Citation Nr: 21042714 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-07 037 DATE: July 13, 2021 REMANDED The claim for service connection for obstructive sleep apnea, to include as secondary to service-connected traumatic brain injury, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1989 until his honorable discharge in February 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from July 2015 decision by the Los Angeles, California, Regional Office of the United States Department of Veterans Affairs (VA), which denied the Veteran's petition to reopen his claim for service connection for obstructive sleep apnea. In December 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). In an April 2019 decision, the Board reopened the Veteran's claim for service connection for sleep apnea. The Board also remanded the claim to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to do the following: (1) to upload the Veteran's VA Form 21-526EZ, received by VA on January 13, 2015; (2) obtain VA treatment records from the VA Long Beach Healthcare System from 1991 to 1999; and (3) obtain a VA examination and medical opinion addressing the Veteran's obstructive sleep apnea. The case now returns to the Board for adjudication. Obtaining a copy of VA Form 21-526EZ An August 19, 2020, email correspondence between the Los Angeles, California, VA Regional Office and VA personnel indicated the VA Regional Office did not have a copy of the Veteran's January 13, 2015, VA Form 21-526EZ because documents were only kept for two years. Subsequently, VA contacted the Veteran seeking a copy of his VA Form 21-526EZ. See August 19, 2020, VA Form 21-0820, Report of General Information; August 20, 2020, Subsequent Development Letter. A September 16, 2020, Report of General Information indicated the Veteran responded, and VA reported, "The Veteran's 21-526b is under 03/10/2015 but the actually claim is dated 03/12/2012. Please review and proceed accordingly." The Board finds that the Veteran's VA Form 21-526EZ, initially received by VA on January 13, 2015, is not available. At this point, no further reasonable development could be accomplished to upload the Veteran's VA Form 21-526EZ because the document was discarded by VA consistent with operating procedure and the Veteran has not submitted a copy of the form. The Board finds substantial compliance, to the extent reasonable, with the corresponding April 2019 remand directive. Obtaining VA treatment records from VA Long Beach Healthcare System The VA Regional Office received medical records from VA Long Beach Healthcare System on November 4, 2019. Those records only covered the period from April 22, 1999, to November 4, 1999. VA Long Beach Healthcare System informed VA representatives that no records were available prior to April 22, 1999. VA sent the Veteran a letter on August 28, 2020, informing him that it had attempted to comply with the Board's April 2019 remand directive to obtain medical records from VA Long Beach Healthcare System from 1991 to 1999. VA informed the Veteran of all steps it had taken to obtain such documents but, ultimately, the records prior to April 22, 2019, were unavailable. See August 27, 2020, VA Correspondence. VA invited the Veteran to submit any records he may have in his possession. The Board finds that the VA Regional Office made all necessary and reasonable attempts to obtain the Veteran's VA medical records from Long Beach Healthcare System between 1991 and 1999, but such records were unavailable. The Board finds the VA Regional Office substantially complied with the Board's April 2019 remand directives, to the extent reasonable. VA medical examination and opinion The VA Regional Office obtained a medical examination and medical opinion from a VA-contracted examiner in January 2020. The VA Regional Office then requested an addendum opinion from the examiner, which was received in September 2020. At this point, the Board finds these opinions are insufficient for various reasons. Thus, there has not been substantial compliance with the Board's previous remand directives regarding the issue on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA's duty to assist includes, in appropriate cases, "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C. § 5103A(d). "[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination is adequate "where it is based upon considerations of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quotations and citations omitted). The opinion must "support its conclusions with an analysis that the Board can consider and weigh against contrary opinions." Id. at 124. The "medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In his September 2020 addendum opinion, the examiner used the incorrect legal standard, stating, "based on the evidence of record, there is insufficient evidence to establish a nexus, with greater than 50% probability, between this [patient]'s sleep apnea and any time spent in military service or by his [traumatic brain injury]." The correct standard, however, is "at least as likely as not" rather than "greater than 50% probability." Thus, the opinion is insufficient. In addition, the examiner related the Veteran's obstructive sleep apnea to his obesity. The Board observes that obesity is not considered a disease or disability for VA purposes and is not subject to service connection. See Marcelino v. Shulkin, 29 Vet. App. 155, 156 (2018). Nonetheless, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis under 38 C.F.R. § 3.310. VAOPGCPREC 1-17; see also Walsh v. Wilkie, 32 Vet. App. 300 (2020). VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507. The problem with the examiner's supporting rationale is that the examiner did not address when the Veteran's obesity had its onseti.e., prior to, during, or after his military serviceor whether his obesity was due to his service-connected traumatic brain injury. For these reasons, remand is required to obtain an addendum opinion, and the Board finds the opinion should be obtained from an examiner other than the January/September 2020 VA-contracted examiner. Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain an addendum opinion from an appropriately qualified clinician other than the January/September 2020 examiner, Dr. Faiz Hussain, to provide an opinion addressing the onset and etiology of the Veteran's obstructive sleep apnea. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's obstructive sleep apnea had its onset in or is otherwise etiologically related to an in-service event, injury, or disease. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's obstructive sleep apnea was caused by (proximately due to or as the result of) his service-connected traumatic brain injury disability. (c.) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's obstructive sleep apnea was aggravated by his service-connected traumatic brain injury. The examiner is advised "aggravation" means an any increase in the severity of the underlying disability beyond its natural progression. In rendering his or her opinion as to the issue of secondary service connection, the examiner must opine on the following in relation to obesity as an intermediate step to secondary service connection: (a.) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's service-connected traumatic brain injury caused the Veteran to become obese? (b.) If the Veteran's service-connected traumatic brain injury caused him to become obese, is it at least as likely as not (a 50 percent probability or more) that his obesity was a substantial factor in causing his obstructive sleep apnea? (c.) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's obstructive sleep apnea would not have occurred but for the obesity caused by his service-connected traumatic brain injury? In rending his or her opinions, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence, where appropriate: (a.) The Veteran's April 25, 1989, entrance examination. The examiner is advised the Veteran did not receive a separation examination, but he did receive a mental examination on February 6, 1991, in association with his administrative discharge. (b.) A June 8, 1990, in-service medical record documenting the Veteran's report of "trouble sleeping." (c.) Prior examinations and medical opinions obtained by VA in October 2013, January 2020, and September 2020. (d.) Private positive-nexus medical opinions submitted by the Veteran and received by VA on December 11, 2018, including: (i) a December 6, 2018, opinion from Dr. R.K.; and (ii) a December 10, 2018, opinion from Dr. G.P.H. (e.) The Veteran's Board Hearing testimony that he began experiencing snoring on board the naval vessel on which he served after his traumatic brain injury. December 2018 Board Hearing Transcript, at 3. (f.) Lay statements from the Veteran's spouse, J.C., and the Veteran's friend, R.B., received by VA on December 11, 2018. (g.) Medical article(s) related to sleep apnea and traumatic brain injury submitted by the Veteran in association with multiple medical records, received by VA on December 11, 2018. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his obstructive sleep apnea, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of obstructive sleep apnea in service or the assertion that the Veteran's service-connected traumatic brain injury led to his obstructive sleep apnea. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.