Citation Nr: 21074680 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 19-16 550 DATE: December 16, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected residuals of the right knee anterior cruciate ligament (ACL) meniscal tear with degenerative joint disease (DJD), is remanded. REASONS FOR REMAND The Veteran served active duty in the Air Force from December 1985 to August 2007. This matter comes before the Board on appeal of an August 2018 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2020. In a June 2020 decision, the Board denied the claim for service connection for sleep apnea. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Veteran and the Secretary of VA (parties) entered into a Joint Motion for Remand (Joint Motion) vacating and remanding the June 2020 Board denial for failing to provide an adequate statement of reasons and bases for its decision. The Court granted the Joint Motion in July 2021. Within the Joint Motion, the parties agreed that the Board erred by relying on an inadequate VA medical opinion from April 2019, which found it less likely than not that the Veteran's OSA was aggravated beyond its natural progression by the service-connected residuals of a right knee ACL meniscal tear with DJD. The examiner's analysis primarily focused on the causes of OSA, and noted that obesity is a risk factor for the development of OSA. The examiner also noted the Veteran's contention that he has been unable to exercise due to his knee condition, resulting in weight gain, which subsequently resulted in OSA. However, the examiner's opinion did not address whether the Veteran's obesity acts as an intermediate step in causing or aggravating his OSA. The parties found the Board failed to address this discrepancy in its June 2020 decision. The parties agreed that on remand, the Board should provide reasons or bases as to whether the April 2019 VA opinion is adequate. The Board finds that further development is warranted in order to obtain an addendum opinion relating to the Veteran's service connection claim. The matter is REMANDED for the following action: Refer the Veteran's claims file to an appropriate clinician for an addendum opinion regarding the etiology of the Veteran's obstructive sleep apnea. The examiner should review the claims file. If the examiner finds that an in-person examination is necessary to provide the requested opinion, then schedule the Veteran for a VA examination. The agency of original jurisdiction should provide the below facts to the examiner. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: The Veteran served on active duty from December 1985 to August 2007. A September 1998 service treatment record shows that the Veteran was documented to be 75 inches tall (approximately 6 feet, 3 inches) and 225 pounds. See VBMS entry with document type, "STR Medical," receipt date 12/07/2007, p. 72. An August 1999 service treatment record shows that the Veteran was seen for right knee pain, where he reported he had twisted his knee while playing racquetball. He reported feeling a pop and then pain on the medial side of the right knee. Following a physical examination, the examiner entered an impression of an acute knee injury with possible anterior cruciate ligament (ACL) tear. At that time, the Veteran's weight was documented to be 230 pounds. See VBMS entry with document type, "STR Medical," receipt date 12/12/2007, with "#2" in the subject field, p. 42. In October 1999, the Veteran underwent right knee anterior cruciate ligament (ACL) repair surgery. A December 1999 service treatment record shows that the Veteran was seen at eight weeks following surgery, where he had normal, full passive extension in the right knee, and the wound was described as nontender and healing well. The examiner described the Veteran's compliance as excellent and that he was progressing ahead of schedule. See VBMS entry with document type, "STR Medical," receipt date 12/12/2007, with "#2" in the subject field, p. 20. In an October 2000 service treatment record, the Veteran documented the October 1999 right knee surgery. The examiner noted what the surgery entailed (ACL reconstruction with general anesthesia and hospitalization for one day) and wrote that the Veteran had tolerated the surgery well and had a "full recovery." See VBMS entry with document type, "STR Medical," receipt date 12/07/2007, p. 181. In March 2007, soon before the Veteran's service discharge, the Veteran's height and weight were documented as being 76 inches and 263 pounds. Within the examination report, the examiner noted that the Veteran's last physical training test was in May 2006, which included running, "and he passed easily." The examiner laid out the history of the Veteran's right knee injury, surgery, and subsequent symptoms. The examiner noted the Veteran reported he had pain from time to time and had mild pain at the time of the examination. The examiner wrote, "Since his post-op period[,] he has been completely without profile due to this condition." The examiner wrote there was no limp, the Veteran had a well-healed scar under his right kneecap, and there was no redness, swelling, or tenderness on any aspect of the right knee. There was complete range of motion to clinical exam. X rays showed moderate degenerative changes throughout the knee joint. The examiner diagnosed status post-surgical repair for ruptured right ACL ligament with good result. See VBMS entry with document type, "VA Examination," receipt date 03/15/2007, pp. 2 5, 8 (x-ray report). The Veteran is service connected for residuals of right knee ACL meniscal tear with degenerative joint disease and right knee instability. The Veteran alleges that his service-connected right knee disability has prevented him from exercising, which caused him to gain weight and which resulted in his diagnosis of obstructive sleep apnea. In March 2014, the Veteran's weight was documented as being 274 pounds. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 03/31/2014, p. 2. A June 2014 VA examination report shows that the Veteran had full muscle strength in the right lower extremity with 5/5 strength with right knee extension. See VBMS entry with document type, "C&P Exam," receipt date 06/16/2014, with "DBQ MUSC Back" in the subject field, p. 5. A May 2017 VA examination report shows that the Veteran had full muscle strength in the right lower extremity with 5/5 strength with right knee extension. See VBMS entry with document type, "C&P Exam," receipt date 05/23/2017, with "DBQ NEURO" in the subject field, p. 3. An August 2017 treatment record shows the Veteran's weight was 250 pounds. See VBMS entry with document type, "Medical Treatment Record Government Facility," receipt date 08/25/2017, p. 1. A December 2017 treatment record shows the Veteran's weight was 270.8 pounds. See VBMS entry with document type, "Medical Treatment Record Government Facility," receipt date 12/09/2017, p. 1. An April 2018 medical record shows that the Veteran reported experiencing fatigue for six months. He reported he would sleep for three hours and then would wake up. He stated that his daughters had mentioned that he snores. The examiner noted the Veteran had not had a sleep study. The examiner documented the Veteran's weight as 275 pounds. Medical Treatment Record Government Facility," receipt date 07/02/2018, pp. 1-2. An April 2018 private sleep study shows the Veteran was diagnosed with severe obstructive sleep apnea/hypopnea syndrome. The Veteran's weight was documented as 265 pounds with a BMI of 32.3 pounds/inch. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 06/07/2019. In a June 2018 Sleep Apnea Disability Benefits Questionnaire submitted by the Veteran, Dr. Carlos Morales wrote that the Veteran had gained significant BMI after knee surgery in October 1999 and that it was more likely than ot caused the Veteran's obstructive sleep apnea. See VBMS entry with document type, "Disability Benefits Questionnaire (DBQ) Veteran provided," receipt date 06/05/2018. In an April 2019 VA examination report, the examiner concluded that it was less likely than not that the Veteran's sleep apnea was caused or aggravated by the service-connected right knee surgery. The examiner explained that the Veteran underwent right knee surgery on October 12, 1999 and was able to continue his military career for almost 8 years after that. He stated that the main reasons of obesity are generally caused by eating too much and moving too little. The examiner noted that if one consumes high amounts of energy, particularly fat and sugars, but does not burn off the energy through exercise and physical activity, much of the surplus energy will be stored by the body as fat. The examiner wrote there are several means to prevent obesity, such as low impact activities such as cycling, walking, weightlifting and swimming, eating more fruits, vegetables, nuts, and whole grains, cutting down on consumption of fatty and sugary food and using vegetable-based oils rather than animal-based fats. The examiner added that obesity does not cause sleep apnea but is a risk factor for the development of sleep apnea, along with other factors such as age, gender, craniofacial and upper airway abnormalities, large neck size, narrowed airway, smoking and alcohol use. The examiner noted there are many people with sleep apnea who are not obese; while there are many obese people who do not have sleep apnea. The examiner wrote that obesity is not an absolute factor for the development of sleep apnea; similarly, snoring is not an objective finding for a diagnosis for sleep apnea. The examiner provided a list of references to support the opinion. See VBMS entry with document type, "C&P Exam," receipt date 04/24/2019, with "Sleep apnea exam & medical opinion," in the subject field. An August 2020 VA examination involving the knee shows that the examiner found the Veteran had range of motion from 0 to 85 degrees. Muscle strength for both right knee flexion and extension was documented as 5/5. See VBMS entry with document type, "C&P Exam," receipt date 08/12/2020, with "DBQ MUSC Knee" in the subject field. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided to assist the examiner in locating potentially relevant evidence. After reviewing the evidence, the examiner is asked the following questions: 1. Is it at least as likely as not (50 percent probability or higher) that the service-connected right knee disability caused or aggravated the Veteran's obesity? Please state upon what facts, medical principles, and/or medical literature the opinion is based. 2. If the answer to question (1) is positive, is it at least as likely as not (50 percent probability or higher) that the Veteran's obesity as a result of the service-connected right knee disability was a substantial factor in causing obstructive sleep apnea? Please state upon what facts, medical principles, and/or medical literature the opinion is based. 3. If the answer to (2) is positive is it at least as likely as not (50 percent probability or higher) that obstructive sleep apnea would not have occurred but for obesity caused or aggravated by the service-connected right knee disability? Please state upon what facts, medical principles, and/or medical literature the opinion is based. The examiner is asked to provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.