Citation Nr: 21014362 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 18-35 287 DATE: March 12, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) as secondary to service-connected unspecified depressive disorder is granted. REMANDED Entitlement to service connection for rheumatoid arthritis/osteoarthritis is remanded. FINDING OF FACT The Veteran's obstructive sleep apnea is aggravated beyond its natural progression by his service-connected unspecified depressive disorder. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea as secondary to service-connected unspecified depressive disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1972 to August 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2017 and April 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim in August 2019 for further development. 1. Entitlement to service connection for OSA, to include as secondary to service-connected unspecified depressive DO, sinusitis, and deviated nasal septum. The Veteran asserts that his OSA is due to his active service. Alternatively, he contends that his OSA is due to his service-connected unspecified depressive DO, sinusitis, and deviated nasal septum, with medications. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In the August 2019 Remand, the Board found that it could not make a fully-informed decision on this matter, as the file contained divergent findings (in the March 2013 VA examination report and the March 2019 private medical opinion from H. S., M. D.) and the March 2013 VA examiner failed to fully address whether the claimed OSA was aggravated by the Veteran’s service-connected deviated septum, sinusitis, and/or depressive disorder. Therefore, the RO was directed to obtain an additional VA medical opinion with supporting rationale to clarify the etiology of the Veteran’s claimed OSA. The Board notes that in an August 2019 VA medical opinion, the examiner opined that the Veteran's sleep apnea was not proximately due to his service-connected unspecified depressive DO, sinusitis, and deviated nasal septum conditions. The examiner reasoned the “most common cause of obstructive sleep apnea is obesity. Veteran weighs approximately 265 lbs. with a large neck and Mallampati score of iii which is the most likely etiology for obstructive sleep apnea in this Veteran.” Regarding aggravation, however, the examiner opined that the OSA is at least as likely as not aggravated beyond its natural progression by the Veteran’s service-connected unspecified depressive DO with medications. The examiner reasoned the “Veteran does take Klonopin for depressive disorder and certainly this can aggravate respiratory depression. Severe obstructive sleep apnea causes apnea which can be exacerbated by Klonopin use.” The examiner further noted that the “Veteran has severe sleep apnea. It is difficult to obtain a baseline prior to aggravated condition unless the veteran stops his medications and repeat his sleep study. The aggravation from a service connected condition of depressive disorder and medications to sleep apnea is […] supported by medical literature.” As there is evidence of a current disability, evidence of a service-connected disability, and evidence establishing a connection between the current disability and the service-connected disability, service connection for obstructive sleep apnea as secondary to service-connected unspecified depressive disorder is warranted. In so finding, the Board notes that although 38 C.F.R. § 3.310(b) indicates that VA will not concede aggravation unless the baseline severity of the nonservice-connected disease or injury is established, the next sentence indicates that the rating activity will determine the baseline and current levels of severity and determine the extent of aggravation. Given that the Board is not bound by the RO's determination that aggravation is not present, and as the Board does not assign ratings in the first instance, the Board reads 38 C.F.R. § 3.310(b) as permitting the Board to determine whether service connection on an aggravation basis is warranted, with the RO having the responsibility for determining the degree of aggravation in assigning the rating. REASONS FOR REMAND 2. Entitlement to service connection for rheumatoid arthritis/osteoarthritis is remanded. The Veteran contends that he has rheumatoid arthritis/osteoarthritis due to his military sanctioned recreational activity. The Board finds that it cannot make a fully-informed decision on this matter, because no examiner has opined on whether the claimed condition is related to the Veteran’s service. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who treated him from discharge until the present for the claimed rheumatoid arthritis/osteoarthritis. With any necessary authorization from the Veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the Veteran which have not previously been secured. Any records obtained should be associated with the file. Failures to respond or negative replies should be noted and associated with the file. 2. Obtain updated VA treatment records. 3. After the above development is completed, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s claimed rheumatoid arthritis/osteoarthritis. The claims file, to include this Board remand, must be made available to and reviewed by the examiner. A note that such review was completed should be provided in the examiner’s report. The examiner is asked to review all pertinent records and evidence associated with the claims file and address the following: *For the Veteran’s claimed rheumatoid arthritis/osteoarthritis, provide an opinion on whether it is at least as likely as not (50 percent probability or greater) related to any symptomatology noted in service and/or his in-service military duties/military occupational specialty, to include his military sanctioned recreational activity. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Edwin B. Esmenda, 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.