Citation Nr: 20034497 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 19-32 528 DATE: May 18, 2020 REMANDED Entitlement to service connection for sleep apnea as secondary to the service-connected disability of chronic obstructive pulmonary disease (COPD) with restrictive airway disease is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Marine Corps from January 2011 to January 2015. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Sleep Apnea as secondary to (COPD) with restrictive airway The Veteran is seeking service connection for his sleep apnea disability, to include as secondary to his service-connected COPD. Specifically, the Veteran contends that his sleep apnea has been exacerbated by his COPD, or alternatively, that his deviated septum condition for which he has not been service connected, has also contributed to his current sleep apnea diagnosis. See, February 2020 Congressional Inquiry Letter Request. The Board notes that the Veteran attended a VA afforded examination for his sleep apnea claim in November 2018, during which the examiner opined that the Veteran’s sleep apnea condition was less likely than not secondary to his service-connected COPD; instead, more likely due to the Veteran's significant weight gain (obesity) after service, which the examiner cited as the most significant risk factor for sleep apnea. The Board finds this opinion inadequate for several reasons. First, the examiner simultaneously acknowledged that the Veteran’s COPD is also a risk factor for sleep apnea, noting that COPD is “a relatively mild risk factor and of course may be contributing but is less likely than not a major contributor in this veteran.” However, the examiner failed to provide medical data or scientific literature in support of his conclusion and why a causal relationship between the Veteran’s COPD and sleep apnea has not been demonstrated. Further, although the examiner found obesity as a cause of the Veteran’s sleep apnea condition, he failed to explain why it is the most significant contributing risk factor at the exclusion of any other noted risk factors. He also then failed to adequately consider the Veteran’s assertions that the restrictive nature of his COPD has contributed to his weight gain, which has in turn contributed to his sleep apnea. See, November 2019 VA 9 Appeal to Board of Veterans’ Appeals. The examiner also did not address whether the Veteran’s sleep apnea could have directly resulted from the Veteran’s active military service, especially in light of the Veteran’s January 2014 in-service treatment for nasal passage blockage. See, Service Treatment Record (STR). Thus, for the above stated reasons, a remand is required to obtain a more complete medical opinion as to the nature and etiology of the Veteran’s sleep apnea disability. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion without supporting clinical data or other rationale does not provide the required degree of medical certainty). The matters are REMANDED for the following action: 1. Provide the Veteran with the opportunity to submit additional information and/or documentation in support of his sleep apnea claim, such as “buddy” statements from former fellow service members evidencing any sleep apnea related (breathing/snoring) issues during service and/or from any competent person who has personal knowledge of the Veteran experiencing sleep apnea related issues since service. 2. Thereafter, schedule the Veteran for a new examination by an appropriate examiner (other than the November 2018 VA examiner) to determine the nature and etiology of his obstructive sleep apnea. The examiner should review the entire claims file, including a copy of this remand order, and must specify in the examination report that these records have been reviewed. The examiner should identify all manifestations of the Veteran’s claimed sleep apnea, and then provide the following responses: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s obstructive sleep apnea was incurred in service, or is otherwise related to service? b) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea was caused OR aggravated (beyond its natural progression) by his service-connected COPD? For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount (quantified if possible) of aggravation beyond the baseline symptomatology by the aggravation. The opinion should also address whether the Veteran's COPD caused on contributed to his obesity, which then caused or contributed to his sleep apnea. In this regard, it should be noted that although obesity itself cannot be service connected, it can be used as a "stepping-stone" between a service-connected disability and another disability, where there is evidence that the service-connected disability caused the Veteran’s obesity. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. The examiner is also directed to specifically address the Veteran’s February 2020 Congressional Inquiry Request Letter wherein the Veteran described in detail the circumstances of his military service that he believed has resulted or at least contributed to his sleep apnea diagnosis. The examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide an opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.B. King, 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.