Citation Nr: 21065190 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 18-02 654 DATE: October 25, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1969 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The undersigned agreed to keep the record open for 30 days to allow the Veteran additional time to submit evidence to support his claim. See July 2021 Hearing Transcript, page 9. Private treatment records, lay statements, and service personnel records (SPRs) were received in July and August 2021. See July 2021 Third Party Correspondence; July 2021 Medical Treatment Record Non-Government Facility; August 2021 Medical Treatment Record Non-Government Facility; August 2021 Correspondence; August 2021 Military Personnel Record. Entitlement to service connection for OSA, to include as secondary to service-connected disabilities, is remanded. The Veteran states that his OSA symptoms manifested while he was serving on active duty. Specifically, the Veteran reported that his ex-wife complained that he snored and occasionally stopped breathing during the night during service, which was subsequently corroborated by his son. He further stated that his diagnosed OSA may have been caused by working rotating tours of duty and irregular hours, to include performing additional work as a janitor during off-duty hours, stress related to the performance of military duties, excessive caffeine consumption, and weight gain while he was serving on active duty and in the Army National Guard and Army Reserve. Alternatively, the Veteran asserted that his OSA may have been caused or aggravated by his service-connected disabilities, to include right foot ankle pain, right calcaneal spur, degenerative joint disease of the left knee, degenerative arthritis of the right knee, external hemorrhoids, bilateral tinnitus, and left ear hearing loss. See September 2014 VA Form 21-4138 Statement in Support of Claim; July 2021 Hearing Transcript, pages 2-4, 13-14; August 2021 Correspondence. In support of his claim, the Veteran submitted a statement from his spouse, dated in September 2015. In the statement, she noted that she met the Veteran in 1983 and indicated that the Veteran snored and frequently woke up due to difficulty breathing throughout beginning of their relationship. See November 2015 Buddy/Lay Statement. A review of the Veteran's SPRs confirms that the Veteran worked approximately four hours per week as a janitor while he was also subject to a regular tour of duty. In addition, his DD-214 shows that his military occupational specialties (MOSs) were disaster preparedness technician and vehicle operations supervisor, and a September 1980 Administrative Separation Action confirms that the Veteran was discharged from active duty service because he exceeded service weight standards. See December 1980 Certificate of Release or Discharge from Active Duty (e.g., DD 214, NOAA 56-16, PHS 1867); August 2021 Military Personnel Record. The Veteran's service treatment records (STRs) are silent for findings or diagnoses related to OSA. See October 1980 STR Medical; August 2021 Military Personnel Record. A review of the post-service evidence of record shows a June 2005 email which indicates that the Veteran had been experiencing sleep deprivation over the preceding weeks. At that time, he attributed his symptoms to his spouse's medical problems, work demands, and a right ear infection. See June 2005 Email Correspondence. In May 2010, the Veteran endorsed trouble breathing, sleep apnea, and excessive sleepiness. He subsequently underwent a nasal continuous positive airway pressure (CPAP) trial sleep study, which revealed severe OSA, snoring, and evidence of increased upper airway resistance. See September 2014 Medical Treatment Record Non-Government Facility; April 2021 Medical Treatment Record Non-Government Facility. In support of his claim, the Veteran submitted a private Disability Benefits Questionnaire (DBQ), from Dr. Adam Blonsky, dated in September 2014. Dr. Blonsky indicated that the Veteran had been diagnosed with OSA and noted atrial fibrillation as a pertinent condition related to the Veteran's diagnosed OSA. However, the Board notes that Dr. Blonsky did not proffer an opinion as to the etiology of the Veteran's OSA in connection with the DBQ. See September 2014 Disability Benefits Questionnaire (DBQ) Veteran Provided. The Veteran also underwent a polysomnographic study in September 2015. The impression included previously documented severe OSA syndrome with snoring and sleep fragmentation. See April 2021 Medical Treatment Record Non-Government Facility. VA obtained a medical opinion in December 2017. After performing a telephonic interview with the Veteran and reviewing the evidence of record, the examiner opined that it was less likely than not that the Veteran's diagnosed OSA was caused by weight gain while he was serving on active duty. In support of her opinion, the examiner noted that there was no evidence of OSA during service and reiterated that the Veteran's OSA was not caused by weight gain 30 years prior. To his end, the examiner noted that OSA was a blockage of airway caused by anatomical etiology that occurs when the muscles in the back of the throat relax. See March 2018 CAPRI After a review of the evidence of record, the Board finds that a remand is required to obtain an addendum medical opinion. The Board notes that the December 2017 VA examiner did not discuss the effect, if any, of the Veteran's obesity on his diagnosed OSA or opine as to whether it may have been caused or aggravated by his service-connected disabilities. In this regard, the Veteran has asserted that he developed obesity as a result of an inability to exercise due to his service-connected disabilities. The VA General Counsel states in an opinion that obesity is not a disease for service connection purposes. VAOPGCPREC 1-2017 (Jan 6, 2017). Nonetheless, obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. To grant service connection, the adjudicators would have to resolve the following issues: (1) whether a service-connected disability caused a veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability for which a veteran is seeking service connection; and (3) whether the current disability for which a veteran is seeking service connection would not have occurred but for the obesity caused by the service-connected disability. Id. at 9-10. In Walsh v. Wilkie, 32 Vet. App. 300 (2020), the Court of Appeals for Veterans Claims held VAOPGCPREC 1-2017 not only applies when a service-connected disability causes obesity, but also when a service-connected disability aggravates obesity. When raised by the record, the Board must consider whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310(b). VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, the Board finds that a remand is necessary to obtain an addendum medical opinion to determine the nature and etiology of the Veteran's OSA. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return inadequate examination report). Moreover, in an August 2021 letter, the Veteran indicated that he had an appointment scheduled with a pulmonologist who specialized in sleep studies in October 2021. See August 2021 Correspondence. Thus, the Board finds that a remand is also warranted to obtain these medical records. The Board further notes that, during the July 2021 Board hearing, the Veteran testified that he submitted an article that discussed sleep apnea in military veterans in or around 2015 or 2016 and alluded to a case study on military service and sleep apnea, dated in or around 1995. See July 2021 Hearing Transcript, pages 6-7, 13. However, neither the article nor case study have been associated with the Veteran's claims file. As such, the Board finds the Veteran should also be afforded an opportunity to submit these materials on remand. The matter is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file, to include any treatment records from a pulmonologist dated in or around October 2021. 2. Contact the Veteran to request that he submit the article discussing sleep apnea in military veterans and the case study on military service and sleep apnea, dated in or around 1995, referenced during the July 2021 Board hearing. 3. After completion of the above development, obtain an addendum medical opinion from an appropriately qualified examiner to determine the nature and likely etiology of the Veteran's obesity and his diagnosed OSA. It is up to the discretion of the examiner as to whether an in-person examination is necessary. Based on claims file review and examination of the Veteran, the examiner should provide the following opinions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed OSA is etiologically related to his service (June 1969 to September 1980), to include as due to maintaining abnormal work and sleep schedules, working irregular hours, including additional work as a janitor during non-duty hours, stress related to the performance of military duties, excessive caffeine consumption, and weight gain during service? Please explain why or why not. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed OSA was (i) caused or (ii) aggravated by his service-connected disabilities, to include right foot ankle pain, right calcaneal spur, degenerative joint disease of the left knee, degenerative arthritis of the right knee, external hemorrhoids, bilateral tinnitus, and left ear hearing loss? Please explain why or why not. The examiner should observe that permanent aggravation is not required. If aggravation is found, the examiner should identify, to the extent possible, the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to the Veteran's service-connected disability. (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities, to include right foot ankle pain, right calcaneal spur, degenerative joint disease of the left knee, degenerative arthritis of the right knee, external hemorrhoids, bilateral tinnitus, and left ear hearing loss, caused him to become obese, to include as due to any lack of exercise resulting from service-connected disabilities? Please explain why or why not. (d.) If the answer to (c) is "no," is it at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities, to include right foot ankle pain with calcaneal spur, right calcaneal spur, degenerative joint disease of the left knee, degenerative arthritis of the right knee, external hemorrhoids, bilateral tinnitus, and left ear hearing loss, aggravated his obesity, to include as due to any lack of exercise resulting from service-connected disabilities? Please explain why or why not. (e.) Is it at least as likely as not (50 percent or greater probability) that obesity (or the aggravation of obesity per question (d)) was a substantial factor in causing the Veteran's diagnosed OSA? Please explain why or why not. (f.) Is it at least as likely as not (50 percent or greater probability) that the Veteran would not have OSA if he were not obese (or but for obesity aggravated by service-connected disabilities per question (d))? Please explain why or why not. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, 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.