleep apnea. The Veteran appealed the decision to the United States Court of Appeals of Veterans Claims (Court). In October 2021, the Court granted a Joint Motion for Remand (JMR) for the April 2021 Board decision, remanding the issue on appeal for additional development in accordance with the JMR. Service Connection Heart Condition The JMR found that the Board erred when it failed to provide any explanation beyond a "bare conclusory statement" as to why it found that the Agency of Original Jurisdiction (AOJ) satisfied the July 2020 Board remand. See Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The JMR further found that the Board failed to provide an adequate statement of reasons or bases for its finding that the July 2020 VA medical opinion obtained pursuant to the July 2020 Board remand substantially complied with the Board's specific remand instructions. See Gill v. Shinseki, 26 Vet. App. 386, 391-92 (2003). The Court remanded this issue so the Board could provide appropriate analysis as to whether the July 2020 VA medical opinion substantially complied with the Board's July 2020 remand directives. When this issue was remanded in July 2020 for an addendum VA medical opinion as to the nature and origin of the Veteran's heart condition, the Board directed the examiner to identify all diagnoses associated with the condition, including atrial fibrillation and cardiomegaly. For each diagnosed disability, the examiner was instructed to opine as to whether it was at least as likely as not that such disability is caused or aggravated by the Veteran's service-connected sleep apnea. In providing the requested opinion, the examiner was directed to consider (1) the articles and research the Veteran submitted indicating a correlation between the obstructive sleep apnea (OSA) and heart conditions; (2) the November 2005 private treatment record reflecting a chest x-ray showing borderline cardiomegaly and noting significant OSA with suboptimal CPAP tolerance and compliance; (3) the June 2015 opinion from the Veteran's private treating physician reflecting that the Veteran's sleep apnea contributes to his cardiac conditions (hypertrophy and dilated cardiomyopathy); and (4) the July 2015 private treatment record reflecting that given the worsening in the Veteran's atrial fibrillation, his private physician would consider adding nocturnal oximetry on CPAP for the Veteran's OSA treatment. The July 2020 Board remand also asked the examiner to opine as to whether it was at least as likely as not that the Veteran's service-connected sleep apnea caused if to become obese, and, if so, whether the Veteran's obesity was a substantial factor in causing or aggravating any of his diagnosed heart disabilities. Finally, the remand asked the examiner if the Veteran's diagnosed heart disabilities would not have occurred or worsened but for the obesity caused by his service-connected sleep apnea. Although this issue was remanded so the Board could provide appropriate analysis as to whether the July 2020 VA medical opinion substantially complied with the Board's July 2020 remand directives, upon further review of the July 2020 VA medical opinion, the Board finds that it did not substantially comply with the July 2020 Board remand directives for the reasons to be discussed below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When VA provides an examination, it must ensure that the examination is adequate. Barr V. Nicholson, 21 Vet. App. 303, 311 (2007). To be adequate, a medical report must contain clear conclusions, supporting data, and a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The examination should be based upon consideration of the Veteran's prior medical history and describe the disability and symptoms in sufficient detail to allow the Board to make a fully informed decision. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). While the July 2020 VA examiner noted diagnoses of cardiomegaly of left ventricular hypertrophy (LVH) and left atrial enlargement (LAE) and provided negative nexus opinions as to whether those diagnoses were caused or aggravated by the Veteran's service-connected OSA, the rationales used to support some of the negative nexus opinions are inadequate. Although the examiner listed the common causes of cardiomegaly of LVH, which did not include OSA, according to the Mayo Clinic and peer reviewed medical reference UpToDate, the examiner did not provide an explanation as to why OSA was not a cause. Moreover, in the examiner's rationale used to support their negative opinion concerning whether the Veteran's cardiomegaly of LVH was aggravated by his service-connected OSA, the examiner listed a chronological timeline from when the Veteran was first diagnosed with OSA in 1997 and concentric LVH in 2010 to when he was diagnosed with severe concentric LVH in May 2015. While the timeline indicates that the Veteran's cardiomegaly of LVH was not aggravated by his OSA, it appears to show that the Veteran's OSA and his poor compliance with his CPAP machine may have been a cause of the Veteran's concentric LVH. Additionally, the examiner noted that atrial fibrillation does not worsen, rather it has recurrences. Although the examiner explained that atrial fibrillation recurrence is common and is a natural progression of the disease, recurrences are triggered by certain things, such as fatigue. The examiner did not discuss what they thought triggered that the Veteran's recurrent atrial fibrillation in the opinion they provided. Furthermore, while the July 2020 examiner conceded that the Veteran's obesity was a risk factor for atrial fibrillation, the examiner then opined that it was less likely than not that the Veteran's sleep apnea caused him to become obese. As rationale, the examiner noted some of the factors that contribute to the development of obesity over time, including genetics, lifestyle, and diet. The examiner then noted that the Veteran's weight has remained stable; however, private treatment records indicate that his weight gain is potentially related to his sleep apnea, specifically a treatment record from an otolaryngologist in August 1997 which notes that the Veteran had a 60 pound weight gain in the past several years when his sleep apnea symptoms worsened. See Medical Treatment Record Non-Government Facility, received July 2010. Moreover, although the July 2020 examiner briefly discussed one of the articles submitted by the Veteran in relation to heart failure, which the examiner did not identify as a diagnosis associated with the Veteran's heart condition claim, they did not discuss the articles or any of the other research the Veteran submitted in relation to the two heart condition they diagnosed in their opinion as was instructed by the July 2020 Board remand. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall, 11 Vet. App. at 271. As the medical opinion did not adequately address all the specific questions and evidence required by the Board's July 2020 remand, there was not substantial compliance with the remand directives. Accordingly, in accordance with the October 2021 Court JMR, another remand is necessary to cure this deficiency. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Forward the claims file and a copy of this remand to an appropriate clinician who has not previously provided an opinion for this claim as to the nature and original of the Veteran's heart condition(s). If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. The examiner must address the following: (a.) Identify all diagnoses associated with the Veteran's heart condition claim, including atrial fibrillation and cardiomegaly. (b.) For each diagnosed disability, is it at least as likely as not (50 percent probability or greater) that such is (1) caused by OR aggravated by the Veteran's service-connected sleep apnea? The examiner should address bother the causation and aggravation questions in his or her rationale. In other words, even if the Veteran's service-connected OSA did not cause his claimed conditions, the examiner should still address whether his service-connected OSA could have worsened his claimed conditions. If aggravation is found, the examiner should state whether there was a medically ascertainable increase in disability regardless of permanence. In providing the above-requested opinion, the VA examiner must also consider (1) the articles and research the Veteran submitted indicating a correlation between OSA and heart conditions, to include an article entitled Obstructive Sleep Apnea and Heart Disease, which notes that severe OSA can cause stress on the heart causing the heart to get enlarged and an article entitled Sleep Apnea and Heart Failure, which addresses the pathophysiological effects of OSA on the cardiovascular system, including that OSA could chronically contribute to LVH and ultimately heart failure; (2) the November 2005 private treatment record reflecting a chest x-ray showing borderline cardiomegaly and noting significant OSA with suboptimal CPAP tolerance and compliance; (3) the June 2015 opinion from the Veteran's private treating physician reflecting that the Veteran's sleep apnea contributes to his cardiac conditions (hypertrophy and dilated cardiomyopathy); and (4) the July 2015 private treatment record reflecting that given the worsening in the Veteran's atrial fibrillation, his private physician would consider adding nocturnal oximetry on CPAP for the Veteran's OSA treatment. The examiner is also asked to consider and address the medical records timeline that the July 2021 VA examiner used to show the diagnosis and progress of the Veteran's cardiomegaly of LVH, which indicates that there may be a potential causal link between the Veteran's OSA/his poor compliance of his CPAP machine and his cardiomegaly of LVH. (c.) Is it at least as likely as not (50 percent or greater probability that the Veteran's service-connected sleep apnea caused him to become obese? The examiner is asked to address the Veteran's private medical treatment records which appear to show that the weight gain that led to his obesity was cause by his sleep apnea symptoms, specifically a treatment record from an otolaryngologist in August 1997 which notes that the Veteran had a 60 pound weight gain in the past several years when his sleep apnea symptoms worsened (d.) If so, is the Veteran's obesity a substantial factor in causing or aggravating any of his diagnosed heart disabilities, including atrial fibrillation and cardiomegaly? (e.) Would the Veteran's diagnosed heart disabilities, including atrial fibrillation and cardiomegaly, not have occurred or worsened but for the obesity caused by his service-connected sleep apnea? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, 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). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resorting to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Mariah N. Sim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.