Citation Nr: 25001237 Decision Date: 01/29/25 Archive Date: 01/29/25 DOCKET NO. 15-21 546 DATE: January 29, 2025 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1991 to July 1995. In an August 2021 Board decision, the Board denied a claim of entitlement to service connection for obstructive sleep apnea. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). The parties to the appeal entered into a Joint Motion for Partial Remand (JMPR). The JMPR found that further reasons and bases were required for discussion of certain evidence of record for the sleep apnea claim. In July 2022, CAVC remanded the claim pursuant to the terms of the JMPR. In a November 2022 Board decision, the Board again denied service connection for obstructive sleep apnea addressing the issues raised in the JMPR. The Veteran appealed the decision to CAVC and, in August 2023, CAVC remanded the claim pursuant to the terms of a Joint Motion for Remand (JMR). The JMR brought up a new issue and indicated that the Board failed to address a reasonably raised theory that service-connected asthma caused weight gain which contributed to the development of sleep apnea. In a February 2024 Board decision, the Board found that the evidence of record was not sufficiently developed to determine whether the Veteran had satisfied the requirements of McLendon v. Nicholson, 20 Vet. App. 79 (2006), to require VA to provide a medical examination as to the Veteran's theory of obesity as an intermediate step for secondary service connection. As such, the Board remanded the appeal to the agency to original jurisdiction (AOJ) to allow the Veteran an opportunity to provide evidence supporting the theories of obesity as an intermediate step and any toxic exposure risk activities (TERA). Later that month, the AOJ followed the directives of the February 2024 Board decision by sending the Veteran correspondence requesting additional details regarding TERA, additional details regarding the relationship between the Veteran's service-connected asthma and his claimed obesity, and to submit the complete medical articles cited by hyperlink in the December 2023 Written Brief Presentation. See February 2024 Subsequent Development Letter. In response, the Veteran submitted a lay statement discussing his mental health issues during his deployment to Somalia and Kuwait and after his return describing feeling "very tired and fatigued" and suffering from sleep apnea and shortness of breath. See May 2024 VA 21-4138 Statement in Support of Claim. The Veteran reported that "I have been told that during my sleep that [I] snore loudly, stop breathing and gasp for air." Id. Upon waking up, the Veteran explained that he experiences dry mouth, difficulty paying attention, and unbearable migraine headaches. Id. In May 2024, the AOJ completed a TERA Memorandum concluding that the Veteran participated in a TERA. See May 2024 TERA Memorandum. The Veteran was afforded a TERA examination and in July 2024 a VA medical examiner concluded that the Veteran's sleep apnea was less likely than not caused by the Veteran's participation in a TERA. See July 2024 C&P Examination. The VA examiner explained that "there is no objective medical or scientific evidence available that provides any indication of a causal relationship between the development of the claimed obstructive sleep apnea and the Veteran's TERA exposures." Id. In October 2024, the Veteran submitted another lay statement wherein he again described the symptoms related to his claimed obstructive sleep apnea. See October 2024 VA 21-4138 Statement in Support of Claim. Later that month, the AOJ continued the denial of the Veteran's claim and returned the claim to the Board for further adjudication. See October 2024 Supplemental Statement of the Case. The Board finds that the AOJ has satisfied its obligation of further development pursuant to the directives of the February 2024 Board decision. While the Board regrets further delay, the matter must be remanded for the reasons discussed below. 1. A VA medical examination to discuss the theory of obesity as an intermediate step is not warranted. As an initial matter, the Board returns to the Veteran's theory of obesity as an intermediate step between the Veteran's service-connected asthma and the Veteran's obstructive sleep apnea. In the February 2024 Board decision, the Board found that the evidence of record was not sufficiently developed to determine whether the Veteran had satisfied the requirements of McLendon v. Nicholson. Here, after review of the evidence of record the Board finds that after further development, the Veteran has not satisfied the requirements of McLendon v. Nicholson. VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing an in-service event, injury, or disease, and (3) an indication that the disability or symptoms may be associated with service or with another service-connected disability, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2). Obesity may serve 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). Walsh v. Wilkie, 30 Vet. App. 300 (2020); see also VAOGCPREC 1-2017. In such a case, the evidence would need to reflect that (1) a service-connected disability or disabilities caused the Veteran to become obese or aggravated the Veteran's obesity, (2) the obesity or aggravation of obesity resulting from service-connected disability or disabilities was a substantial factor in causing another disability, and (3) the disability would not have occurred but for the obesity caused by the Veteran's service-connected disability or disabilities or the obesity aggravated by the service connected disability or disabilities. Walsh v. Wilkie, 30 Vet. App. 300 (2020). The Board's review of the record prior to the February 2024 decision shows that asthma indeed interfered with exercise for a brief period in 1992, which is when the Veteran was prescribed Proventil. However, in 1995 at his first VA examination, the Veteran specifically described that his inhaler "seems to control his symptoms" and that he was "currently asymptomatic and stable for several months now." See September 1995 VA Examination. The August 2023 JMR cited September 2010 VA clinic records as supporting a fact that the "Appellant has complained that his asthma is not allowing him to participate in physical activity." Although the September 2010 VA clinic records include a notation indicating that the Veteran's asthma was exercise induced, which is the historical diagnosis, there was no further reference to exercise limitations due to asthma. See November 2024 CAPRI Records. Furthermore, VA treatment records in December 2010, July 2011, and March 2012 reflect the Veteran's own report of "Asthma no attacks no er visits no other concerns." Id. In 2003, 2004, 2011, and 2013, the Veteran repeatedly described exercising 1 to 2 days per week. Id. In 2011 and 2013, the Veteran reported wanting to increase the frequency of his exercise but explained that he was having difficulty finding the time to due to working multiple jobs 7 days a week with 2 of those days involving a 20 hour shift. Id. The Veteran also discussed diet and lifestyle modifications with VA clinicians. Id. The Veteran never reported asthma as a barrier to increasing frequency of exercise, but instead focused on his busy work schedule. See VA treatment record dated March 18, 2013. Additionally, the June 2020 VA examiner included the following assessment: In addition, the [V]eteran's medical chart was reviewed at the VA before and after the [V]eteran's polysomnogram test with the diagnosis of sleep apnea (see below). The [V]eteran is on minimal medication with prn albuterol inhaler and no complaints or exacerbations in the 10 years of care reviewed. See June 2020 C&P Examination. Following the February 2024 Board decision directing the AOJ to invite the Veteran to provide a written statement supporting the theory of asthma causing obesity the Veteran submitted two lay statements regarding the disabilities he was suffering from. Although the Veteran discussed "snoring loudly" in the May 2024 statement and suffering from "chronic sleep impairment" in the October 2024 statement, the Veteran discussed neither the impact on his exercise nor obesity. See May 2024 VA 21-4138 Statement in Support of Claim; October 2024 VA 21-4138 Statement in Support of Claim. Notably, in an August 2024 VA medical examination conducted in relation to the Veteran's claim for entitlement to service connection for chronic fatigue syndrome, the Veteran reported: I used to do 40-50 sit ups in a minute, now I can do 3 sit ups in a minute. I used to run 2 miles daily in 2022, now I cannot run anymore. Now I can walk [a half] mile a day. See August 2024 C&P Examination. The Veteran did not indicate that his asthma- for which he has been service-connected for since 1995-caused him to stop running the 2 miles a day that he reported running in 2022, but rather pointed to his claimed chronic asthma, explaining "I do not have the energy to exercise." Id. After review of the record, the Board finds both that the Veteran has been given an opportunity to provide evidence supporting the theory of obesity as an intermediate step and that the requirements of McLendon v. Nicholson have not been satisfied. Although the Veteran's representative has asserted that the "Appellant has complained that his asthma is not allowing his to participate in physical activity", the argument is taken out of context of the evidentiary record. The Veteran himself reported that he was able to "run 2 miles daily" for 27 years after having been service-connected for asthma and consistently reported exercising multiple times a week. In order to trigger VA's duty to assist to provide a VA examination, the types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to: medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits; credible evidence of continuity of symptomatology; relevant medical literature or medical treatise evidence suggesting a potential relationship; or a causal relationship within a lay person's general realm of knowledge. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010); McLendon, 20 Vet. App. at 83. The Veteran's representative's conclusory and generalized citations to legal theory without factual basis are deemed insufficient to trigger VA's duty to provide the Veteran with a VA examination for this disorder. Waters, 601 F.3d at 1278. As such, the Board finds that at this point in time the Veteran has not satisfied the requirements of McLendon in regard to the theory of obesity as an intermediate step. However, as the Board is remanding the claim of entitlement to service connection for obstructive sleep apnea, the Veteran or his representative may provide evidence supporting this theory for consideration by the AOJ in adjudication of the claim. 2. Entitlement to service connection for obstructive sleep apnea is remanded. Following the February 2024 remand, the Veteran was afforded a VA medical examination concerning the relationship between his participation in TERA and his obstructive sleep apnea. See July 2024 C&P Examination. The VA examiner explained that "toxic exposure individually or [its] synergistic combined effects cannot cause an anatomical abnormality as defined in [obstructive sleep apnea]." Id. The examiner defined the anatomical abnormality as defined in obstructive sleep apnea as "repetitive collapse of the upper airway during sleep due to an anatomical abnormality of nasopharynx." Id. During the pendency of the Veteran's sleep apnea claim, the Veteran submitted a claim for entitlement to service connection for rhinitis. See May 2024 VA 21-526EZ, Fully Developed Claim. The Veteran was afforded a VA medical examination which reported that "There is greater than 50% obstruction of the nasal passage on both sides due to rhinitis. There is permanent hypertrophy of the nasal turbinates." See August 2024 C&P Examination. The Veteran was then granted service connection for rhinitis. See September 2024 Rating Decision. VA must consider all theories of entitlement either expressly raised by the claimant or which are reasonably raised by the record. See Robinson v. Shinseki, 557 F.3d 1355, 1362 (Fed. Cir. 2009). As the August 2024 VA medical examination suggests that the Veteran's service-connected rhinitis causes him to suffer from an anatomical abnormality that may be the type of abnormality that the February 2024 VA medical examination referred to as the cause of the Veteran's sleep apnea, the Board finds that the theory of obstructive sleep apnea as secondary to service-connected rhinitis has been raised. As noted above, VA is obligated to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81-3 (2006). Here, the Veteran has become service-connected for a disability which VA medical examinations have suggested may cause or aggravate the Veteran's claimed obstructive sleep apnea. The Board is not competent to determine the relationship between the Veteran's rhinitis and obstructive sleep apnea. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Thus, the Board finds that the requirements of McLendon for triggering VA's duty to obtain a medical opinion have been met. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriately qualified examiner for an addendum opinion as to relationship between service-connected rhinitis and the Veteran's obstructive sleep apnea. The need for additional in-person examination is left to the discretion of the examiner. Review of the claims file should be conducted by the examiner. Upon review of the record (and examination of the Veteran if deemed necessary), the examiner should respond to the following: (a) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's obstructive sleep apnea is caused by his service-connected rhinitis? The examiner should discuss whether it is medically possible for the 50% obstruction of the nasal passage on both sides due to service-connected rhinitis, as well as permanent hypertrophy of the nasal turbinates, to cause obstructive sleep apnea and, if so, explain whether such causation exists in this particular case. (b) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's obstructive sleep apnea is aggravated by his service-connected rhinitis with 50% obstruction of the nasal passage on both sides due to service-connected rhinitis, as well as permanent hypertrophy of the nasal turbinates? Specifically, would the Veteran's sleep apnea be less severe "but-for" the effects of service-connected rhinitis including an inability to properly treat the sleep apnea. The examiner is advised that any increase in symptoms can be the basis for aggravation for VA compensation purposes. In answering the above questions, the examiner's attention is directed towards the following: " The July 2024 VA medical examination which defined sleep apnea as "repetitive collapse of the upper airway during sleep due to an anatomical abnormality of nasopharynx." " The August 2024 VA medical examination which reported that "There is greater than 50% obstruction of the nasal passage on both sides due to rhinitis. There is permanent hypertrophy of the nasal turbinates." 2. Then, re-adjudicate the claim. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Biggs, Andrew J. 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.