Citation Nr: 21066585 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 12-21 558 DATE: November 1, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to posttraumatic stress disorder (PTSD), diabetes mellitus (DM), or a musculoskeletal disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1967 to May 1970 with service in the Republic of Vietnam. His awards and decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in April 2016. In August 2020, the Board denied the Veteran's claim. The Veteran appealed the case to the United States Court of Appeals for Veterans Claims (Court), where the parties filed a Joint Motion for Remand (JMR). In July 2021, the Court granted the JMR, vacating the Board decision denying entitlement to service connection for OSA, and remanding this matter for action consistent with the July 2021 JMR. In the JMR, the parties agreed the Board did not address the theory of service connection for OSA, as secondary to a service-connected musculoskeletal disability, with obesity as an intermediate step. Obesity may act as 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). See VAOPGCPREC-1-2017. In addition, the Court has held that obesity may be an "intermediate step" in a causal chain for service connection, which can be established on either a causal or aggravation basis. Walsh v. Wilkie, 32 Vet. App. 300 (2020). Moreover, a recent decision by the Court determined that obesity may be an intermediate step between a claimed condition and a service-connected disability when reasonably raised by the record. The Court provided a non-exhaustive list of six considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step, including (1) mobility limitations or reduced physical activity as a result of a service-connected physical disability; (2) reduced physical activity or inability to follow a course of exercise or diet as a result of service-connected mental disability; (3) side effects of medication where the medication is prescribed for a service-connected disability; (4) treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; (5) lay statements by a veteran attributing weight gain or obesity to the service-connected disability; and (6) statements by treating physicians or medical examiners attributing weight gain or obesity to the service-connected disability. The Court determined the critical commonality among the nonprecedential decisions was that "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, No. 18-5865, 2021 U.S. App. Vet. Claims LEXIS 81 (Vet. App. January 26, 2021). Here, the record reflects the Veteran is obese and has service-connected musculoskeletal disabilities of residuals, post-operative, medial meniscectomy, right knee with limitation of extension (DC 5259-5261) and instability, right knee associated with residuals, post-operative, medial meniscectomy, right knee with limitation of extension (DC 5257). Further, during the appeal period, the Veteran was also service connected for left and right hip osteoarthritis, associated with residuals, post-operative, medial meniscectomy, right knee with limitation of extension (DC 5252-5003) and degenerative disease, medial compartment, right knee association with residuals, post-operative, medial meniscectomy, right knee with limitation of extension (DC 5010). Although VA severed service connection for the left hip osteoarthritis, right hip osteoarthritis, and right knee degenerative disease in June 2011, the period on appeal began in approximately September 2008, which is prior to the date of severance. In January 2013, a VA examiner reported the Veteran had less movement, weakened movement, and pain on movement in both hips and pain on movement in the right knee and the Veteran's bilateral hip and right knee disabilities can impact his ability to perform physically demanding activities. A February 2001 VA medical treatment record noted that the Veteran was trying to lose weight but spends much of his time driving so finds it hard to exercise, "also djd of knees inhibits." The May 2017 VA examiner reported the Veteran's obesity is a risk factor for OSA. An examination is necessary to determine if the Veteran's obesity acted as an intermediate step between his right knee and bilateral hip disabilities and his OSA. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Furthermore, the parties agreed the Board relied on an inadequate examination report in its August 2020 decision to the extent that the April 2019 examiner's negative nexus opinion for aggravation was based only on a lack of supporting medical literature and did not address the specifics of the Veteran's OSA or individual circumstances. Bailey v. O'Rourke, 30 Vet.App. 54, 60 (2018); see Atencio v. O'Rourke, 30 Vet.App. 74, 91 (2018). The terms of the JMR direct the Board to obtain an adequate examination to determine whether the Veteran's service-connected DM or PTSD aggravates his OSA. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matter is REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician addressing the etiology of the Veteran's obstructive sleep apnea. The clinician is asked to opine if it is at least as likely as not (a degree of probability of 50 percent or higher) the Veteran's obstructive sleep apnea is caused or aggravated by his service-connected posttraumatic stress disorder or diabetes mellitus or any medication used to treat either disorder. The clinician must also provide an opinion as to whether one or more of the Veteran's service-connected musculoskeletal disabilities (left hip, right hip, or right knee) caused or aggravated his obesity. If the examiner determines the Veteran's obesity is caused or aggravated by one or more service-connected musculoskeletal disabilities, he or she must provide an opinion as to whether or not the obesity caused or aggravated by the service-connected disability was a substantial factor in causing the Veteran's obstructive sleep apnea. If the examiner determines both that obesity was caused or aggravated by a service-connected disability or disabilities and that the Veteran's obstructive sleep apnea was caused by the obesity, he or she must provide an opinion as to whether or not the obstructive sleep apnea would not have occurred but for the obesity caused or aggravated by the service-connected disability or disabilities. The opinions must address both causation and aggravation to be deemed adequate. The examiner must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. If the examiner references medical literature to support his or her opinion, the examiner must identify the medical literature used to support the opinion and discuss how the medical literature applies to this Veteran and his particular circumstances. The examiner is further advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. If the examiner determines that an additional in-person examination is required, one should be scheduled. Please note, if the examiner deems it reasonable, an alternate format such as a telehealth interview is acceptable. The Veteran should not be scheduled for an additional examination unless deemed necessary by the selected clinician. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.