Citation Nr: 22010515 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 14-21 102A DATE: February 23, 2022 ISSUE Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected post-traumatic stress disorder (PTSD), asthma and bronchitis and traumatic brain injury (TBI) with headaches. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected post-traumatic stress disorder (PTSD), asthma and bronchitis and traumatic brain injury (TBI) with headaches is remanded. REASONS FOR REMAND The Veteran had active service in the United States Air Force from November 1991 to August 1994 and October 2004 to January 2006. This matter arises from an appeal to the Board of Veterans' Appeals (Board) of a August 2013 rating decision issued by the Department of Veteran's Affairs Regional Office (RO) in Roanoke, Virginia. In February 2021, the Board denied the claim for entitlement to service connection for obstructive sleep apnea. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In November 2021, the Court granted a Joint Motion for Remand (JMR), vacating the February 2021 Board decision which denied the Veteran's claim for entitlement to service connection for OSA. The JMR found that the Board's February 2021 decision erred when the Board not only relied on an inadequate medical opinion but also failed to address a theory of entitlement reasonably raised by the record. After vacating the Board's decision, the case was remanded pursuant to 38U.S.C. §7252 (a) for readjudication of the issue of entitlement to service connection, consistent with the JMR. The Board finds that evidentiary development is still required before the claim of service connection on appeal can be adjudicated. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected post-traumatic stress disorder (PTSD), asthma and bronchitis and traumatic brain injury (TBI) with headaches is remanded. The Veteran is claiming service connection for sleep apnea, to include as secondary to his service-connected disorders and contends his sleep apnea began in and has continued since service. The Veteran was granted service connection for multiple disorders including post-traumatic stress disorder effective January 2006, asthma and bronchitis effective January 2006 and a traumatic brain injury effective March 2008. As further discussed below, the Board finds that an adequate medical opinion must be obtained upon remand concerning the Veteran's claim on appeal. The Board notes that the Veteran was most recently afforded a VA examination in May 2018 with an addendum medical opinion issued in September 2020. The examiner opined that it was less likely than not that the Veteran's OSA was caused or aggravated by his active- duty service, nor was it caused or aggravated by his service-connected disabilities. The Board denied the Veteran's claim of service connection in February 2021 in reliance on the May 2018 and September 2020 medical opinions. Pursuant to the JMR, the parties agreed that for several reasons the medical opinions were inadequate. First, in the May 2018 and September 2020 medical opinions the VA examiner failed to address the intermediate step of obesity, which had been raised by the evidence of record. Specifically, the Veteran is service connected for a back disability and bilateral knee disabilities. A June 2018 "move" note indicates that the Veteran's obesity was due to limitations of physical activity related to his damaged knees and back pain. Though the May 2018 and September 2020 VA examiner attributed the Veteran's OSA to weight gain and obesity, the examiner failed to address whether the Veteran's obesity was an intermediate step between his service-connected back and knee disabilities. As such, pursuant to the November 2021 JMR, the Board finds that a new VA opinion is warranted to address whether the Veteran's service-connected back and knee disabilities caused his obesity, which in turn caused his OSA. The medical opinion should also address whether the OSA was caused or aggravated by his service-connected back or bilateral knee disabilities. See Ward v. Wilkie, 31 Vet. App. 233 (2019). To this point, the Board notes that although obesity per se is not a disease or injury for purposes of 38 U.S.C. § §§ 1110 and 1131 and therefore may not be service connected on a direct or secondary basis, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis (1) if a previously service-connected disability caused them to become obese; (2) that obesity was a substantial factor in causing secondary disability; and (3) the secondary disability would not have occurred but for the obesity. See VAOPGCPREC 1-2017. Next, pursuant to the JMR the parties agreed that the September 2020 opinion was inadequate with respect to causation because it failed to discuss the particularities of the Veteran's case. For example, when discussing the Veteran's asthma/bronchitis the examiner cited to a portion of medical literature which did not include a discussion of bronchitis and the examiner also failed to discuss the Veteran's particular circumstances regarding his asthma/bronchitis as it related to his OSA. Finally, the parties agreed that the September 2020 opinion was inadequate with respect to aggravation because it was not supported by adequate rationale as the examiner focused more on the etiology rather than aggravation of OSA by the service-connected disabilities. The examiner, when addressing aggravation, also failed to discuss whether there was any increase in the Veteran's OSA. Thus, after consideration of the joint motion for remand, the Board finds that a new VA examination and medical opinion is necessary to address the etiology of the Veteran's OSA. The Board finds that this additional development is required for the Board to make a decision on this appeal, and to adequately address CAVC Remand directives discussed above. Accordingly, the Veteran's claim must be remanded for a new VA examination pursuant to the CAVC's directive. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records. Should such exist, associate them with the Veteran's electronic claims file. 2. Schedule the Veteran for a new VA examination (or telehealth interview(s), review(s) of the record, etc., if an in-person examination(s) is not feasible) by an appropriate physician to determine the nature and etiology of the Veteran's obstructive sleep apnea. The entire claims file, including a copy of this REMAND, must be made available to the examiner for review in connection with the examination and the examination report must reflect that such a review was undertaken. Based upon the examination and a review of the record the examiner is asked to address the following: (a) Opine whether it is at least as likely as not (a 50 percent probability or greater) that OSA was incurred in, or is attributable to, service. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's OSA is caused or aggravated by his obesity, and if so, whether it is at least as likely as not that such obesity was caused or aggravated by his service-connected back or bilateral knee disabilities. As a note to the examiner, although obesity cannot be service-connected per se, obesity may be an intermediate step in secondary service connection, but it must be found that the obesity itself caused or aggravated the OSA, and that obesity was as likely as not caused or aggravated by the service-connected back or knee disabilities. The examiner's attention is invited to the June 2018 "move" note indicating that the Veteran's obesity was due to limitations of physical activity related to his damaged knees and back pain. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's OSA was caused or aggravated by the Veteran's service or his service-connected PTSD, asthma and bronchitis, TBI with headaches, back disability and/or knee disabilities. With respect to the question of whether any aggravation was observed, the examiner is requested to address whether there has been any worsening, no matter how incremental, of the Veteran's OSA. The examiner must also remain mindful that a recent precedent case clarified that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition's natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). (d) If aggravation is found, provide the baseline manifestations prior to aggravation and the increased manifestations due to the service-connected PTSD, asthma and bronchitis, TBI with headaches, back disability and/or knee disabilities. When delivering these opinions, the examiner must consider all lay statements of record carefully, service treatment records, VA treatment records and examinations and private treatment records and evaluations. The examiner should view the Veteran as a reliable historian as to his service and his report of his activities in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). All opinions must include rationale with citation to supporting factual data and medical literature/treatises as deemed appropriate. (Continued on next page.) After completing the requested actions, readjudicate the claim in light of all pertinent evidence and legal authority. If the benefit sought remains denied, furnish to the Veteran and his representative with a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.