Citation Nr: 21066692 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-17 526 DATE: November 1, 2021 REMANDED Entitlement to service connection for sleep apnea, as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1970 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously decided by the Board of Veterans' Appeals (Board) in November 2020. In its decision, the Board denied entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), and in June 2021, the Veteran and the Acting Secretary of Veterans Affairs (collectively, the Parties) filed a Joint Motion for Partial Remand (JMPR). In that JMPR, the Parties moved the Court to vacate and remand the part of the Board's November 2020 decision that denied entitlement to service connection for sleep apnea on a secondary basis. The Parties agreed the direct service connection theory of entitlement was not being challenged. The Court granted that JMPR in July 2021. As a result, this matter is again before the Board. In the JMPR, the Parties agreed the Board failed to address whether a VA medical opinion was warranted regarding obesity as an intermediate step between his service-connected diabetes mellitus and his sleep apnea. The Parties stated that June 2014 and May 2019 VA medical opinions mentioned obesity as a causal factor for developing sleep apnea and medical articles submitted in June 2019 suggest causal connections between obesity, diabetes mellitus, and sleep apnea. As such, obesity as an intermediate step in the development of sleep apnea was raised by the evidence of record. As the opinions of record do not adequately address this contention, and in order to cure this agreed-upon error, the Board must remand for a VA opinion that addresses whether the service-connected diabetes mellitus caused weight gain, which then caused his sleep apnea on a secondary basis. As such, the Board finds that a remand is necessary in order to obtain an opinion from that cogently addresses the Veteran's theory of entitlement to service connection based on obesity as an intermediate step. The matters are REMANDED for the following action: The examiner must provide an opinion as to (1) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected diabetes mellitus caused him to become obese; (2) if the examiner determines the Veteran's obesity is at least as likely as not the result of his service-connected diabetes mellitus, he or she must provide an opinion as to whether or not the obesity was at least as likely as not a substantial factor in causing sleep apnea; (3) if the examiner determines both that obesity was at least as likely as not caused by the service-connected diabetes mellitus and that sleep apnea was at least as likely as not caused by the obesity, he or she must provide an opinion as to whether it is at least as likely as not that sleep apnea was incurred or aggravated by the obesity caused by the service-connected diabetes mellitus. The examiner should consider the medical literature submitted by the Veteran in June 2019. A complete and fully articulated rationale or explanation should be provided for any opinions reached. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ariasaif, Mary 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.