Citation Nr: 20021644 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 11-24 147 DATE: March 26, 2020 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to dysthymic disorder, is remanded. Entitlement to service connection for colorectal cancer is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1970 to April 1989. With respect to the issue of service connection for colorectal cancer, in September 2017, the Board remanded this issue to afford the Veteran a VA examination. Subsequently, the Board denied this matter in a February 2019 decision. The Veteran appealed the case to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), and remanded the appeal to the Board for action consistent with the terms of the JMPR. 1. Entitlement to service connection for sleep apnea is remanded. The Veteran asserts that his sleep apnea symptoms began during service, although he was not diagnosed until October 2014. In support of his claim, he submitted a statement from a fellow service member, which stated that he witnessed the Veteran snoring heavily. A VA opinion was conducted in January 2018. The examiner found that the Veteran’s sleep apnea was not due to service, to include sleep disturbances documented in service treatment records. Although he did not specifically discuss the Veteran, he rationalized that obesity was the best documented risk of sleep apnea. He also indicated that there was no scientific evidence supporting the notion that PTSD caused sleep apnea. However, as the examiner did not address the lay evidence of record concerning the symptoms in service, or specifically discuss the Veteran in his rationale, this opinion is inadequate. Moreover, the examiner did not offer an opinion as to whether the Veteran’s psychiatric disorder aggravated his sleep apnea. Accordingly, the Veteran must be afforded a new VA examination with opinion. Additionally, the Board observes that the VA examiner indicated that obesity has played a role in the Veteran’s development of sleep apnea. The Board notes that VA’s Office of General Counsel has held that a claim for secondary service connection may rest on obesity as an intermediary between the claimed secondary disability and the service-connected primary disability. See VAOPGCPREC 1-2017. As such, the Board concludes an opinion is also needed addressing whether the Veteran’s obesity is caused or aggravated by his service-connected disabilities and/or medications prescribed for such. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.310; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Entitlement to service connection for colorectal cancer is remanded. The JMPR found that the January 2018 VA examination did not provide an opinion as to whether colorectal cancer manifested within one year of active duty; and provided an inadequate rationale as the examiner did not comment on the various exposures indicated in the prior remand instructions. As such, the JMPR found that the Veteran should be afforded another VA examination to substantially comply with the prior Board remand instructions. Thus, in order to comply with the JMPR, this matter must be returned to the AOJ. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate medical professional regarding the nature and etiology of his sleep apnea. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must discuss the documented sleep disturbances in service as well as the lay evidence of snoring. If the examiner finds that the Veteran’s sleep apnea was not incurred during active service, the examiner must opine whether it is at least as likely as not (1) proximately due to service-connected dysthymic disorder, or (2) aggravated (any incremental increase, even transient) by service-connected dysthymic disorder. The examiner must also opine whether it is at least as likely as not that the Veteran’s obesity is caused by or related to any of the Veteran’s service-connected disabilities and/or medications prescribed for such. If so, further state whether the obesity that was the result of any service-connected disability(ies) was a substantial factor in causing or aggravating his sleep apnea. 2. Schedule the Veteran for an examination by an appropriate clinician for the purpose of determining whether the Veteran's colorectal cancer is related to his military service. Access to the claims file must be made available to the examiner for review in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Based on his/her review of the case, the examiner is specifically requested to offer an opinion as to whether such disorder had its onset during active duty, within one year of active duty, or was caused or aggravated by the Veteran's military service. In this regard, the examiner is asked to comment on the Veteran's service treatment records, to include a notation of irritable bowel syndrome. The examiner is also asked to comment on multiple lay statements in the Veteran claims file indicating possible exposure to various toxins, including trichloroethylene, zinc, mercury, lead, lubricating and fuel oils, and asbestos. In offering any opinion, the examiner must consider the Veteran's lay statements regarding the incurrence of his claimed disorders and the continuity of symptomatology. A complete rationale must be provided. A. ZENZANO Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.