Citation Nr: 1804975 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-01 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service-connected left knee disability and/or hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Taylor, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1988 to November 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A Notice of Disagreement (NOD) was filed in June 2011. A Statement of the Case (SOC) was issued in September 2013. A substantive appeal (VA Form-9) was filed in November 2013. A Supplemental Statement of the Case (SSOC) was issued in November 2016. In January 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). The transcript of the hearing is of record. The Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for further development in April 2016. The appeal is now before the Board for further appellate action. The Veteran's representative submitted an Informal Hearing Presentation (IHP) in September 2017 requesting a Board hearing. The Board observes that the September 2017 IHP did not include additional argument(s) and/or specific issue(s) that warrants a new hearing, as the Veteran testified at a hearing in January 2016 regarding the service connection claim. As such, the Board may proceed with considering the instant appeal without prejudice to the Veteran. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted above, this case was remanded in April 2016 for additional development. On remand, in May 2016, the Veteran was afforded a VA examination. The Veteran was diagnosed with atelectasis and his January 2011 obstructive sleep apnea diagnosis was confirmed. The Veteran reported that he was diagnosed with sleep apnea in 2011 and required the use of a CPAP machine. The Veteran reported that his sleep apnea was possibly related to prescribed medications for his service-connected left knee disability and service-connected hypertension. The VA medical examiner reviewed the claims file and conducted an in-person examination. The examiner opined that it is less likely than not that the Veteran's sleep apnea was incurred in or caused by his service. The rationale was that the Veteran was diagnosed with sleep apnea after discharge from the military in 2011. The examiner explained that lay statements were reviewed and that the Veteran was considered reliable to report details of his claimed condition. However, the examiner opined that the Veteran was not considered competent to make a medical diagnosis, or attribute symptoms to a known medical diagnosis, of his sleep apnea. With regard to the Veteran's claim that his sleep apnea is a result of, or was aggravated by his service-connected left knee disability and/or hypertension, the examiner opined that it is less likely than not that the Veteran's sleep apnea is proximately due to, or aggravated by, the Veteran's service-connected left knee disability, and/or service-connected hypertension, to include medications taken for the conditions. The rationale was that there is no evidence that supports the Veteran's claim that his sleep apnea is related to his service-connected left knee disability, service-connected hypertension, or medications taken for the conditions. The examiner emphasized the fact that medical literature states that obstructive sleep apnea is caused by a blockage of the airway, usually when the soft tissue in the back of the throat collapses during sleep. The examiner explained that sleep apnea is not indicated as a side effect of the medications that the Veteran was taking for his service-connected left knee disability or service-connected hypertension. The Board, however, notes that as acknowledged in the prior Remand, a December 2014 VA treatment record noted the Veteran's long-term use of opioids for his service-connected left knee disability and indicated that sleep apnea is a possible side effect of such treatment. The Board finds that an addendum opinion is necessary to address this evidence. Also, while the Veteran submitted a July 2017 Sleep Apnea Disabilities Benefits Questionnaire, Dr. V.K. suggested that the Veteran's nonservice connected sleep apnea caused his service connected hypertension. See section 3. VA compensation is not available for "reverse" secondary service connection (i.e., a nonservice connected disability causing or aggravating a service connected disability). Also, Dr. V.K. provided no supporting rationale for the opinion provided. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (citing Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.")). Nevertheless, the Board will ask that the addendum opinion address this evidence as well. Accordingly, the case is REMANDED for the following action: 1. Please obtain an addendum opinion to the May 2016 VA examination/July 2016 VA opinion by a physician (M.D.). The file must be made available to the physician and the physician should indicate in the report that the file was reviewed. The physician is asked to address each of the following questions: (a) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's sleep apnea had its onset in service or is related to any in-service disease, event, or injury, to include the Veteran's reports of snoring and apneic episodes in service? In rendering this opinion, the physician should address the lay statements of record from the Veteran, his family members, and his friends regarding the Veteran's sleep and breathing problems in service and since then. (b) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's sleep apnea is proximately due to or caused by the Veteran's service-connected left knee disability and/or hypertension, to include medications taken for these conditions? The physician is asked to consider and discuss a December 2014 VA treatment record that noted the Veteran's long-term use of opioids for his service-connected left knee disability and indicated that sleep apnea is a possible side effect of such treatment. The physician is also asked to consider and discuss the January 2016 and July 2017 Sleep Apnea Disabilities Benefits Questionnaires prepared by Dr. V.K. (c) Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's sleep apnea was aggravated (permanently worsened in severity beyond a natural progression) by the Veteran's service-connected left knee disability and/or hypertension, to include medications taken for these conditions? The physician is asked to consider and discuss a December 2014 VA treatment record that noted the Veteran's long-term use of opioids for his service-connected left knee disability and indicated that sleep apnea is a possible side effect of such treatment. The physician is also asked to consider and discuss the January 2016 and July 2017 Sleep Apnea Disabilities Benefits Questionnaires prepared by Dr. V.K. If the physician determines that the Veteran's sleep apnea is aggravated by his service-connected left knee disability and/or hypertension, the examiner should report the baseline level of severity of the sleep apnea prior to the onset of aggravation. If some of the increase in severity of the sleep apnea is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. (d) Did the Veteran's service-connected left knee disability and/or hypertension, to include medications taken for these conditions cause the Veteran to become obese/gain weight? If so, was the obesity/weight gain as a result of the service-connected left knee disability and/or hypertension, to include medications taken for these conditions, a substantial factor in causing sleep apnea; and, would the sleep apnea had not occurred but for the obesity/weight gain caused by the service-connected left knee disability and/or hypertension, to include medications taken for these conditions? The physician is asked to consider and discuss the January 2016 and July 2017 Sleep Apnea Disabilities Benefits Questionnaires prepared by Dr. V.K. The physician should provide a rationale for each opinion given. 2. Following the completion of the foregoing, the RO/AMC should readjudicate the Veteran's claim. If the claim is denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).