Citation Nr: 21027346
Decision Date: 05/05/21	Archive Date: 05/05/21

DOCKET NO. 19-26 934
DATE: May 5, 2021

REMANDED

Service connection for obstructive sleep apnea is remanded.

REASONS FOR REMAND

The Veteran served honorably in the United States Army from March 1984 to March 1987 and from October 1987 to October 2004.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  This appeal is being adjudicated under the legacy appellate framework.

The Veteran did not request a personal hearing before the Board.

The Board denied the issue on appeal in February 2020.  In December 2020 however, the Court of Appeals for Veterans Claims (Court) vacated the Board's previous decision and remanded this matter back to the Board for further consideration.

As noted above, the Court vacated the Board's previously denial of service connection for obstructive sleep apnea and remanded the matter back to the Board.  Specifically, the Court found that a July 2019 examination was inadequate.  In this regard, the examiner found that the Veteran's obstructive sleep apnea was due to obesity, and, after concluding that the Veteran was not obese during a period of service, the examiner opined that the Veteran's obstructive sleep apnea was not related to a period of service.  Nevertheless, the Court identified a number of treatment records suggesting that the Veteran could have been obese during his periods of service, and, the Court found that remand was necessary for a new medical opinion discussing the evidence of obesity during the Veteran's periods of service.  Therefore, the Board must remand this matter for the purposes of providing the prescribed opinion in order to ensure substantial compliance with the Court's remand instructions.  

The matters are REMANDED for the following actions:

1. Arrange to provide the Veteran with a VA examination (or if necessary a telephone interview and a medical opinion based on the evidence of record) in order to address the following:

(a.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between a current diagnosis of obstructive sleep apnea and an in-service incurrence?  Why or why not?

(b.) Was the Veteran obese during a period of service?  Why or why not?

(c.) What is the medical significance, if any, of the fact that in December 1988 the Veteran was warned about his weight?  Why?

(d.) What is the medical significance, if any, of the fact that in April 2001 the Veteran weighed 214 pounds, was 70 inches tall, and had a body mass index of 32.5?  Why?

(e.) What is the medical significance, if any, of the fact that in April and June 2003 the Veteran weighed 209 pounds and had a body mass index of 31.8?  Why?

(f.) Is it at least as likely as not (50 percent or more) that the Veteran's obstructive sleep apnea was caused to or aggravated by any of the Veteran's previously service-connected disabilities or any combination thereof?  Why or why not?

(g.) Is it at least as likely as not (50 percent or more) that any of the Veteran's previously service-connected disabilities or any combination thereof caused the Veteran to become obese?  Why or why not?

(h.) Is it at least as likely as not (50 percent or more) that obesity caused by the Veteran's previously service-connected disabilities was a substantial factor in the Veteran developing obstructive sleep apnea?  Why or why not?

**The examiner should provide a complete rationale for all opinions.

2. Then, readjudicate the claim on appeal.

 

 

Romina A. Casadei

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Seaton

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.