Citation Nr: 21012401 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-18 121 DATE: March 4, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran had active service with the United States Navy from September 1975 to September 1979. In September 2017 and May 2019, the Board of Veterans’ Appeal (Board), among other things, remanded the above claims. In October 2019, a Veterans’ Law Judge not the undersigned issued a decision that denied the Veteran’s claims of service connection for obstructive sleep apnea and a back disability. The Veteran appealed the October 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 order, that incorporated the parties Joint Motion for Remand (JMR), the Court vacated and remanded the Board’s October 2019 decision. Entitlement to service connection for obstructive sleep apnea and a back disability are remanded. The JMR vacated and remanded the October 2019 Board decision because it did not consider and adjudicate the Veteran’s implied secondary service connection claim. See El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). Specifically, the JMR found that the record raised a claim of service connection for obstructive sleep apnea and a back disability based on the theory that his already service-connected psychiatric disorder and left knee disorder caused obesity and this obesity caused or aggravated his obstructive sleep apnea and back disability. In this regard, the Board notes that in Walsh v. Wilkie, 32 Vet. App. 300, 306-307 (2020), the Court held that service connection may be granted on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability. However, the Board finds that the existing record does not contain adequate medical opinion evidence to adjudicate these claims under this new theory of entitlement. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”). Therefore, the Board finds that a Remand to obtain these needed medical opinion evidence is required. See 38 U.S.C. § 5103A(d); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). In this regard, when providing the requested medical opinions and again adjudicating the claim the VA examiner and the RO must apply the Court’s new definition of aggravation found which now includes a temporary worsening of a disability. See Ward v. Wilkie, 31 Vet. App. 233 (2019). While the appeal is in remand status, any outstanding VA and private treatment records should also be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s and/or his representative should submit any new pertinent evidence that the Board does not have. This would greatly help the Board. 3. In order to comply with the JMR, provide the Veteran with a VA examination to obtain a medical opinion as to origins of his obstructive sleep apnea and back disability. The claims folder should be made available to and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that obstructive sleep apnea and/or a back disability is due to a disease or injury while on active duty. b. Provide an opinion as to whether any diagnosed back arthritis manifested in the first post-service year. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s obesity was caused by his service-connected acquired psychiatric disorder and/or left knee disorder to include the medication he takes to treat his acquired psychiatric disorder and restriction of activities caused by the left knee disorder. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s obesity was aggravated by his service-connected acquired psychiatric disorder and/or left knee disorder to include the medication he takes to treat his acquired psychiatric disorder and restriction of activities caused by the left knee disorder. e. If the Veteran’s obesity was caused and/or aggravated by his service-connected acquired psychiatric disorder and/or left knee disorder, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea and/or back disability was caused by his obesity. f. If the Veteran’s obesity was caused and/or aggravated by his service-connected acquired psychiatric disorder and/or left knee disorder, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea and/or back disability was aggravated by his obesity. In order to comply with the JMR, in providing answers to the above question regarding the etiology of the Veteran’s obesity the examiner should consider and discuss, among other things, the August 9, 2019, December 20, 2017, and January 17, 2013, and December 20, 2017, VA treatment records cited to in the JMR in which it was noted as follows: “[p]oor control of any of these issues may make changing behaviors related to weight management more difficult for the veteran;” the appellant had “limited exercise due to chronic knee pains,” which prevented him from using his legs for cardio exercises; and “it is difficult to lose weight” and recommended that Appellant “try any exercise that [he] can tolerate....” In order to comply with the JMR, in providing answers to the above question regarding the etiology of the Veteran’s obstructive sleep apnea the examiner should consider and discuss, among other things, the May 2016 VA examiner’s opinion that “[i]n adults[,] the most common cause of sleep apnea is excessive weight and obesity. This veteran weighs 359.9 pounds and is listed as morbid[ly] obese in his CAPRI records” and “[d]uring sleep[,] when the throat and tongue muscles are more relaxe[d,] this soft tissue can cause the airway to be blocked and this occurs more in people with excessive w[e]ight.” In order to comply with the JMR, in providing answers to the above question regarding the etiology of the Veteran’s back disability the examiner should consider and discuss, among other things, the April 2013 VA examiner’s opinion that “[t]he DDD with DJD of the lumbar spine is more likely than not a result of age and long standing obesity” and July 2019 VA examiner’s opinion that “I believe that is more likely than not that the veteran’s low back pain is the natural progression of the disease process and is influenced by his obesity.” In providing answers to the above question the examiner should consider and discuss the service treatment records. In providing answers to the above question the examiner should consider and discuss the Veteran’s competent lay claims regarding observable symptomatology. In providing the aggravation opinion the examiner should specifically consider and discuss the Court in Ward, supra, new definition of aggravation which now includes temporary worsening of a disability. In providing answers to all the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering all the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.