Citation Nr: 22014489 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 13-06 402A DATE: March 14, 2022 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1996 to June 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before a Veterans Law Judge (VLJ) in May 2017. A hearing transcript is included in the file. When that VLJ retired from employment with the Board, a January 2022 letter was sent requesting clarification as to whether the Veteran wanted a new hearing. The letter informed the Veteran that she was entitled to another hearing with a different VLJ or if she did not respond within thirty days, the Board will assume that she does not want another hearing and proceed accordingly. The Veteran did not respond to the letter and the Board has proceeded with this appeal. This matter was previously before the Board in September 2017 and November 2019. The November 2019 Board decision denied the Veteran's claim for entitlement to service connection for OSA. The Veteran appealed the portion of the November 2019 Board decision that denied entitlement to service connection for OSA to the United States Court of Appeals for Veterans Claims (Court). By way of a February 2021 Joint Motion for Remand (JMR), the parties agreed that remand was warranted as the medical opinions did not address the relationship between OSA and insomnia. This matter was before the Board again in July 2021, wherein the Board remanded for additional development. The matter has returned to the Board for adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). As an initial matter, the Veteran's claim was for service connection for a sleep disorder. The claim has been expanded to include two separate disabilities: insomnia and obstructive sleep apnea. In a March 2019 rating decision, the RO granted service connection for insomnia. The Veteran contends that her OSA is due to her military service, or in the alternative, secondary to her service-connected disabilities. Specifically, that due to the pain from her conditions, she is unable to sleep and is awakened due to pain. The July 2021 Board decision remanded the issue for a medical opinion to determine if the Veteran's OSA was secondary to her now-service-connected insomnia disorder. A medical opinion was obtained in September 2021. The VA examiner opined that the Veteran's claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. As rationale, she stated that peer-reviewed medical literature does not support the nexus between "service-connected insomnia disorder associated with pain, and that her service-connected musculoskeletal disabilities impact her sleeping position" and development of OSA eleven years after separation from service. The examiner reasoned that extensive review of the available medical records reveal a thirty-five-pound weight gain from the time she separated from service (2005) to the time when the sleep study was conducted (2016). She explained that the twenty-eight percent weight increase in eleven years combined with advancing age are the likely cause of the OSA, as outlined in peer-reviewed medical literature (UptoDate). She found that the musculoskeletal condition, pain, sleep position, nor insomnia are causes or risk factors for development of OSA and it would require speculation to link OSA to her service-connected insomnia. Regarding aggravation, the examiner opined that the Veteran's OSA is not aggravated beyond its natural progression by the Veteran's service-connected insomnia. She stated that peer-reviewed literature does not support insomnia as the causative or aggravating factor for OSA. The examiner specified that both conditions can co-exist but are mutually exclusive. Insomnia does not cause or worsen (aggravate) collapse of the velopharyngeal airway. She concluded that this contention has no medical/scientific basis, and it would require mere speculation to link OSA to insomnia. Here, the Board notes that the VA examiner indicated that the Veteran's cause of OSA was obesity. Obesity may be an intermediate step between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). See VAOPGCPREC 1-2017 (Jan. 6. 2017). The examiner stated that the Veteran had a thirty-five-pound weight gain from her discharge to when the 2016 sleep study was conducted. The Veteran also has multiple service-connected musculoskeletal disabilities, including bilateral pes planus, a left knee disability, a left thigh disability, lumbosacral strain, a right knee disability, a right foot disability, and a left ankle sprain. A July 2006 VA examination shows that the Veteran was unable to climb stairs or run long distances. The Veteran reported at the examination that due to her left knee condition she is unable to carry any heavy objects and has given up all sports and running and avoids recreational activities requiring walking. At a February 2007 VA examination, the Veteran reported that she does not participate in sports, does not run, jump, or go fishing. An April 2007 VA treatment notes that her family was physically active before her knee surgery, and she and her husband ran together, biked, and rode motorcycles. She reported that she now walks with a limp. An April 2010 VA treatment record documents that the Veteran reported increasing left knee pain to the point that the pain is so unbearable that she is unable to sleep and is having difficulty in ambulating. The examiner at an October 2012 VA examination noted that the loss of function is the pain in the left knee and lower back causing severe difficulty in walking, standing, and sitting for a prolonged time. As the evidence shows that the Veteran's service-connected conditions may have caused lack of mobility and potential weight gain, the Board finds that an addendum medical opinion is warranted in order to address this theory of entitlement. The matters are REMANDED for the following action: 1. Obtain additional VA medical treatment records from May 2021 to present. All reasonable attempts should be made to obtain any identified records. 2. After completion of the above, obtain an addendum opinion from the VA provider who issued the September 2021 medicals opinion for obstructive sleep apnea (or if no longer available, an appropriate replacement). The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: Regarding obesity, although such cannot be a disability in and of itself, the examiner should address whether the Veteran's service-connected disabilities (to include any medications prescribed as treatment), individually or combined, caused, in whole or in part, her obesity. If the examiner finds that the Veteran's service-connected disabilities caused her to become obese, either in whole or in part, then the examiner must opine whether (1) obesity was a substantial factor in causing the Veteran's sleep apnea, and (2) whether her sleep apnea would not have occurred if but for the obesity caused by her service-connected disabilities. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which she had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.