Citation Nr: 21076497 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-64 707 DATE: December 27, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 2010 to August 2010, from September 2010 to October 2010, from November 2011 to December 2011, and from April 2012 to November 2012. The Veteran, in addition, has periods of active duty for training, to include from July 2008 to November 2008. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In June 2021, the Board remanded the claim for further development. During remand status, a July 2021 rating decision effectuated a Board grant for service connection for major depressive disorder with other specified anxiety disorder. Entitlement to service connection for OSA is remanded. The Veteran, and his representative, contends that his OSA is secondary to service-connected disability. First, the Veteran contends that his service-connected musculoskeletal disabilities led to an inability to exercise and subsequently caused his obesity, which then caused his OSA. Second, the Veteran argues that treatment for his service-connected acquired psychiatric disorder, such as psychiatric medication, led to weight gain and caused his obesity, which then caused his OSA. See Hearing Transcript at 6 (September 2020). To ensure that VA has met its duty to assist, the claim must be remanded for further development. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the medical evidence of record is less than adequate to decide the claim on appeal. In June 2021, the Board remanded the claim for, among other things, an addendum VA medical opinion. Although a VA medical opinion was obtained in August 2021, and addendum medical opinions in October 2021, the Board finds the VA medical opinions inadequate because it is unclear whether the clinician, in forming an opinion for secondary service connection, considered the issues of proximate causation and aggravation as independent concepts. See Atencio v. O'Rourke, 30 Vet. App. 74, 90 (2018) ("We reiterate that aggravation of a condition by a service-connected disability is independent of direct causation."); see also El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (finding that an adequate opinion must address the issue of aggravation). Here, the VA medical opinions, in addressing causation and aggravation, provided identical medical rationales. For example, in finding the Veteran's OSA to be less likely than not proximately due to service-connected musculoskeletal disabilities or aggravated beyond its natural progression by service-connected musculoskeletal disabilities, the August 2021 VA opinion provides the following rationale: OSA is characterized by recurrent, functional collapse during sleep of the velopharyngeal and/or oropharyngeal airway, causing substantially reduced or complete cessation of airflow despite ongoing breathing efforts. This leads to intermittent disturbances in gas exchange (e.g., hypercapnia and hypoxemia) and fragmented sleep. His [musculoskeletal] conditions would not cause narrowing in the back of his throat. (Emphasis Added). The opinion, in this case, appears to have limited the rationale to the issue of proximate causation without providing the Board a rationale that deals with the issue of aggravation as an independent concept. Likewise, in finding the Veteran's OSA to be less likely than not proximately due to service-connected acquired psychiatric disorder or aggravated beyond its natural progression by service-connected acquired psychiatric disorder, the October 2021 VA opinion provides the following rationale: The Veteran was seen by a pulmonologist and his cause of sleep apnea is due to his enlarged tongue. Common causes of sleep apnea are being over weight, anatomical variation -narrow airway, enlarged tonsils etc. 50 [percent] of the patients with OSA are over weight. It was noted on exam dated 3/31/16, that he had a notable macroglossia, (enlarged tongue) This would be the main culprit to his sleep apnea. His large tongue occludes his airway when he sleeps. (Emphasis Added). In this instance, the rationale notes the cause of the Veteran's OSA as due to his enlarged tongue. The rationale, however, is absent a discussion on the issue of aggravation. Although the same medical rationale may apply to both theories, the Board, on its own, is unable to make this unsubstantiated medical finding or conclusion. The Board, thus, can only consider independent medical evidence to support this finding or conclusion. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Next, the August 2021 VA medical opinion found that the medical literature does not "suggest that PTSD, anxiety and depression cause or contribute to OSA." The opinion, however, does not provide or reflect consideration of facts specific to the Veteran vis-à-vis the medical literature that was reviewed. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (stating that a medical rationale based solely on general medical literature without discussing the specific facts pertaining to a veteran's condition or individual circumstances is inadequate). In this regard, the Board observes that the Veteran's representative has argued that the opinion is inadequate because the clinician "relied on the articles referenced but did not discussed qualifying and contradictory aspects of PTSD causing or aggravating sleep apnea." See Appellate Brief (December 2021). It is noted that in McCray v. Wilkie, 31 Vet. App. 243, 249 (2019), in addressing an Institute of Medicine study, the Court held that "a medical text's qualifying or contradictory aspects may affect the probative value and adequacy of any ensuing medical opinion that relies on the text." Here, the opinion is absent a discussion on the relied medical literature and, thus, the Board is unable to discern whether the clinician considered or acknowledged the qualifying or contradictory aspects of the relied medical literature. Lastly, in addressing whether service-connected disability caused or aggravated the Veteran's obesity. The Board finds the VA medical opinions inadequate as they do not fully answer the Board's questions. First, the opinion's rationale reflects an analysis based on solely causation. Indeed, a thorough review of the opinions do not reveal that the clinician considered whether the Veteran's service-connected disabilities aggravated his obesity. See Atencio, 30 Vet. App. at 90-91 (holding that a medical opinion was inadequate when it was unclear whether the examiner had clearly provided a rationale that dealt with causation and aggravation as independent concepts); see also Walsh v. Wilkie, 32 Vet. App. 300 (2020) (holding that a veteran is entitled to disability compensation when a service-connected disability causes or aggravates his obesity). It is noted that obesity is not a disability for purposes of VA benefits; hence, it cannot be service connected on a direct basis. See Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, indirect secondary service connection can be granted with obesity acting as an "intermediate step." See VAOPGCPREC 1 2017 (Jan. 6, 2017). Specifically, a grant is warranted (1) if the service-connected disability caused or aggravated the obesity, (2) if obesity was a substantial factor in causing a subsequent disability, and (3) if the subsequent disability would not have occurred but for obesity. Id. Given the above, the Board may not rely upon the VA medical opinions in their present form and, therefore, finds the medical evidence is inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr, 21 Vet. App. at 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that it is adequate). Accordingly, as the Board has a duty to ensure compliance with the terms of its remand, remand is again required. Stegall v. West, 11 Vet. App. 268 (1998). In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from September 2021 to the Present. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's OSA. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with OSA. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician must opine on: Secondary Service Connection Musculoskeletal Disabilities (a) Whether the Veteran's OSA is at least as likely as not (1) proximately due to any of his service-connected musculoskeletal disabilities (such as the spine, ankles, and feet) or (2) aggravated beyond its natural progression by any of his service-connected musculoskeletal disabilities. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. Secondary Service Connection Acquired Psychiatric Disorder (b) Whether the Veteran's OSA is at least as likely as not (1) proximately due to service-connected acquired psychiatric disorder, or (2) aggravated beyond its natural progression by service-connected acquired psychiatric disorder. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. Indirect Secondary Service Connection Obesity as an "Intermediate Step" (c) Is it at least as likely as not that service-connected (i) musculoskeletal disabilities and/or (ii) acquired psychiatric disorder, (1) caused or (2) aggravated the Veteran's obesity? Provide a rationale that deals with causation and aggravation as independent concepts. Explain. Consider and expressly address the Veteran's theories that (1) his service-connected musculoskeletal disabilities led to an inability to exercise and subsequently caused his obesity, and (2) treatment for his service-connected acquired psychiatric disorder, such as psychiatric medication, triggered weight gain, and subsequently caused his OSA. (d) If so, was the resulting obesity a substantial factor in causing the Veteran's OSA? Explain. (e) If yes, but for the Veteran's obesity, would the Veteran have developed OSA? Explain. 3. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.