Citation Nr: 1809017 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 08-10 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES Entitlement to service connection for a sleep disorder, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active service in the United States Army from March 1996 to February 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This matter was remanded in April 2012, April 2013, and August 2016 for additional development. In an October 2016 decision, the Appeals Management Center granted aid and attendance benefits for the Veteran's former spouse (T.M.); therefore, that issue is no longer for appellate consideration. January 2017 correspondence from the Records Management Center (RMC) reflects that it is handling a Privacy Act request dated January 9, 2017. However, the Board finds that there is no outstanding request for records by the Veteran; thus, the Board need not stay his appeal pending further action by the RMC. The Veteran's January 8, 2017 VA Form 21-4138 reflects that he was requesting a copy of his "date-stamped VA Claim and or documents that I have submitted today" to VA. Underneath this request is his signature indicating that he had received the date-stamped copy as requested. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The most recent supplemental statement of the case (SSOC) on the issue of service connection for a sleep disability is from November 2016. Subsequent to the SSOCs, the Veteran submitted additional evidence without a waiver of RO consideration (see January 2008 Additional Evidence Response Form). The Board finds that as the issue is being remanded for a clinical opinion, the RO may consider the newly received evidence at that time. The Veteran separated from service in 1999. He was diagnosed with sleep apnea in 2007. The claims file includes evidence that it is more likely than not that the Veteran's current sleep apnea is associated with obesity and aging as opposed to service or service-connected disability (e.g. May 2013 and September 2016 VA opinions). The Veteran contends that his service-connected back disability prevented him from adequately exercising, which resulted in weight gain which in turn has resulted in sleep apnea (see February 2014 typed statement). The Board has considered the correspondence from J.S. dated in January 2017; although she indicated that she was a doctor "Dr.", she has not been shown to be a medical doctor. Moreover, her assessment that the Veteran gained more than 150 pounds since he first joined the military, is inconsistent with the medical evidence of record which reflects a weight gain of approximately 80 lbs. between entrance into service in 1996 and November 2016. Based on her incorrect assessment of the facts and, more importantly, the lack of evidence reflecting that she has the requisite medical training, her January 2017 correspondence does not constitute competent medical evidence. The Veteran and lay statement providers indicate that the Veteran was discharged from the service, in part, due to symptoms of sleep apnea and other medical conditions. The Veteran's military personnel records reflect that he was discharged under AR 635-200, Chapter 14 due to a pattern of misconduct "specifically for failure to repair (August 1997), breaking restriction (September 1997), and for writing bad checks [December 1997]." Records also note he did not complete missions (July 1997), drove with an expired inspection sticker (November 1997), and failed to appear in civil court. Thus, at this time, the statements that the Veteran was discharged in part due to sleep apnea lack credibility, and need not be considered by the VA clinician in rendering an opinion. The Board finds that a clinician's opinion which discusses whether it is as likely as not that the Veteran's service-connected back disability has prevented him from appropriate exercise and/or diet, and if so, whether this has caused significant weight gain which is as likely as not the cause or aggravation of sleep apnea, may be useful. If it is as likely as not that that there has been aggravation, the clinician should state the level of aggravation. The clinician should consider, if pertinent, the following: a.) the Veteran's weight gain as noted in the clinical records (to include that he weighed 241 lbs. in 2005 when he was found not to have sleep apnea, and has, at times, weighed less than that while diagnosed with sleep apnea (i.e. 235 lbs. in 2011, 233 lbs. in 2014; b) a February 2006 VA record which reflects that the polysomnogram was negative for a sleep disordered breathing; c.) that the Veteran was a full time student in 2006 and was employed from 2007 through 2014 in a manual labor job (medical equipment repairman); d.) the 2011 Minimally Invasive Spine Institute pre and post-surgery records detailing activity potential; e.) that the Veteran was not interested in MOVE! (see November 2016 VA clinical record); f.) treatment and examination records for the Veteran's back; and g.) types of exercise which the Veteran's back disability did, or did not, prevent (e.g. swimming, water aerobics, recumbent bicycle). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA and non-VA medical records. 2. Obtain a clinical opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's service-connected back disability has prevented him from appropriate exercise and/or diet, and if so, whether this has caused significant weight gain which as likely as not caused or aggravated sleep apnea. If it is as likely as not that that there has been aggravation of the Veteran's sleep apnea due to weight gain caused by an inability to exercise due to a service-connected back disability, the clinician should state the level of aggravation of the sleep apnea (i.e. the level of worsening). The clinician should consider with regard to the Veteran's physical abilities, if pertinent, the following: a.) the Veteran's weight as noted in the clinical records (to include that he weighed 241 lbs. in 2005 when he was found not to have sleep apnea, and has, at times, weighed less than that while diagnosed with sleep apnea (i.e. 235 lbs. in 2011, 233 lbs. in 2014); b) a February 2006 VA record which reflects that the polysomnogram was negative for a sleep disordered breathing; c.) that the Veteran was a full time student in 2006 and was employed from 2007 through 2014 in a manual labor job (medical equipment repairman); d.) the 2011 Minimally Invasive Spine Institute pre and post-surgery records detailing the Veteran's activity potential; e.) that the Veteran was not interested in MOVE! (see November 2016 VA clinical record); f.) treatment and examination records for the back; and g.) types of exercise which the Veteran's back disability did, or did not, prevent (e.g. swimming, water aerobics, recumbent bicycle). The clinician should provide an adequate rationale for his/her opinion. 2. Following completion of the above, readjudicate the issue on appeal to include consideration of evidence added to the record since issuance of the most recent SSOC in November 2016. If the benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ M.C. GRAHAM 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).