Citation Nr: 21003604 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 12-00 697 DATE: January 22, 2021 REMANDED Entitlement to service connection for 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 Army from August 1982 to August 2002. In the November 2014 Board decision, the Board denied entitlement to service connection for sleep apnea. The Veteran appealed the November 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court), and the Court vacated and remanded the issue due to inadequate medical opinions. A February 2016 Board decision remanded the issue for further development. In a May 2017 Board decision, the Board again denied entitlement to service connection for sleep apnea. The Veteran appealed the May 2017 Board decision to the Court, and the Court again vacated and remanded the issue due to inadequate medical opinions. A November 2018 and August 2020 Board decisions remanded the issue for further development. The issue has since returned to the Board for appellate review. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD is remanded. The development in this case has largely been focused on attempting to determine whether it can be shown that it is at least as likely as not that the Veteran’s sleep apnea was caused or aggravated by his service-connected PTSD. There are several medical opinions of record addressing this question, the most recent one provided by a November 2020 VA psychiatrist. The November 2020 examiner opined against a secondary relationship to PTSD, and as has been expressed by other prior examiners, made a determination that it was more likely the Veteran’s sleep apnea was due to his “obesity and other physical issues.” 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). Furthermore, in Walsh v. Wilkie, 32 Vet. App. 300, the United States Court of Appeals for Veterans Claims (Court) held that when addressing the question of obesity as an intermediate factor, VA 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. Given the medical evidence linking the Veteran’s sleep apnea to obesity and his “other physical issues,” and recognizing that in addition to PTSD, the Veteran has also been awarded service connection for bilateral pes planus with degenerative joint disease of the first metatarsophalangeal joints and hallux valgus deformity of the right great toe; levoscoliosis with compensatory dextroscoliosis and degenerative disc disease of the thoracic spine; and right and left lower extremity radiculopathy, the Board finds that the question of whether service-connection may be granted on a secondary basis with obesity as an “intermediate step” has been raised by the record and must be addressed by a medical professional. In addition to addressing the question above, the reviewing clinician should also provide an opinion addressing whether the Veteran’s sleep apnea at least as likely as not was incurred in service, after considering recent statements submitted by the Veteran’s wife dated August 2019, indicating her observation of the Veteran’s sleeping troubles for the prior 28 years. The matters are REMANDED for the following action: 1. Obtain a medical opinion addressing the etiology of the Veteran’s sleep apnea. The claims file should be sent to, and reviewed by the reviewing clinician. After review of the record, the clinician should respond to the following questions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea had onset in, or is otherwise related to his period of active duty service from August 1982 to August 2002? Please consider the recent August 2019 statement of the Veteran’s wife, who described observing the Veteran’s longstanding sleeping problems for 28 years. b) Notwithstanding the above, is it at least as likely as not that the Veteran’s obstructive 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 foot and spine disabilities, 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. 2. Then readjudicate the issue on appeal. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thompson, 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.