Citation Nr: 21026662 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-19 527 DATE: May 3, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, as due to undiagnosed illness, and/or as due to Gulf War environmental hazards, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1985 to February 1993, December 2003 to May 2005, and January 2006 to August 2006, to include service in Southwest Asia (SWA) during the Persian Gulf War (PGW). This matter was previously before the Board in September 2018, when the Board denied the claim of service connection for sleep apnea. The Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court). In July 2019, the Court vacated the September 2018 Board decision and remanded the matter to the Board for development consistent with the Joint Motion for Remand. On remand, the Court noted the Board erred when it provided an inadequate statement of reasons or bases in support of its denial. Specifically, the Board failed to discuss whether the evidence reasonably raised the issue of the Veteran's diagnosed obesity as an intermediary step for his sleep apnea. And, if reasonably raised, whether the record was sufficient to adjudicate the claim. In December 2019, the Board remanded the claim for a medical opinion on the question of obesity. Specifically, the Board directed the Regional Office (RO) to obtain a medical opinion regarding whether the Veteran's obesity was caused or aggravated by the Veteran's lumbar spine disability. The RO obtained a medical opinion only on the issue of causation, but not on the issue of aggravation. Additionally, since the December 2019 Board remand was issued, the Veteran submitted statements from his wife and a roommate during service that indicate the Veteran snored and that he stopped breathing in his sleep on numerous occasions. As such, this issue was remanded again in November 2020, in order to obtain an additional medical opinion on this matter. In the November 2020 remand, the Board specifically requested that a medical opinion be provided as to whether it is at least as likely as not that the Veteran's sleep apnea manifested during service or is related to the snoring and/or incidences of breathing stoppage or gasping for air reported in February 2020 lay statements. The Board also asked that medical opinions be provided as to whether the Veteran's obesity (as a potential intermediate step) is at least as likely as not proximately due to or aggravated beyond its natural progression his service-connected lumbar spine disorder, his depressive disorder, his lower extremity radiculopathy, and his left foot and ankle disorders. In the January 2021 VA opinion, the examiner determined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the medical records available to the examiner do not support the Veteran's currently diagnosed obstructive sleep apnea is related to the snoring and/or incidences of breathing stoppage or gasping for air reported in February 2020 lay statement. The Veteran's service treatment records are silent for complaints of obstructive sleep apnea while in service or in the immediate year after discharge from service. Therefore, it is less likely than not that the Veteran's currently diagnosed obstructive sleep apnea is related to the snoring and/or incidences of breathing stoppage for air reported in the February 2020 lay statement during service. The Board finds that the opinion as it addresses the possibility of an onset of sleep apnea in service is inadequate. Specifically, the VA examiner based this opinion on the findings that service treatment records are silent for complaints of obstructive sleep apnea while in service or in the immediate year after discharge from service. The Board notes that the Veteran's VA treatment records clearly document complaints of sleep difficulty dating back to May 20, 2005, less than 2 weeks after his May 7, 2005, discharge from active service, at which time he was prescribed mirtazapine for his sleep/mood. While the Board acknowledges that the Veteran reported in a May 20, 2005, VA psychiatry initial assessment that his sleep problems were due to pain that interfered with his sleep, the Board finds that an addendum opinion should be obtained discussing the Veteran's sleep complaints immediately following his discharge from service. Additionally, the VA examiner also went on to discuss the etiology of the Veteran's sleep apnea in relation to his obesity. In the January 2021 VA opinion, the examiner concluded that the Veteran's obesity is a substantial factor in causing sleep apnea. With regard to whether the Veteran's obesity is related to a service-connected disability, the examiner determined the claimed condition is less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner noted that the conditions are unrelated and have different etiologies before going on to discuss the mechanics of obstructive sleep apnea. The examiner further determined that the medical records available to the examiner do not support the Veteran's currently diagnosed obesity (as a potential intermediate step) is greater than baseline aggravated beyond its natural progression by his service-connected lumbar spine disorder, depressive disorder, lower extremity radiculopathy, and left foot and ankle disorders during service. The Board finds that the January 2021 VA opinion as it relates to the issue of obesity is inadequate as well. Specifically, the examiner did not provide a detailed rationale that addresses the representative's assertions in the March 2021 statement that all of the Veteran's service-connected disabilities together hamper his ability to exercise, which in turn affects his ability to control his weight. As such, these assertions should be addressed by the VA addendum opinion as well. The matters are REMANDED for the following action: Return the file to the VA examiner who provided the January 2021 opinion. If the same examiner is not available, provide the file to another appropriate VA examiner. Upon review of the claims file, the examiner is asked to respond to the following: (a) Opine as to whether the Veteran's sleep apnea is at least as likely as not manifested during a period of service or is related to the snoring and/or incidences of breathing stoppage or gasping for air reported in the February 2020 lay statements. The examiner should specifically note the Veteran's complaints of sleep difficulty in the May 2005 VA treatment records immediately following his May 2005 discharge from service. (b) Opine as to whether the Veteran's obesity (as a potential intermediate step) is at least as likely as not proximately due to ANY of his service-connected disabilities (either separately or together), to include his chronic kidney disease, depression, lumbar spine disorder, lower extremity radiculopathy, left foot disorder, left ankle disorder, tinnitus, fractured metacarpals, hypertension, bilateral hearing loss, or erectile dysfunction. Please consider the representative's assertions in the March 2021 statement that all of the Veteran's service-connected disabilities together hamper his ability to exercise, which in turn affects his ability to control his weight. (c) Opine as to whether the Veteran's obesity (as a potential intermediate step) is at least as likely as not aggravated beyond its natural progression by ANY of his service-connected disabilities (either separately or together), to include his chronic kidney disease, depression, lumbar spine disorder, lower extremity radiculopathy, left foot disorder, left ankle disorder, tinnitus, fractured metacarpals, hypertension, bilateral hearing loss, or erectile dysfunction. Please consider the representative's assertions in the March 2021 statement that all of the Veteran's service-connected disabilities together hamper his ability to exercise, which in turn affects his ability to control his weight. (d) If the Veteran's obesity was caused or aggravated by any his service-connected disabilities, determine whether the obesity was a substantial factor in causing his sleep apnea. (e) If the Veteran's obesity was a substantial factor in causing his sleep apnea, determine whether the sleep apnea would not have occurred but for the obesity. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.