Citation Nr: 21071942 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-17 025A DATE: December 1, 2021 ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for a neck disability. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a neck disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1971 to April 1974, to include service in Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by the VA Regional Office (RO) in Manila, the Republic of the Philippines. Historically, in a March 2019 decision, the Board in pertinent part denied the Veteran's claim for service connection for sleep apnea and service connection for a neck disability. The Veteran appealed the Board's March 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2021 Memorandum Decision, the Court vacated the Board decision and remanded the case to the Board for readjudication. The Veteran seeks to establish service connection for sleep apnea. In a September 2013 statement, he maintained that his sleep apnea was directly related to his service or alternatively was secondary to his service-connected posttraumatic stress disorder. The Veteran also argued that his sleep apnea might be due to his obesity, that his obesity is due in turn to his service-connected PTSD or service-connected ischemic heart disease and coronary artery disease (heart disability). Obesity can be considered "an intermediate step" for service-connection if the evidence shows that a service-connected disability "caused the veteran to become obese" and the obesity caused by the service connected disability "was a substantial factor in causing" the current disability, and that the current disability "would not have occurred but for" the obesity caused by the service-connected disability." VA Off. Gen. Couns. Prec. Op. 1-2017. In Walsh v. Wilkie, moreover, the Court further held, that the Board needs to consider the obesity-intermediate step theorem predicated on aggravation where appropriate. Thus, the Court held that proper interpretation of G.C. Prec. Op. 1-2017 requires consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability (caused the veteran to become obese/aggravated the veteran's obesity); (2) if so, whether the (obesity/aggravation of obesity) as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for (obesity caused/obesity aggravated) by the service-connected disability. If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Walsh v. Wilkie, 32 Vet. App. 300 (2020). The Board notes that subsequent to the March 2019 decision, VA treatment records in September 2020 showed sleep apnea listed in the Veteran's active problem list. Based on the above, the Board finds that the Veteran should be afforded a VA examination to address the nature and etiology of any sleep apnea diagnosed during the pendency of this appeal. The Veteran also seeks to establish service connection for a neck disability. In September 2013 the Veteran stated that he had a vertebra that went out of place; private treatment records also show complaints of neck pain. Pursuant to the Memorandum Decision, the Board finds that the Veteran has argued continuity of symptomatology for his claimed neck disability as he stated that he received treatment for his neck since the 1970s. In this case, the Board finds that the Veteran should be afforded a VA examination on remand to address any neck disability diagnosed during the pendency of this appeal. To this point, in Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. Lexis 8467 (Fed. Cir. Apr. 3, 2018), the Federal Circuit found that the term "disability" as used in 38 U.S.C. 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." The case reversed years of precedent that had held that "pain alone is not a disability for the purposes of VA disability compensation." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed sleep apnea. The claims file and a copy of this REMAND must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. After a complete review of the records, the examiner should address the following: i.) Does the Veteran have sleep apnea that was diagnosed at any point during the pendency of this claim? If the examiner does not find that the Veteran has sleep apnea, he/she must address the aforenoted September 2020 VA record showing sleep apnea listed as one of the Veteran's active problems. ii.) If sleep apnea is diagnosed, is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is related or attributable to his military service? iii.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is caused by his service-connected PTSD or heart disability? iv.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is aggravated (i.e., any increase in the severity beyond its natural progression) by his service-connected PTSD or heart disability? If the Veteran's sleep apnea has been aggravated by a service-connected disability, the medical professional should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. v.) In addressing whether the Veteran's service-connected PTSD or heart disability has caused or aggravated the Veteran's sleep apnea, is it at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected PTSD or heart disability caused or aggravated (i.e., any worsening beyond its natural progression) the Veteran's obesity? vi.) If the answer to (iv.) is yes, is it at least as likely as not (a 50 percent or greater probability) that the Veteran's obesity was a substantial factor in causing or aggravating his sleep apnea? vii.) If the answer to (iv.) is yes, is it at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea would not have occurred but for the obesity? In addition, the medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, to include online articles submitted by the Veteran, as deemed appropriate. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed neck disability. The claims file and a copy of this REMAND must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. After a complete review of the records, the examiner should address the following: i.) Diagnose any current neck disabilities. ii.) Is it as likely as not (50 percent or greater probability) that any diagnosed neck disability or the documented neck pain alone manifested in service, or within the first-post service year, or is otherwise etiologically related to service? iii.) Is it as likely as not (50 percent or greater probability) that any diagnosed neck disability or the documented neck pain alone was caused by or aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran's service-connected PTSD? The examiner should state whether any pain claimed by the Veteran is supported by adequate pathology, and if so, whether it is as likely as not (50 percent or greater) whether such pain symptomatology represents a functional loss. In addition, the medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his attorney a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.