Citation Nr: 21006382 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-30 450 DATE: February 4, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for a peripheral vestibular disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 1, 2016 is remanded. FINDING OF FACT The most probative evidence of record establishes that the Veteran’s service-connected left shoulder and neurological disabilities resulted in obesity, which was a substantial factor in the development of the Veteran’s obstructive sleep apnea. CONCLUSION OF LAW The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1988 to March 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2013 and January 2017 rating decisions issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In the September 2016 and August 2018 VA form 9s, the Veteran declined an optional Board hearing. The undersigned Veterans Law Judge has been assigned to consider this appeal pursuant to 38 C.F.R. § 20.106(a) (formerly 19.3(a)). The Veteran’s April 2020 Board appeal seeking an increased rating for his service-connected psychiatric disability is awaiting consideration under the modernized appeals system and will be the subject of a future Board decision, if otherwise in order. 1. Entitlement to service connection for obstructive sleep apnea is granted. The Veteran seeks entitlement to service connection for obstructive sleep apnea and has argued that this disability was directly incurred during service and/or is secondary to his service-connected left shoulder and psychiatric disabilities. Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “medical nexus” between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see 38 C.F.R. § 3.303(a). Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires: (1) competent evidence of current disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either: (a) proximately caused by; or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; see Allen v. Brown, 7 Vet. App. 439 (1995). Here, the current disability element of a service connection claim is not in dispute, as the results of an April 2012 sleep study confirm a diagnosis of obstructive sleep apnea during the appellate period. Regarding the in-service incurrence element, the Veteran’s service treatment and personnel records are negative for complaints of or treatment for obstructive sleep apnea or related symptomatology during his active duty service. In the January 1992 Report of Medical History, the Veteran affirmatively denied the presence of or history of frequent trouble sleeping. At the January 1992 service separation examination, the body systems that typically involve obstructive sleep apnea were found to be clinically normal and without defect. The Board finds no persuasive evidence that the Veteran experienced sleep problems, yet alone clinically significant obstructive sleep apnea, during service. In fact, the Veteran has lay reported that he did not begin experiencing fatigue or other sleep-related symptoms until 2005, nearly 13 years after his separation from active duty service. See March 2012 lay statement. Accordingly, the in-service incurrence element of a direct service connection claim has not been satisfied, and the Veteran cannot achieve service connection on a direct basis. The Veteran submitted October 2016 and June 2019 private medical opinions from his treating sleep medicine doctor stating that the Veteran’s severe obstructive sleep apnea began during military service and was exacerbated by his 1992 left shoulder injury. These opinions are entitled to no evidentiary weight in this decision as they are conclusory and are based on the inaccurate factual premise that the Veteran experienced sleep symptoms during his active duty service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (“An opinion based upon an inaccurate factual premise has no probative value.”); see Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (“[A] mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor’s opinion.”). These medical opinions were apparently predicated on the Veteran’s reports that his symptoms of sleep apnea began during service—a contention that is not credible based on the current evidentiary record. The Veteran’s service treatment records are silent for sleep apnea-related symptoms, and include an affirmation by the Veteran at service separation that he never experienced frequent trouble sleeping. The Board affords more weight to the contemporaneous assertions in the service treatment records than later statements of the Veteran rendered to a physician solely for the purposes of seeking a favorable medical nexus opinion. Additionally, the Board cannot disregard that the Veteran has previously indicated that his sleep-related symptoms did not begin until 2005, approximately 13 years after separation from service. There is no credible evidence that the Veteran experienced obstructive sleep apnea or sleep apnea-related symptoms during his active duty service, and to the extent that the private physician’s medical nexus opinions state otherwise, they are not based on an accurate factual premise. As noted above, the Veteran also seeks entitlement to service connection for obstructive sleep apnea on a secondary service connection basis, alleging his service-connected left shoulder disability has caused his obstructive sleep apnea. In March 2012, the Veteran submitted a medical opinion from his private primary care physician stating that the Veteran’s service-connected left shoulder condition had worsened in severity and was affecting the Veteran’s sleep. The October 2016 and June 2019 private medical opinions from the Veteran’s treating sleep medicine doctor similarly opined that the Veteran’s obstructive sleep apnea was proximately due to his service-connected left shoulder disability. These medical opinions were conclusory in nature and unsupported by a sufficient explanatory rationale; thereby limiting their probative value in this appeal. Stefl, supra. In a September 2014 lay statement, the Veteran indicated that weight gain due to his service-connected left shoulder disability precipitated the development of his obstructive sleep apnea. The RO and past Board remand decisions have ignored the theory of entitlement indicating that obesity caused by the Veteran’s service-connected left shoulder disability may have been a substantial factor in the development of his obstructive sleep apnea. The United States Court of Appeals for Veterans Claims (Court) has recently held that “there is currently no provision in the rating schedule to compensate for obesity.” Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). Indeed, in a precedential opinion, VA’s General Counsel concluded that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131, and may not be service connected on a direct basis. VAOPGCPREC 1-2017. However, the General Counsel also recognized that obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). See id. at 2. The first inquiry is whether the service-connected disability caused the veteran to become obese. If so, then the adjudicator must address whether the obesity (as a result of the service-connected disability) was a substantial factor in causing the non-service-connected disability, and whether the non-service-connected disability would not have occurred but for the obesity. See id. at 9-10. In July 2014, the Veteran submitted a private medical opinion from his treating primary care physician that positively indicated that obesity caused by the Veteran’s service-connected left shoulder and neurological disabilities was a substantial factor in the Veteran’s development of obstructive sleep apnea. In pertinent part, the physician explained: It is my opinion that it is likely that [the Veteran’s] sleep difficulties are aggravated by his service-connected distal clavicle and compression neuropathy of the left suprascapular nerve. These conditions are causing [the Veteran] severe pain and as a result he has gained a tremendous amount of weight. I also feel that [it] is at least as likely as not that [the Veteran’s] continued obesity is aggravated by his service-connected distal clavicle resection and compressive neuropathy of the left suprascapular nerve. His continued efforts to eat healthier, consume fewer calories, and walk over several months have resulted in little weight loss. Sleep disturbance caused by obstructive sleep apnea can certainly be exacerbated by certain narcotic pain medications and increasing weight. [The Veteran] has no prior symptoms of thyroid or metabolic issues and had no reported sleep difficulties of weight-related health problems prior to enlisting into the Navy [in] February 1988. He has been eating below maintenance for his weight and build, but continues to have difficulty losing weight. Because of these things…it is likely that [the Veteran] has undiagnosed obstructive sleep apnea with onset that started after his service-connected injuries and the weight gain as a side effect. This favorable medical opinion was fully explained and is supported by the Veteran’s medical records. At the January 1992 service separation examination, the Veteran’s weight was listed as 220 pounds. Private treatment records from April 2005 confirm that the Veteran was utilizing the narcotic medication, Lortab, to manage pain caused by his service-connected left shoulder disability, and his weight was listed as 327 pounds. It was noted that the Veteran was active and trying to lose weight. By the time that the Veteran was formally diagnosed with obstructive sleep apnea in April 2012, his weight was listed as 410 pounds. The primary care physician has indicated that despite efforts to lose weight, this gain was the result of limitations and pain due to his service-connected left shoulder and neurological difficulties. The Board acknowledges that February 2013, June 2019, and November 2020 VA medical opinions contain negative nexus opinions declining to link the Veteran’s obstructive sleep apnea to his service-connected left shoulder disabilities. However, these medical opinions strictly considered whether the Veteran’s service-connected left shoulder disability could have physically resulted in obstructive sleep apnea, i.e., whether the left shoulder was involved in airway blockage. While the June 2019 and November 2020 VA examiners specifically noted obesity as a contributing factor for the development of obstructive sleep apnea, these examiners failed to consider whether the Veteran’s service-connected left shoulder and neurological disabilities could have caused obesity which resulted in the development of sleep apnea. The Board finds the July 2014 private medical opinion to be sufficiently probative to support the award of service connection for obstructive sleep apnea as secondary to the Veteran’s service-connected left shoulder and neurological disabilities, utilizing obesity as an intermediary step. The physician explained that the Veteran gained substantial weight due to the use of narcotic pain medication and limitations caused by the Veteran’s service-connected left shoulder and neurological disabilities, and this weight gain was a substantial factor in the development of the Veteran’s obstructive sleep apnea. The Board shall resolve reasonable doubt in the Veteran’s favor on the issue of whether the Veteran’s obstructive sleep apnea would not have occurred but for his obesity. Based on the timeline of the Veteran’s reported symptomatology, it is apparent that his sleep impairment coincided with a steep weight gain. For instance, in 2005, when he first reported sleep symptoms, the Veteran’s weight had increased to 327 pounds, more than 100 pounds since service discharge. The Veteran continued to report worsening sleep habits and he continued to gain weight, adding nearly 100 additional pounds by the time of his formal diagnosis of obstructive sleep apnea in April 2012. As noted by the June 2019 VA examiner, the prevalence of obstructive sleep apnea progressively increases as the body mass index and associated markers (such as neck circumference and waist-to-hip ration) increase. In sum, the most probative evidence establishes that the Veteran’s obstructive sleep apnea developed as a result of weight gain caused by his service-connected left shoulder and neurological disabilities, as thoroughly explained in the July 2014 private medical opinion. As the requirements for secondary service connection have been satisfied, the Veteran’s appeal seeking service connection for obstructive sleep apnea is granted. The Board notes that the Veteran’s attorney has also argued that the Veteran’s obstructive sleep apnea is secondary to his service-connected psychiatric disability. See December 2020 brief. As the claim is being granted on separate grounds, there is no need to develop this contention further. REASONS FOR REMAND 1. Entitlement to service connection for a peripheral vestibular disorder is remanded. The Veteran has alleged that he experiences vertigo due to in-service noise exposure and/or secondary to his service-connected tinnitus. In January 2017, a VA examiner opined that the Veteran’s peripheral vestibular disorder was less likely than not incurred in service and/or proximately due to the Veteran’s service-connected tinnitus. The VA examiner noted that the Veteran’s service separation exam was negative for vertigo, dizziness, or tinnitus, and he did not develop vertigo/dizziness within one year of service discharge. The VA examiner also stated that peripheral vestibular disorder, dizziness, and vertigo are not caused by tinnitus, but no explanatory rationale was provided. In the July 2020 decision, the Board acknowledged the January 2017 VA medical opinion addressing direct service connection and the proximate cause prong of secondary service connection, but remanded the claim for an additional VA medical opinion addressing direct service connection and both the proximate cause and aggravation prongs of secondary service connection. The Veteran attended a VA examination in November 2020 which confirmed a diagnosis of peripheral vestibular disorder. The VA examiner declined to link the Veteran’s peripheral vestibular disorder to his active duty service because the Veteran’s service-department records were negative for complaints of dizziness, and according to the VA examiner “it appear[ed that the Veteran’s] complaints came several years after service.” However, the Veteran lay reported that his vertigo symptoms began in 1993 and have continued to the present, with a significant worsening in April 2014. See January 2017 VA examination; see also August 2016 private medical record. As the VA examiner’s medical nexus opinion was based on an inaccurate factual premise, it is insufficient for adjudicative purposes. The claim must be remanded for an additional VA addendum opinion addressing direct service connection. Additionally, the Veteran has alleged that his peripheral vestibular disorder is due to inner ear dysfunction caused by in-service acoustic trauma. See January 2018 Notice of Disagreement. In support of this contention, he has submitted an online article from an audiologist discussing dizziness and its relationship to inner ear dysfunction. See August 2018 submission. The author stated that interruption of inner ear functioning may result in tinnitus, hearing loss, or tinnitus. The Veteran argued that the same mechanism that resulted in his service-connected tinnitus and bilateral hearing loss also caused his current peripheral vestibular disorder. See August 2018 VA form 9. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). In this regard, the Board notes that treatise evidence must “not simply provide speculative generic statements not relevant to the Veteran’s claim.” Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, “standing alone,” must discuss “generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion.” Id. Here, the article identified above, and submitted for evidentiary consideration, consists of a general information printed off the internet. There is no indication from the record that the conclusions discussed in this internet article were ever published in medical treaties or peer-reviewed medical journals, where the author’s statements and conclusions would be subject to intense scientific scrutiny by recognized experts in the field of audiology/vestibular disorders. Thus, the Board cannot find that the submitted internet article conveys sound medical principles universally accepted by medical professionals. Moreover, there is no competent medical evidence linking the principles espoused in the article to the Veteran’s specific medical circumstances. Upon remand, the VA examiner shall be directed to consider and address this internet article. In April 2019, VA received medical and adjudicative information from the Social Security Administration (SSA) regarding the outcome of the Veteran’s claim for Social Security disability benefits. This evidence reveals that the Veteran was awarded benefits based on a diagnosis of ataxia associated with cerebellar atrophy. At a May 2015 neurological examination conducted at the Mayo Clinic, the Veteran reported a decline in gait and balance. The neurologist diagnosed the Veteran with mild ataxia, with suspected cerebellar dysfunction, and noted that this condition was likely genetic due to a very strong family history and transmitted in an autosomal-dominant fashion. It is unclear whether this diagnosed ataxia is the same condition diagnosed by the January 2017 VA examiner as a peripheral vestibular disorder, and a medical opinion is necessary to resolve this matter. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). For the reasons stated above, the claim must be remanded for an addendum VA medical opinion addressing direct service connection based on the Veteran’s reported persistence of symptoms since 1993, his contention that in-service noise exposure resulted in the development of peripheral vestibular disorder, consideration of his family history of ataxia with cerebellar atrophy, and the internet article submitted in August 2018. The November 2020 VA examiner opined that the Veteran’s peripheral vestibular disorder was not proximately due to his service-connected tinnitus, but the rationale that was provided was incomplete and used vague language. The VA examiner stated that some vestibular disorders are associated with tinnitus, but that tinnitus is not known to cause vestibular disorders. The VA examiner did not provide a further explanation on this point, and it remains unclear what she meant when she stated that an association existed between tinnitus and vestibular disorders. The vagueness of the VA examiner’s statement frustrates the Board’s ability to assess the probative value of the medical opinion. Moreover, the VA examiner failed to address the aggravation prong of secondary service connection, as directly requested in the Board’s July 2020 remand decision. As such, the claim must also be remanded for an addendum VA medical opinion addressing secondary service connection. Lastly, the RO is instructed to obtain updated VA treatment records from January 2020 to the present. 38 C.F.R. § 3.159(c)(2) and (3). 2. Entitlement to a TDIU prior to June 1, 2016 is remanded. The Veteran’s claim seeking entitlement to a TDIU prior to June 1, 2016 is inextricably intertwined with his claim seeking service connection for peripheral vestibular disorder, as he has directly alleged his vertigo impacted his employability, and the outcome of his service connection claim for peripheral vestibular disorder may impact the physical disabilities that can be analyzed when determining whether the Veteran is entitled to a TDIU prior to June 1, 2016. See Harris v. Derwinski, 1 Vet. App. 180 (1991); see also September 2016 VA form 21-8940 (alleging that vertigo and balance issues were the primary reason he ended his employment). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2020 to the present. 2. Obtain an addendum VA medical opinion from an appropriate VA examiner addressing the etiology of the Veteran’s current peripheral vestibular disability. Following a complete review of the electronic claims file, the VA examiner is requested to address the following inquiries: (a.) Does the peripheral vestibular disorder diagnosed by the January 2017 VA examiner encompass the autosomal-dominant genetic disability of ataxia with cerebellar dysfunction diagnosed in August 2015 by the Mayo Clinic? Why or why not? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current peripheral vestibular disorder was incurred in or is otherwise etiologically related to his active duty service? The VA examiner is requested to consider and address the Veteran’s lay contentions that his vertigo began in 1993 and has continued to the present, his contention that military noise exposure caused his disorder, as well as the medical article submitted in August 2018 discussing inner ear dysfunction. (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current peripheral vestibular disorder is proximately due to his service-connected tinnitus? In addressing this question, the VA examiner is requested to review the November 2020 VA medical opinion and clarify what the VA examiner meant when she stated that vestibular disorders may be associated with tinnitus, but that tinnitus does not cause vestibular disorders. (d.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current peripheral vestibular disorder was aggravated by the Veteran’s service-connected tinnitus? In answering directive 2(d), above, the VA examiner is reminded of the recent precedential decision by the United States Court of Appeal for Veterans Claims in Ward v. Wilkie, 31 Vet. App. 233 (2019), which held that aggravation under 38 C.F.R. § 3.310(b) does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability—any additional impairment of earning capacity—in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase—regardless of its permanence.” See id. at 239. [Continued on Next Page] The VA examiner must provide a complete rationale for each opinion expressed, based on the VA examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante 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.