Citation Nr: 21003975 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 16-26 165 DATE: January 25, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1965 to March 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. An October 2019 Board decision remanded the claim to obtain private treatment records, VA treatment records, and an addendum opinion from an appropriate clinician regarding the Veteran’s OSA. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for OSA. The Veteran contends that his OSA is secondary to service-connected diabetes mellitus (DM) and coronary artery disease (CAD), see NOD (November 2013), and that he gained weight due to the medications used in the treatment for service-connected disabilities. See Correspondence (August 2020). Notably, obesity is not a disability for purposes of VA benefits and cannot be service-connected on a direct basis. Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018); VAOPGCPREC 1-2017 (Jan. 6, 2017). However, obesity may be an intermediate step in a secondary-service connection analysis when a service-connected disability causes or aggravates it. Walsh v. Wilkie, 32 Vet. App. 300, 306-07 (2020); VAOPGCPREC 1-2017 (Jan. 6, 2017). The Board finds that although private and VA treatment records were obtained and a VA examination was provided in March 2020, for the reasons provided below, the examination is inadequate. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The March 2020 VA medical opinion (VAMO) provides that OSA is less likely than not proximately due to the Veteran’s service-connected diabetes or coronary artery disease (CAD). The rationale provided as follows: The Veteran was diagnosed in 2007 with diabetes. At that time his a1c was 7.8 and his weight was 235lbs. He was then diagnosed with sleep apnea in 2012 and weight then was 220lbs. Some conclusions can be drawn that weight gain from diabetic medications can lead to weight gain, which can then put one at risk for developing sleep apnea. But the fact that he lost weight after the diagnosis of diabetes, suggests that the sleep apnea was likely from the weight gain from service to present. He enlisted at 165lbs in 1969, and in 2007 his weight was 235lbs. This weight gain over decades puts one at risk for co-mordities [sic] of coronary artery disease, hypertension, diabetes, osteoarthritis and sleep apnea. The claimed condition of sleep apnea is less likely than not proximately due to or the result of the Veteran's SC condition of CAD. The Veteran was diagnosed with CAD in 2007.Obstructive sleep apnea is caused by obstruction of the upper airways. This is usually the result of obesity, enlarged tonsils and/or adenoids. Sleep apnea has been found to commonly occur in older individuals who are overweight or obese. Obesity can also lead to diabetes, hypertension and coronary artery disease. There is no evidence that diabetes or coronary artery disease can cause sleep apnea See C&P Exam (March 2020). The March 2020 VAMO is inadequate for the following reasons. First, the opinion fails to explain why the Veteran’s weight at the time of his 2012 OSA diagnosis is more determinative than his weight at the time of his 2007 diabetes diagnosis as to the question of whether it is at least as likely as not that OSA is proximately due to or the result of diabetes. An adequate medical examination report or opinion must “sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion.” Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Second, the opinion does not address the seminal questions required in a case where obesity is argued as an intermediate step between the nonservice connected disability (i.e. OSA) and the service-connected disability (i.e. diabetes and CAD), to include medications taken therefor. The opinion indicates that the Veteran’s OSA is caused by his obesity. The clinician noted that OSA is caused by obstruction of the upper airways, which “is usually the result of obesity, enlarged tonsils and/or adenoids.” The opinion reflects that OSA can be worsened by significant weight gain. The opinion also reflects that “diabetic medications can lead to weight gain, which can then put one at risk for developing sleep apnea.” Id. Private treatment records show treatment with medication ACTOS oral tablet in August 2007, see Medical Treatment Record - Non-Government Facility (July 2014), which the online data provided by the Federal Drug Administration (FDA) shows is “used in the management of type 2 diabetes mellitus….” https://www.accessdata.fda.gov/drugsatfda_docs/label/1999/21073lbl.pdf (last accessed January 8, 2021). Additionally, those records show treatment with medication ZOCOR oral tablet in August 2007, which the online data provided by the FDA shows is used to treat coronary heart disease. See https://www.accessdata.fda.gov/drugsatfda_docs/label/2012/019766s085lbl.pdf (last accessed January 8, 2021). Thus, the evidence shows that the Veteran’s weight was at its highest less than two years after starting medications for service-connected diabetes and CAD. Although, obesity cannot be service-connected on a direct basis, see Marcelino, supra, it may be an intermediate step in a secondary-service connection analysis when a service-connected disability causes or aggravates it. Walsh, supra. Third, the March 2020 VAMO rationale for the negative conclusion reached as to the aggravation prong of secondary service connection is insufficient. The rationale was as follows: Diabetes and coronary artery disease were both diagnosed in 2007.They were well controlled on a strict medication regiment at that time. The claimed condition of sleep apnea was less likely as not aggravated beyond its natural progression by coronary artery disease and diabetes. Sleep apnea can be worsened by significant weight gain and not by coronary artery disease or diabetes. This medical opinion does not support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007), see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (an adequate medical opinion must contain a clear conclusion with supporting data, and a reasoned medical explanation connecting the two). In other words, the opinion does not explain how the fact, as stated in the VAMO, that diabetes and CAD were diagnosed in 2007 supports the conclusion of no aggravation of OSA by one or both of those conditions to include any medication taken therefor. Fourth, the March 2020 VAMO appear to have been predicated on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In this regard, the clinician opined that “the fact that [the Veteran] lost weight after the diagnosis of diabetes, suggests that the sleep apnea was likely from the weight gain from service to present.” Id. For support, the clinician noted that the Veteran’s weight at separation from service was 169 pounds, and that his weight in 2007 was 235 pounds. However, VA and private treatment records show that the Veteran continued to gain weight after his 2007 diagnosis of diabetes, which is inconsistent with a holistic review of the Veteran’s weight. Notably, the Veteran gained over ten pounds from 2007 to 2008, and approximately ten more pounds from 2008 to 2009. In 2011, the Veteran’s weight began to decrease, and in 2013 his weight was below its previous level at the time of his diabetes diagnosis in 2007. Further, private treatment records show that on the dates in which the Veteran’s weight was the highest, in July 2009 and October 2008, his private doctor noted that his diabetes had “worsened.” See Medical Treatment Record - Non-Government Facility (July 2014). Given the above, and to ensure that VA has met its duty to assist, remand is necessary. Accordingly, the matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician on the etiology of the Veteran’s OSA. The clinician must provide an opinion to the following questions with consideration of the Veteran’s statements, relevant treatment records, relevant medical literature, and clinical history to include weight and weight changes prior to and after the diagnosis/treatment of service-connected disabilities, DM and CAD, and the claimed disability, OSA: As to Intermediate Causation (a.) Is it at least as likely not (50 percent or greater probability) that the Veteran’s service-connected DM and/or CAD, to include medication(s) taken therefor, caused the Veteran to become obese? (b.) If so, was the resulting obesity a substantial factor in causing the Veteran’s OSA? (c.) If yes, but for the Veteran’s obesity, would the Veteran have developed OSA? As to Aggravation (d.) Is OSA at least as likely as not that OSA aggravated beyond its normal progression by the Veteran’s service-connected DM and/or CAD to include medications(s) taken therefor? Note that separate findings and rationales are required for the causation versus the aggravation prong of this question. 2. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on next page) 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thaddaeus J. Cox, 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.