Citation Nr: 21028475 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-00 947 DATE: May 11, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served in the United States Army from December 1979 to November 1983, from February 1984 to December 1998, and from June 2007 to June 2008. The Veteran is a Gulf War Era veteran with service in Southwest Asia. See 38 C.F.R. §§ 3.2, 3.317(e). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the claims file. Entitlement to service connection for OSA. The Veteran contends that (1) she first had symptoms of trouble breathing in 2009 after returning from Iraq and, in 2014, requested a sleep test after her spouse complained that the Veteran was snoring and noticed that the Veteran stopped breathing several times a night; (2) OSA is due to or the result of in-service injury from exposure to burn pits and sand storms in Al Khalis, Iraq; (3) OSA is secondary to service connected asthma (formerly diagnosed as reactive airway disease (RAD)); and (4) OSA is secondary to the medications containing steroids that she takes for her service-connected asthma including Advair, ProAir and Flonase. See Hearing Transcript (August 2020). The Veteran's spouse also provided a statement that the Veteran did not snore during sleep before her deployment to Iraq, but a year after coming back from Iraq, her snoring was so loud that they had to sleep in separate rooms. See Correspondence (August 2020). In support of her assertions, the Veteran submitted treatise type evidence showing an association between asthma and OSA. She also submitted a private medical opinion from Dr. F. N., Ph.D., a licensed psychologist, dated July 2020, that includes an opinion that OSA "has the nexus of her military-related reactive airway disease at least as likely than not." See Medical Treatment Record - Non-Government Facility (July 2020). Dr. F. N. provided that the Veteran's predisposing factors include obesity, for which she is at risk due to her service-connected knees, fibular fracture, hypertension and osteoarthritis that make normal activity stressful and painful. Id. Dr. F. N. relied on referenced studies from the Mayo Clinic. Id. The Board finds the medical opinion inadequate to support the claim. Hayes v. Brown, 5 Vet. App. 60, 69 (1993). In determining the adequacy of a medical examination or opinion, an examination or opinion is considered adequate, "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's '"evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991))). Therefore, when a medical examination or opinion is provided, the clinician must support the conclusions with an analysis that is adequate for the Board to consider and weigh against contrary opinions. Id. at 124-25. In this case, the medical opinion concludes that OSA is due to RAD and then incongruously notes that the Veteran has other predisposing factors for OSA. A "medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22Vet. App.295, 301 (2008). Also, the opinion relied on peer reviewed studies without clear citations. The medical opinion does not show a clear conclusion that is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). To ensure that VA has met its duty to assist, remand is necessary. 38 C.F.R. § 4.2. As a threshold matter, the Board notes that (1) VA treatment records reflect a diagnosis of OSA (as confirmed during a December 2014 sleep study) (see C&P Exam (March 2016); and (2) that the Veteran is service-connected for asthma, formerly diagnosed as RAD, as well as hypertension, right knee osteoarthritis, left fibular fracture as well as lumbar strain, scars, meniscal tear on the right knee, posttraumatic stress disorder and tinnitus. The Veteran's service treatment records (STRs) show a post-deployment health assessment completed in May 2008, where the Veteran reported difficulty breathing and still feeling tired after sleeping during deployment. See STR-Medical (October 2014). The Board finds that the medical evidence of record is inadequate to fully address the Veteran's contentions detailed above as to whether her OSA is etiologically related to service, to include as due to his environmental exposures in Southwest Asia (SWA), caused or aggravated by service-connected asthma and/or medications for it, or caused or aggravated by hypertension, left fibular fracture or knee osteoarthritis, to include with obesity as the intermediary cause. A March 2016 VA examination in March 2016 reflects a history of symptoms to include loud snoring, waking up gasping for air, and daytime sleepiness/tiredness. See C&P Exam (March 2016). The associated VA medical opinion reflects that OSA was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale was that it is due to "anatomical obstruction of upper airway. this type of obstruction is not caused by any type of exposure." A December 2017 VA medical opinion reflects that OSA is less likely than not proximately due to or the result of the Veteran's service connected condition, because "there is no medical evidence that the Veteran's sleep apnea is proximately due to or the result of or has been permanently aggravated by the reactive airway disease. These are separate and distinct conditions. The most likely etiology of the Veteran's OSA would be obesity as well as age. It is noted in "Up To Date." See C&P Exam (December 2017). First, the available VA examination and opinions are inadequate because they provided no opinion as to whether the Veteran's OSA is directly related to active duty. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Here, VA examiner did not acknowledge or discuss the May 2008 post-deployment health assessment showing reports of difficulty breathing and feeling tired after sleeping during deployment. The VA medical opinions also do not reflect any meaningful consideration of lay statements, including those from the Veteran and her spouse, indicating symptoms of snoring, waking up gasping for air, and difficulty sleeping after returning from Iraq. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [the Veteran's] testimony when formulating her opinion renders that opinion inadequate."). The opinions indicated that the record was reviewed, but did not attempt to explain why the lay evidence of sleep problems immediately after returning from Iraq, including the Veteran's reports of going to see her private physician due to problems breathing after returning from Iraq, did not support that OSA had its onset after the Veteran's returned from Iraq. See Hearing Transcript (August 2020). Second, the March 2016 VA medical opinion is inadequate because the negative conclusion that the Veteran's OSA is less likely due to environmental hazards in SWA is not supported with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl, supra. The opinion did not address specific exposures noted in the Veteran's STRs and military personnel records, and those that the Veteran has explicitly claimed. The Board finds that the clinician's conclusions regarding the Veteran's SWA environmental exposures were not independently supported and, moreover, are contradicted by the Veteran's first-hand report. Third, as to secondary service connection, the December 2017 VA medical opinion contains conclusions that are not fully supported and/or explained. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (indicating that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). The opinion lacks an essential rationale although it concludes that there is no medical evidence that OSA "is proximately due to or the result of or has been permanently aggravated by" RAD and "they are separate and distinct conditions." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (An adequate medical examination report or opinion must also "sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion."). Fourth, although the December 2017 VA medical opinion indicated that there is no "medical evidence that the Veteran's sleep apnea is proximately due to or the result of or has been permanently aggravated by" RAD and that the "most likely etiology of the Veteran's OSA would be obesity as well as age," it does not provide separate rationales to support the negative conclusions as to causation and aggravation elements of the secondary service connection, which are independent concepts. See Atencio v. O'Rourke, 30 Vet. App. 74, 90 (2018) (an examiner must provide a rationale that deals with causation and aggravation as independent concepts). Fifth, although the medical opinions contain conclusions, they do not provide a reasoned medical explanation connecting the conclusions to any identified supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). While the December 2017 VA examiner cited to a web-based internet source in concluding that the most likely cause of OSA is obesity or age, the examiner did not address the Veteran's specific disability factors. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (although general medical research may be considered, it cannot be the sole basis for examiner's conclusion). The examiners do not provide any reasoning for the conclusions that "OSA is due to anatomical obstruction of upper airway. this type of obstruction is not caused by any type of exposure" or that "There is no medical evidence that the Veteran's sleep apnea is proximately due to or the result of or has been permanently aggravated by the reactive airway disease. These are separate and distinct conditions." Instead, with merely a citation to web-based internet address with general information, there is no discussion of the information contained at this address underpinning the conclusion reached. Also, while the opinion indicates that OSA was diagnosed in the setting of weight gain, the opinion does not explain the significance of this clinical evidence in the context of concluding that Veteran's OSA was not present in service in other words, it is implied that OSA cannot exist in the absence of obesity and that the Veteran was not obese at service discharge, but again this is not clearly discussed or explained. Therefore, the opinion is inadequate. Nieves-Rodriguez, supra (a medical examination and/or opinion report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two). Sixth, remand is necessary because no VA examiner has opined whether the Veteran's OSA is proximately due to her service-connected disabilities, including hypertension, left fibular fracture or knee osteoarthritis. It is unclear from the record whether the Veteran and/or his representative is arguing that the service-connected hypertension, left fibular fracture or knee osteoarthritis is an intermediary cause in other words hypertension, left fibular fracture or knee osteoarthritis led to obesity which led to OSA. It is noted that obesity is not a disability for purposes of VA benefits; hence, it cannot be service connected on a direct basis. See Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, indirect secondary service connection can be granted with obesity acting as an "intermediate step." See VAOPGCPREC 1 2017 (Jan. 6, 2017). Lastly, the Board finds that remand is necessary to obtain the December 2014 VA sleep study, referenced, amongst other, by the 2016 VA examination and 2017 VA medical addendum opinion. VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). At her hearing in August 2020, the Veteran also reported seeing a private physician, Dr. J. H., who has since retired, immediately after returning from Iraq for her breathing problems. See Hearing Transcript (August 2020). While the Veteran has completed multiple VA 21-4142 Authorization for Release of Information for general release of medical records, these have expired prior to VA attempting to obtain any unassociated private treatment records. Thus, another Development Letter with VA Form 21-4142 should be mailed to the Veteran. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for her OSA, to include records of treatment for difficulty breathing in around 2009. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain the December 2014 VA sleep study and the Veteran's VA treatment records for the period from December 2017 to the Present. 3. Thereafter, obtain an opinion from an appropriate physician to address the nature and etiology of the Veteran's diagnosed OSA. The entire claims file, to include a copy of 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 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, to include history of in-service breathing difficulties and exposure to burn pits and sandstorms in SWA. Consider and expressly address whether the lay reports of breathing problems in service and onset of snoring after her SWA deployment indicates onset of OSA in service or that OSA is due to in-service injury such as SWA environmental exposures. Indicate whether symptoms of breathing problems and snoring may be due to other causes. Explain. The examiner should accept that the Veteran had the alleged exposure for the purpose of this opinion only. The examiner must consider studies and articles submitted by the Veteran and his representative as well as any recent medical studies or relevant literature Secondary Service Connection (b) Whether the Veteran's OSA is at least as likely as not (1) proximately due to or (2) aggravated beyond its natural progression by service-connected disability and, in particular, asthma to include medications taken therefor. Provide a rationale that deals with causation and aggravation as independent concepts. Consider the Veteran's theory that her OSA is secondary to the medications containing steroids that she takes for her service-connected asthma including Advair, ProAir and Flonase. 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 disability or disabilities (1) caused or (2) aggravated the Veteran's obesity? Provide a rationale that deals with causation and aggravation as independent concepts. Explain. i. If so, was the resulting obesity a substantial factor in causing the Veteran's OSA? Explain. ii. If yes, but for the Veteran's obesity, would the Veteran have developed OSA? Explain. 4. 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, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.