Citation Nr: 21001992 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-13 434 DATE: January 12, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1977 to March 1985. As noted in the Board’s November 2019 remand, the Veteran claims entitlement to service connection for sleep apnea on both a direct basis and on a secondary basis. In the November 2019 remand, the Board determined that VA’s duty to assist by affording the Veteran a VA examination had been triggered. With regard to his claim on a secondary basis, the Board noted an August 2019 statement by the Veteran’s private treatment provider in which it was noted that he suffered from morbid obesity as secondary to his condition as a physically disabled person, and that it was medically documented in clinical studies that people with obesity suffered from sleep disorders ten times more than the average population. The Board directed the examiner to address whether the Veteran’s sleep apnea was secondary to his service-connected disabilities. In this connection, the Board instructed the examiner to address (i) whether the Veteran’s service-connected disabilities, caused him to become obese; (ii) whether the obesity was a substantial factor in causing the Veteran’s sleep apnea; and (iii) whether the Veteran’s sleep apnea would not have occurred but for his obesity caused by the Veteran’s service-connected disabilities. In August 2020, rather than scheduling the Veteran for a VA examination, a VA medical opinion was obtained based on a complete review of the record. The Board is satisfied with the examiner’s indication that an in-person examination would provide little value relevant evidence, and does not find that there was noncompliance with the Board’s remand instructions requiring remand based on this point alone. However, with regard to his claim for service connection on a secondary basis, the examiner concluded that the Veteran’s sleep apnea was less likely than not proximately due to, or the result of, his service-connected disabilities. After noting the August 2019 statement from the Veteran’s private treatment provider and proving a summary of pertinent post-service treatment records, the examiner essentially reasoned that, since the Veteran experienced significant weight loss from 2016 to the present that not the result of an improvement in his service-connected disabilities, his significant post-service weight gain was not secondary to his service-connected disabilities. Concerning obesity, as discussed in the prior remand, although obesity itself is not considered a disability for VA purposes, when obesity has been caused by a service-connected condition, and subsequently causes another disability, obesity may be considered an “intermediate step” for establishing service connection on a secondary basis. See VAOPGCPREC 1-2017 (January 6, 2017). Importantly, since the Board’s prior remand, the Court of Appeals for Veterans Claims (the Court) issued a decision holding that when VA addresses the question of obesity as an intermediate factor, it must evaluate whether a service-connected disability caused or aggravated the Veteran’s obesity, just as it would when analyzing secondary service connection under 38 C.F.R. § 3.310. See Walsh v. Wilkie, 32 Vet. App. 300 (2020). The August 2020 VA opinion provider did not discuss aggravation, and a new opinion is therefore required. Moreover, the opinion lacks adequate explanation as to how it is, from a medical perspective, it can be known that service-connected disabilities did not cause or aggravate obesity, based exclusively on an observation that after gaining significant weight, the Veteran subsequently lost significant weight without improvement in his service-connected disabilities. On remand, a new opinion should be obtained. The matters are REMANDED for the following action: 1. Associate with the claims file any VA treatment records dated from September 4, 2020, to the present. 2. Obtain a medical opinion from a clinician other than the clinician who provided the August 2020 medical opinion addressing the etiology of the Veteran’s sleep apnea. The claims file should be sent to, and reviewed by the reviewing clinician. Upon review of the record, the examiner is asked to respond to the following: a) Is it at least as likely as not (50 percent or greater probability, that the Veteran’s sleep apnea had its onset in, or is otherwise related to his active duty service? In offering this opinion, the examiner must consider the full record, to include the April 2014 lay statements from the Veteran, his friend, and his family, as well as the medical opinion provided by the August 2020 VA clinician. A clearly-stated rationale for any opinion offered should be provided and must not be based solely on the lack of any documented sleep problems in the Veteran’s service treatment records, as a majority of his service treatment records are unavailable through no fault of his own. b) Notwithstanding the above, the reviewing clinician should also provide an opinion as to whether it is at least as likely as not that sleep apnea was caused or aggravated by a service-connected disability or disabilities. Specifically, the examiner should address whether it is at least as likely as not that obesity served as an “intermediate step” between the Veteran’s service-connected disabilities and sleep apnea by answering the following: (i) Is it at least as likely as not that the Veteran’s service-connected disabilities, to specifically include his service-connected unspecified depressive disorder, bilateral lower extremity neuritis, and lumbar spine disability, caused the Veteran to become obese or aggravated the Veteran’s obesity? (ii) If so, was the obesity that resulted from or was aggravated by the service-connected disabilities a substantial factor in causing sleep apnea? (iii) Would sleep apnea not have occurred, but for the obesity caused by or aggravated by the service-connected disabilities? All opinions should be supported by a medical explanation or rationale. If in the opinion of the reviewing clinician responses to the questions above cannot be answered without an in-person or virtual examination or interview, such should be scheduled. (Continued on Next Page) 3. Then, readjudicate the issue on appeal. If the benefit sought remains denied, send the Veteran and his representative a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.