Citation Nr: 21002541 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-51 432 DATE: January 14, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1978 to April 1982, and from March 1987 to August 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by a Department of Veterans Affairs Regional Office (RO). The Veteran appeared before the undersigned for a hearing in August 2020. The hearing transcript has been associated with the Veteran’s claims file. Entitlement to service connection for sleep apnea is remanded. The Veteran seeks entitlement to service connection for sleep apnea. Specifically, he asserts that his sleep apnea either began during service or was caused by service-connected asthma. A review of the Veteran’s DD214 shows that his Military Occupational Specialty (MOS) was a Radioman, and that he was assigned to a rescue and salvage ship. See page 1. His service treatment records (STRs) reveal a January 1995 asbestos medical surveillance questionnaire, which determined that the Veteran had not been exposed to asbestos fibers on a regular basis. See April 2007 STR – Medical, page 87. Two private sleep studies, in June and July 2012, formally diagnosed the Veteran with moderate obstructive sleep apnea (OSA). See July 2013 Medical Treatment Record, Non-Governmental Facility, pages 1, 3. The Board notes that the Veteran was granted service connection for asthma in March 2013. He has also been granted service connection for left and right ankle arthritis, cervical spine syringomyelia (with associated conditions), and tinnitus. See July 2019 Rating Decision – Codesheet. Accordingly, the remaining question on appeal is whether the Veteran’s diagnosed sleep apnea is etiologically related to his service, including as secondary to a service-connected disability. In this regard, the Veteran obtained a VA medical opinion for sleep apnea in April 2014. The VA examiner opined that the Veteran’s sleep apnea is less likely than not proximately due to or the result of the Veteran’s service-connected asthma. The examiner reasoned that the most important risk factors for sleep apnea are advancing age, male gender, obesity, and craniofacial or upper airway soft tissue abnormalities, as well as other factors such as smoking and nasal congestion. The examiner pointed out that the Veteran has multiple other comorbid risks, such as a history of smoking, central obesity, and nasal congestion. The examiner also cited the lack of medical evidence supporting asthma as a cause for sleep apnea. However, the examiner did not address whether sleep apnea was aggravated by the Veteran’s asthma. A January 2017 VA Office of General Counsel opinion (OGC Opinion) addressed whether obesity could be 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(a). That opinion stated that in a situation where obesity could be an intermediate step between a service-connected disability and a disability that is not service-connected, adjudicators would have to resolve the following issues: (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 disability that is not service connected; and (3) whether the non-service-connected disability would not have occurred but for obesity caused by the service-connected disability. If these questions are answered in the affirmative, the non-service-connected disability may be service connected on a secondary basis. See VAOPGCPREC 1-2017 (Jan. 6, 2017). In Walsh v. Wilkie, 32 Vet. App. 300 (2020), the Court of Appeals for Veterans Claims held VAOPGCPREC 1-2017 not only applies when a service-connected disability causes obesity, but also when a service-connected disability aggravates obesity. When raised by the record, the Board must consider whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310(b). The Board finds that while the April 2014 medical examiner stated that the Veteran’s obesity was an important risk factor for sleep apnea, the examiner did not address whether the Veteran’s service-connected disabilities, particularly asthma, arthritis, and cervical spine syringomyelia, may have caused his obesity, which in turn caused his sleep apnea. As such, a remand is necessary to obtain a medical opinion to determine whether the Veteran’s asthma, ankle arthritis, and cervical spine syringomyelia caused his obesity, and if so, whether his obesity was a substantial factor in causing sleep apnea, and whether sleep apnea would not have occurred but for obesity. The matter is REMANDED for the following action: Obtain an addendum to the April 2014 VA examination to determine the nature and etiology of the Veteran’s sleep apnea, to include its relationship to his obesity and other service-connected disabilities. Based on a review of the claims file, including this REMAND, the examiner is requested to answer the following: (a.) Is the Veteran’s sleep apnea at least as likely as not (50 percent or greater probability) aggravated by his service-connected asthma? Please explain why or why not. (b.) Is the Veteran’s obesity at least as likely as not (50 percent or greater probability) caused by his service-connected disabilities (either alone or together) which are asthma, bilateral ankle arthritis, and cervical spine syringomyelia with bilateral upper radiculopathy and bilateral lower extremity nerve and muscle weakness, such as by limiting his ability to exercise? Please explain why or why not. (c.) If the answer to (b) is “no,” opine as to whether it is at least as likely as not (50% or better probability) that service-connected disabilities aggravated the Veteran’s obesity, to include as due to any lack of exercise resulting from his service-connected disabilities. Please explain why or why not. (d.) Opine as to whether it is at least as likely as not (50% or better probability) that obesity (or the aggravation of obesity per question (c)) was a substantial factor in causing Veteran’s sleep apnea. Please explain why or why not. (e.) Is it at least as likely as not that the Veteran’s sleep apnea would not have occurred but for his obesity caused or aggravated by his service-connected disabilities? Please explain why or why not. For all questions, please explain thoroughly why or why not. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resorting to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Slomka, 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.