Citation Nr: 21002907 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 18-05 250 DATE: January 19, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a neurological condition, as secondary to service-connected lumber degenerative disc disease (DDD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1985 to November 2005. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This case was previously before the Board in April 2019 which denied a rating in excess of 10 percent for lumbar disc degeneration disease, and remanded entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected major depressive disorder. The Board remanded the issue of OSA a second time in November 2019 for an additional medical examination. The RO issued a September 2020 supplemental statement of case (SSOC) and the case was returned to the Board for adjudication. In April 2020, the U.S Court of Appeals for Veterans Claims (CAVC) vacated the Board’s April 2019 decision, but only in regard to the Board’s determination that the Veteran was not entitled to a separate compensable rating for an associated neurological abnormality, secondary to his lumber degenerative disc disease, and remanded the case. In October 2020, the Board remanded the case on the issue of a neurological abnormality for further development including a VA examination. The RO issued an October 2020 supplemental statement of case (SSOC) and the case was returned to the Board for adjudication. 1. Entitlement to service connection for obstructive sleep apnea Although additional delay is regrettable, an additional remand is necessary to allow the Board to make a fully informed decision regarding the Veteran’s claim. In the November 2019 remand, the Board noted that the Veteran raised the issue that his service-connected disabilities, including his major depression disorder, and the medication prescribed for his service-connected disabilities, caused the Veteran’s obesity, which contributed to the Veteran’s OSA. Although obesity cannot be service connected on a direct basis, it can serve as an intermediate step between a service-connected disability and a current disability that may be connected on a secondary basis under 38 C.F.R. § 3.310(a). The Board directives required the VA examiner to consider the Veteran’s contentions in October 2019 that his service-connected disabilities caused him to gain weight. A complete rationale was required in support of the examiner’s opinions. In a January 2020 VA examination, the examiner opined that the Veteran’s OSA was not caused or aggravated by his service-connected disabilities, nor was it proximately due to or the result of the Veteran’s major depressive disorder. The examiner supported their opinion stating that there was no nexus between OSA and service as the Veteran’s diagnosis was after service. Further, OSA is not cause by depression or obesity, as a person can have depression and be obese and not have OSA. Lastly, they stated that weight gain is a risk factor but not cause of OSA as individuals with ideal body weight can have OSA. The RO requested an addendum medical opinion because the examiner failed to consider the Veteran’s October 2019 contentions as required by the remand directives. In a March 2020 addendum opinion, the examiner stated they had nothing further to add as far as weight gain. In a September 2020 VA examination, the examiner opined it was less likely than not that the Veteran’s OSA was caused by service, proximately due to or the result of a service-connected condition or aggravated by his major depressive disorder or other service-connected disabilities. The examiner indicated that obesity and neck circumference are primary risk factors for OSA, and that the Veteran has both elevated BMI and increased neck circumference. The examiner opined that the Veteran’s major depression disorder did not cause his OSA, nor did it directly cause his obesity. The VA examinations failed to consider the Veteran’s October 2019 contentions in their entirety or provide a complete rationale regarding all of the Veteran’s service-connected disabilities and his use of medication in regard to his weight gain. Therefore, the medical examinations did not substantially comply with the November 2019 remand directives and the Board finds the opinions inadequate. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding veterans are entitled to compliance with Board remand instructions). Accordingly, the Board finds remand for an additional medical opinion is required. 2. Entitlement to service connection for a neurological condition, as secondary to service-connected lumber degenerative disc disease (DDD) Although additional delay is regrettable, an additional remand is necessary to allow the Board to make a fully informed decision regarding the Veteran’s claim. In the October 2020 remand, the Board directives required the VA examiner to review the entire claims file, including the April 2020 CAVC decision and the October 2020 Board remand, and to indicate in the examination report that the review occurred. The October 2020 VA examiner did note records were reviewed, however he failed to indicate specifically that he reviewed the April 2020 CAVC decision and the October 2020 Board remand. Therefore, the medical examination does not substantially comply with the October 2020 remand directives and the Board finds the opinion inadequate. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding veterans are entitled to compliance with Board remand instructions). Accordingly, the Board finds remand for an additional medical opinion is required. The matters are REMANDED for the following action: 1. Arrange for the Veteran’s complete claims file to be forwarded to an appropriate medical professional for review. After reviewing the claims file the examiner must provide a medical opinion that addresses whether Veteran’s OSA is secondary to (was caused or aggravated by) his service-connected disabilities, including but not limited to his major depressive disorder. The examiner must specifically consider the Veteran’s October 2019 contentions that his service-connected disabilities, in addition to the medication he is prescribed for those disabilities, caused him to become obese, and the obesity, in turn, was a substantial factor in his development of OSA. If further examination of the Veteran is deemed necessary for the opinion sought, such should be arranged. The consulting provider should respond to the following: a. Is it at least as likely as not (a 50% or greater probability) that the Veteran’s service-connected disabilities, and/or the medication prescribed for those disabilities, caused him to become obese (i.e., by negatively impacting ability to exercise, stimulating appetite, affecting metabolism)? b. If so, was the obesity caused by his service-connected disabilities and/or medication prescribed for those disabilities, at least as likely as not a substantial factor in causing his OSA? c. Would the OSA not have occurred but for the obesity caused by the service-connected disabilities and/or medication prescribed for those disabilities? Include rationale with all opinions. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not address the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed should be provided as the Board is precluded from making medical findings. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board, including citation to any supporting medical treatises. 2. Arrange for the Veteran’s complete claims file to be forwarded to an appropriate medical professional for review. The entire claims file must be reviewed by the examiner, including the April 2020 CAVC decision and the October 2020 Board remand, and the examiner must specifically state it was reviewed. The examiner must then provide an addendum medical opinion as to: a. Identify any current neurological condition, as secondary to service-connected lumber degenerative disc disease. b. For each diagnosed neurological condition, is it at least as likely as not (a 50 percent or greater probability) that the condition is caused by the Veteran’s service-connected lumber degenerative disc disease? It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is directed to the Veteran’s statements in December 2017 and January 2018 concerning his low back pain and numbness into his left leg. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not address the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed should be provided as the Board is precluded from making medical findings. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board, including citation to any supporting medical treatises. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Aubee, 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.