Citation Nr: 21002471 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-13 355 DATE: January 13, 2021 REMANDED Service connection for sleep apnea, to include as secondary to a service-connected disability.   REASONS FOR REMAND The Veteran served on active duty from September 1964 to June 1974. He had additional service in the Naval Reserve with various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). The case is on appeal from a February 2014 rating decision. In May 2016, the Veteran testified at a Board hearing on this issue before the undersigned Veterans Law Judge. The claim for sleep apnea was previously before the Board in August 2016, July 2017, and September 2019. In August 2016, the Board remanded the claim for a VA examination, and in July 2017 and September 2019, the claim was remanded for addendum medical opinions. The appeals of other issues will be decided in a separate, future Board decision, when in order. Service connection for sleep apnea, to include as secondary to a service-connected disability. The Veteran seeks service connection for sleep apnea, either directly related to his military service, or secondarily due to a service-connected disability. Service treatment records (STRs) are silent as to complaints or symptoms related to a sleep apnea disorder. However, in a Naval Reserve physical examination questionnaire in October 1988, he checked that he occasionally experiences insomnia and morning tiredness. It is also noted in a January 1999 medical treatment record a possible history of sleep apnea. At the time of his July 2012 diagnosis, the physician noted the disorder was discovered after the Veteran fell asleep at the wheel, and that a similar experience occurred “many years ago.” The doctor also noted that his sleep apnea may be secondary to obesity. The Veteran was initially afforded a VA examination in September 2016. The examiner confirmed a diagnosis of obstructive sleep apnea (OSA), but opined that it was less likely than not due to service. As rationale, the examiner stated that “[b]ased on what is medically known about sleep apnea, it is less likely than not (in fact, it is unlikely) that sleep apnea diagnosed in 2012 began or was otherwise caused by . . . service 4 decades earlier.” In its July 2017 decision, the Board found that the September 2016 opinion was not wholly adequate because it “did not explain what was “medically known” about sleep apnea, the relevance of the Veteran’s 2012 diagnosis in light of the fact that Veteran left service in 1974, or adequately address the Veteran’s competent statements of sleepiness in service.” Thus, the claim for sleep apnea was remanded for an addendum medical opinion for clarification and to remedy the discrepancy. In October 2017, the same examiner provided the requested medical opinion addendum. She again opined that the Veteran’s sleep apnea less likely than not had its onset, or is otherwise related, to the Veteran’s period of service. The examiner provided the rationale that there was no indication of sleep apnea in his STRs from 1964 to 1974; that OSA is a type of apnea that occurs when throat muscles intermittently relax and block the airway during sleep, and that the throat is narrowed and air exchange is limited due to his anatomy and obesity. However, the examiner did not specifically address the Veteran’s lay statements regarding onset and continuous symptoms of sleep apnea since service. In September 2019, the Board decision remanded the claim for another medical opinion, specifically requesting that the claims file be reviewed by a qualified medical professional “who has not previously provided an opinion for the case.” Unfortunately, a new addendum medical opinion was obtained in November 2019, but again from the same September 2016 and October 2017 VA examiner. Accordingly, there was not substantial compliance with the Board’s remand directives, and another addendum opinion is warranted. See Stegall v. West, 11 Vet. App. 268 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). The Board also observes that the Veteran submitted correspondence in July 2020 in response to the June 2020 supplemental statement of the case (SSOC) summarizing the November 2019 medical opinion. He asserts that the prior VA examiner has not allowed his spouse, who could provide observations as to his sleep apnea, into the examination room. He also argues that his weight gain (from which the examiner attributes his OSA) started in active service, and might be why his sleep apnea began prior to the time of his discharge. STRs confirm the Veteran experienced weight issues and obesity during his active service. VA’s Office of General Counsel (OGC) issued a precedential opinion on how the issue of obesity is to be assessed. One of the primary holdings of the opinion is that obesity is not a disability for purposes of VA benefits; hence, it cannot be the subject of service connection. VAOPGCPREC No. 1-2017 (Jan. 6, 2017); see also Marcelino v. Shulkin, 29 Vet. App. 155 (2018). OGC recognized, however, that obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). Thus, the Board finds that another VA examination and medical opinion is also warranted as to whether the Veteran’s obesity is a substantial factor for sleep apnea, to include under the criteria noted by OGC for obesity, and what is the underlying substantial factor for the cause of any obesity. In light of the remand, updated VA treatment records should be obtained The matters are REMANDED for the following action: 1. Obtain updated VA treatment records since June 2020. 2. Notify the Veteran that he may submit additional lay statements from himself, his spouse, and/or other individuals with first-hand knowledge of his sleep apnea. 3. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate clinician, who has not previously provided an opinion for the case, to determine the nature and etiology of the Veteran’s sleep apnea. The record, including a complete copy of this remand, should be made available for review. The examiner should then opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea: (a) had its onset during, or is otherwise related to, active service, or (b) is caused or aggravated by a service-connected disability, to include but not limited to, his CAD, hypertension, and/or diabetes mellitus, or (c) was caused by, or aggravated by obesity, as an “intermediate step,” due to a service-connected disability, to include but not limited to, CAD, hypertension, diabetes mellitus, or musculoskeletal-related disabilities. Aggravation is an increase in severity beyond the natural progress of the disease or temporary flare-up. The examiner is asked to specifically consider and discuss: (1) the lay statements of the Veteran (or other individuals with first-hand knowledge) regarding onset and continuous symptoms of his sleep apnea (including sleepiness), both during and after service; (2) STRs indicating weight gain and obesity during active service, and his occasional insomnia/morning tiredness as a reservist; and (4) medical treatment records indicating possible sleep apnea as early as January 1999, and the July 2012 discovery of sleep apnea with reference to earlier periods of falling asleep while driving. If the absence of treatment during or after service plays a role in the formation of the opinion, the medical importance of this should be explained. The examiner should provide rationale for all opinions expressed, including by citing to the record. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morford, 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.