Citation Nr: 21069304 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 15-34 276 DATE: November 18, 2021 REMANDED Entitlement to service connection, to include on a secondary basis, for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2000 to September 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs Regional Office (RO). By way of history, this matter was previously remanded in October 2017 and February 2018 Board Decisions to obtain VA examinations. In a November 2018 decision, the Board denied the service connection claim on appeal. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a February 2020 Memorandum Decision, the Court vacated the November 2018 Decision and remanded for readjudication. In pertinent part, the Court found the Board relied on an inadequate medical opinion. Specifically, the Court found a June 2018 addendum medical opinion inadequate as the examiner provided conflicting statements and findings as to whether the Veteran's PTSD, and/or medication used to treat his PTSD, caused his obesity. This matter was thereafter remanded in December 2020, June 2021 and September 2021 to obtain further VA examination reports. OSA The Veteran seeks entitlement to service connection for OSA. Specifically, he asserts that his OSA is directly related to in-service environmental exposures. See June 2015 Notice of Disagreement. Alternatively, he asserts that his OSA is secondary to his service-connected disabilities, to include obesity as an intermediate step. See September 2015 VA Form 9. As noted above, this matter has been remanded on several occasions to obtain an adequate VA examination. The most recent September 2021 Board Decision noted that the examiner did not address whether medications used to treat the service-connected PTSD and lumbar spine disability caused or aggravated the Veteran's obesity. In a subsequent September 2021 VA examination report, with regard to whether his OSA was aggravated by his PTSD, the examiner found no credible medical evidence showing that aggravation of the anatomical condition of OSA was possible by a psychiatric disorder, including PTSD. The examiner also stated that there were no medical records evidencing aggravation. In support of this statement, the examiner noted no evidence of flare-ups, exacerbations or increased treatment of his OSA. It was further noted that he wore a CPAP for treatment, and that titration of settings was part of the natural progression and clinical treatment of that condition. Turning to obesity as an intermediate step, the examiner opined that it was "less likely as not (less than 50 percent probability)" that one or more service-connected disabilities caused the Veteran to become obese. In support of this opinion, the examiner stated that OSA was not caused by PTSD or the lumbar spine disability. While noting his PTSD medications, the examiner stated that there was no medical literature supporting a finding that such medication had a causative etiology for the development of OSA. Instead, the examiner stated that there were many in the general population who had been diagnosed with PTSD and who were on medications for a psychiatric disorder and/or lumbar spine disability who were not obese. The examiner further stated that obesity was primarily due to consuming more calories than the body burns off which is a person's choice. Additionally, the examiner noted that the Veteran's weight was shown to have fluctuated showing an ability to lose weight despite having chronic diagnoses for PTSD and arthritis of the spine. The Board finds the September 2021 VA examination inadequate. First, with regard to whether the Veteran's PTSD aggravated his OSA, the Board finds the examiner's rationale was based on an inaccurate factual predicate. The examiner's opinion was based on a finding that there were no medical records showing the Veteran's OSA had worsened. However, a recent January 2021 VA examination specifically noted his OSA condition had progressed and worsened since its onset in 2012. Accordingly, contrary to the examiner's stated rationale, there are medical records showing that the Veteran's OSA had worsened. The examiner did not address this conflicting evidence. Second, with regard to whether the service-connected disabilities caused the Veteran to become obese, the examiner initially based her negative medical opinion on a statement that OSA was not caused by his PTSD, lumbar spine disability, or medications used to treat those conditions. The examiner's rationale recounted the scientific basis for how weight is gained, and provided an unsupported statement about "many of the general population" who have PTSD or a lumbar spine disability, and who have not become obese. This is the same rationale that the September 2021 Board Decision previously found inadequate as it does not address the Veteran's particular circumstance. It also stands to reason that if many of the general population who have these conditions do not become obese, then at least some of the general population do become obese. As noted by the June 2021 VA examiner, PTSD and lumbar spine degenerative joint disease are known risk factors for developing obesity. The September 2021 VA examiner's rationale does not adequately address this inquiry. The examiner further stated that the Veteran's weight had fluctuated over the years, thereby showing an ability to lose weight. In support of this statement, the examiner noted the Veteran's weight in November 2010, and then several other recorded weights between February 2014 and February 2019. The Board finds the examiner's reliance on this data problematic for two reasons. First, the Veteran was diagnosed with OSA in 2012. The examiner did not note any relevant weight fluctuation around this time period. Instead, the weight listed by the examiner skips from 2010 to 2014. Second, the historical weights noted by the examiner range between 305 and 339 pounds over a 9 year period. Therefore, although his weight may have fluctuated to a degree during this time period, it still shows that he remained obese, and the question still exists as to whether his service-connected disabilities cause or aggravate this obesity. Lastly, the examiner did not address whether the Veteran's service-connected disabilities have aggravated his obesity. For the above reasons, the Board finds the September 2021 VA examination inadequate, and a Remand is necessary to obtain another VA examination. This 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 not already associated with the file. 2. Then, obtain an addendum to the September 2021 VA opinion by an appropriate examiner to determine the nature and etiology of his diagnosed OSA. 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 OSA was aggravated by a service-connected disability? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner is asked to consider the January 2015 VA OSA examination showing reported difficulty using a prescribed CPAP machine due to PTSD, and the November 2017 VA OSA examination noting the Veteran was not complaint with his CPAP machine due to intolerance with the mask. The examiner should also consider the Veteran's PTSD symptoms, including chronic sleep impairment. (b) Opine as to whether it is at least as likely as not (50% or better probability) that the Veteran's service-connected disabilities, to include medications used to treat those disabilities, (i) caused him to become obese, or (ii) aggravated his obesity, to include as due to any lack of exercise resulting from his service-connected disabilities. The examiner is asked to consider an August 2010 VA PTSD examination showing the Veteran reported that he used to enjoy working out regularly, but that he had lost motivation to continue that activity due to depression. The examiner should also consider the October 2016 VA PTSD examination showing reports of the Veteran being unable to leave his home most of the time, and the June 2017 VA PTSD examination showing he reported not being as active as he would like to be, actively avoiding activities, being unable to do things he used to enjoy including hiking, kayaking and fishing, and that he spent most of his time at home watching TV because he did not feel safe doing activities. (c) If so, opine as to whether it is at least as likely as not (50% or better probability) that the obesity was a substantial factor in causing the diagnosed OSA condition. (d) If so, opine as to whether it is at least as likely as not (50% or better probability) that the Veteran would not have OSA if he were not obese. In answering the above, it would also be helpful if the examiner would address the Veteran's weight at the time of his OSA diagnosis in 2012. The examiner is also asked to address the April 2020 article Prozac and Weight Gain by Dr. Daniel B. Black as referenced by the Veteran's representative in the October 2021 IHP. (Continued on the next page) Clear rationales for the opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. All indicated studies should be completed. 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 C. Lamb, 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.