Citation Nr: 21076470 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 14-35 330 DATE: December 23, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service connected SFW residuals, psychiatric disorder, CAD, and diabetes disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1964 to January 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In January 2020, the Board remanded the issues on appeal for additional development. In February 2021, the Board remanded this matter for additional development. The Board finds that there was not substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service connected SFW residuals, psychiatric disorder, CAD, and diabetes disabilities is remanded. The Veteran contends that his obstructive sleep apnea is the result of his military service. He indicated that his mother commented about his loud snoring. His spouse also indicated that he snores loudly, gasps for air, and it has become worse. His spouse also indicated his snoring occurred when he was still physically fit. In the alternative, the Veteran contends that his sleep apnea is secondary to his heart, diabetes, or shell fragment wound disabilities. The Veteran also contends that while the VA examiners have indicated that his sleep apnea is a result of his weight gain, that instead his weight gain is the result of his service-connected disabilities. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The duty to assist was not met when the VA failed to obtain an adequate VA examination or medical opinion for the Veteran's headache disability. The case law is clear that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In May 2021, the Veteran was afforded a VA examination for his obstructive sleep apnea (OSA) condition. The examiner noted that the Veteran was diagnosed with obstructive sleep apnea in March 2015, that was confirmed by a sleep study. The Veteran stated that he woke up in the middle of the night with breathing problems. The Veteran's symptoms include fatigue, "SOA at night." The examiner opined that the Veteran's OSA condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As to the rationale, the examiner explained that the Veteran's STR's were silent for snoring or other sleep apnea symptom complaints. The examiner also stated that the Veteran was not diagnosed until 48 years after service. The examiner stated that any lay testimony would not be credible because the Veteran or his spouse are not medical professionals. The examiner stated that the severity of the condition would also have required medical attention over the past 48 years. The examiner concludes by stating that the most common cause of OSA is excess weight and obesity. The Board finds that the examiner did not adequately address the Veteran and his spouses' s lay testimony. Specifically, the examiner noted that the Veteran's STR's were silent for snoring or other sleep apnea symptom complaints, but the Veteran's spouse indicated that the Veteran snores loudly, gasps for air, and it has become worse. She also indicated that the Veteran snored back when he was physically fit. Thus, the medical opinion is inadequate because the examiner did not reconcile the lay testimony, with his analysis. The examiner also opined that it was less likely as not (less than 50 percent probability) that the Veterans service-connected diabetes, heart, or SFW conditions caused the Veteran to become obese. The examiner explained that obesity is caused by the intake of too many calories and not enough movement/exercise. While certain medical conditions can limit activities, none of the veteran's conditions eliminate watching his diet and participating in light exercise. In a more recent decision, the Court modified the analysis set out in the General Counsel's opinion, holding that in considering whether obesity is an "intermediate step," consideration must be given to whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310. Walsh v. Wilkie, 32 Vet. App. 300 (2020). The Board recognizes that the examiner has indicated that the Veteran's service-connected disabilities do not eliminate the Veteran from watching his diet or engaging in light exercise, however, to be thorough, the Board requests clarification whether the Veteran's obesity was aggravated by his service-connected disabilities. The examiner opined that the Veteran's OSA was less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service-connected diabetes, heart, and SFW conditions. As to the rationale, the examiner explained that a review of the medical literature failed to demonstrate a causal relationship. Then the examiner explained that the most common cause of OSA is excessive weight and obesity. The Board finds this medical opinion conclusionary as the Board does not explain how the Veteran's specific OSA condition is not caused by his service-connected disabilities. In addition, the VA examiner did not provide an opinion as to whether his OSA was aggravated by his service-connected disabilities. A medical opinion as to secondary service connection is inadequate for the Board's decision as to aggravation if the issue of aggravation is not sufficiently addressed by the examiner. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). An examiner's determination that the disease or injury at issue is not "related to" the service-connected condition is not sufficient to address the aggravation issue. Id. Thus, this medical opinion is inadequate, because it only addresses the causation prong of secondary service connection. The Board acknowledges that the Board did not request an aggravation opinion explicitly within the remand directives. However, after re-examining the record, an adequate aggravation opinion is necessary prior to adjudication. In summary, a remand is necessary to secure adequate medical opinions prior to adjudicating this matter. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician. The clinician must be provided with and review the entire claims file, to include a copy of this remand. Following a review of the evidence of record, to include the Veteran's lay statements, the clinician should opine: 2. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed OSA condition is related to an in-service injury, event, or disease. The examiner must note and address the following contentions: (a.) His mother commented that he snored shortly after he returned from service. (b.) His spouse stated that he snored loudly, gasped for air, and was physically fit, when she noticed his snoring. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. 3. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's obesity was aggravated by his service connected SFW residuals, psychiatric disorder, CAD, or diabetes disabilities. 4. Whether the Veteran's OSA condition is at least as likely as not (50 percent or greater probability) proximately due to his service connected SFW residuals, psychiatric disorder, CAD, or diabetes disabilities. 5. Whether the Veteran's OSA condition is at least as likely as not (50 percent or greater probability) aggravated beyond its natural progression by his service connected SFW residuals, psychiatric disorder, CAD, or diabetes disabilities. The examiner must provide the underlying reasons for any opinions provided. If the examiner is unable to provide this opinion without resorting to speculation, he or she must indicate why this is so. If aggravation is shown, the examiner should quantify the degree of aggravation, if possible. The question of secondary aggravation must be addressed separately from the question of secondary causation. The examiner must note that an opinion to the effect that one disability is not "caused by," "a result of," or "secondary to" another disability does not answer the question of aggravation and will necessitate a further opinion. 6. Thereafter, readjudicate the claim. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.