Citation Nr: 21067042 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-20 773 DATE: November 3, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to a service-connected disability, is REMANDED. REASONS FOR REMAND The Veteran served honorably in the United States Army from March 1999 to November 2000. Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claim prior to final adjudication. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to a service-connected disability, is remanded. In April 2021, the Board addressed the Veteran's claim for service connection for OSA, to include as secondary to a service-connected disability. At that time, the Board noted that the Veteran posited that obesity was an intermediate step from the service-connected major depressive disorder (MDD). Pursuant to the VA General Counsel's opinion, VAOPGCPREC 1-2017, the Board remanded the claim to identify whether the service-connected MDD caused the veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the OSA for which service connection is sought; and (3) whether the OSA would not have occurred but for the obesity caused by the service-connected MDD. At that time, the Board directed the reporting examiner to address the following: 1. With regard to secondary service connection (with obesity as an intermediate factor) did the Veteran's service-connected major depressive disorder cause him to become obese? If so, the examiner should opine as to whether: (a) the Veteran's obesity was a substantial factor in causing or aggravating his obstructive sleep apnea. (b) the Veteran's obstructive sleep apnea would not have occurred but for the obesity caused by his service-connected major depressive disorder. In July 2021, the Veteran underwent a VA examination that addressed any currently endured obstructive sleep apnea (OSA). After noting an April 2016 sleep study, the examiner reported a current diagnosis for OSA. The examiner opined that the Veteran's OSA was less likely than not incurred in, or caused by, service in the U.S. Army. The examiner supplied the following rationale: "A review of the veterans service treatment records was silent for a diagnosis of or symptoms of obstructive sleep apnea." The examiner also opined that the Veteran's diagnosed OSA was less likely as not proximately due to, or the result of, the service-connected MDD disability. The examiner supplied the following rationale: "(t)he conditions of obstructive sleep apnea and depression w/ anxious features are not medically related. The obstructive sleep apnea is a separate entity entirely from the depression w/ anxious features and unrelated to it. . . . A review of the veteran's post service treatment records was positive for sleep apnea starting in 2014/2016, depression and obesity. . . . Risk factors include obesity, family history of OSA or snoring, small lower jaw and certain other facial configurations, male gender, large neck circumference, large tonsils, alcohol consumption at bedtime, post-menopausal (for women), hypothyroidism (low levels of thyroid hormone), acromegaly (high levels of growth hormone). There is a correlation between depression and obesity, but the presence of one risk factory is not definitive for the development of obstructive sleep apnea. There are people with obesity and no OSA and people with OSA who are not depressed. The two conditions do not possess a direct causational relationship. They are comorbidities which can be found in either patient." In September 2021, an addendum opinion was associated with the claims file. Therein, the examiner posited that the Veteran's OSA is less likely than not (less than 50 percent probability) proximately due to, or the result of, the Veteran's service-connected MDD. The examiner relayed the following: "the conditions are medically unrelated. Causes of OSA include: person's physical structure or medical conditions. These include obesity . . .." In October 2021, a brief from the Veteran's attorney was associated with the claims file. Therein, counsel noted that the July 2021 examiner identified a correlation between depression and obesity. Counsel also pointed out that the examiner relayed that, "the presence of one risk factor 'is not definitive for the development of obstructive sleep apnea.'" Importantly, Counsel correctly noted that the VA examiner's desire for "definitive proof" held the Veteran to a burden that is unsupported by VA law or regulation. At this time, the Board finds that the July 2021 VA examination report is not adequate for this service-connection analysis. Consequently, on remand, the agency of original jurisdiction (AOJ) should secure a VA examination report that addresses the applicable standard for burden of proof. Consequently, the matter is REMANDED to the AOJ for the following action: 1. Refer the Veteran's entire claims file to a clinician, of appropriate medical expertise, to provide an addendum opinion (or, if the clinician determines that it is necessary, schedule the Veteran for a VA examination) to address the nature and etiology of the Veteran's obstructive sleep apnea. The claims file and a copy of this REMAND should be made available to the clinician for review. After record review (and examination if deemed necessary), the examiner should offer an opinion with supporting rationale as to the following inquiries, as clearly and precisely as possible: With regard to direct service connection: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's obstructive sleep apnea had its onset in, or is otherwise related to, his active duty in the U.S. Army? With regard to secondary service connection: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected major depressive disorder caused his obstructive sleep apnea? b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's service- connected major depressive disorder aggravated (i.e., worsened beyond the natural progress) his obstructive sleep apnea? If the examiner determines that the Veteran's obstructive sleep apnea is aggravated by his major depressive disorder, the examiner should report the baseline level of severity of the condition prior to, and after, the aggravation. With regard to secondary service connection (with obesity as an intermediate factor): a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's service-connected major depressive disorder caused him to become obese? If so, the examiner should opine as to whether: i) the Veteran's obesity was at least as likely as not (50 percent or greater probability) a substantial factor in causing or aggravating his obstructive sleep apnea. ii) it is at least as likely as not (50 percent or greater probability) the Veteran's obstructive sleep apnea would not have occurred but for the obesity caused by his service-connected major depressive disorder. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms / history, and that such reports must be acknowledged and considered in formulating any supplied opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner 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. 2. The AOJ must ensure that the examination report requested above is in compliance with the directives of this remand. If the report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. 3. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claim for service connection for obstructive sleep apnea (OSA). If the benefit sought is not granted, the AOJ must then issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his attorney an opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.