Citation Nr: 22009130 Decision Date: 02/16/22 Archive Date: 02/16/22 DOCKET NO. 15-00 747A DATE: February 16, 2022 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1994 to September 1995. The Veteran appeals the denial of service connection for obstructive sleep apnea. When this issue was last before the Board in June 2021, it was determined that further development was needed for proper adjudication of the claim. Specifically, it was found that a remand was warranted to obtain a medical opinion addressing whether obesity was an intermediate step between the Veteran's service-connected back disorder and his OSA. As per the June 2021 remand, a VA opinion was rendered in August 2021. The remand directive specifically stated that "after the opinion regarding obesity is obtained, forward the Veteran's claims file to a somnologist or a similarly qualified sleep specialist for an opinion addressing the etiology of the Veteran's obstructive sleep apnea." Although it was instructed that an opinion be obtained from a somnologist or a similarly qualified sleep specialist, the examination reported was entirely rendered by a family nurse practitioner. A Court or Board remand confers upon the Appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). As the remand directives of June 2021 were not completely followed, the AOJ is again requested to comply with the Board's remand directives as stated below. The Board acknowledges the Veteran's argument in December 2021. It is asserted that is it "common knowledge" that factors such as diet, exercise, television viewing habits and sleep may contribute to weight gain, but also noted that how these factors contributed to weight gain "is commonly known to most laypeople to be a complex matter." The attorney asserted that the Board's request "for an estimate of the amount of weight gain due to the Veteran's back condition requires either speculation, or an opinion stating that the requested opinion cannot be provided without speculation," and appears to argue that the Board's opinion request was phrased in a manner to obtain a negative opinion. The United States Court of Appeals for Veterans Claims has held that proper interpretation of G.C. Prec. Op. 1-2017 requires consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability (caused the veteran to become obese/aggravated the veteran's obesity); (2) if so, whether the (obesity/aggravation of 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/obesity aggravated) 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, 307 (2020). In the prior remand, the Board asked an examiner to answer the following question: Forward the claims folder to an appropriately qualified examiner to provide opinion as to whether it is at least as likely as not that the Veteran's service-connected lumbar strain resulted in any weight gain and, if so, identify the approximate gain of weight attributable to the service-connected lumbar strain. The examiner is instructed to consider that, if any extent of weight gain cannot be attributed to service-connected lumbar strain versus nonservice-connected causes, the examiner should attribute the weight gain to service-connected lumbar strain. If such a determination is medically speculative in nature, the examiner should explain why such a non-speculative opinion is beyond the limits of medical knowledge. Importantly, the Board directed the examiner the examiner to opine as to whether there was any weight gain attributable to the service-connected back disability which is a necessary element for the remaining inquiry. The Board also notes that proximate cause requires that any such weight gain would be a substantial factor in causing the current disability, and the Board requested an approximation of weight gain. See Walsh, 32 Vet. App. at 307. However, consistent with the benefit of the doubt rule, the Board also instructed the examiner "to consider that, if any extent of weight gain cannot be attributed to service-connected lumbar strain versus nonservice-connected causes, the examiner should attribute the weight gain to service-connected lumbar strain." See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant's favor and the symptoms in question must be attributed to the service-connected disability). Thus, the examiner was instructed that any inability to express the extent of weight gain due to service-connected and nonservice-connected cause was to be resolved in the Veteran's favor. The 2021 VA examiner opined that "[t]here is no way to determine what amount of weight gain, if any, is attributed to the Veteran's lumbar strain vs. nonservice-connected causes. It would only be speculative in nature and is beyond the limits of medical knowledge." (emphasis added). The examiner also explained why an opinion would be speculative in nature. Overall, the Board is of the opinion that it appropriately drafted an opinion request which incorporated the benefit of the doubt rule. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records and associate them with the claims file. 2. Forward the Veteran's claims file to a somnologist or a similarly qualified sleep specialist for an opinion addressing the etiology of the Veteran's obstructive sleep apnea. The examiner should answer the following questions: (a) Whether there is a nearly equal probability or greater (i.e., probability of nearly 50 percent or greater) that the Veteran's diagnosed obstructive sleep apnea began in service, was caused by service, or is otherwise etiologically related to active duty service; (b) Whether there is a nearly equal probability or greater (i.e., probability of nearly 50 percent or greater) that the Veteran's diagnosed obstructive sleep apnea is caused by medications prescribed for service-connected lumbar strain; (c) Whether there is a nearly equal probability or greater (i.e., probability of nearly 50 percent or greater) that medications prescribed for service-connected lumbar strain caused any additional functional impairment of the diagnosed obstructive sleep apnea (e.g., an increased severity of symptoms even if temporary); The examiner is specifically requested to identify the criteria for diagnosing sleep apnea, and discuss whether there is any medical reason to accept or reject the Veteran's belief that lay observations of loud snoring, disruptive sleep patterns and daytime fatigue which worsened over time represented the onset of sleep apnea (see March 2018 Hearing Testimony). The examiner should also note that the Veteran and lay statements are credible, and explain whether it is medically possible to determine whether the credible lay statements represented the onset of sleep apnea when viewed in the context of the entire record, including the criteria for diagnosing sleep apnea. The examiner is further asked to explicitly discuss the symptoms unique to this Veteran while providing rationale for the opinion offered. In making this determination, the examiner should address the following: the Veteran's March 2018 hearing testimony and April 2013 notice of disagreement noting that loud snoring, disruptive sleep patterns, and daytime fatigue began during service and have worsened since then; April and July 2013 lay statements indicating that the Veteran had no sleeping problems or symptoms prior to service, but since service has exhibited loud snoring, choking, and cessation of breathing while sleeping;the November 2018 expert opinion noting that the Veteran's in-service sleep problems were related to environment and not symptoms of obstructive sleep apnea and that "the record makes it very clear that [the Veteran] did not have sleep apnea when tested in approximately September 2011," but interpreted by the JMR as failing to adequately specifically address the Veteran's statements of in-service symptoms; the March 2019 examination completed by R.P. (initials used to protect privacy), the Veteran's private physician, which noted that the Veteran had obesity, which is a known contributing factor of sleep apnea and that the Veteran's service-connected back disorder requires pain medication that may be contributing to his sleep apnea; the February 2020 statement issued by, S.J., the Veteran's mental health provider, which indicated that the Veteran has severe debilitating back pain that limits his physical activities. If an examination is needed, one should be scheduled. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the case should be readjudicated by the AOJ on the basis of additional evidence. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S. Willie 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.