Citation Nr: 22016264 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 10-28 150 DATE: March 21, 2022 REMANDED Entitlement to service connection for vertigo, to include as secondary to, or aggravated by service-connected disabilities is remanded. Entitlement to service connection for sleep apnea (SA) to include as secondary to or aggravated by service-connected disabilities is remanded. Entitlement to service connection for a right knee disability, to include patellofemoral syndrome, is remanded. Entitlement to service connection for a left knee disability, to include patellofemoral syndrome, is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, had service from September 1977 to September 1979 and from August 1981 to September 1996, with reserve duty in between. This appeal comes to the Board of Veterans' Appeals (Board) from July 2013 and July 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In July 2021, the Board remanded the Veteran's claims for sleep apnea and vertigo for additional development. The claims have since been returned to the Board for further appellate action. The Board is not satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The left and right knee appeals initially came to the Board of Veterans' Appeals (Board) from a July 2008 rating decision. In January 2021, the Board denied the Veteran's claim. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In October 2021, the Court vacated the Board decision and remanded the Veteran's claims for action consistent with the directives of a joint motion for partial remand (JMPR). The Veteran provided sworn testimony in support of her appeal for sleep apnea, vertigo, left and right knee disabilities during a hearing before the undersigned Veterans Law Judge in May 2018; the hearing transcript has been associated with the file and has been reviewed. 1. Entitlement to service connection for vertigo, to include as secondary to, or aggravated by service-connected disabilities is remanded. The Board remanded the issue of vertigo for further development in July 2021. The instructions to the examiner were given in the form of questions to help the Board determine if the Veteran's contentions about the cause of the calcium crystals that cause her vertigo could be related to service. The Veteran's theory of service connection is that she experienced ear pain during a flight from Alabama to New Mexico while on active duty for training when she had bronchitis or sinusitis infections. She believes the bronchitis or sinusitis infections caused the crystals that cause her vertigo. The November 2021 VA examiner opined that service connection was less likely than not, because the vertigo did not happen until after the Veteran's bronchitis and sinusitis had resolved. He explained that any vertigo resulting from the infections would have resolved with the upper respiratory infection (URI). In response to the November 2021 negative nexus opinion, the Veteran in her February 2022 appellate brief argues that if the original vertigo was due to bronchitis or sinusitis in service, there is a 30 percent chance the vertigo will reoccur within a year, and 50 percent chance it will recur in the person's lifetime based on medical treatise evidence she provided. This Veteran's representative provided links to articles which purportedly suggest that the reason for denying service-connection, the time lapse between URI in service and current vertigo, is not dispositive. Based on the Veteran's medical treatise evidence and theory of service connection, the Board feels a supplemental medical opinion is needed prior to adjudication of this issue. 2. Entitlement to service connection for sleep apnea (SA) to include as secondary to or aggravated by service-connected disabilities is remanded. The Veteran's representative argued in a June 2021 appellate brief that the VA's December 2018 sleep apnea opinion was inadequate, because it only considered and gave an opinion for obstructive sleep apnea. The representative argued that since the Veteran's last sleep study, in 2002, her disability may have changed to central or mixed sleep apnea for which the Veteran's service-connected deviated septum might be responsible. He argued that a new sleep study is needed to verify the Veteran's current sleep apnea type to ensure the opinion given was appropriate. The Board remanded the issue in July 2021 for a new sleep study, but none was done, or the sleep study report was not added to the file. The previous examiner said that the Veteran's deviated septum could not cause obstructive sleep apnea, because the sleep apnea predated the Veteran's deviated septum. In response the Veteran said perhaps her sleep apnea was no longer obstructive type, and perhaps the central or mixed sleep apnea was caused or aggravated by her deviated septum. A sleep apnea VA Disability Benefits Questionnaire (DBQ) was done in November 2021, that noted that obstructive sleep apnea was diagnosed in 2021, but there is no new sleep study on file to support a current diagnosis of obstructive SA, as opposed to central or mixed sleep apnea. Since the RO did not get a new sleep study, the remand orders were not substantially followed and a new remand is needed to get a current sleep apnea type diagnosis, i.e., obstructive, mixed, or central, based on a new sleep study. Additionally, the Veteran in a February 2022 appellate brief cites a study that says depression, anxiety, and PTSD are comorbid with sleep apnea, suggesting her service-connected psychiatric disorders increase the risk of sleep apnea, suggesting causation or aggravation of her sleep apnea by her service-connected psychiatric disabilities and psychiatric medications. The inverse was also suggested in the treatise, that mood disturbance might be a consequence of sleep disturbance. For both reasons listed above, remand is needed to further develop the issue. 3. Entitlement to service connection for a right knee disability, to include patellofemoral syndrome, is remanded. 4. Entitlement to service connection for a left knee disability, to include patellofemoral syndrome, is remanded. The Court remanded the Board's January 2021 decision because the Board directed the Department of Veterans Affairs (VA) examiner to consider appellant's reports of symptomatology, at the May 2018 Board hearing and elsewhere, stating: "In rendering this opinion, the examiner is advised that the Veteran is competent to report her symptoms and history. Such reports must be acknowledged and considered in formulating any opinion." (R. at 1469 (1459-72)). The Board further directed that, "If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner 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." Id. In the April 2019 VA examination report, the examiner, as a rationale for the negative nexus opinion, stated that "There is no documented continuity of disability. There is no documentation of knee strain on service completion physical exam in 1996 or within one year of completing service. Further complaints of knee issues was [sic] not documented until 2003-about seven years after completing military service." (R. at 446 (427-47)). The examiner therefore failed to follow the Board's February 2018 remand instructions regarding Appellant's lay testimony of having a knee condition while in service. Thus, remand is warranted for the Board to provide an examination that is adequate and complies with its February 2018 remand instructions. The matters are REMANDED for the following action: 1. Update the file with any outstanding VA treatment records since November 2021. 2. Schedule the Veteran for an examination by an appropriate clinician for a new polysomnography to determine the nature, etiology, and sleep apnea classification (i.e., obstructive, central or mixed). The examiner must opine on the following: (a.) Whether the Veteran's sleep apnea is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran's reports of snoring while in service, (b.) Whether the Veteran's sleep apnea is at least as likely as not caused by the Veteran's service-connected psychiatric disorders to include major depressive disorder, generalized anxiety and PTSD. The examiner MUST discuss the medical treatise referenced by the Veteran in her February 2022, which suggests a connection between psychiatric disorders and sleep apnea. (c.) Whether the Veteran's sleep apnea is at least as likely as not caused by the Veteran's service-connected deviated septum? (d.) Is it at least as likely as not that the Veteran's hormonal imbalance due to PTSD, major depressive disorder, anxiety, or one of the service-connected disorders themselves, or medication taken to treat psychiatric conditions aggravated the Veteran's sleep apnea beyond its normal progression, and if so, what is the amount of increased disability due to aggravation from hormonal imbalance, service-connected psych disorders, or medications? 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's vertigo. The examiner must opine on the following: (a.) Whether the Veteran's vertigo is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran's reported ear pain in-service during the flight from Ft. McClellan to Kirtland AFB when she had a bronchitis infection. Also discuss the medical treatise presented by the Veteran in her February 2022 appellate brief that suggests, once you have had benign paroxysmal positional vertigo (BPPV), you have a higher chance of it occurring again later in life. (b.) Whether the Veteran's vertigo due to calcium crystal formation is at least as likely as not proximately due to a service-connected disability, to include infection transmission from bronchitis and sinusitis? The examiner MUST discuss the Veteran's medical treatise evidence, which suggests that once a person has vertigo, there is a 30 percent chance it will recur in a year, and a 50 percent chance it will recur at some later point during the person's lifetime. Stated another way, is it medically possible that bronchitis and sinusitis infections cause calcium crystals to form, and if so, is it at least as likely as not the bronchitis or sinusitis infections caused the Veteran's calcium crystal formation responsible for her vertigo? 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's bilateral knee disability. The examiner must opine on the following: (a.) Whether the Veteran's bilateral knee disability is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran's reported two 100-mile marches in service. In rendering this opinion, while this is NOT a formal credibility finding, for purposes of this examination only...the examiner is advised that the Veteran is competent to report her symptoms and history. Such reports MUST be acknowledged and considered in formulating any opinion. (Continued on the next page) If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner 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 must be given for each opinion provided, relating the medical knowledge to the facts in the case explaining how the examiner reached the stated opinion. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Black, Jeffrey W. 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.