Citation Nr: 21030381 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-20 532 DATE: May 18, 2021 ORDER Entitlement to service connection for sleep apnea (OSA) is granted. REMANDED Entitlement to service connection for headaches is remanded. FINDING OF FACT The competent and credible medical evidence of record reflects that the Veteran's OSA is aggravated by his service-connected knee disability. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2003 to May 2003 and July 2005 to May 2006. He also had an extensive period of reserve duty service from 1992 to 2015. The issues come before the Board of Veterans' Appeals (Board) from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). The record was held open for 60 days for the submission of additional evidence. A copy of the transcript is of record. The issues were previously before the Board in September 2019 and December 2020 and remanded. The December 2020 remand RO was mandated to obtain supplemental VA opinions addressing the proper legal standard for service connection claims. As the Board is granting service-connection for OSA based on a private medical opinion of record, and remanding service connection for headaches based on the Veteran's challenge to the competency of the January 2021 examiner, the Board will not determine whether the opinions of January 2021 are adequate for adjudication purposes and substantially complied with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for OSA is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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. 38 C.F.R. § 3.303 (d). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a nonservice-connected disability aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing before the aggravation. 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439 (1995). To establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. The Board must then determine if the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that his OSA is related to service. Alternately, he contends that it is related to his service-connected disabilities. The Veteran has been diagnosed with OSA. He is service connected for various disabilities, including a bilateral knee disability. Thus, the first and second elements of a secondary service connection claim are met. Wallin, 11 Vet. App. 509, 512 (1998). In April 2019, the Veteran's private physician, Dr. J. W. E., provided the nexus element. He noted that the Veteran began to gain weight after his injuries to his knee and weighed, at one point, up to 240 pounds. Dr. J. W. E. then opined that the service-connected knee disability "caused decreased activities of daily living and decreased exercise which contributed to weight gain, which aggravated his obstructive sleep apnea." The Board notes that while obesity is not subject to service connection on a direct basis, it cannot qualify as an in-service disease or injury for the purposes of service connection, and generally cannot be service connected on a secondary basis as a disability directly resulting from a service-connected disability. VAOPGCPREC 1-2017 (Jan. 22, 2017). Nonetheless, obesity can be an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis. Id. Here, Dr. J. W. E. competently and credibly opined that the Veteran's weight gain from his bilateral knee disability knee aggravated his OSA. As there is no contrary opinion of record and affording the Veteran the benefit of the doubt, the third element of a secondary service connection claim is satisfied. Accordingly, service connection for OSA is herein granted. 38 C.F.R. § 3.102; Wallin, 11 Vet. App. at 512; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a headache disability is remanded. The Board notes that in April 2021, the Veteran's attorney challenged the competency of the VA examiner who provided the January 2021 VA medical opinion. Specifically, he noted the examiner's failure to find treatise support for a correlation between temporomandibular joint dysfunction (TMJ) and OSA. He cited his "simple Google search turned up pages of journal articles" on a correlation. As such, he has requested the examiner's curriculum vitae (CV) Francway v. Wilkie, 930 F.3d 1377, 1380 (Fed. Cir. 2019). Consequently, the Board finds that once a veteran requests information about an examiner's qualifications, the duty to assist mandates that the claimant "has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner." Id. On remand, the CV for the VA examiner and any additional information regarding her qualifications should be obtained, associated with the record, and provided to the Veteran and his attorney for review. Accordingly, the matter is REMANDED for the following action: 1. Obtain the resume/CV of the VA examiner who provided the January 2021 VA examination related to the headache disability, associate it with the claims file, and provide the Veteran and his attorney a copy. If the requested resume/CV is not obtainable, the Veteran and his attorney should be notified, and the reasons for such should be documented in the record. (continued on next page) 2. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case, and allow the appropriate time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.