Citation Nr: 1736602 Decision Date: 08/31/17 Archive Date: 09/06/17 DOCKET NO. 12-31 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability. REPRESENTATION Veteran represented by: Christine Clemens, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Airforce from December 1971 to February 1994. He retired at the rank of master sergeant. Among other awards, the Veteran received the Meritorious Service Medal with one device and Air Force Commendation Medal with two devices. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in New York, New York. The appeal was remanded to the RO in November 2016 to schedule a Board hearing. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2017. A transcript of these proceedings has been associated with the electronic claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). As mentioned above, the Veteran served in the U.S. Air Force for over 22 years, as an electronic computer and switching systems craftsman, a technical training instructor, and a family support center superintendent. His active service included operational support in Operations Desert Shield and Desert Storm. The Veteran contends that his sleep apnea, which was diagnosed in 2006, was incurred in service, or, alternatively, was caused or aggravated by a service-connected disability which required sleeping in a supine position. The Veteran was afforded VA examinations in August 2009, August 2012 and September 2014. The 2009 examiner performed a respiratory and spinal examination and opined that it is less likely than not that the Veteran's sleep apnea is secondary to his arthritis of the spine without rationale. The 2012 examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, this examiner noted that "it is well know that arthritis is [not one of] the causes of sleep apnea," noting that the Veteran "has several other co-morbid conditions which are not service-connected that could aggravate sleep apnea." The 2014 examiner opined: (1) it is less likely than not than not that the Veteran's fatigue [noted in 1982 service treatment records (STRs)] and/or frequent colds [noted in his STRs] were the "initial manifestations" of sleep apnea that was diagnosed in 2006; (2) it is less likely than not that the Veteran's sleep apnea was aggravated by his service-connected back condition; and (3) it is less likely than not that the Veteran's obesity was due to his service-connected back disorder. The examiner's rationale as to (1) focused on the fact that the Veteran's sleep apnea was diagnosed in 2006, 12 years after separation from service; her rationale as to (2) focused on the point that there was no documentation of aggravation beyond natural progression; and her rationale as to (3) focused on findings that the Veteran was obese prior to enlistment, overweight or obese throughout active service, and morbidly obese when he was diagnosed with sleep apnea. In May 2017, a private physician's assistant (PA) and former VA Compensation and Pension (C & P) examiner noted a review of certain service medical records. The PA found that the Veteran's OSA began in service and continued after service to the present. The PA cited factors other than obesity to indicate the onset in service. The PA noted evidence of a high consumption of caffeinated beverages in 1992 suggesting a lack of alertness. The PA cited the use of a soft mouth guard prescribed for temporomandibular joint (TMJ) disorder that is similar to those prescribed for OSA and statements from family members regarding snoring, stoppage of breathing, and falling asleep while driving in 1994. The PA found that the service-connected back disorder did cause weight gain that caused worsening of OSA leading to the Veteran's action to seek testing and therapy in 2006. The Board finds that an additional medical opinion is necessary to decide the claim because of the conflicting opinions of record and multiple overlapping factors that require further explanation. The private PA cited snoring and lack of alertness which have many causes other than the physiology of the breathing path. Although the Veteran used a mouth guard similar to that prescribed for OSA, this does not suggest that it was necessary for OSA at that time during service. Furthermore, in light of the medical findings in the 2014 VA examination, the Board herein notes that obesity is not a disease per se for VA purposes which warrants entitlement for service connection under 38 U.S.C.A. §§ 1110, 1131 (West 1014). However, obesity has been held to be an "intermediate step" between a service-connected disability that may be connected on a secondary basis under 38 C.F.R. § 3.310(a) (2016). See VAOPGCPREC 1-2017 (January 6, 2017) (noting that the this "intermediate step" under 38 C.F.R. § 3.310(a) (2016) equates to an inquiry into proximate cause requiring a 3-step analysis, namely of (1)whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for obesity caused by the service-connected disability.) Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative to identify whether there are any outstanding private medical records. If there are outstanding records, prepare releases for the Veteran to sign, obtain the records, and associate them with the electronic claims file. 2. Request all records, if any, of VA outpatient treatment for the Veteran since August 2012 and associate any records received with the electronic claims file. 3. Thereafter obtain an opinion from an appropriate VA examiner, other the August 2009, August 2012 and September 2014 examiners. The claims file, including a copy of this remand, must be made available to, and reviewed by the examiner. Such review must be indicated in the examiner's opinion report. The examiner must discuss and reference specific evidence of record when rendering any opinion. The Board accepts the Veteran's, his wife's, and his daughter's lay statements concerning the on-set, occurrences, and symptoms of his sleeping disorder as credible. In rendering her/his opinion, the examiner should consider and address the medical literature submitted by the Veteran and his representative in January 2015 and the May 2017 opinion by the private PA and former Compensation and Pension examiner. In particular, attention is called to the PA's citations of snoring, a lack of alertness while driving, and use of the TMJ prescribed mouth guard. The examiner is encouraged to pay especial attention to testimony in the May 8, 2017 hearing transcript, most specifically the contentions made by the Veteran and his representative in light of the other evidence of record. After completing and considering the above, the examiner should offer her/his position as to the following inquiries: (a) The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater possibility) that sleep apnea was caused by, or otherwise etiologically related to, the Veteran's active service? (b) Is it as least as likely as not that the Veteran's sleep apnea is proximately due to, or the result of, a service-connected disease or disability including degenerative disc disease of the lumbar spine? (c). Is it as least as likely as not that any of the Veteran's service-connected disabilities or diseases caused him to become morbidly obese? If so, the examiner must opine as to whether the Veteran's morbid obesity as a result of a service-connected disability or disease was a substantial factor in causing sleep apnea. And, additionally, must opine as to whether sleep apnea would not have occurred but for obesity caused by a service-connected disability or disease. A complete rationale should be provided for any opinion expressed. The examiner should reconcile any opinion with the clinical evidence of record and the Veteran's and other lay contentions. The examiner is advised that the Veteran is not only credible but also competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, she or he must provide an explanation for such rejection. If the examiner is unable to reach an opinion as to any of the information requested above without resorting to speculation, she or he should explain the reasons for such inability, and comment on whether any further evidence or information would be useful in rendering the opinion being sought. 4. After completing the development requested above, and any other development deemed necessary, re-adjudicate the issue on appeal. If any benefit sought is not granted in full, the AOJ should furnish the Veteran and his representative with a Supplemental Statement of the Case and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).