Citation Nr: 22010303 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 18-12 132 DATE: February 23, 2022 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from February to March 1991 and from September 2001 to August 2003. He also had periods of National Guard service. The Veteran and his spouse (I.K.) testified in support of this claim during a September 2021 "virtual" teleconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. After the hearing, the Veteran was given an additional 90 days to submit more evidence and/or argument in support of his claim, which he since has done within the time indicated, and he waived his right to have the local Regional Office (RO) initially consider this additional evidence as the Agency of Original Jurisdiction (AOJ) preferring instead that the Board do so in the first instance. While this additional evidence and that already of record, does not provide grounds for granting this claim, it does at least invoke VA's duty to assist the Veteran in attempting to further substantiate this claim. The Board resultantly is remanding this claim back to the RO (AOJ). The Veteran received a diagnosis of sleep apnea in 2007, which was not during any period of active military service (i.e., qualifying service). But he contends that it began during qualifying service even if not until later diagnosed or was caused or is being aggravated by a service-connected disability. "Active military, naval, or air service" includes active duty (AD) and any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or an injury incurred or aggravated in the line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury, though not also disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. See 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). This typically refers to the two weeks of annual training that each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). This refers to the 12 weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. To the extent this claimant is alleging that he has disability owing to an injury or a disease incurred or aggravated during his time in the National Guard, he must first establish his status as a "Veteran" in connection with that service and then that he was disabled from disease or injury incurred or aggravated in the line of duty during that service, such as while on Reserve ACDUTRA/INACDUTRA or during Federalized National Guard service. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). In the absence of any such evidence, the period of service would not qualify as "active military, naval, or air service" and the claimant would not achieve veteran status for purposes of that claim. See 38 U.S.C. § 101(2)-(24). A person enlisted in a State National Guard unit is simultaneously enlisted in the National Guard of the United States; however, the person is only considered to be serving in the latter capacity when formally called into such service. See Allen v. Nicholson, 21 Vet. App. 54 (2007); Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003)). At all other times, the enlisted National Guard member is considered instead to be in the State militia or in civilian status, neither of which qualifies as active military service for purposes of Veterans' benefits. To have basic eligibility for Veterans' benefits based on a period of duty as a member of a State Army National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States or must have performed "full-time duty" under the provisions cited in 38 U.S.C. § 101(22)(C), (23)(C). The Veteran's claim, however, is predicated on the notion of both direct and secondary service connection meaning direct incurrence of his sleep apnea during his service or a secondary relationship or correlation with his service by way of a service-connected disability, i.e., one that caused or is aggravating it. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. In either instance, service connection is permissible for a disease initially diagnosed after discharge from service if the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Turning now to the relevant evidence, the claims file includes a December 2021 medical opinion (Disability Benefits Questionnaire (DBQ)) and November 2021 correspondence from Dr. J. Ellis, wherein he opined that it is more likely than not the Veteran's sleep apnea had contributing or aggravating factors of posttraumatic stress disorder (PTSD), weight gain due to service-connected disabilities (e.g., his knee and back disabilities), and rhinitis and pansinusitis that Dr. Ellis contended should be service connected. But while Dr. Ellis raises these possible etiologies, additional development and rationale is needed. First, Dr. Ellis contends that the Veteran's exposure to dry dusty air in the Middle East and Southwest Asia led to acute sinus infections and chronic rhinitis and sinusitis. Effective August 5, 2021, VA amended its adjudication regulations to establish presumptive service connection for three chronic respiratory health conditions, i.e., asthma, rhinitis, and sinusitis, to include rhinosinusitis, in association with exposure to fine particulate matter for those Persian Gulf War Veterans who served in Southwest Asia, Afghanistan, Syria, Djibouti, and Uzbekistan, if these conditions manifested within 10 years of a qualifying period of military service. The Veteran's May 2003 DD Form 2796 (Post-Deployment Health Assessment) reflects that, at some time during his deployment, he had a runny nose, headaches, and felt tired after sleeping, but that he did not have these problems at the time of the evaluation. He also stated that, during his deployment, his health had "stayed about the same or gotten better", and that he had not been seen at sick call at all during deployment. Moreover, post-service records do not support chronic rhinitis or sinusitis. Thus, Dr. Ellis' finding appears to be based on the Veteran's self-reported history provided in 2021 rather than objective review of clinical records, including radiology findings. And while it is true that independent review of the evidence in the claims file is not necessarily dispositive or determinative of the probative value of a medical opinion, this independent review takes on added value and significance if there is evidence in the file the commenting clinician did not reconcile or consider that, if he had, would tend to undermine the probative value of the opinion. See Coburn v. Nicholson, 19 Vet. App. 427 (2006); Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Veteran therefore should submit authorization for VA to obtain all clinical records from 2002 to the present concerning his rhinitis and/or sinusitis. If he does not have a diagnosis of chronic sinusitis, he should be scheduled for an examination with all necessary diagnostic testing and evaluation such as computed tomography (CT) or magnetic resonance imaging (MRI). Second, Dr. Ellis surmised the Veteran's obesity contributed to or aggravated his sleep apnea. VA has determined that obesity is not a ratable disability. However, obesity may act as an "intermediate step" between a service-connected disability and a current disability for which secondary service connection may be established. Under 38 C.F.R. § 3.310(a), a disability that is proximately due to or the result of a service-connected disease or injury is service-connected, and that "proximate cause" has been defined by Black's Law Dictionary, 213 (7th ed. 1999), as a "cause that directly produces an event and without which the event would not have occurred." See VAOPGCPREC 1-2017 (Jan. 6, 2017). As such, VA must resolve: (1) whether a service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity due to the service-connected disability was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity caused by the service-connected disability. In Walsh v. Wilkie, 32 Vet. App. 300 (2020), the Court again addressed the holding of VAOPGCPREC 1-2017 (Jan. 6, 2017) that obesity can constitute an "intermediate step" in showing secondary service connection, i.e., that service connection is warranted when a service-connected disability causes obesity that, in turn, causes another disability. General Counsel (GC) opinions are binding on the Board but not on the Court. In addition, in accordance with § 3.310(b), VA must consider aggravation in this context when the theory is explicitly raised by the Veteran or reasonably raised by the record. As concerning this Veteran, his service treatment records (STRs) show he was overweight prior to developing his service-connected disabilities. Records reflect that his maximum allowable weight for service was 190.25 lbs., which he exceeded on numerous occasions before his active service from 2001-2003 and prior to his knee injury in 2005. For example, his weight was 214 lbs. (in October and December 1993), 227 lbs. (June 1999), and 236 lbs. (May 2004). At the time of his knee injury, he weighed 232 lbs., which still exceeded the maximum allowable weight by more than 40 lbs. Thus, the Board cannot find that the Veteran's service-connected knee injury in 2005 caused his obesity, although it may have aggravated it. Moreover, there are no records noting his weight in 2007 at the time he initially received a diagnosis of sleep apnea to support finding that his knee injury had caused significant weight gain, which then in turn caused or aggravated his sleep apnea. Third, Dr. Ellis opined that the Veteran's service-connected PTSD contributed to or aggravated his sleep apnea and, as support for this correlation, cited a study but did not provide any rationale specific to this Veteran. Dr. Ellis cited to the Journal of Clinical Sleep Medicine, May 15, 2015, 11(5), 513-518, which should be considered by a clinician in providing supplemental comment or rationale for why this posited chain link of causation has or has not occurred in this instance. The Board acknowledges the statements of the Veteran's spouse and the "buddy" statements that the Veteran had sleep impairment during his service or that began during his service. The "buddy statements" attest that he was exposed to sandstorms, burn pits, and extreme heat, which caused many issues for troops with breathing and sleeping, and that he had shift work or work of 14 hour long shifts that caused sleep schedules to be interrupted and time off to be less frequent. However, these lay statement providers are not competent to diagnose sleep apnea, which instead usually is based on the results of an official sleep study, although they nonetheless can attest to symptoms they personally witnessed the Veteran experiencing that may have been characteristic or early indications of this condition (the so called "textbook" symptoms). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Ask the Veteran to provide the names and addresses of all health care providers who have treated him for sinusitis and rhinitis from 2002 to the present. After acquiring this information and obtaining any necessary authorizations, obtain and associate these additional records with the claims file. Appropriately notify the Veteran if unable to obtain identified records. 2. Also ask the Veteran to provide authorization for VA to obtain all 2007 records from Premier Sleep Solutions (Dr. S. Morris). After acquiring authorization, obtain and associate these additional records with the claims file. Appropriately notify the Veteran if unable to obtain identified records. 3. Obtain the Veteran's VA clinical records, if any, from 1991 to 2008. 4. If clinical records do not reflect a diagnosis of chronic sinusitis or rhinitis, schedule the Veteran for an examination with all appropriate diagnostic testing and evaluation (e.g., CT or MRI ) to determine whether he has chronic sinusitis or rhinitis. 5. Thereafter, obtain a clinical opinion as to whether it is as likely as not (50 percent or greater probability) the Veteran's obstructive sleep apnea (OSA) was directly caused OR aggravated by his service OR is caused OR aggravated by a service-connected disability and, in this latter way, secondarily related to his service. To this end, the clinician should answer the following: I. Is it as likely as not (50 percent or greater probability) the Veteran's service caused or aggravated his sleep apnea? II. Is it as likely as not (50 percent or greater probability) the Veteran's already determined to be service-connected PTSD caused or aggravates his sleep apnea or rather, conversely, whether his sleep apnea instead causes or aggravates his PTSD? III. Is it as likely as not (50 percent or greater probability) the Veteran's service-connected back and left knee disabilities aggravate his obesity; (2) if so, whether the aggravation of obesity as a result of service-connected disability was a substantial factor in causing sleep apnea; and (3) whether the sleep apnea would have occurred but for obesity aggravated by the service-connected back disability? AND IV. If the Veteran had chronic sinusitis or rhinitis that manifested within 10 years of qualifying service (i.e., by May 2013), or that is as likely as not was caused OR aggravated by his service, the clinician should opine on whether it also is as likely as not (50 percent or greater probability) that it caused or aggravates the Veteran's sleep apnea. To assist in making these important determinations, the reviewing clinician should consider the pertinent evidence of record, including especially the following: a) the Veteran's active service from September 2001 to August 2003; b) his initial diagnosis of OSA in 2007 and his weight at that time (if noted in clinical records); c) whether it is as likely as not (50 percent or greater probability) he has chronic sinusitis or chronic rhinitis caused by his service; d) the contention that his service-connected disabilities caused weight gain that, in turn, contributed to or aggravates his sleep apnea; e) that he exceeded the recommended maximum allowable weight with a weight of 214 lbs. (October, December 1993), 227 lbs. (June 1999), 236 lbs. (May 2004), and 232 lbs. at the time of an October 2005 knee injury; f) the Journal of Clinical Sleep Medicine, May 15, 2015, 11(5), 513-518, which discusses the relationship between PTSD and OSA; g) common causes of OSA; and h) the Veteran May 2003 DD Form 2796 (Post-Deployment Health Assessment) showing that, at some time during his deployment, he had a runny nose, headaches, and felt tired after sleeping, but that he did not have these problems at the time of the evaluation. He also stated that, during his deployment, his health had "stayed about the same or gotten better." For any finding that the Veteran has a service-connected disability (or obesity due to a service-connected disability) that aggravates his OSA, the clinician should discuss the baseline severity of the OSA prior to any aggravation as it compares to the severity after aggravation, if any. Rationale for the responses is essential, regardless of whether favorable or unfavorable to this claim, preferably citing to findings or other evidence in the file supporting conclusions and/or accepted medical authority. Indeed, discussion of the facts and medical principles involved would be of considerable assistance to the Board. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.