Citation Nr: 21011838 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-35 742 DATE: March 2, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served with the Idaho Army National Guard from February 1979 to August 1997. The Veteran subsequently served with the U.S. Army Reserve and had active duty from January 2002 to April 2002 and from March 2003 to August 2003. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran subsequently appealed the Board’s September 2018 decision to the U.S. Court of Appeals for Veterans Claims (Court) and, in May 2019, the Court granted a joint motion for partial remand and remanded the matter to the Board for review. In September 2019, the Board remanded the matter to the RO for further development. In November 2017, the Veteran filed a claim for sleep apnea. The Veteran’s claim file indicates that he does have a current diagnosis of obstructive sleep apnea and that he does use a continuous positive airway pressure therapy (CPAP) machine. In regard to in-service disease or injury, the Veteran’s service treatment records do not reflect treatment for obstructive sleep apnea; however, the Veteran did report a history of sleep disruption at his April 2020 VA examination. He reported that he stopped breathing in his sleep on numerous occasions. The Veteran’s claims file also contains lay buddy statements from fellow servicemen. One serviceman indicated that while on mission, the Veteran repeatedly snored, and he and other soldiers thought that the Veteran had stopped breathing at night on numerous occasions. The serviceman’s statements also indicated that the Veteran’s sleep schedule was sporadic due to mission requirements, deployments and soldier issues. Another serviceman who served as a command team member with the Veteran provided a lay statement indicating that the Veteran snored excessively and that the Veteran stopped breathing for a few seconds, sometimes longer. The Veteran’s lay statements and the statements of his fellow servicemen of record are probative evidence insofar as they report observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds the Veteran competent and credible to report these symptoms and his reports are consistent with the service record showing a history of disrupted sleep. Accordingly, the Board finds the Veteran experienced symptoms that may be associated with obstructive sleep apnea in-service. In April 2020 the Veteran was afforded a VA examination. The examiner found that the Veteran’s “claimed sleep apnea condition was at least as likely as not incurred in or caused by the claimed in service sleep apnea during military service.” The examiner also noted that the Veteran was obese during service, and that obesity does increase the risk of sleep apnea. The examiner also found that there were no objective findings from medical records reviewed and no nexus found to indicate that the Veteran’s sleep apnea is aggravated by his irregular sleep schedule. The examiner’s rationale is unclear as to the nexus and etiology of the Veteran’s sleep apnea. The examiner seems to believe that the Veteran’s sleep apnea is related to his obesity. The examiner also provided an opinion on aggravation of sleep apnea, finding that the Veteran’s sleep apnea was a pre-existing condition and was not aggravated in service. The Board finds the examiner’s statement in regard to sleep apnea pre-existing service to be erroneous, as there is no indication within the service treatment records that the Veteran had a pre-existing condition of sleep apnea prior to enlistment. The Board finds that the examiner failed to provide a sufficient nexus opinion in regard to the current diagnosis and the in-service events that led to the Veteran’s obstructive sleep apnea. The Board also finds that an opinion on secondary service connection is necessary. A review of the Veteran’s claims file indicates that the Veteran does have several previously service-connected disabilities which may have impacted Veteran’s mobility and thus led to his obesity. The Veteran does have previously service-connected disabilities: degenerative disc disease of the lumbar spine with osteoarthritis, impingement syndrome in the right shoulder, and postmedial meniscectomy in the right knee, and left knee degenerative joint disease. In January 2017, VA’s Office of General Counsel issued a precedential opinion addressing the status of obesity for the purpose of establishing entitlement of service connection. VA. Gen. Coun. Prec. 1-2017 (Jan. 6, 2017); see 38 U.S.C. § 7104(c) (providing, in relevant part that the Board is bound by precedential decisions of VA’s Office of General Counsel); see Walsh v. Wilkie, 32 Vet. App. 300, 305 (2020) (noting that “because [General Counsel] opinions lack the formalities of notice-and-comment rulemaking, the Court defers to them in accordance with their “power to persuade” (quoting Wanless v. Shinseki, 618 V. 35 1333, 1338 (Fed. Cir. 2010)). The General Counsel noted that obesity per se is not a disease or injury, and therefore may not be service connected on a direct basis. However, the General Counsel determined that “obesity may be 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).” The General Counsel’s opinion addressing obesity as an intermediate step provides guidance for the adjudication of such claims; this guidance received the Court’s endorsement as to the soundness of its analysis in Walsh, 32 Vet. App. at 305-07. The VA examiner found that the Veteran’s obstructive sleep apnea was a result of his military service and related to his obesity. The Board must remand to obtain a medical opinion, because the etiology between the previously service-connected disabilities and the Veteran’s obesity, which has been determined to be the causation of his obstructive sleep apnea, must be determined. Remand is required for further medical opinion. See Mclendon v. Nicholson, 20 Vet. App. 79. This matter is REMANDED for the following action: 1. Obtain any outstanding pertinent medical treatment records from VA, private health care providers, and any other updated relevant treatment records and associate them with the claims file. 2. Obtain a medical opinion from an appropriate clinician to determine the cause of the Veteran’s sleep apnea. If the examiner determines a physical examination is necessary to provide the requested opinions, such should be scheduled. The examiner must address the following questions: Is the Veteran’s sleep apnea at least as likely as not (i.e. 50 percent probability or greater) related to or proximately due to (i.e., a direct cause), or aggravated beyond its natural progression by a previously service-connected disability? Please explain why this is or is not so. Is the Veteran’s obesity a result of one of the Veteran’s previously service-connected disabilities? If it is not as least as likely as not that the Veteran’s sleep apnea is etiologically related to a previously service-connected disability, please identify the likely cause of the Veteran’s sleep apnea. Specifically, is it at least as likely as not (i.e. 50 percent probability or greater) that the Veteran’s sleep apnea is related to or the result of an in-service injury, event, or disease? Please explain why this is or is not so. A copy of this Remand should be made available to the examiner. A complete rationale must be provided for all opinions. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation stating why this is so. 3. Following the completion of the foregoing, and any other development deemed necessary, the RO should readjudicate the Veteran’s claim. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hellina Y. Hailu, 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.