Citation Nr: 20008271 Decision Date: 01/31/20 Archive Date: 01/30/20 DOCKET NO. 16-38 951 DATE: January 31, 2020 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 Air Force from December 2001 to July 2002, May 2005 to October 2005, June 2007 to September 2007, and December 2007 to July 2010, with additional Reserve service. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal for further development in November 2018. Unfortunately, another remand is required. Pursuant to the Board’s November 2018 remand directives, the Veteran was afforded a VA examination in August 2019. The Board asked the examiner to opine on whether it is at least as likely as not that the Veteran’s obstructive sleep apnea was caused by a disease or injury during service or is secondary to his service-connected disabilities with obesity as an intermediate step. However, the examiner provided an inadequate rationale for direct service connection, did not opine on secondary service connection at all, and stated the Veteran did not have a current diagnosis of obstructive sleep apnea. Thus, an addendum opinion is needed on remand to ensure substantial compliance with the Board’s November 2018 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Any outstanding records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then obtain an addendum opinion from a VA examiner other than the August 2019 examiner to determine the etiology of the Veteran’s obstructive sleep apnea. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. The examiner is requested to provide an opinion as to the following questions: (a.)(1.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected disabilities (residuals of TBI, asthma, migraines, tinnitus, high blood pressure, anxiety disorder) caused him to become obese/gain weight? (2.) If so, is it at least as likely as not that obesity/weight gain was a “substantial factor” in causing OSA? (3.) If so, is it at least as likely as not that OSA would not have occurred but for the obesity/weight gain caused by the service-connected disabilities? In arriving at the opinion on OSA and weight gain/obesity, inform the examiner that all lay evidence must be considered, including the articles submitted by the Veteran. Inform the examiner further that, under applicable legislation and VA requirements, obesity is not a disease or disability, but it may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis. To determine whether any weight gain or obesity is an “intermediate step” between either any or all of the Veteran’s service-connected disabilities and OSA, the examiner should fully answer the above questions. (b) If the answer to questions (a)(1), (2) or (3) is no, is it at least as likely as not (50 percent or greater) that the Veteran’s sleep apnea had its onset it or is otherwise related to service, to include conceded environmental exposures and notations of sleep disturbances therein? (e) If the answer to questions (a)(1), (2) or (3) and (b) is no, then is it at least as likely as not (50 percent or greater) that the Veteran’s sleep disability was either 1) proximately due to or 2) aggravated (worsened beyond natural progression) by any service-connected disability, to include his now service-connected anxiety disorder? A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Asante 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.