SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

M.E. LARKIN · 2025 · Case ID: 25005270

MIXED

Summary

The veteran served from April 2001 to August 2001 and October 2004 to June 2005. This case involves an appeal concerning obstructive sleep apnea (OSA) as secondary to service-connected degenerative disc disease (DDD), a left shoulder disability, and entitlement to Total Disability based on Individual Unemployability (TDIU). The Board granted service connection for OSA secondary to DDD. The veteran's representative argued OSA was due to opioid use for DDD, obesity as an intermediary, or pain from DDD. The Board found the June 2023 private medical opinion highly probative, citing its support from the veteran's history, lay statements, and medical treatises, which linked OSA to DDD and its treatment. A March 2024 VA opinion was afforded no weight due to inadequacy, failure to comply with remand, and lack of rationale. The claims for a left shoulder disability and TDIU were remanded due to inadequate development and inextricably intertwined issues. The April 2024 VA opinion for the shoulder was found inadequate for failing to discuss lay statements, evidence of record, and for relying solely on a lack of in-service documentation and general medical literature. The Board noted the examiner's potential lack of expertise and ordered a new opinion from a different examiner, addressing specific questions regarding the shoulder condition's etiology, secondary connection to DDD, and aggravation.

Rationale

Obstructive sleep apnea granted as secondary to service-connected degenerative disc disease.; Veteran's DDD led to opioid use, weight gain, and low testosterone, causing OSA.; Private medical opinion found OSA at least as likely as not due to DDD and treatment.; VA opinion deemed inadequate due to lack of rationale and failure to comply with remand.

Special Benefit

TDIU

Docket No.

17-24 903

Full Decision Text

Citation Nr: 25005270
Decision Date: 04/17/25 Archive Date: 04/17/25

DOCKET NO. 17-24 903
DATE: April 17, 2025

ORDER

Entitlement to service connection for obstructive sleep apnea (OSA) as secondary to service-connected degenerative disc disease is granted.

REMANDED

Entitlement to service connection for a left shoulder disability is remanded.

Entitlement to a total disability based upon individual unemployability (TDIU) is remanded.

FINDING OF FACT

Resolving all reasonable doubt in favor of the Veteran, his obstructive sleep apnea is due to his service-connected degenerative disc disease.

CONCLUSION OF LAW

The criteria for entitlement to service connection for OSA as secondary to service-connected degenerative disc disease have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from April 2001 to August 2001 and from October 2004 to June 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision. In October 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record.

The claims for entitlement to service connection for a left shoulder disability and a TDIU have been remanded several times, most recently in September 2023. Unfortunately, remand is required because there still has not been substantial compliance with previous remand instructions. Stegall v. West, 11 Vet. App. 268 (1998).

Entitlement to service connection for OSA as secondary to service-connected degenerative disc disease.

The Veteran's representative contends that the Veteran is entitled to service connection for OSA, to include as secondary to his degenerative disc disease of the lumbar spine. Specifically, the representative has asserted the Veteran's OSA is due to opiate use associated with his degenerative disc disease, due to obesity as an intermediary step, and as due to pain related to his degenerative disc disease. See August 2024 Correspondence.

As a preliminary matter, the Board acknowledges the Veteran's representative has requested copies of the curriculum vitae for all VA examiners undertaking the Veteran's examinations. See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019). However, as this decision reflects a full grant of the benefit sought on appeal, the Board finds there is no prejudice to the Veteran in proceeding without remanding for this information with regards to the claim for entitlement to service connection for OSA.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Secondary service connection is warranted where a nonservice-connected disability would have been less severe but-for a service-connected disability, either because there is an etiological link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the nonservice-connected disability. Thus, for aggravation of nonservice-connected disabilities it is enough to show that "but for" the service-connected disability the incremental-increase in severity of a nonservice-connected disease or injury would not have occurred. See Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023).

Obesity, although itself not a disability for which compensation may be awarded, 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
a service-connected disability, either because there is an etiological link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the nonservice-connected disability. Thus, for aggravation of nonservice-connected disabilities it is enough to show that "but for" the service-connected disability the incremental-increase in severity of a nonservice-connected disease or injury would not have occurred. See Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023).

Obesity, although itself not a disability for which compensation may be awarded, 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. See Walsh v. Wilkie, 32 Vet. App. 300 (2020). Specifically, a grant with obesity as an intermediary step is warranted (1) if the service-connected disability caused the Veteran to become obese, (2) if obesity was a substantial factor in causing a subsequent disability, and (3) if the subsequent disability would not have occurred but for obesity. VAOPGCPREC 1 2017 (Jan. 6, 2017).

The Veteran has a current diagnosis of obstructive sleep apnea. See June 2021VA Examination. The claimed primary disability (degenerative disc disease of the lumbar spine) is service-connected. See April 2006 rating decision. Thus, the question remaining before the Board is whether the Veteran's OSA was caused by or incurred in-service, or secondary to his service-connected degenerative disc disease of the lumbar spine and treatment thereof.

May 2016 private treatment records noted the Veteran had severe sleep apnea, incurred after he injured his back in the military and developed excessive weight gain with low testosterone. At the October 2019 Board hearing, the Veteran testified that weight gain related to his service-connected back condition caused him to frequently wake in the night, resulting in his OSA.

The Veteran submitted an October 2019 opinion (received November 2019) from a private physician in support of his claim. The physician indicated that, due to significant lower back pain, the Veteran was prescribed opioids which are known to lower intrinsic testosterone levels. The physician opined that lower testosterone levels resulting from chronic opioid usage caused the Veteran's weight gain, which caused the onset of his OSA. The Veteran received a VA examination regarding his claim in June 2021, however, the examination was deemed inadequate for lack of sufficient rationale

A May 2023 letter from the Veteran's partner noted the Veteran began experiencing severe snoring 13 years prior. She indicated the Veteran gasped for breath during sleep, and experienced different snoring and choking patterns. She also noted the Veteran changed positions frequently due to back pain and discomfort. The Veteran's partner asserted the Veteran's opioid dependency caused him to become bedridden and overweight, which resulted in an increase in his snoring and sleep interruptions.

In April 2023 correspondence, the Veteran's representative indicated that opioid medications have well-documented effects on OSA. The representative quoted several medical articles suggesting that OSA is common in chronic pain patients on opioids. The representative also noted the Prescribers Digital Reference "Boxed Warning" for Oxycodone, which cautioned use in patients with obesity as it is "a risk factor for obstructive sleep apnea syndrome and/or increased respiratory reserve."

The Veteran's representative submitted a new private medical opinion in June 2023. The opinion provider documented the Veteran's personal statements regarding the nature and etiology of his claimed OSA condition and noted the October 2019 private medical opinion, which indicated the Veteran's condition resulted from low testosterone levels contributing to weight gain and an elevated BMI. The opinion provider further discussed a personal statement from the Veteran's treating physician, who noted the Veteran's chronic opioid therapy related to his service-connected degenerative disc disease contributed to his OSA. After review of the record, and citing several medical treatises, the physician opined that it is at least as likely as not that the Veteran's OSA is due to his service-connected degenerative disc disease, and treatment thereof. Specifically, the physician indicated that chronic pain resulting from the Veteran's degenerative disc disease led to the development of OSA.

In April 2023, the Veteran submitted a lay statement asserting his breathing issues and sleep disorder began after he developed dependency on opioids prescribed for his degenerative disc disease of the lumbar spine. He indicated he could not sleep or exercise due to pain which caused his body fat index to increase significantly. An April 2023 lay statement submitted by the Veteran's spouse noted the Veteran had experienced loud snoring, choking, and coughing at night for over a decade.

A new VA medical opinion was associated with the record in March
OSA is due to his service-connected degenerative disc disease, and treatment thereof. Specifically, the physician indicated that chronic pain resulting from the Veteran's degenerative disc disease led to the development of OSA.

A new VA medical opinion was associated with the record in March 2024. The examiner opined that the Veteran's OSA was not directly incurred in or caused by his service. As rationale, the examiner stated there was no evidence that OSA occurred in service, but also noted there was "no medical to review." The examiner also rendered a negative nexus opinion regarding secondary service connection, noting the Veteran's service-connected conditions did not cause his OSA, and that his weight gain did not result from his back condition. Instead, the examiner opined the Veteran did not follow a good diet and had poor nutrition. The examiner indicated the Veteran "could [have] maintained his weight on his own with or without back problems." Finally, the examiner indicated the Veteran's OSA was not aggravated by his degenerative disc disease. The examiner noted a baseline level of severity could not be established for the OSA because "his OSA is severe and...it was always severe despite [his] low back service related condition." The examiner concluded the Veteran's OSA is due to morbid obesity, not his low back condition.

The Board affords the opinion of the April 2024 VA examiner no probative weight, as it failed to comply with prior remand directives and was not supported by adequate rationale. The September 2023 Board remand instructed the agency of original jurisdiction (AOJ) to schedule the Veteran for a VA examination. The scheduled VA examination in January 2024 marked the Veteran as a no show and an opinion was rendered on the evidence of record. However, the Veteran called to reschedule the VA examination on January 5, 2024, noting that he arrived for a 2:15 pm appointment time but was told his appointment was at 1:15 pm and had been canceled. The January 5, 2024, VA Form 27-0820 Report of General Information noted the system appointment time did reflect the time of 2:15pm. The Veteran indicated he would attend the rescheduled examination; however, he was never provided a new in-person examination. The examiner also failed to provide adequate rationale, or discuss the Veteran's lay statements, the evidence of record, and the positive private medical opinions, in rendering their opinions for direct service connection, secondary service connection, and secondary aggravation. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Furthermore, it is unclear if the examiner reviewed the Veteran's entire file, as they noted there was "no medical to review."

Based on the foregoing and resolving all reasonable doubt in favor of the Veteran, the Board finds that his obstructive sleep apnea is due to his service-connected degenerative disc disease. The June 2023 private medical opinion is highly probative because it is supported by the Veteran's medical history, lay statements, and medical treatises, and provides reasoned explanations with clear conclusions. The April 2024 VA medical opinion is afforded no probative weight, as it failed to comply with prior remand directives, was not supported by adequate rationale, and may not have considered the medical evidence of record. Accordingly, the claim for entitlement to service connection for OSA as secondary to service-connected degenerative disc disease is granted.

REASONS FOR REMAND

1. Entitlement to service connection for a left shoulder disability.

A new VA medical opinion was associated with the record in April 2024. The examiner opined that the Veteran's claimed left shoulder disability was less likely than not incurred in or caused by his service. As rationale, the examiner indicated the Veteran's service treatment records (STRs) did not show the condition during his service discharge exam. The examiner further indicated that a June 2021 disability benefits questionnaire failed to provide objective documentation of chronicity of a left shoulder condition from service. The examiner also opined the left shoulder disability was less likely than not proximately due to or the result of the Veteran's service-connected degenerative disc disease, stating there was not medical evidence that degenerative disc disease causes left shoulder conditions. The examiner asserted they could not establish a baseline for the left shoulder disability for secondary aggravation due to "insufficient medical evidence" but again noted
claimed left shoulder disability was less likely than not incurred in or caused by his service. As rationale, the examiner indicated the Veteran's service treatment records (STRs) did not show the condition during his service discharge exam. The examiner further indicated that a June 2021 disability benefits questionnaire failed to provide objective documentation of chronicity of a left shoulder condition from service. The examiner also opined the left shoulder disability was less likely than not proximately due to or the result of the Veteran's service-connected degenerative disc disease, stating there was not medical evidence that degenerative disc disease causes left shoulder conditions. The examiner asserted they could not establish a baseline for the left shoulder disability for secondary aggravation due to "insufficient medical evidence" but again noted no medical evidence suggests that degenerative disc disease causes left shoulder conditions.

The Board finds the April 2024 VA medical opinion inadequate for adjudication. The examiner improperly relied on a lack of documentation during service in rendering their direct service connection opinion. The absence of in-service treatment or diagnostic records, alone, is insufficient to support a negative nexus opinion. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Furthermore, the examiner failed to discuss the Veteran's lay statements and testimony indicating that his left arm hurts because he has been compensating for his injured back. The examiner noted they could not establish a baseline level of severity for the left shoulder condition due to insufficient medical evidence, but did not clarify what evidence would permit a baseline estimate to be made. Finally, the examiner failed to support their negative secondary service connection and secondary aggravation conclusions with adequate rationale, considering facts pertaining to the Veteran's conditions and individual circumstances. See Bailey v. O'Rourke, 30 Vet. App. 54, 60-61 (2018). An opinion based solely on general articles without a discussion of the Veteran's lay statements, service-connected conditions, and the evidence of record is inadequate. Id. Thus, remand is again required to obtain an adequate medical opinion that considers the Veteran's lay statements regarding the etiology and continuity of treatment for his claimed left shoulder condition.

The Board acknowledges the Veteran's representative has raised questions related to the contract examiner's expertise, experience, training, and competence as to the left shoulder disability. See August 2024 correspondence; see also Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). Since the Board has determined the examination is inadequate, it will not be relied upon. Thus, the examiner's qualifications need not be addressed. However, the opinion on remand MUST be provided by a different examiner.

2. Entitlement to a TDIU.

A decision on the remanded issue of entitlement to service connection for a left shoulder disability could significantly impact a decision on the issue of entitlement to a TDIU. Accordingly, the issues are inextricably intertwined and remand of the claimed for entitlement to a TDIU is required.

The matters are REMANDED for the following actions:

1. Provide copies of all pertinent records to an examiner who has not previously provided an opinion in this case to obtain an addendum opinion regarding the nature and etiology of the Veteran's claimed left shoulder condition. Only if the examiner determines that an opinion cannot be provided without an examination should one be scheduled. After review of the record and any scheduled examinations, the examiner must 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 any diagnosed left shoulder disabilities were caused by or incurred during the Veteran's active service?

(b.) If the answer to (a.) is no, is it at least as likely as not that any diagnosed left shoulder disabilities were caused by the Veteran's service-connected degenerative disc disease, to include as due to treatment thereof?

(c.) If the answer to (b.) is no, state the following: (i) whether, but for the Veteran's service-connected degenerative disc disease, he would not have had a left shoulder disability; (ii) whether the left shoulder disability would have been less severe and result in less functional impairment but for the service-connected degenerative disc disease. If the examiner opines that the left shoulder disability would have resulted in less functional impairment but for his service-connected degenerative disc disease, the examiner must attempt to establish a baseline level of severity of left shoulder disability prior to aggravation by the service-connected degenerative disc disease.

The examiner is advised that a service-connected disability need only be a contributing cause, not the contributing cause, to establish secondary service connection.

In responding to (a.), (b.), and (c.), the examiner must specifically consider and discuss the following: (1) the Veteran's October 2019 hearing testimony that he has been compensating for his back condition
disability would have been less severe and result in less functional impairment but for the service-connected degenerative disc disease. If the examiner opines that the left shoulder disability would have resulted in less functional impairment but for his service-connected degenerative disc disease, the examiner must attempt to establish a baseline level of severity of left shoulder disability prior to aggravation by the service-connected degenerative disc disease.

The examiner is advised that a service-connected disability need only be a contributing cause, not the contributing cause, to establish secondary service connection.

In responding to (a.), (b.), and (c.), the examiner must specifically consider and discuss the following: (1) the Veteran's October 2019 hearing testimony that he has been compensating for his back condition by overusing his left shoulder; (2) the Veteran's lay statements regarding the chronicity of his symptomatology; and (3) August 2024 private treatment records that noted the Veteran's left shoulder pathology is likely secondary to his lumbar spine issues.

A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state why and what, if any, additional evidence would permit such an opinion to be made.

2. Confirm that the VA medical opinion provided comports with this remand, specifically that the examiner addresses all identified evidence and supports their conclusions with adequate rationale. If not, get an addendum.

3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU.

M.E. Larkin

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R. Buchanan, Attorney Advisor

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.

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