Citation Nr: A19003772 Decision Date: 12/20/19 Archive Date: 12/20/19 DOCKET NO. 190328-7088 DATE: December 20, 2019 REMANDED Entitlement to service connection for sleep apnea secondary to gastroesophageal reflux disease (GERD) and a right ankle disability, is remanded. REASONS FOR REMAND The rating decision on appeal was issued in March 2019. In April 2018, the Veteran elected the modernized review system. 38 C.F.R. § 19.2(d). The Veteran served on active duty from October 1973 to July 1977 and December 1977 to April 1988. The Veteran submitted his original claim for service connection for sleep apnea in October 2017. This claim was initially denied by the Agency of Original Jurisdiction (AOJ) in a February 2018 rating decision. Thereafter, in April 2018, the Veteran selected the Higher-Level Review lane when he submitted his Rapid Appeals Modernization Program (RAMP) election form, received by VA on April 14, 2018. The AOJ issued an August 2018 RAMP rating decision considering the evidence of record as of the date VA received the RAMP election form and denied the claim. In December 2018, the Veteran submitted a supplemental claim, along with additional evidence. The AOJ issued a March 2019 RAMP rating decision considering the evidence of record and continued the denial of the Veteran’s claim. The Veteran timely appealed this rating decision to the Board of Veteran’s Appeals (Board) and requested direct review of the evidence considered by the AOJ. Entitlement to service connection for sleep apnea secondary to GERD and a right ankle disability. The Veteran contends that his sleep apnea was caused or aggravated by his service-connected disabilities. Specifically, he asserts that his service-connected GERD and his obesity caused by his service-connected disabilities, to include a right ankle disability, have caused him to develop sleep apnea. Initially, the Board notes that VA’s acting general counsel has found that obesity may act as an “intermediate step” between a service-connected disability and a disability for which secondary service connection is sought under 38 C.F.R. § 3.310 (a). See VAOPGCPREC 1-2017 (Jan. 6, 2017). Therefore, while obesity itself cannot be service-connected, it is possible that a disability like sleep apnea can be service connected as secondary to a service-connected disability that caused the development of obesity, with obesity serving as an “intermediate step” as described in the January 2017 acting general counsel’s opinion. In October 2017, the Veteran submitted a Disability Benefits Questionnaire (DBQ) and medical opinion from a private examiner, Dr. C.N.B. The private examiner provided a positive nexus opinion, opining that the Veteran’s sleep apnea is caused by his weight gain and GERD. The examiner further opined that the Veteran’s 100-pound weight gain since service is due to his VA-related orthopedic problems and inability to exercise. However, the examiner offered no further rationale for his opinion that the Veteran’s service-connected disabilities have caused his obesity. As such, the Board finds this opinion inadequate to grant service connection. The Veteran was afforded a VA examination in January 2018 and January 2019. The January 2018 examiner, in an examination report and subsequent July 2018 addendum opinion, opined that the Veteran’s sleep apnea is not a result of his service-connected right ankle disability, as sleep apnea is a condition of obstruction of the posterior pharynx unrelated to the ankle. In his July 2018 addendum, the VA examiner stated that an individual does not gain 100 pounds simply because he does not exercise. The examiner offered no further rationale specific to the Veteran or discussion of the private examiner’s opinion that the Veteran’s weight gain since service is a result of his service-connected disabilities, nor did the VA examiner opine as to whether the Veteran’s sleep apnea was caused or aggravated by his obesity. The January 2019 VA examiner opined only that GERD does not cause sleep apnea without any discussion of any of the Veteran’s other service-connected disabilities. The Board finds that neither of the VA medical opinions of record adequately explain the relationship, or lack thereof, between the Veteran’s current service-connected disabilities, his development of obesity, and the onset of his sleep apnea. The VA examiners did not offer any discussion of the specific impact each of the Veteran’s service-connected disabilities have had on his weight, nor did they adequately address the extent to which the Veteran’s weight may have caused, or at least aggravated his sleep apnea. Once the VA undertakes providing a veteran with an examination, it has a duty to ensure it is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Under AMA, the Board must remand to the AOJ to correct pre-decisional duty to assist errors. 38 C.F.R. § 20.802(a). Therefore, a remand for a new VA opinion is required. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate medical professional regarding the nature and etiology of the Veteran’s sleep apnea. After reviewing the entire claims file, to include a copy of this remand, the examiner should opine as to: (a.) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s sleep apnea was caused by the Veteran’s service-connected disabilities. (b.) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s sleep apnea was permanently aggravated beyond its natural progression by the Veteran’s service-connected disabilities. In answering these questions, the examiner is asked to specifically consider whether the Veteran’s obesity acted as an “intermediate step” between his service-connected disabilities and his sleep apnea; that is, (1) whether the Veteran’s service-connected disabilities caused him to develop obesity, and (2) whether his obesity, in turn, caused or aggravated his sleep apnea. (Continued on the next page)   This opinion should include a discussion of any pertinent studies or medical literature, as well as pertinent evidence on file. For instance, the examiner should discuss the functional impairment caused by the Veteran’s service-connected disabilities, and whether the functional impairment was severe enough to preclude exercise or movement sufficient to cause obesity. The examiner should also address the Veteran’s weight gain in relationship to his orthopedic problems and development of sleep apnea. A complete rationale must be provided for all opinions expressed. Amanda Christensen Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. B. 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.