Citation Nr: 21029591 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 17-59 208 DATE: May 14, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran had active service from July 1952 to March 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2017 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter, entitlement to service connection for sleep apnea, was previously before the Board. Specifically, in March 2018, the Board remanded the claim, and in August 2019, the Board denied the claim. The Veteran appealed the Board's August 2019 denial of the claim to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in July 2020, the Court granted a June 2020 Joint Motion for Remand (JMR) of the parties (the Secretary of VA and the Veteran), vacated the Board's August 2019 decision, and remanded the case to the Board for readjudication consistent with the JMR. Pursuant to the June 2020 JMR, the Board remanded the claim in February 2021. It now returns for appellate review. As a final initial matter, an October 2019 rating decision found the Veteran was not competent to handle disbursement of funds. The record, including as indicated in the Veterans Benefits Management System, reflects the Agency of Original Jurisdiction has appointed C. E., as a fiduciary. Thus, the Board has also listed C. E. on the title page as a fiduciary. 1. Entitlement to service connection for sleep apnea is remanded. The same VA examiner provided opinions, addressing the Veteran's sleep apnea, in May 2017, January 2019, and February 2021. The June 2020 JMR found the January 2019 VA opinion was inadequate as the examiner did not identify all medications that were prescribed to the Veteran during the period on appeal, and specifically did not address his prescriptions for trazodone and paroxetine used to treat his psychological disorder. The June 2020 JMR further explained a September 2018 VA treatment record documented the Veteran was taking 24 medications and it was unclear if any of these medications were prescribed to treat the Veteran's service-connected disabilities. Thus, pursuant to the June 2020 JMR, the February 2021 Board remand directed, in part, that a potential examiner review the Veteran's medical records and list all medications prescribed throughout the period on appeal and label whether the medications were prescribed for a service-connected disability, and if so, as the medications prescribed to treat a service-connected disability, determine whether any of the effects of the prescribed medication could cause or aggravate the Veteran's sleep apnea. However, rather than listing all medications prescribed throughout the period on appeal and labeling whether the medications prescribed for any service-connected disability, the resulting February 2021 VA opinion noted the medications prescribed in several VA treatment records, and found, the Veteran's medications used for service-connected conditions, before the diagnosis of obstructive sleep apnea, and during the period of appeal, were calcium/vitamin D, lidocaine, memantine, menthol/methyl salicylate, mirtazapine, multivitamin/ophthalmic tabs, paroxetine, systane eyedrops, trazodone, vitamin B complex/vitamin C, aripiprazole, clonazepam, galantamine hydrobromide and sertraline. However, because February 2021 VA opinion did not identify a complete list medications throughout the appeal period, it is unclear as to if the examiner considered all the relevant medications. For example, during the pendency of the Veteran's claim for sleep apnea, received by VA in April 2017, a June 2017 VA treatment records listed many medications including carboxymethyl cellose, dorzolamide, latanoprost, as related to the Veteran's eyes, and oxycodone for pain. Thus, another opinion, addressing the claim as directed by the February 2021 Board remand, is necessary. Stegall v. West, 11 Vet. App. 268 (1998). Further, in a January 2018 Informal Hearing Presentation, the Veteran's representative argued the Veteran's PTSD did not allow him to engage in activities due to his weight, and this weight gain led to sleep apnea. Thus, although not mentioned in the June 2020 JMR, the January 2019 VA opinion also found, in pertinent part, that the condition claimed was less likely than not proximately due to or the result of the Veteran's service-connected condition. The January 2019 VA opinion further explained that although the May 2017 VA opinion noted that obstructive sleep apnea was likely due to obesity, this was referring to a generalization because obesity was a frequent cause of obstructive sleep apnea but this was not the case for the Veteran because he was not obese, had enjoyed a normal weight since at least the year 2000, and had not been obese or overweight. However, an April 2016 VA treatment record indicated the Veteran's body mass index put him into an overweight category. Also an October 2019 VA treatment noted, in part, the Veteran's weight history had very irregular fluctuations. Accordingly, as the January 2019 opinion did not wholly address the relevant evidence, another opinion addressing obesity as an "intermediate step" between a service-connected disability and a current disability is needed. Additionally, the May 2017 VA examination report noted the Veteran was diagnosed with obstructive sleep apnea in September 2015; however, although it is unclear if the Veteran was diagnosed with this disability by VA, there is gap in the Veteran's VA treatment records from February 2015 to January 2016. In this regard, a January 2016 VA treatment record also noted the Veteran was recently diagnosed with obstructive sleep apnea but this record did not provide an initial diagnosis. Thus, in light of the remand for the above matters, any additional VA treatment records, from the VA Caribbean Healthcare System, to include from February 2015 to January 2016, as well as any updated records from March 2021 to the present, should be obtained and associated with the record. The matters are REMANDED for the following actions: 1. Obtain any and all of the Veteran's VA treatment records, from the VA Caribbean Healthcare System, to include from February 2015 to January 2016, as well as any updated records from March 2021 to the present. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's sleep apnea. The clinician is asked to provide a response to the following: (a.) Please review the Veteran's medical records and list all medications prescribed throughout the period on appeal and label whether the medications are prescribed for any service-connected disability. (b.) For any of the medications prescribed to treat a service-connected disability, determine whether any of the effects of the prescribed medication could cause or aggravate the Veteran's sleep apnea condition. Please explain. The opinion should address carboxymethyl cellose, dorzolamide, latanoprost, as related to the Veteran's eyes, and oxycodone for pain. (c.) If the answer to (b) is "no," the examiner must opine as to the following: (i) did the Veteran's service-connected disabilities, cause him to become obese; (ii) did the Veteran's service-connected disabilities aggravate his obesity; (iii) if the answer to (i) or (ii) is yes, was the obesity a substantial factor in causing the Veteran's sleep apnea; and (iv) would the sleep apnea have occurred but for obesity? The examiner is asked to consider the April 2016 VA treatment record which generally documented the Veteran's body mass index put him into an overweight category. Please explain. 3. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.