Citation Nr: 21061771 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 16-01 035 DATE: October 5, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected major depressive disorder (MDD) (previously rated as specified depressive disorder and mood disorder) and/or service-connected orthopedic disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from June 1972 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2018 decision, the Board denied the Veteran's claim for service connection for sleep apnea. The Veteran appealed the Board's August 2018 decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a January 2021 decision, the Court vacated the Board's August 2018 decision, and remanded the matter to the Board for further action. Garner v. Tran, 33 Vet. App. 241 (2021). 1. Entitlement to service connection for sleep apnea is remanded. As noted above, the Court vacated the Board's August 2018 decision denying service connection for sleep apnea. Specifically, the Court found that the Board's August 2018 relied on inadequate VA examinations and opinions in September 2015 and November 2017 as the theory of entitlement that his sleep apnea was aggravated by his service-connected MDD was not addressed. See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). Accordingly, the Board finds that this matter must be remanded for a new opinion as to the etiology of the Veteran's sleep apnea. In reaching this finding, the Board acknowledges the Court's conclusion that there was no evidence linking the Veteran's service-connected orthopedic disabilities and resulting mobility limitations to weight gain, and no evidence connecting the Veteran's service-connected MDD to behaviors associated with weight gain. Based on these conclusions, the Court found the evidence of record was insufficient to reasonably raise the theory of secondary service connection via obesity as an intermediate step. Although obesity is not a condition for which service connection may be granted, obesity may qualify as an "intermediate step" between a service-connected disability and another current disability. See VAOPGCPREC 1-2017; see also Garner v. Tran, 33 Vet. App. 241 (2021); Walsh v. Wilkie, 32 Vet. App. 300 (2020). In a secondary service connection claim, a theory of obesity as an intermediate step is raised when there is some evidence in the record which draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service-connected condition. Garner v. Tran, 33 Vet. App. 241 (2021). In this case, based on the June 2019 Court Appellant Brief, the Board finds that a theory of obesity as an intermediate step has been explicitly raised but has not been adequately addressed in a VA opinion. Accordingly, the Board finds that this theory must be addressed in the requested medical opinion. The matters are REMANDED for the following action: Afford the Veteran a VA examination to determine the onset and etiology of the Veteran's sleep apnea to the following: (a) Whether it is at least as likely as not the Veteran's service-connected orthopedic disabilities (including his left shoulder, left knee, right ankle, and bilateral hammer toes), and/or his service-connected MDD, are related, at least in part, to the Veteran's weight gain and obesity. (b) If the response to (a) is yes, whether it is at least as likely as not the Veteran's sleep apnea is related, at least in part, to the Veteran's weight gain and obesity. The examiner is directed to the September 2015 VA examination that indicated obesity was a risk factor for obstructive sleep apnea. (c) If the response to (b) is yes, whether it is at least as likely as not the Veteran's sleep apnea was caused or aggravated by his service-connected orthopedic disabilities and/or his service-connected MDD. The examiner must particularly consider whether obesity was an "intermediate step" between service-connected orthopedic disabilities or service-connected MDD, in causing or contributing to any degree to sleep apnea. The examiner must also acknowledge and discuss the Veteran's competent statements as to his decreased physical capacity and his complaints of pain. A complete rationale should be given for all opinions and conclusions expressed. Both causation and aggravation must be considered by the examiner in providing the requested opinion in (c). Failure to consider both causation and aggravation will result in the opinion being inadequate. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.