Citation Nr: 21027675 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-26 165 DATE: May 6, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1965 to March 1969. He has had a 100 percent combined VA disability rating since January 23, 2014, along with special monthly compensation (SMC) under 38 U.S.C. § 1114(k) based on loss of use of a creative organ from February 13, 2012, and SMC under 38 U.S.C. § 1114(s) based on coronary artery disease rated 100 percent and additional service-connected disabilities independently ratable at 60 percent or more from November 1, 2017. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. An October 2019 Board decision remanded the claim to obtain private treatment records, VA treatment records, and an addendum opinion from an appropriate clinician regarding the Veteran's OSA. The claim was again remanded in January 2021 to obtain an addendum medical opinion. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). Entitlement to service connection for OSA is remanded. The Veteran contends that his OSA is secondary to his service-connected diabetes mellitus (DM) and coronary artery disease (CAD). See NOD (November 2013). He also claims that the medications he used to treat his DM and CAD caused him to gain weight which led to the development of OSA. See Correspondence (August 2020). Unfortunately, there has not been substantial compliance with the Board's previous remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although a VA medical opinion was obtained in February 2021, it is inadequate to adjudicate the claims as the essential rationale for the opinion is not discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). In this regard, the opinion reflects the following conclusions and supporting rationales: (1) The Veteran's OSA is less likely than not incurred in or caused by the claimed in-service injury, event or illness. In support of this conclusion, the opinion notes that there was no evidence of OSA during service. He denied "frequent trouble sleeping" during his Separation Examination on 2/27/69, and this exam was silent for a sleep disorder. He was not diagnosed with OSA via sleep study testing until April 2012, over 43 years after service. Therefore, it is opined that the Veteran's medical records support that any currently diagnosed condition related to the Veteran's claimed OSA is less likely than not incurred in or caused by the sleep apnea during service. (2) The Veteran's OSA is less likely than not proximately due to or the result of service-connected disability. In support of this conclusion, the opinion notes that in adults, the most common cause of OSA is excess weight and obesity, which is associated with excess soft tissue of the mouth and throat. Weight gain can cause fat to accumulate in the neck area. During sleep, when throat and tongue muscles are more relaxed, this soft tissue can cause the airway to become blocked. Upon medical records review, the Veteran's weight-gain preexisted service and his service-connected conditions. He weighed 154 pounds at 65.75 inches, accounting for an overweight BMI of 25.0. By the time of his polysomnogram in April 2012, he weighed 230.0 pounds at 67.0 inches, accounting fora BMI of 36.02, consistent with Class 2 obesity. Weight loss and exercise were part of the recommendations provided to the Veteran based on his sleep study results. Hence, it is opined that the Veteran's medical records support that the claimed OSA is less likely than not proximately due to or the result of the Veteran's service-connected disabilities to include A) DM with medication or B) CAD with medication. (3) The Veteran's OSA is less likely than not aggravated beyond its natural progression by the service-connected DM and CAD. In support of this conclusion, the opinion notes the clinician notes the Veteran's OSA was already severe in nature upon diagnosis based on an AHI of 43.50, precluding it from being aggravated beyond natural progression. Further, during the Veteran's current Sleep Study C&P Examination, he reported that his OSA has improved with use of a CPAP machine. Thus, it is opined that any currently diagnosed condition related to the Veteran's claimed OSA is less likely than not aggravated beyond its natural progression by the Veteran's service-connected disabilities to include A) DM with medication or B) CAD with medication With respect to medical opinion (1), although the Veteran, as a lay person, is not competent to opine on the etiology of his symptoms or diagnosed OSA, he is, however, competent to report signs and symptoms of his OSA. Here, the opinion expressly relies on the evidence contained in medical records and does not reflect consideration of the Veteran's lay statements noted in the medical history portion of the examination report. In this regard, the Veteran reported that prior to seeking medical intervention which led to the diagnosis of OSA in 2012, his bunkmates commented on his snoring during service, that he would wake up gasping for breath, he was not sleeping well, and he and his wife slept in separate beds. Therefore, the opinion is predicated on the absence of documented treatment during service and the lack of diagnosis until approximately 40 years later without considering the Veteran's lay statements. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate"). It is further noted that although the Board specifically directed the clinician to consider the Veteran's lay statements in formulating a medical opinion, no such consideration was reflected in the medical opinion. See Board decision (January 2021). With respect to medical opinion (2), it appears to be based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The clinician concludes the Veteran's obesity, rather than his service-connected DM and CAD, is the primary causal factor in the development of his OSA. The clinician reasons that the Veteran's weight-gain preexisted service and preexisted the diagnoses of DM and CAD. The clinician states the Veteran weighed 154 pounds at 65.75 inches, accounting for an overweight BMI of 25.0 at enlistment. By the time of his polysomnogram in April 2012, he weighed 230.0 pounds at 67.0 inches, accounting for a BMI of 36.02, consistent with Class 2 obesity. The Board notes that the February 2021 medical opinion on the matter of proximate causation is essentially a reiteration of the same factual inaccuracies and flawed reasoning articulated in the March 2020 VA medical opinion, and, which the Board has also found inadequate as explained in great detail in its January 2021 remand. Furthermore, in its prior remand instructions, the Board specifically directed the clinician to consider the Veteran's clinical history to include weight and weight changes prior to and after the diagnosis/treatment of OSA and service-connected diabetes mellitus and coronary artery disease which is not reflected in the current medical opinion. In addition, medical opinion (2) does not answer the Board's inquiry on the matter of the Veteran's obesity as an intermediate cause of his OSA. While obesity is not a disability for VA compensation purposes and cannot be service connected on a direct basis, Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018), obesity may be an intermediate step in a secondary-service connection analysis when a service-connected disability causes or aggravates it. Walsh v. Wilkie, 32 Vet. App. 300, 306-07(2020) (holding that a veteran is entitled to disability compensation when a service-connected disability causes or aggravates his obesity). In this regard, the Veteran claims that the medication Gabapentin, prescribed for the treatment of his service-connected diabetic peripheral neuropathy, caused him to gain weight. See Correspondence (August 2020). Because the medical opinion does not specifically address whether the Veteran's medications for his service-connected disabilities at least as likely as not caused him to become obese, the Board finds that it is inadequate for adjudicative purposes Lastly, medical opinion (3) is inadequate as to the aggravation prong of secondary service connection for the following reasons. In concluding the Veteran already had severe OSA at the time of his initial diagnosis in 2012, the clinician essentially dismissed the possibility that service-connected DM and CAD, both diagnosed before OSA, may have aggravated it beyond its natural progression at any point prior to a formal diagnosis and before it had become severe. The medical opinion additionally suggests that because the OSA was of such a severity when first diagnosed, it was precluded from becoming worse by service-connected DM and CAD. The Board finds the opinion's conclusions are inadequate because they are not supported by reasoned rationales or medical explanations connecting findings to the conclusions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("a medical opinion . . . must support its conclusion with analysis that the Board can consider and weigh against contrary opinions"). Given the above deficiencies and the Board's duty to ensure compliance with the terms of its prior remand, an additional medical opinion is required. Stegall, 11 Vet. App. 268. Aside from the above explicit finding, in remanding this matter, the Board makes no further finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's OSA. The entire claims file, to include complete copies of the October 2019, January 2021 and this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with OSA. The clinician is not required to accept the Veteran's theory regarding causation of his OSA, or that he had symptoms associated with OSA during or following military service if this is incongruous with the record; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusions. If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. The clinician must opine on: Direct Service Connection (a) Whether the Veteran's OSA at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address whether the Veteran's reported symptoms of snoring demonstrate the onset of OSA in service and indicate whether such symptoms may be due to other causes. Explain. Note: An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. Secondary Service Connection (b) Whether the Veteran's OSA is at least as likely as not (1) proximately due to service-connected diabetes mellitus and/or coronary artery disease, or (2) aggravated beyond its natural progression by service-connected diabetes mellitus and/or coronary artery disease. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. Indirect Secondary Service Connection Obesity as an "Intermediate Step" (c) Is it at least as likely as not that the Veteran's service-connected diabetes mellitus and/or coronary artery disease, including his medication(s) taken therefor, (1) caused or (2) aggravated the Veteran's obesity? Provide a rationale that deals with causation and aggravation as independent concepts. (d) If so, was the resulting obesity a substantial factor in causing the Veteran's OSA? Explain. (e) If yes, but for the Veteran's obesity, would the Veteran have developed OSA? Explain. The opinion, at a minimum, must consider and expressly address: (1) the Veteran's theory that the medication Gabapentin, prescribed for his service-connected diabetic peripheral neuropathy, caused or aggravated his obesity. See Correspondence (August 2020); and (2) the Veteran's recorded weight and weight changes prior to and after the diagnosis/treatment of OSA and service-connected diabetes mellitus and coronary artery disease. 2. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.