Citation Nr: 21062750 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-02 939 DATE: October 12, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 2009 to August 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Jurisdiction is properly before the Board from the issuance of a Supplemental Statement of the Case (SSOC) on July 30, 2020. 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service connected disabilities, is remanded. When VA provides a veteran with an examination in a service connection claim, the examination must be adequate. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board concludes that the most recent etiological opinions of record are incomplete; therefore, the Veteran has not been afforded substantial compliance with all remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As a result, the Board is precluded from issuing a final determination as to this issue at this time, and an additional remand is required. The Board sincerely regrets additional delay that may be incurred. By way of background, the Veteran's claim was previously remanded by the Board on November 19, 2019 to obtain an adequate etiology opinion. In October 2016, the examiner wrote a negative nexus opinion on the basis of medical records without an examination, concluding that the Veteran's obstructive sleep apnea was most likely simply attributable to weight gain, notwithstanding lay statements of sleeping difficulties in service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); VA Form 9 (rec'd Jan. 13, 2017); NOD (rec'd Aug. 8, 2016); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); 38 C.F.R. § 3.159(c)(2). Additionally, the claim was remanded for an adequate opinion addressing secondary service connection and secondary aggravation. See id, supra. After remand, the examiner was instructed to offer addendum opinions as to whether the Veteran's obstructive sleep apnea is secondary to, or secondarily aggravated by, his service-connected posttraumatic stress disorder (PTSD) or his service-connected lumbosacral spine disorder. Once again, the etiological opinion for the Veteran's obstructive sleep apnea appears to assign more than 50 percent likelihood to obesity and weight gain. See VA Exam (July 30, 2020), at Page 2. The Veteran and his representative argue that as the etiological opinions state that obstructive sleep apnea is attributable to weight gain, but the opinions do not discuss what caused the Veteran's weight gain, these opinions are inadequate. See generally VSO IHP (rec'd Sept. 13, 2021); VAOPGCPREC 1-2017 (Jan. 6, 2017); Walsh v. Wilkie, 32 Vet. App. 300 (2020) (holding that although obesity itself is not considered a disability for VA purposes, when obesity has been caused by a service-connected condition, and subsequently causes another disability, obesity may be considered an "intermediate step" for establishing service connection on a secondary basis). The Board agrees. The Board also notes that while the Veteran generally states that "his service-connected disabilities...have had an adverse effect of increasing his weight and body fat percentages due to a lack of being able to exercise and move around in general," see VSO IHP, supra, the Veteran was additionally granted service connection for a left knee disorder and lumbar radiculopathy manifesting in the left lower extremity during the pendency of this appeal. These disorders have never been considered in determining whether the Veteran's obstructive sleep apnea may be secondary to them. On remand, an etiology opinion addressing all theories of entitlement should be obtained. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of any current obstructive sleep apnea. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. The examiner should be sure to address any medical treatises submitted by the Veteran. The examiner should respond to the following questions: (A) Is it at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea was caused by a service connected disorder, to include PTSD, a lumbosacral strain, a left knee strain and/or lumbar radiculopathy of the left lower extremity sciatic nerve.? (B) Is it at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea was aggravated by a service connected disorder, to include PTSD, a lumbosacral strain, a left knee strain and/or lumbar radiculopathy of the left lower extremity sciatic nerve? (C) Is it at least as likely as not (50 percent probability or greater) the Veteran's service-connected disability/ies caused him to become obese? If so, (1) does such resulting obesity was a substantial factor in causing or aggravating his obstructive sleep apnea and (2) would the Veteran's obstructive sleep apnea have occurred or worsened but for the obesity caused by his service-connected disabilities? The examiner should specifically address the Veteran's contention that the medicines that he takes for his service connected disabilities must be taken with food, can cause irrational hunger and prevent him from exercising as detailed in the September 2021 Informal Hearing Presentation. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, 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). The medical opinion must support the conclusions reached with an analysis that is adequate 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, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.