Citation Nr: 21029966 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-49 915A DATE: May 17, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for cardiac disability, to include hypertrophic cardiomyopathy, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1973 to December 1993. His awards include the Army Commendation Medal. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board remanded these matters for further development. When this case was last before the Board in November 2020, it was again remanded for additional development. The case has now been returned to the Board for further appellate consideration. Although further delay is regrettable, the Board finds that a remand for additional development is required before the Veteran's remaining claims can be decided. Pursuant to the Board's remand directives, a VA medical opinion regarding the onset of sleep apnea was obtained in January 2021. The physician opined that the condition was less likely than not proximately due to or the result of the Veteran's service-connected deviated nasal septum. However, the physician did not adequately address whether the Veteran's sleep apnea was aggravated by the service-connected deviated nasal septum, which could also result in a grant of service connection. 38 C.F.R. § 3.310(b); see generally El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). In that regard, although the physician generally stated that his causation opinion applied to aggravation as well, this statement was conclusory without supporting rationale. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (holding that "examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). Additionally, the physician did not address the statements of the Veteran and his spouse regarding the Veteran's sleep apnea symptoms while in service. Specifically, the physician stated that without a sleep study, a diagnosis cannot be definitively made. However, the Veteran stated that during his time in service they did not have an avenue to discuss or diagnose snoring or sleep apnea. See Correspondence received September 2020. Furthermore, he stated he has been a heavy snorer since his 1973 nasal surgery. The Veteran's spouse also submitted statements regarding the Veteran's snoring, gasping, and sleepless nights while in service and in the years since that time. See Buddy Statement received September 2020. The physician relied on the Veteran's separation examination that indicated the Veteran did not have any sleep issues. However, the Veteran contends he did not have a separation examination and a previous flight physical was considered sufficient. See Correspondence received February 2021. These statements were not considered by the physician regarding the onset of the Veteran's obstructive sleep apnea. Moreover, the Veteran has suggested that his sleep apnea may be related to weight gain which was caused by his inability to exercise due to service-connected spine and lower extremity disabilities. He is service-connected for degenerative arthritis of the lumbar spine, degenerative arthritis of the cervical spine, and radiculopathy of the left and right lower extremities. The Board points out that although obesity is not a disability for VA compensation purposes, obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310 (a). VAOPGCPREC 1-2017. See also Marcelino v. Shulkin, 29 Vet. App. 155 (2018) (affirming the Board's decision that service connection is not warranted for obesity as it is not in and of itself a disability for VA purposes, but not addressing VAOPGCPREC 1-2017 ). In order to establish service connection on this basis, three criteria must be met: (1) the service-connected disability must have caused the veteran to become obese; (2) the obesity as a result of the service-connected disability must be a substantial factor in causing the disability for which service connection is sought; and (3) the disability for which service connection is sought would not have occurred but for obesity caused by the service-connected disability. Id. In light of the above, an additional VA medical opinion is necessary to determine whether the Veteran's sleep apnea is related to service or is caused or aggravated by service-connected disability. Regarding the Veteran's hypertrophic cardiomyopathy, the Veteran stated he was diagnosed with RAD and PVC while in service, conditions that may be related to his current heart claim. He further asserts that an EKG taken in service in 1993 indicated the same undetected heart condition that was found in 2011. See Correspondence received February 2021. The Veteran has not been afforded a VA examination for direct service connection for his hypertrophic cardiomyopathy. Thus, a remand is necessary to afford him an appropriate examination. In addition, the Veteran asserts his hypertrophic cardiomyopathy is secondary to his sleep apnea. See June 2016 Correspondence. The Veteran is not service-connected for sleep apnea and the issue of the Veteran's entitlement to service connection for hypertrophic cardiomyopathy is inextricably intertwined with the resolution of the remanded issue. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the claim for hypertrophic cardiomyopathy is remanded for readjudication following evidentiary development. Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Gulf Coast Veterans Health Care System (dated to August 2018) and the Atlanta VA Health Care System (dated to January 2021). Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records from the Gulf Coast Veterans Health Care System for the period since August 2018; the Atlanta VA Health Care System for the period since January 2021; and all such relevant records from any other sufficiently identified VA facility. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion regarding whether the Veteran's sleep apnea is related to service or is caused or aggravated by service-connected disability. The clinician is asked to provide a response to the following: (a.) Is it at least as likely as not that any sleep apnea experienced by the Veteran since approximately January 2015 (1) had its onset during service; or (2) is otherwise etiologically related to military service, including his reported snoring, gasping, and other sleep symptoms in service? (b.) Is any sleep apnea experienced by the Veteran since approximately January 2015 at least as likely as not proximately due to the Veteran's service-connected deviated nasal septum? (c.) Is any sleep apnea experienced by the Veteran since approximately January 2015 at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran's service-connected deviated nasal septum? Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that the Veteran's obstructive sleep apnea was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. (d.) Is it at least as likely as not that the Veteran's service-connected degenerative arthritis of the lumbar spine, degenerative arthritis of the cervical spine, and/or radiculopathy of the left and right lower extremities caused him to become obese (to the extent that these disabilities limited his ability to exercise). If so, is it at least as likely as not that (1) the Veteran's obesity was a substantial factor in causing his sleep apnea and (2) any such sleep apnea would not have occurred but for the obesity. The clinician must provide reasons for each opinion given. In this regard, the clinician should address the Veteran's competent and credible statements received in September 2020 and February 2021 regarding the onset of his sleep apnea symptoms in service, and the Veteran's spouse's statements received in September 2020 regarding her observations of the Veteran's symptoms. The clinician should note that an in-service diagnosis of sleep apnea is not required for service connection. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination to determine whether any current cardiac disability is related to service. The examiner is asked to provide a response to the following: Is it at least as likely as not that any cardiac disability experienced by the Veteran since approximately January 2015 (including, but not limited to, hypertrophic cardiomyopathy) (1) had its onset during service; OR (2) is otherwise etiologically related to military service, including his reported cardiac symptoms and findings during service? The clinician must provide reasons for each opinion given. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Townsend, Associate 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.