Citation Nr: 21067516
Decision Date: 11/04/21	Archive Date: 11/04/21

DOCKET NO. 18-49 893A
DATE: November 4, 2021

REMANDED

Entitlement to service connection for obstructive sleep apnea, to include on a secondary basis, is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from August 1988 to August 1992, to include service in the Southwest Asia.

The Board denied this claim in July 2019, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  In August 2020, the Court granted a Joint Motion for Partial Remand (JMPR), in which the parties agreed to vacate the July 2019 decision and remand the matter to the Board.  In March 2021, the Board remanded the claim for further development based on the finding in the JMPR.  

On review, the Board finds that June 2021 examination and opinion as well as the August 2021 addendum opinion are inadequate to decide the claim as the opinion failed to answer the Board's questions regarding secondary service connection.

Specifically, the June 2021 opinion did not consider the theory of entitlement based on obesity, although obesity was noted to be a risk factor for sleep apnea.  Moreover, the August 2021 opinion reasoned that the service-connected psychiatric disorder did not aggravate the Veteran's obesity because he was noted to be obese prior to the diagnosis of depression.  Nevertheless, the onset of obesity is not relevant to the issue of aggravation.  For these reasons, an additional remand is necessary.  See Stegall v. West, 11 Vet. App. 268 (1998).

The matters are REMANDED for the following action:

1.  Obtain another medical opinion from an appropriate VA examiner to help determine the likely etiology of the Veteran's obstructive sleep apnea.  The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion.

After a review of the record, the examiner is asked to respond to the following: 

(a)	Provide an opinion as to whether the Veteran's service-connected depression and/or chronic fatigue syndrome caused him to become obese; if so, whether the obesity was a substantial factor in causing the sleep apnea; and whether the sleep apnea would not have occurred but for the obesity.

(b)	Provide an opinion as to whether the Veteran's service-connected depression and/or chronic fatigue syndrome aggravated his obesity; if so, whether the obesity was a substantial factor in causing the sleep apnea; and whether the sleep apnea would not have occurred but for the obesity.  Please note: the fact that obesity was diagnosed prior to depression/chronic fatigue syndrome is not relevant to the issue of aggravation.

A complete rationale should be provided for all opinions.

2.  Thereafter, readjudicate the remanded claim.

 

 

S. B. MAYS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Yaffe, 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.