Citation Nr: 21021909 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-28 532A DATE: April 14, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as due to herbicide agent exposure, or in the alternative, as secondary to service-connected diabetes mellitus and hypertension, is remanded. REASONS FOR REMAND The Veteran served with the United States Marine Corps from October 1969 to October 1971. Following a June 2017 hearing before the undersigned, this matter was previously remanded by the Board of Veterans’ Appeals (Board) in February 2018, January 2020, and December 2020. Unfortunately, the remands have yet to yield an adequate examination report, and remand is required again. Entitlement to service connection for obstructive sleep apnea, to include as due to herbicide agent exposure, or in the alternative, as secondary to service-connected diabetes mellitus and hypertension, is remanded. The Board last remanded this matter in December 2020 for an additional VA examination as to the etiology of the Veteran’s sleep apnea. The examiner was directed to provide an opinion as to whether the Veteran’s sleep apnea was secondary to the Veteran’s service-connected hypertension and diabetes. Additionally, the examiner was directed to opine whether the Veteran’s obstructive sleep apnea was due to exposure to herbicide agents or inconsistent sleep patterns during service. See December 2020 Board Remand. Following the December 2020 Board remand, the Veteran was afforded a VA examination in December 2020; the examiner provided an examination report in December 2020 and an addendum in January 2021. Among other things, the examiner concluded the Veteran’s obstructive sleep apnea was less likely than not proximately due to or the result of the Veteran’s service-connected diabetes or hypertension, or related to herbicide exposure. The examiner reasoned that diabetes, hypertension, and herbicide agents were not primary etiologies of sleep apnea according to medical literature. Instead, the examiner opined that the Veteran’s sleep apnea was more likely due to obesity. Additionally, the examiner noted the Veteran’s current symptoms did not represent an aggravation beyond a natural progression. See December 2020 Medical Opinion; see also January 2021 Addendum. The Board finds the opinions to be inadequate. First, in opining that diabetes, hypertension, and herbicide exposure were unrelated to service, the examiner noted only that medical literature did not support such a finding. The United States Court of Appeals for Veteran’s Claims (the Court) has held that nexus opinions premised on the absence of general medical literature supporting nexus without discussing the specific facts of the case are inadequate. Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018). In light of above, the Board concludes that the VA opinions are inadequate because the examiner’s rationale was premised on the absence of general medical literature supporting nexus without discussing the specific facts of this Veteran’s case. Id.; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Moreover, the previous Board remand directed the examiner to consider the opinion of the Veteran’s daughter, a biochemist, that sleep apnea was associated with high blood pressure. See June 2017 Medical Treatment Record. The examiner failed to specifically address this statement when providing his December 2020 opinion. Therefore, remand is also required to obtain a medical opinion that complies with the prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr, 21 Vet. App. at 311. Lastly, the Veteran’s representative argued that he believed the Veteran’s service-connected diabetes mellitus and blood pressure medication may have caused him to gain weight, and that this weight gain, in turn, caused him to develop obstructive sleep apnea. See March 2021 Appellate Brief. In both his October 2020 Appellate Brief and March 2021 Appellate Brief, the representative cited multiple medical articles supporting a connection between his service-connected conditions, weight gain, and sleep apnea. See October 2020 Appellate Brief; March 2021 Appellate Brief. Although obesity cannot be service-connected on a direct basis and cannot qualify as an in-service event for service connection purposes, it may serve as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis. See Garner v. Tran, 2021 U.S. App. Vet. Claims LEXIS 81 (Jan. 26, 2021). In light of the Veteran’s representative assertions in this regard and the supportive articles, remand is required to consider these theories and address the supportive medical articles. See id. In sum, the Board finds that an additional examination is necessary in order to fully consider the evidence of record and theories of service connection and provide adequate rationale. As a final matter, the Board sincerely regrets the unfortunate delay in obtaining a sufficient opinion on this matter. The Board again notes that on remand, the Veteran is free to submit an additional medical opinion from Dr. M.M. – or any other medical provider competent to speak on the matter – regarding whether the Veteran’s sleep apnea is “at least as likely as not” related to the Veteran’s service, including herbicide agent exposure, or whether sleep apnea is “at least as likely as not” caused or aggravated by a service-connected condition, such as diabetes mellitus or hypertension, to include obesity/weight gain resulting from the conditions or prescribed medications. That opinion should set forth the rationale for the connection between sleep apnea and service or the service-connected condition, and ideally be supported by medical research that is identified in the opinion. The matter is REMANDED for the following action: Request an opinion from an appropriate physician OTHER THAN THE ONE WHO AUTHORED THE DECEMBER 2020 OPINION AND JANUARY 2021 ADDENDUM as to the etiology of the Veteran’s obstructive sleep apnea. The claims file should be made available to the physician for review. The examiner should contact the Veteran and elicit a full history of the Veteran’s symptoms from the Veteran before responding to the following questions: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s obstructive sleep apnea had its onset in service or is otherwise etiologically related to active service, to include exposure to herbicide agents or inconsistent sleep patterns during service? In rendering such opinion, the examiner must specifically address (1) the opinion of the Veteran’s daughter, Dr. M.M., a biochemist, that the Veteran’s sleep apnea is related to his Naval service (see Dec. 2017 Medical Treatment Record, June 2017 Medical Treatment Record); and (2) the Veteran’s assertion that he had inconsistent sleep patterns as a correctional officer during service (see December 2017 Correspondence, June 2017 Board Hearing Transcript pp. 7-9). The examiner is reminded that the absence of medical literature is not an adequate rationale. (b.) Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran’s obstructive sleep apnea was either (a) caused or (b) aggravated by his service-connected diabetes, to include obesity/weight gain caused by diabetes or diabetes medication? *In rendering such opinion, the examiner MUST ADDRESS the articles cited in the Veteran’s October 2020 Appellate Brief and March 2021 Appellate Brief, which address a relationship between diabetes, weight gain, and sleep apnea. See October 2020 Appellate Brief; March 2021 Appellate Brief. (c.) Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran’s obstructive sleep apnea was either (a) caused or (b) aggravated by his service-connected hypertension to include obesity/weight gain caused by hypertension or hypertension medication? *In rendering such opinion, the examiner MUST ADDRESS the opinion of the Veteran’s daughter, Dr. M.M., a biochemist, that sleep apnea is associated with high blood pressure. See June 2017 Medical Treatment Record. The examiner must also consider the articles cited in the March 2021 Appellate Brief which address the relationship between hypertension and weight gain. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Emily A. Kotroco 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.