Citation Nr: 21016032 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 16-03 536 DATE: March 19, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected lumbar spine strain with degenerative arthritis (“back disability”), is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from December 1984 to May 1990. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This matter was previously before the Board in October 2019, where it was remanded for additional development. The Board notes that there was not substantial compliance with its October 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board remanded the Veteran’s claim to afford the Veteran a new VA examination and medical opinions to adequately address the etiology of his claimed OSA condition on both a direct and secondary basis. In January 2020, three VA medical opinions were completed in response to the Board’s October 2019 remand. Upon review of each, the Board notes that two out of the three medical opinions are inadequate for adjudicative purposes. The first inadequate opinion is regarding direct service connection. The Board notes that the October 2019 BVA remand specifically requested the examiner to address the submitted lay statements by the Veteran’s former colleague and wife regarding the existence of symptomatology while the Veteran was in service. See BVA Decision, October 2019. However, upon review of the January 2020 direct service connection opinion, the Board finds this opinion to be flawed, as it does not adequately address the submitted lay statements in relation to the noted existence of symptomatology during the Veteran’s active service, symptomatology that is medically known to be associated with sleep apnea. Instead, the context of the examiner’s opinion was based solely on a diagnosis of sleep apnea at the time of active service, discrediting the lay statements as falling short of the standard required to identify a diagnosis. However, the Board notes that a lack of actual diagnosis at the time of service is not an exhaustive indicator to dismiss competent and credible lay statements of noted symptoms associated with sleep apnea, as this evidence shows a possible manifestation in-service of the currently diagnosed OSA – a manifestation that occurred prior to when an objective diagnosis was given. Thus, for the examiner to adequately address these statements, he/she must discuss why the noted instances of symptomatology shown in service are not manifestations of early signs of a later diagnosed OSA. Therefore, the Board finds that an addendum medical opinion is needed to adequately address the submitted lay statements regarding the existence of symptomatology while the Veteran was in service, prior to readjudication of the claim and in compliance with Stegall. The second inadequate opinion is regarding the aggravation prong of secondary service connection. The Board notes this opinion to also be flawed, as the examiner inadequately provided an unfavorable opinion based solely on the Veteran not having a diagnosis of positional OSA during service or post-service – a diagnosis that means obstructive events mainly or exclusively take place when the person is in a supine posture (lying horizontally with the face and torso facing up)— which the examiner noted must exist in order to substantiate aggravation. However, the Board notes that not having a diagnosis of positional OSA is not an exhaustive measure to determine that aggravation of the Veteran’s service-connected back disability did/does not exist; and if it is an exhaustive measure, the examiner failed to adequately explain why, to include why being in a supine posture while sleeping is the only way that the Veteran’s sleep apnea could be aggravated by his back disability. Therefore, the Board finds that an addendum medical opinion is needed to adequately address the aggravation prong of secondary service connection, prior to readjudication of the claim. Moreover, the Board notes that the Veteran’s representative raised the contention that the Veteran’s narcotic analgesics (medications prescribed for severe back pain) exacerbates his sleep apnea, a contention that has not yet been addressed. Therefore, the Board finds that an addendum medical opinion is needed to address whether the Veteran’s back disability medications has caused or contributed to his OSA, prior to readjudication of the claim. Lastly, the Board notes that the Veteran’s representative noted that the Veteran’s back disability caused him to become obese which led to his OSA. Examiners who provided opinions in this matter have indicated that the Veteran has worsening obesity, noted to be a risk factor that leads to the development of OSA. However, an assessment of whether the Veteran’s obesity was caused and/or aggravated by any of his service-connected disabilities has not yet been made. In this regard, the Board notes that obesity is not a disease or disability for which service connection may be granted. See VAOPGCPREC 1-2017 (holding the “longstanding policy of [VA], that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131, and therefore, may not be service-connected on a direct basis). Nevertheless, service connection may be granted under 38 C.F.R. § 3.310(a) if obesity was an “intermediate step” between a service-connected disability and the current disorder. See VAOPGCPREC 1-2017. In order for secondary service connection to be granted under this theory, the record must demonstrate that: (1) a service-connected disability caused the veteran to become obese or aggravated his obesity; (2) the obesity of the aggravation of obesity as a result of a service-connected disability was a substantial factor in causing the claimed disorder; and (3) the claimed disorder would not have occurred but for obesity caused or aggravated by the service-connected disability. See Walsh v. Wilkie, 32 Vet. App. 300, 306-07 (2020). Therefore, as VA precedent in January 2017 and the February 2020 decision from the United States Court of Appeals for Veterans Claims (CAVC) note that obesity can be an “intermediate step” in a causal chain for secondary service connection, the Board finds that consideration of whether the Veteran’s obesity was caused or aggravated by a service-connected disability must be conducted prior to adjudication of the Veteran’s claim. Accordingly, a remand is necessary to address the matters discussed above. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his OSA and obtain any outstanding records and associate them with the Veteran’s claims file. 2. After associating all newly acquired records with the claims file, send the claims file back to the January 2020 VA examiner to provide the Veteran with addendum VA medical opinions to determine the nature and etiology of the Veteran’s OSA. If the January 2020 VA examiner is not available, obtain the necessary addendum opinions from another appropriate clinician. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all material relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail The Veteran should be scheduled for another examination if deemed necessary by the person providing the addendum report to address the following: (a) Opine whether it is at least as likely as not (50 percent or greater probability) the Veteran’s OSA had its onset during any period of active duty service, or is otherwise etiologically related to his active duty service. Please note: the examiner must specifically address the lay statements submitted by the Veteran’s former colleague and wife regarding the existence of symptomatology while the Veteran was in active duty service. (b) Opine whether it is at least as likely as not (50 percent or greater probability) the Veteran’s OSA was caused and/or aggravated (beyond the natural progression) by his service-connected back disability, to include prescribed medications for severe back pain. Please note: the examiner must address both causation and aggravation in providing the opinions requested above. (c) Opine whether the Veteran’s obesity was an intermediate step between his current sleep apnea and any service-connected disability. In doing so, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any service-connected disability caused the Veteran to become obese or gain weight and/or aggravated his obesity/weight gain. If so, the examiner must opine whether the obesity was a substantial factor in causing the Veteran’s sleep apnea and whether the Veteran’s sleep apnea would NOT have occurred or worsened but for the weight gain caused or aggravated by his service-connected disability. (d) Any opinion should include a detailed rationale. The examiner should consider the entire claims file, and discuss the Veteran’s lay statements regarding the nature, onset, and chronicity of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that his reports must be considered in formulating the requested opinion. (e) If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rational for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to 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. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, 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.