Citation Nr: 21061465 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 18-35 078 DATE: October 4, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran had active service from January 1967 to January 1970. This case initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2021, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for additional development. The case has since been returned to the Board. The Veteran maintains that his sleep apnea was caused or is aggravated by his service-connected diabetes mellitus and ischemic heart disease, including weight gain caused by those disabilities. In May 2021, the Board remanded the claim for a VA examination. The Board instructed the VA examiner to provide an opinion as whether the Veteran's sleep apnea was caused or aggravated by a service-connected disability, to specifically include weight gain related to the Veteran's diabetes mellitus and/or physical limitations caused by his ischemic heart disease and/or diabetic neuropathy. A VA examination was conducted in June 2021. The examiner opined that the Veteran's sleep apnea was less likely than not proximately due to or the result of his service-connected disabilities. The examiner indicated that the Veteran's diabetes and ischemic heart condition did not cause his weight gain and that his weight gain preexisted the diagnosis of diabetes and likely contributed to it. The examiner also noted that patients with ischemic heart disease are routinely instructed to exercise and that the disability does not cause weight gain. In addition, the examiner noted that the Veteran's sleep apnea preceded his development of peripheral neuropathy and that his peripheral neuropathy had never been significant to impede ambulation, thus also not affecting his ability to exercise to manage his weight. The examiner noted that although the Veteran's obesity was a likely a contributor to his sleep apnea, obesity is mainly due to excessive caloric intake and that obesity was present prior to his development of diabetes. The examiner further opined that although weight problems can be exacerbated by a sedentary lifestyle, none of the Veteran's service-connected disabilities precluded exercise or directly affected his weight. The VA examiner, however, failed to address whether any of the Veteran's service-connected disabilities aggravated his sleep apnea. Furthermore, in a September 2021 brief, the Veteran's representative raised an additional theory of entitlement. He noted that the Veteran takes Oxazepam to treat his service-connected anxiety disorder and that the side effects of Oxazepam include sedation, muscle weakness, drowsiness, dizziness, ataxia, slurred speech, and dyspepsia. His representative noted that the VA examiner failed to address the Veteran's anxiety disorder and the medication used to treat his anxiety disorder, including negative effects on both motivation and mood and the ability to exercise sufficiently to control his weight. Based on the foregoing, the Board finds that a remand is necessary for a supplemental VA medical opinion. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, return the case to the VA examiner who conducted the June 2021 examination for a supplemental opinion regarding the nature and etiology of the Veteran's obstructive sleep apnea. The claims file must be made available to, and reviewed by the examiner. After a review of the evidence of record, to include consideration of any newly received records, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present sleep apnea is caused by the Veteran's service-connected anxiety disorder, to include treatment with Oxazepam. The examiner should address the Veteran's contention that his anxiety disorder, to include treatment with Oxazepam, negatively effects his motivation, mood, and ability to exercise to control his weight. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present sleep apnea is aggravated (chronically worsened) by the Veteran's service-connected diabetes mellitus, ischemic heart disease, and anxiety disorder. The examiner should address the Veteran's contention that his diabetes mellitus, ischemic heart disease, and anxiety disorder (to include treatment with Oxazepam) negatively impact his ability to exercise to control his weight. A rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all opinions provided comport with this remand and undertake any other development found to be warranted. 4. Then, readjudicate the issue on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, 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.