Citation Nr: 21022296 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 10-16 095 DATE: April 15, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1989 to December 1993. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran was afforded a hearing in this matter in April 2018, the transcript of which is associated with the record. This matter was before the Board, and was remanded for further development in a July 2018 decision. The matter was again remanded in July 2020. 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. This matter was last remanded in July 2020 for an adequate VA etiological opinion. The Board specified that the examiner must provide a well-reasoned opinion regarding whether the sleep apnea is etiologically related to service, and must specifically discuss the lay evidence of record, including statements indicating that the Veteran experienced sleep disorder symptoms while in service, including shortness of breath, loud snoring and fatigue, witnessed by others. In October 2020, an addendum opinion was associated with the claims file. The examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by service, reasoning that there is no documentation that the sleep apnea occurred in service, that there is no lay evidence, and lack of evidence to support complaints of shortness of breath, loud snoring and fatigue. The examiner also offered an opinion regarding secondary service connection. It was opined that the Veteran’s sleep apnea is less likely than not caused or aggravated by his service-connected psychiatric disability. It was reasoned that obstructive sleep apnea is characterized by narrowing or collapse of the pharyngeal airway during sleep, and is caused by anatomical variations in the craniofacial features. It was further noted that depression can interfere with sleep patterns due to emotional and psychological issues, resulting in non-restful sleep. The examiner concluded that the Veteran’s obesity outweighs the mental condition, and that his morbid obesity is the cause of his sleep apnea. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of sleep apnea. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board notes that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The examiner’s direct etiological opinion is entirely premised on lacking documentation and evidence that sleep apnea occurred in service. In fact, the examiner attempted to corroborate the presence of snoring, shortness of breath and fatigue in the Veteran’s service record. However, this too is an inadequate approach to forming a rationale, as a Veteran is competent to report lay observable symptoms, including these reported symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As to secondary service connection, the Board notes first and foremost that July 2020 remand instructions did not include a request for a secondary opinion. Nonetheless, the examiner did offer a secondary service connection opinion based on the Veteran’s psychiatric disability. The Veteran is, however, service connected for other disabilities, including bilateral knee patellofemoral pain syndrome and degenerative disease. The examiner’s opinion that the Veterans’ morbid obesity is the cause of the sleep apnea and outweighs the psychiatric disability as a factor does not go far enough in explaining the etiological relationship, if any, between sleep apnea and a service-connected disability. In this regard, the United States Court of Appeals for Veterans Claims (CAVC) issued Walsh v. Wilkie, 32 Vet. App. 300 (2020), holding that obesity as an “intermediary step” in a causal chain for service connection can be established on either a causal or aggravation basis. The examiner did not address the Veteran’s obesity as an intermediary step. Additionally, while the examiner explained the anatomical background of sleep apnea, the secondary opinion was conclusory in that there was no explanation as to why obesity outweighed the Veteran’s psychiatric disability as a causal factor for sleep apnea. The matters are REMANDED for the following action: Obtain an addendum VA medical opinion from an appropriate medical provider to determine the nature and etiology of the Veteran’s sleep apnea. The entire claims file including this remand must be provided to the examiner, who must note his or her review of the file. If additional examination or telehealth interview is found to be necessary, such must be obtained. The examiner must provide a well-reasoned opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s sleep apnea began in service or is otherwise etiologically related to his time on active duty. In rendering this opinion, the examiner must specifically discuss the lay evidence of record indicating that the Veteran experienced sleep disorder symptoms while in service, including shortness of breath, loud snoring, and fatigue, all of which were witnessed by others. The examiner must also discuss the credible lay statements of record. The Board notes that the Veteran is competent to report lay observable symptoms, such as the aforementioned. If the examiner determines that the Veteran’s reported in-service symptoms do not represent an in-service onset of sleep apnea, that opinion must be fully explained and reconciled with the evidence of record. The examiner is advised that the Veteran is competent to report history and symptoms and that those reports must be considered in formulating any requested opinion. If the examiner rejects the Veteran’s reports, the examiner must provide a rationale for doing so. Absence of evidence in service treatment records is an insufficient basis for a negative etiological opinion. The examiner is also asked to opine as to the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea is caused by his service-connected disabilities, to include a psychiatric disability and bilateral knee disabilities. (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea is aggravated by his service-connected disabilities, to include a psychiatric disability and bilateral knee disabilities. If aggravation is found, the examiner should address the baseline manifestation and the increased manifestations due to the service-connected disabilities. Finally, the examiner must opine whether it is at least as likely as not that: (i) The Veteran’s service-connected disabilities, to include a psychiatric disorder and right and left knee disabilities, as well as prescribed medication for their treatment, caused him to become obese; (ii) Such obesity was a substantial factor in causing his sleep apnea; and (iii) His current sleep apnea would not have occurred but for obesity caused by the service-connected disabilities. The examiner should consider all relevant lay and medical evidence. The examiner should explain the reasons behind any opinions and conclusions reached. The examiner is reminded that the term as likely as not does not mean within the realm of medical possibility, but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. A complete rationale for all opinions reached must be provided. If a requested opinion cannot be provided without resorting to speculation, the examiner should state whether there is additional information that could enable the examiner to provide the necessary opinion or whether the inability to provide the opinion was based on the limits of medical knowledge. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Comninos, Georgio 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.