Citation Nr: 21061500 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-56 707 DATE: October 4, 2021 REMANDED Service connection for sleep apnea, including as secondary to service-connected disability, is remanded. REASONS FOR REMAND The Veteran had active service from July 2002 to July 2006. This case comes to the Board of Veterans' Appeals (Board) on appeal from a decision of the Agency of Original Jurisdiction (AOJ) dated in October 2016. The Veteran testified before the undersigned Veterans Law Judge at a June 2021 hearing; a transcript of the hearing is of record. 1. Service connection for sleep apnea, including as secondary to service-connected disability, is remanded. The Veteran seeks service connection for obstructive sleep apnea (OSA) based on multiple theories of entitlement. He contends that his OSA is due to exposure to environmental hazards during service in Southwest Asia in the Gulf War, or is a residual of his injuries from combat wounds he received in Fallujah, Iraq when his Humvee was struck by an improvised explosive device (IED). See his June 2016 claim, September 2017 notice of disagreement. Alternatively, he contends that his OSA is secondary to service-connected disabilities, including posttraumatic stress disorder (PTSD) and arthritis of the lumbosacral spine. See October 2017 substantive appeal, February 2018 letter from his representative, and June 2021 Board hearing transcript, page 7. He also contends that as a result of his service-connected disabilities of the knees, back, and shoulders, his ability to exercise was limited, he gained 50 to 60 pounds since separation from service, and his obesity is an intermediate step between his service-connected disabilities and sleep apnea. At the Board hearing, he testified that his former partner first noticed that he stopped breathing for periods of time during his sleep, and he then sought VA treatment for this condition, about six years after separation from service. See Board hearing transcript, pages 3-4. Obesity can be 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. Walsh v. Wilkie, 32 Vet. App. 300, 306-07 (2020). In other words, service connection may be established on a secondary basis for a disability which would not have occurred but for obesity that was caused or aggravated by a service-connected disability. Id. The Board finds that remand is required to obtain supplemental medical opinions regarding the claim. While VA medical opinions regarding the claim for service connection for sleep apnea have been obtained in June 2016 and September 2017, the examiners did not provide an opinion as to whether current sleep apnea was aggravated by a service-connected disability. Moreover, no VA examiner has opined whether sleep apnea is proximately due to or aggravated by the more recently service-connected disabilities of restless leg syndrome (RLS), traumatic brain injury (TBI), or radiculopathy of the bilateral lower extremities. The Board notes that the Veteran also has a pending claim for service connection for sinusitis. The VA opinions of record do not address a theory of service connection based on obesity as an intermediate step. Accordingly, remand is necessary for addendum medical opinions regarding secondary service connection and addressing whether obesity, as an intermediate step for secondary service connection, was caused or aggravated by a service-connected disability. The Board has not overlooked the January 2018 private treatment note from J.D., N.P., of Moore Care, who noted that the Veteran reported a history of insomnia, difficulty falling asleep, waking up with headaches, panic attacks, and anxiety, and was diagnosed with sleep apnea in 2015, and wrote, "According to several research studies found that are linked to the Veterans Affairs chronic sleep impairment such as sleep apnea is linked to post traumatic stress disorder. The patient's history is consistent with this as patient reports sleep was never an issue prior to his time in the service. Patient has already been found to suffer from chronic post traumatic stress disorder d/t time in service. PLEASE ALSO SE". The Board observes that the January 2018 private treatment note appears to be incomplete, and that the note is inadequate for adjudication as J.D. did not provide an opinion regarding whether sleep apnea is at least as likely as not related to service, or is proximately due to or aggravated by a service-connected disability. Additionally, she did not discuss the fact that chronic sleep impairment is a symptom of service-connected PTSD. See October 2017 VA PTSD examination. The Veteran testified that J.D. is his primary care provider. On remand, the AOJ should attempt to obtain relevant private treatment records from J.D., N.P., and Moore Care. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issue on appeal. Updated VA medical records should be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for J.D., of Moore Care. Make two requests for the authorized records from J.D. and Moore Care, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from June 2021 to the present. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's sleep apnea is (a) at least as likely as not proximately due to service-connected disability, or (b) aggravated beyond its natural progression by service-connected disability. The claims file must be reviewed. Currently, the Veteran's established service-connected disabilities are PTSD, TBI with headaches, restless leg syndrome, degenerative arthritis of the lumbosacral spine, residuals of right shoulder musculoskeletal strain, residuals of left shoulder partial supraspinatus tear, tinnitus, eczema, radiculopathy of the bilateral lower extremities, and patellofemoral syndrome of the bilateral knees, and he has a pending claim for service connection for sinusitis. (c) If the current OSA was not directly caused or aggravated by the Veteran's service-connected disabilities, the clinician should address whether it is at least as likely as not that the Veteran's service-connected disabilities caused him to become obese or aggravated his obesity. (d) State whether it is at least as likely as not that the Veteran's obesity or the aggravation of his obesity as a result of a service-connected disability was a substantial factor in causing his OSA. (e) State whether it is at least as likely as not the Veteran's OSA would not have occurred but for his obesity caused or aggravated by his service-connected disabilities. In rendering the above requested opinions, the clinician should address the January 2018 private treatment note from J.D., N.P. The examiner should provide a supporting rationale for all opinions and conclusions. If it is not possible to provide any of the requested opinions, the clinician 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). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, 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.