Citation Nr: 21040757 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-48 829 DATE: July 6, 2021 REMANDED Service connection for a sleep disorder, to include sleep apnea but excluding insomnia. REASONS FOR REMAND The Veteran served on active duty from December 1986 to August 2008. The case is on appeal from a July 2016 rating decision. In February 2019, the Board remanded the claim for additional development. Service connection for a sleep disorder, to include sleep apnea but excluding insomnia. The Veteran is seeking service connection for a sleep disorder. He asserts he has a sleep disorder, to include sleep apnea that had its onset in service. Alternatively, he asserts his currently diagnosed sleep apnea is secondary to weight gain caused by his service-connected disabilities. In this regard, he contends he gained weight due to an inability to exercise. See October 2016 VA Form 9. Initially, the Board notes that the Veteran is service connected for several musculoskeletal conditions including intervertebral disc syndrome (IVDS) of the lumbar spine and the cervical spine, left and right lower extremity radiculopathy, left and right upper extremity radiculopathy, and left and right knee strain. He is also service connected for tension headaches, insomnia, and several other conditions. The Veteran's service treatment records (STRs) reflect that he underwent a private sleep study in May 2008. The interpretation of the sleep study results reflects findings of an Epworth Sleepiness Scale of 20, which is considered significantly abnormal. The study notes the results with regard to apneas and hypopneas were within normal limits. However, findings were consistent with severe periodic movements of sleep, and the Veteran's physician noted that "this would not be surprising given [the Veteran's] history of a previous back injury." May 2008 STRs reflect further that when the Veteran's Air Force primary care physician called to obtain results of the sleep study, he was told the Veteran did not have sleep apnea, instead he had periodic limb movement sleep disorder, which was categorized as severe. At that time, the Veteran's primary care physician also noted the Veteran's weight had increased due to chronic neck pain and leg pain. Post service, the Veteran received medical care at Elgin Air Force Base. In February 2016 he underwent an additional sleep study, after referral from his physician. He was diagnosed with moderate obstructive sleep apnea. Although a diagnosis of periodic limb movement sleep disorder was not noted, the report reflects that the periodic limb index was 27.9 per hour, which is considered in the moderate range. An opinion concerning the etiology of the Veteran's sleep apnea was obtained in August 2016. The examiner addressed whether the Veteran's obstructive sleep apnea is related to his service-connected insomnia. The examiner concluded the Veteran's currently diagnosed sleep apnea is less likely than not proximately due to or the result of his service-connected insomnia. As the opinion did not address secondary aggravation as it pertains to the Veteran's service-connected insomnia, direct service connection, or secondary service connection as it pertains to whether those conditions caused the Veteran to gain weight, the Board remanded the claim for a VA examination and opinions. Pursuant to the Board's February 2019 remand, an additional opinion was obtained in May 2019. The examiner provided a negative nexus opinion with regard to direct service connection. She explained notations related to obstructive sleep apnea are absent from the Veteran's STRs and that the Veteran has known risk factors for developing obstructive sleep apnea including advancing age, male gender, and obesity. Concerning whether the Veteran's sleep apnea is secondary to his service-connected insomnia, the examiner also provided a negative opinion. She explained that his insomnia is separate and unrelated to his sleep apnea. In regard to whether the Veteran's sleep apnea is secondary to his service-connected disabilities, due to weight gain, the examiner also provided a negative etiology opinion. Her rationale stated that the Veteran's obstructive sleep apnea is multifactorial in etiology, and as such, it is not feasibly possible to ascertain the precise degree of each risk factor that contributes to the Veteran's obstructive sleep apnea without resorting to mere speculation. She also stated the etiology of the Veteran's obesity is multifactorial, as it is affected by genetics, dietary indiscretion, and suboptimal physical activity. The Veteran underwent a VA examination in December 2019 and additional opinions were obtained concerning the noted theories of entitlement. Concerning direct service connection, the examiner provided a negative nexus opinion. She explained that the Veteran's STRs are silent for complaints, diagnosis, or treatment for obstructive sleep apnea and the Veteran was diagnosed eight years after discharge, at an age of 42 and a body mass (BMI) index of 33.0. She acknowledged that the Veteran was noted to be obese at the time of discharge, but stated that there were no physical findings, including an increase in neck circumference, mouth features, or nasal or palate position abnormalities, suggesting a diagnosis of obstructive sleep apnea at the time of his discharge. In regard to secondary service connection, the examiner provided a negative etiology opinion concerning whether the Veteran's sleep apnea is secondary to his service-connected insomnia. She noted a May 2008 mental disorders VA examination in which the examiner states that he could not identify any psychological or physical factors that would cause insomnia. She also provided a negative etiology opinion regarding whether the Veteran's sleep apnea is secondary to his service-connected disabilities, due to weight gain. She explained that while weight gain is one of the factors increasing the risk of obstructive sleep apnea, there are other risk factors for weight gain in the case of this Veteran including genetics, metabolic syndrome, dietary indiscretion, and suboptimal physical activity. She stated further that is it is not possible to determine the percentage each factor plays in the overall condition of obstructive sleep apnea. The examiner also provided a negative etiology opinion with regard to whether the Veteran's sleep apnea is secondary to his service-connected intervertebral disc syndrome. She explained that IVDS is not a condition that is included in factors increasing the risk for obstructive sleep apnea. Additionally, as the Veteran has qualifying service as a Persian Gulf veteran under 38 U.S.C. § 3.317, the examiner also provided an opinion concerning whether the Veteran has a sleep disorder that meets the criteria for a diagnosable, chronic multi-symptom illness. The examiner explained that it is less likely than not that the Veteran's sleep apnea was caused by or related to an environmental exposure. She explained instead that it is more likely that the Veteran's sleep apnea is related to a narrow esophageal airway, with a superimposed elevation of BMI. In this case, the Board finds that the opinions of record are not entirely adequate to decide the claim. In this regard, the opinions of record only address the diagnosis of sleep apnea. The Veteran may also have a diagnosis of periodic limb movement sleep disorder that was diagnosed by the in-service May 2008 sleep study, as periodic limb movements were also noted at the time of the post-service February 2016 sleep study. In addition, the opinions of record are not entirely adequate to decide the claim concerning the Veteran's contention his sleep apnea is secondary to his service-connected disabilities due to weight gain. In this regard, although the examiner who provided the May 2019 opinion provided a negative etiology opinion, she explained she could not ascertain the precise degree of each risk factor including the Veteran's weight gain, and its etiology, contributes to the Veteran's obstructive sleep apnea without resorting to mere speculation. Similarly, the examiner who provided the December 2019 examination also noted that the Veteran's weight was a risk factor for developing sleep apnea, but stated that she could not determine the percentage each risk factor, including obesity, played in the Veteran's sleep apnea. The Board notes that obesity per se is not a disease or injury for purposes of entitlement to service connection and therefore may not be service connected on a direct basis. See VAOPGCPREC 1-2017 (Jan. 6, 2017). However, obesity, may be an "intermediate step" between a service-connected disability and a current disability for which service connection may be granted on a secondary basis under 38 C.F.R. § 3.310(a). See id. In Walsh v. Wilkie, the United States Court of Veterans Claims (Court) held that the Board needs to consider the obesity-intermediate step theorem. Thus, the Court held that proper interpretation of G.C.'s opinion 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. Walsh v. Wilkie, 32 Vet. App. 300, 304 (2020). While both opinions acknowledged the Veteran's suboptimal physical activity was a risk factor for the Veteran's obesity, the opinions did not discuss the relationship between the Veteran's service-connected disabilities and his suboptimal physical activity. As such, the May 2019 and February 2019 opinions did not properly consider whether the Veteran's weight gain or obesity proximately caused his sleep apnea, and a new opinion is warranted on remand. In light of the remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain VA treatment records dated since November 2019. 2. Schedule the Veteran for an examination (or telehealth interview, records review, etc. if an in-person examination is not feasible) to determine the nature and etiology of a sleep disorder. The entire claims file must be reviewed by the examiner. The examiner is to conduct all indicated tests. The examiner should identify any current sleep disorder, other than insomnia. The examiner should consider whether the Veteran has a current diagnosis of periodic limb movement sleep disorder. The examiner is asked to address each of the following: (1) Whether any identified sleep disorder, other than insomnia, is at least as likely as not (a 50 percent or greater probability) incurred in service or is related to an in-service injury, event, or disease. (2) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected disabilities, either alone or in combination, 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 disorder; and, if so, whether it is at least as likely as not (50 percent or greater probability) that his sleep disorder would have occurred but for weight gain/obesity caused or aggravated by the service-connected disability or disabilities. The examiner should consider the Veteran's lay statements and other evidence of record reflecting that his service-connected disabilities impact his ability to exercise. Aggravation is an increase in severity beyond the natural progress of the disease. If aggravation is found, the examiner should identify a baseline level of severity of the Veteran's sleep disorder by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the Veteran's sleep disorder. (3) Whether the Veteran's disability pattern is: i. an undiagnosed illness ii. a diagnosable but medically unexplained chronic multi-symptom illness (MUCMI) of unknown etiology or pathophysiology iii. a diagnosable chronic multi-symptom illness with a partially explained etiology or pathophysiology, or iv. a disease with a clear and specific etiology, and pathophysiology, and diagnosis If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern consistent with options (iii) or (iv) above, (i.e., either a diagnosable chronic multi-symptom illness with a partially explained etiology or a disease with a clear and specific etiology and diagnosis), then please provide a medical opinion as to whether it is at least as likely as not that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. Rationale for all opinions expressed should be provided. If the reviewing 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. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Gray, 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.