Citation Nr: 21067741 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 10-36 899 DATE: November 5, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from February 1967 to January 1969. He received the Combat Infantryman Badge. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran testified before the undersigned VLJ in a videoconference hearing; a transcript is of record. This matter was most recently remanded by the Board in July 2021. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities is remanded. The Veteran's claim for service connection for OSA was remanded by the Board in July 2021 to obtain an opinion that addressed direct and secondary service connection and considered the Veteran's submitted medical articles. The September 2021 examiner provided negative direct and secondary opinions. However, the examiner only addressed whether the Veteran's OSA was secondary to his service-connected PTSD, and not his other service-connected disabilities (hypertension or tinnitus). Additionally, the Veteran's representative has asserted the Veteran's PTSD aggravates his OSA through poor CPAP compliance; that the Veteran's hypertension leads to OSA; and the Veteran's obesity is due to his PTSD which further caused or aggravated his OSA. The representative cited studies in support. See 10/21/2021, Appellate Brief. VA's General Counsel (GC) issued a precedential opinion on how the issue of obesity is to be assessed. One of the primary holdings of the opinion is that obesity is not a disability for purposes of VA benefits; hence, it cannot be the subject of service connection. VAOPGCPREC No. 1-2017 (Jan. 6, 2017); see also Marcelino v. Shulkin, 29 Vet. App. 155 (2018). The GC recognized further, however, that 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). As such, VA may service connect the current disability on a secondary basis under 38 C.F.R. § 3.310(a) to include aggravation of a non-service-connected disability. See Walsh v. Wilkie, 32 Vet. App. 300, 303-04 (2020) (explaining service connection may be granted on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability). To determine whether obesity is an intermediate step between a service-connected disability and the development of a current disability that may be service connected on a secondary basis, the following criteria must all be satisfied: 1) the service-connected disability must have caused the Veteran to become obese; 2) the obesity, as a result of the service-connected disability must have been a substantial factor in causing the potential secondary disability; and 3) the potential secondary disability would not have occurred but for the obesity caused by the service-connected disability. As such, an addendum opinion is warranted to sufficiently address the Veteran's claim for service connection for OSA and to address and consider the submitted medical articles and arguments. This matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. After completing #1, obtain an addendum opinion for Veteran's OSA. The examiner is to review the Veteran's records and address the following: (a.) Is it at least as likely as not (probability of approximately 50 percent) that his OSA is related to an in-service injury, event, or disease? (b.) If no to question (a), whether the obesity/weight gain as a result of the service-connected disabilities was a substantial factor in causing the OSA disability; (c.) Whether the OSA disability would not have occurred but for the obesity/weight gain caused by the service-connected disabilities. (d.) If no to the above questions (b)-(c), is it at least as likely as not (probability of approximately 50 percent) that his OSA was either 1) proximately due to OR 2) aggravated by any service-connected disability. In arriving at the opinion on the OSA disability and weight gain/obesity, inform the examiner that all lay evidence must be considered, including any articles submitted by the Veteran and his statements. Inform the examiner further that, for VA purposes, obesity is not a disease or disability for which service connection may be granted, but it may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis. To determine whether any weight gain or obesity is an "intermediate step" between either any or all of the Veteran's service-connected disabilities and his OSA disability, the examiner is to fully answer the above questions to assist the Board with adjudication of these matters. **The examiner must review and discuss the articles the Veteran's representative has cited. The examiner is to fully address the representative's arguments: the Veteran's PTSD aggravates his OSA through poor CPAP compliance; that the Veteran's hypertension leads to OSA; and the Veteran's obesity is due to his PTSD which further caused or aggravated his OSA See 10/21/2021, Appellate Brief. The examiner must clearly demonstrate that he or she considered the articles in providing a nexus opinion.** The term "aggravated" refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. Inform the examiner that a comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.