Citation Nr: 21067462 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 19-36 504 DATE: November 4, 2021 ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for sleep apnea. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT 1. An April 2013 rating decision, which denied service connection for sleep apnea, is final. The Veteran did not file a notice of disagreement with this rating decision or submit any relevant evidence related to this claim within a year of this rating decision. 2. New and material evidence has been received since the April 2013 rating decision that is neither cumulative nor redundant of the evidence previously of record, and relates to an unestablished fact necessary to reopen the claim for service connection for sleep apnea. CONCLUSIONS OF LAW 1. The April 2013 rating decision, which denied service connection for sleep apnea is a final and binding determination based on the evidence then of record. 38 U.S.C. § 5108, 7103, 7104, 7105 (West 2014); 38 C.F.R. §§ 20.1100, 20.1104. 2. Since the April 2013 rating decision, new and material evidence has been received, and this claim is reopened. 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) from an August 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran did not request a Board hearing. Claim to reopen service connection for sleep apnea The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1383 -84 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review it. 38 U.S.C. § 5108 (2012). New evidence means evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2018). Regardless of whether the RO determined that new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995)). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384 ; see also Jackson v. Principi, 265 F.3d 1366, 1369 (2001). The preliminary issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran's previously denied claim for entitlement to service connection for sleep apnea. The Veteran's entitlement to service connection for sleep apnea was initially denied in April 2013. The rating decision denied the claim because there was no evidence showing that this disability occurred in or was caused by service, or that he had a current diagnosed disability. The Veteran did not file a notice of disagreement with this rating decision or submit any relevant evidence related to this claim within a year of this rating decision. Therefore, this rating decision is final. 38 C.F.R. § § 20.1103. The evidence associated with the Veteran's claims file since the April 2013 rating decision includes a March 2020 private medical opinion, provided along with multiple medical articles. This evidence is new, as it was not received by the RO at the time the April 2013 rating decision was rendered. It is also material for it provided the Veteran's current disability (sleep apnea) and a nexus opinion that notes that obesity likely played an intermediary role in the Veteran's development of sleep apnea. For these reasons, the Board finds that new and material evidence sufficient to reopen the Veteran's claims has been received, and the claim is reopened. See 38 C.F.R. § § 3.156. However, as will be further discussed below, additional development is needed on this claim prior to appellate review. REASONS FOR REMAND The Veteran and his private representative contend that the Veteran's service-connected disabilities led to his decreased activity, resulting in weight gain/obesity, leading to his sleep apnea condition. As a threshold matter, the Board observes that obesity is not considered a disease for purposes of VA benefits. See VAOPGCPREC 1-2017 (holding the "longstanding policy of [VA], that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis, is consistent with title 38, United States Code" and "[o]besity per se is not a 'disability' for purposes of 38 C.F.R. § 3.310 "). However, although obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131, and therefore may not be service connected on a direct or secondary basis, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis (1) if a previously service-connected disability caused him to become obese; (2) that obesity was a substantial factor in causing secondary disability; and (3) the secondary disability would not have occurred but for the obesity. See VAOPGCPREC 1-2017. Recently, in Garner v. Tran, No. 18-5865, the United States Court of Appeals for Veterans Claims (CAVC) concluded that in order to reasonably raise the theory of secondary service connection via obesity as an intermediate step, there must be some evidence in the record that draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service connected disability. Conversely, the CAVC determined that incidental references to obesity, or weight gain resulting in obesity, are insufficient to reasonably raise this theory of entitlement. In that decision, the CAVC also provided a list of six non-exhaustive considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step: mobility limitations or reduced physical activity as a result of a service-connected physical disability (in particular, orthopedic conditions or chronically painful conditions); reduced physical activity or inability to follow a course of exercise or diet as a result of service-connected mental disability; side effects of medication (e.g., weight gain), where the medication is prescribed for a service connected disability; treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; lay statements by a veteran attributing weight gain or obesity to the service-connected disability; and statements by treating physicians or medical examiners attributing weight gain or obesity to the service-connected disability. In this case, there is evidence that reasonably raised the theory of secondary service connection via obesity as an intermediate step. See March 2020 private medical nexus opinion (i.e. decreased physical activity as a result of his service-connected physical disabilities, to include lumbar spine degenerative disc disease, cervical disc and degenerative changes, and left lower extremity sciatica). While the March 2020 private medical nexus opinion provided by an advanced practice registered nurse (Ms. G. Uribe) included multiple medical articles in support of the positive nexus opinion, it is unclear whether she reviewed all pertinent records, to include his VA treatment records, in furnishing this opinion. There is no other medical nexus opinion of record. Thus, the Board finds that remand is required for a VA medical nexus opinion. The matter is REMANDED for the following action: Schedule and obtain a VA examination for sleep apnea. The examiner is requested to review the Veteran's entire electronic claims file, including this REMAND, prior to examination. Such review must be noted in the examination report. The examiner is then requested to opine: Whether it is at least as likely as not that the sleep apnea was caused or aggravated by service-connected physical disabilities, to include service-connected lumbar spine degenerative disc disease, cervical disc and degenerative changes, and left lower extremity sciatica. Specifically, the examiner should address whether obesity served as an "intermediate step" between the Veteran's service-connected disabilities and sleep apnea by answering the following: a. Is it at least as likely as not that the Veteran's service-connected disabilities, to specifically include lumbar spine degenerative disc disease, cervical disc and degenerative changes, and left lower extremity sciatica, caused the Veteran to become obese or aggravated the Veteran's obesity? b. If so, was the obesity as a result of the service-connected disabilities a substantial factor in causing sleep apnea? c. If so, is it the case that the Veteran's sleep apnea would NOT have developed but for that obesity? In providing the requested opinions, please discuss the Veteran's contention that he has gained weight/become obese because of his service-connected lumbar spine degenerative disc disease, cervical disc and degenerative changes, and left lower extremity sciatica, as well as the March 2020 private medical nexus opinion. The examiner must provide a complete rationale for any opinion expressed that is based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must explain why this is so and note what, if any, additional evidence would permit an opinion to be made. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee, Catherine 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.