Citation Nr: 21032451 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-55 582 DATE: May 27, 2021 REMANDED Service connection for sleep apnea. A rating higher than 10 percent for degenerative arthritis and spondylolisthesis of the lumbar spine prior to May 24, 2018. REASONS FOR REMAND The Veteran served on active duty from July 2007 to August 2015 and from October 2015 to March 2016. The case is on appeal from February 2016 and August 2016 rating decisions. In a February 2020 decision, the Board denied a rating higher than 10 percent for degenerative arthritis and spondylolisthesis of the lumbar spine prior to May 24, 2018 and in excess of 40 percent thereafter. The issue of service connection for sleep apnea was remanded for additional development. The Veteran appealed the Board's February 2020 decision to the United States Court of Appeals for Veterans Claim (Court). Pursuant to a November 2020 joint motion for partial remand (JMPR), in a December 2020 order, the Court vacated that part of the Board's February 2020 decision that denied a rating higher than 10 percent for degenerative arthritis and spondylolisthesis of the lumbar spine prior to May 24, 2018 and remanded the issue to the Board. 1. Service connection for sleep apnea. Pursuant the Board's February 2020 remand, the Veteran was afforded a VA examination in March 2020. Although the Veteran's sleep apnea was noted to be likely due to obesity, the opinion was based on the absence of documentation in the Veteran's service treatment records (STRs). See June 2020 addendum. A medical opinion based solely on the absence of documentation in the service treatment records or that fails to take into account lay statements is inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner's opinion inadequate that relied on the absence of contemporaneous medical evidence); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). In addition, and although the Veteran's statements and those of his wife were noted to be insufficient to link the Veteran's sleep apnea to service, a rationale for such was not provided. Further, the opinion does not address whether the Veteran's service-connected disabilities may contribute to the Veteran's weight gain or obesity or whether obesity may be an intermediary step between the Veteran's service-connected conditions and his sleep apnea. The Board notes obesity is not considered a disability for VA purposes. However, obesity can be considered "an intermediate step" for service-connection if the evidence shows that a service-connected disability caused the veteran to become obese and the obesity caused by the service-connected disability was a substantial factor in causing the current disability, and that the current disability would not have occurred but for the obesity caused by the service-connected disability. VAOPGCPREC 1-2017. In Walsh v. Wilkie, 32 Vet. App. 300, 304 (2020), the Court held that the Board needs to consider the obesity-intermediate step theorem. Thus, the Court held that proper interpretation of G.C. Precedent Opinion 1-2017 requires consideration of proximate causation: (1) whether the service-connected disability caused the veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for obesity caused by the service-connected disability. If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Therefore, the Board finds that a new VA opinion is warranted. 2. A rating higher than 10 percent for degenerative arthritis and spondylolisthesis of the lumbar spine prior to May 24, 2018. In the November 2020 JMPR, the parties determined that the Board relied on an inadequate VA examination report in denying a rating higher than 10 percent for degenerative arthritis and spondylolisthesis of the lumbar spine prior to May 24, 2018. See February 2016 VA report. Thus, the Board must remand these matters for compliance with the Court's November 2020 order granting the parties' JMPR with respect to a rating higher than 10 percent for degenerative arthritis and spondylolisthesis of the lumbar spine prior to May 24, 2018. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand). On remand, a retrospective medical opinion should be obtained as to the severity of the Veteran's service-connected degenerative arthritis and spondylolisthesis of the lumbar spine prior to May 24, 2018, including consideration of the range of motion findings included in the prior examination conducted in February 2016. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination (or telehealth interview, records request, etc. if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of sleep apnea. The claims file must be made available to and reviewed by the clinician. Any indicated studies should be performed, and all findings should be reported in detail. The clinician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that sleep apnea had its onset during or within the initial year after service or is otherwise related to an in-service injury, event, or disease, including environmental exposures during service in Southwest Asia, or is caused by or aggravated by service-connected disability, including degenerative arthritis and spondylolisthesis of the lumbar spine; right and left knee strain; left ankle lateral collateral ligament sprain; right ankle lateral collateral ligament sprain, deltoid ligament sprain, and right ankle instability; right shoulder strain with degenerative arthritis; left shoulder rotator cuff tear; right elbow medial epicondylitis with limitation of flexion; and high blood pressure. The clinician should also provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) either alone or in combination with another service-connected disability or disabilities, caused or aggravated the Veteran's weight gain or obesity, and if so, whether it is at least as likely as not (50 percent or greater probability) that the weight gain or obesity resulting from the service-connected disability or disabilities was a substantial factor in causing or aggravating his sleep apnea; and, if so, whether it is at least as likely as not (50 percent or greater probability) that sleep apnea would have occurred but for weight gain or obesity caused or aggravated by the service-connected disability or disabilities. Aggravation is an increase in severity beyond the natural progress of the disease. Consideration of the evidence should be reflected in the opinion, to include the Veteran's statements and those of his spouse with respect to sleep apnea having had its onset since deployed to Southwest Asia in 2009. Rationale for all opinions expressed should be provided. If the clinician is unable to provide the requested opinions without resort to speculation, it must be so stated, and he or she must provide the reasons why an opinion would require speculation 2. Forward the claims to an appropriate clinician to assess the severity of the service-connected degenerative arthritis and spondylolisthesis of the lumbar spine prior to May 24, 2018. The need for a physical examination is left to the discretion of the clinician. The clinician should provide retrospective medical findings on the Veteran's range of motion of his lumbar spine prior to May 24, 2018, with consideration of the evidence of record and the Veteran's history of lumbar spine complaints, provide estimates of specific measurements for the historical severity of the Veteran's range of motion testing on both active and passive motion and in weight-bearing and non-weight-bearing and any additional motion loss expected during flares. The examiner should comment whether passive range of motion findings, had they been conducted in February 2016, would be medically believed to be consistent, greater or lesser than the recorded active range of motion findings and, if differing, the extent of difference in terms of degrees. If it is not possible to provide specific measurements or an opinion without 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). RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.