Citation Nr: 22018658 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 19-02 816A DATE: March 30, 2022 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected IVDS, is remanded. Entitlement to service connection for a bilateral knee disorder, to include osteoarthritis, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1980 to February 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2016, February 2017, and May 2017 rating decisions. In September of 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the electronic claims file. Addressing the relevant procedural history, this case was previously before the Board in August of 2021 at which time it was remanded for additional development. The case has now been returned to the Board for further adjudication. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected IVDS, is remanded. The Veteran contends that service connection is warranted for a sleep apnea condition. More specifically, he has asserted that while in service, "[his] bed is like it's the top rack, and the ceiling -- that stuff would come down from out of the ceilings. And I'd wake up with that stuff, and I'd be coughing and hacking all night long. And I -- my -- my partners -- my friends on ship -- my shipmates told me I -- I snore a lot waking everybody up. And -- and sometimes I just couldn't even like -- someone had to wake me up because I -- I'd be -- when I -- when I wake up, I'd like be coughing and hacking." The Board first notes that there are both private and VA opinions of record that address the above theory of entitlement. However, the Board must construe pleadings liberally and consider theories of entitlement that are independently raised by the record, even if they were not specifically asserted by the Veteran. See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); 38 C.F.R. § 20.202. In that regard, the Board first notes that the Veteran is service-connected for IVDS, hereinafter referred to as his "back condition". The Board also observes that while the Veteran was diagnosed with sleep apnea via sleep study in 2014, January 2013 VA treatment notations indicate that the Veteran called with complaints of "recently worsening lower back pain" prior to his first appointment later that month. Later January 2013 VA treatment notations note that he "reports sleep disturbance due to back pain. He reports if he sleeps in the recliner he feels better. He does report daytime sleepiness and snoring." His "active problems" were noted to be "1. Chronic Low Back Pain 2. Obstructive Sleep Apnea 3. Obesity". The treating examiner stated that the Veteran was a "good historian" and noted his "hx of chronic back pain and currently treated with vicodin and flexaril by local provider which he can not see any longer due to loss of insurance. He reports he did have a back injury while in the military." That examiner also noted that he had "obesity with daytime drowsiness with probable OSA. Will order sleep study." Based on the foregoing, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for sleep apnea until a VA examiner has opined whether the Veteran's current sleep apnea may be proximately due to, caused by, or aggravated by his service-connected back condition. In addition, the Board recognizes that, although obesity itself may not be service connected, obesity may act as 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. In this case, the medical evidence outlined above indicates that there is some support for the contention that the Veteran's obesity acts as an intermediate step connecting his sleep apnea to his service-connected back condition. Therefore, an opinion must be obtained as to whether the Veteran's obesity acts as an intermediate step connecting his sleep apnea to his service-connected back condition, and whether the Veteran's sleep apnea was caused by or aggravated by his service-connected back condition. 2. Entitlement to service connection for a bilateral knee disorder, to include osteoarthritis, is remanded. Regarding the Veteran's claimed knee disorder, the Board previously directed that efforts should be made on remand to obtain and associate with the record any identified outstanding private treatment records that appeared to be relevant, to include private treatment records from a knee surgery that reportedly took place in 2000 or 2001 at [W.] Hospital. The Board remanded this matter in August of 2021 for updated VA treatment records, a new VA examination, and any identified outstanding private treatment records that appeared to be relevant, to include private treatment records from a knee surgery that reportedly took place in 2000 or 2001 at [W.] Hospital. On remand, the RO obtained updated VA treatment records and a new VA examination was administered (with an accompanying opinion authored). The RO also made one attempt to obtain the missing private treatment records; however, further efforts are necessary. Although the RO previously contacted the Veteran for authorization regarding outstanding records from [W.] Hospital in August of 2021, it appears no additional attempts have been made to date to obtain these records. VA is required to make reasonable attempts to obtain relevant records. 38 C.F.R. § 3.159 (c). Reasonable efforts should include at least one follow-up attempt following an initial request for records. Id. Therefore, upon remand the RO should undertake such action to obtain these records, and properly document all attempts, if necessary. Only after reasonable efforts are made to obtain these records, if unsuccessful, the RO must notify the Veteran of its inability to obtain the records pursuant to 38 C.F.R. § 3.159 (e)(1), which requires notice of: the identity of the records unable to be obtained; an explanation of the efforts made by VA to obtain the records; a description of further action VA will take regarding the claim, including notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and the Veteran's ultimate responsibility to provide the records. The matter is REMANDED for the following actions: 1. Take all reasonable efforts to obtain the Veteran's private treatment records from [W.] Hospital. This includes contacting the Veteran and affording him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include private treatment records of his reported knee surgery in 2000 or 2001 at [W.] Hospital. With any needed assistance from the Veteran, make reasonable efforts to obtain these and any other identified outstanding private treatment records reflecting treatment for his claimed bilateral knee and/or sleep apnea conditions. If reasonable efforts to obtain these records are unsuccessful, notify the Veteran in accordance with 38 C.F.R. § 3.159 (e)(1) and provide with him a reasonable amount of time to personally submit the records. 2. DO NOT PROCEED with the following until the above development has been completed. 3. If and only if additional records are associated with the claims file on remand, then forward the Veteran's claims file, to include a copy of this remand, to the examiner who authored the November 2021 VA opinions (or another similarly situated individual only if that person is unavailable). The examiner must be provided with and review the entire claims file and it should be confirmed that such records were reviewed. Thereafter, this examiner should indicate whether any recently added opinions alter the prior opinions and fully explain how, if determined to be the case. 4. Regardless of whether additional treatment records are associated with the claims file, obtain an addendum opinion from an appropriate clinician. The clinician must be provided with and review the entire claims file, to include a copy of this remand, and it should be confirmed that such records were reviewed. Following a review of the evidence of record, to include the Veteran's lay statements, the clinician should opine whether it is at least as likely as not (50 percent probability or greater) that Veteran's sleep apnea is (1) proximately due to; or (2) aggravated beyond its natural progression by to his service-connected back condition. The examiner is asked to reconcile, to the extent possible, the 2013 VA treatment records outlined above in so opining. The examiner must also discuss the relationship, if any, between the Veteran's service-connected back condition and his obesity and, if warranted, the relationship, if any, between the Veteran's obesity and his sleep apnea. The question of secondary aggravation must be addressed separately from the question of secondary causation. The examiner must note that an opinion to the effect that one disability is not "caused by," "a result of," or "secondary to" another disability does not answer the question of aggravation and will necessitate a further opinion. 5. Thereafter, readjudicate the claims. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.