Citation Nr: 21064206 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 09-00 348A DATE: October 19, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as due to service-connected asthma or anxiety is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1985 to March 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision letter issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim came before the Board in July 2018 wherein the Veteran's claim for service connection for OSA was denied. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) and in August 2019, the Court, in relevant part, vacated the Board's July 2018 denial of entitlement to service connection for OSA and issued a Joint Motion for Remand (JMR), of which the Parties noted that the Veteran raised secondary theories of entitlement to service connection for OSA and that the Veteran previously submitted documents indicating a relationship between anxiety, depression and sleep apnea in July 2008 and June 2009, including having cited internet research and medical articles submitted. The matter was last remanded by the Board in May 2021 to obtain adequate VA opinions consistent with the terms of the August 2019 JMR and prior Board remands. Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Unfortunately, and with regret for the delay, the Board finds that remand is again warranted to obtain adequate opinions. Entitlement to service connection for sleep apnea, to include as due to service-connected asthma or anxiety is remanded. Pursuant to May 2021 Board remand instructions, addendum opinions dated in June 2021 were obtained, addressing the nature and etiology of the Veteran's claimed sleep apnea disability as secondary to the Veteran's service-connected disabilities. In this regard, the examiner opined that the Veteran's sleep apnea is less likely than not caused or aggravated by bronchial asthma or anxiety disorders. It was reasoned that obstructive sleep apnea is a physical obstruction; medical literature does not support that anxiety or asthma cause sleep apnea as they do not cause a physical airway obstruction; while literature was submitted showing an association between anxiety and sleep apnea, it is not a causative relationship; and while certain medications taken for anxiety can exacerbate sleep apnea, none were being taken at the time of evaluation. The examiner added a list of risk factors for sleep apnea, including obesity. In terms of aggravation, the examiner indicated there was no evidence of sleep apnea worsening. It was also reasoned that anxiety does not aggravate sleep apnea, and though certain medications can aggravate sleep apnea, the claims file is silent for medications taken at the time of diagnosis or for several years thereafter. While the Board appreciates the examiner's attempt to address all questions posed by the Board remand of May 2021, the opinions remain inadequate for adjudication purposes. Specifically, the Board notes that the medical literature as well as the medical notes of record were not properly considered. In this regard, the February 2021 VA examiner concluded that the Veteran's history of obesity is more likely than not the substantial factor in his sleep apnea. In addition, review of the Veteran's VA treatment records reflects that in May 2018, the Veteran was counseled regarding an exercise program due to his obesity, but it was determined that he could not reasonably participate due to his medical and psychiatric issues. Furthermore, medical treatises of record, including records submitted in May 2021, indicate a positive correlation between anxiety, psychiatric disabilities, and obesity. In addition, medical treatises of record dated in June 2018, referenced particularly by the September 2020 VA examiner, makes clear that obesity is a causal pathway between asthma and sleep apnea. VA's acting general counsel found that obesity may act as an "intermediate step" between a service-connected disability and a disability for which secondary service connection is sought under 38 C.F.R. § 3.310 (a). See VAOPGCPREC 1-2017 (Jan. 6, 2017). In Walsh v. Wilkie, moreover, the Court further held, that the Board needs to consider the obesity-intermediate step theorem predicated on aggravation where appropriate. Thus, the Court held that proper interpretation of G.C. Prec. Op. 1-2017 requires consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability caused or aggravated 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 current disability; and (3) whether the current disability would not have occurred but for the obesity caused or aggravated by the service-connected disability. Walsh v. Wilkie, No. 18-045 (Feb. 24, 2020). If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Id. In this case, no VA examiner addressed the question of secondary service connection for the Veteran's sleep apnea, through the intermediate step of obesity, with regard to service-connected anxiety and asthma. As such, an addendum opinion is necessary. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA and private treatment records pertinent to the Veteran's sleep apnea, asthma, and psychiatric symptoms. 2. Thereafter, forward the entire claims file, including a copy of this remand, to an appropriately qualified VA examiner for an addendum opinion to address the nature and etiology of the Veteran's sleep apnea disability. If an addendum would be insufficient to provide an adequate opinion, afford the Veteran a new VA examination. The examiner must address obesity as an intermediate step between the Veteran's service-connected asthma and psychiatric disability, and his sleep apnea. (a) The examiner should state whether it is at least as likely as not that any of the Veteran's service-connected disabilities, to include anxiety and asthma, caused him to become obese or aggravated his obesity? The examiner must render opinions on both causation and aggravation. (b) If the answer to (a) is yes, then state whether it is as least as likely as not that the Veteran's obesity was a substantial factor in causing his sleep apnea; and (c) If the answer to (b) is yes, then, whether it is at least as likely as not that the Veteran's sleep apnea would not have occurred but for obesity caused by the Veteran's service-connected disabilities, to include anxiety and asthma. The examiner must review all submitted and pertinent medical treatises of record, including but not limited to the most recent submissions of May 2021. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. "Aggravation" means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. (Continued on the next page) A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Comninos, Georgio 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.