Citation Nr: 21067840 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 09-41 930 DATE: November 5, 2021 REMANDED Entitlement to service connection for a sleep disorder, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) from May 1973 to August 1973, and active duty from January 1975 to February 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of history, in January 2019, March 2021, and June 2021, the Board remanded the issue currently on appeal to the agency of original jurisdiction (AOJ) for additional development. Regrettably, the Board finds that the record does not reflect substantial compliance with the Board's remand directives, and that a new medical opinion is required. Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA provides a medical opinion, it must be adequate). Specifically, in the most recent Board decision issued in June 2021, the Board remanded the matter for service connection for a sleep disability for an addendum medical opinion. The AOJ obtained a medical opinion in August 2021, which again fails to comply with the remand directives. First, the June 2021 remand found that the April 2021 medical opinion was not adequate and was deemed insufficient to determine whether secondary service connection is warranted. Specifically, the Board found that the April 2021 examiner did not provide an adequate rationale with respect to whether the Veteran's obstructive sleep apnea was aggravated by his service-connected PTSD and deemed the rationale to be conclusory as the examiner did not provide an explanation as to how control of the sleep apnea on CPAP with residual AHI of 1.1 per hour demonstrates no aggravation of the Veteran's sleep apnea by the service-connected PTSD. Therefore, another addendum opinion was requested. Although the August 2021 examiner provided an opinion subsequent to the June 2021 Board remand, the Board finds another opinion is warranted. Despite the June 2021 Board remand clearly stating that the prior April 2021 opinion was inadequate, the August 2021 examiner simply copied and pasted the opinion from the April 2021 examination report. As such, the Board finds that the August 2021 addendum opinion remains insufficient upon which to decide the claim and is tainted by the same flaws which rendered the April 2021 opinion inadequate as it was merely conclusory rather than probative. Additionally, no examiner in any way has discussed whether the Veteran's obesity was the intermediate step between his service-connected disabilities to include his service-connected PTSD/depressive disorder, neck disability, back disability, and right upper extremity radiculopathy to the sleep apnea, or whether the Veteran's sleep apnea was aggravated beyond its natural progression due to his service-connected disabilities by way of his obesity. The Board notes that the examiners did state that obesity is one of the strongest risk factors for sleep apnea, without providing a rationale as whether but for the Veteran's service-connected disabilities causing him to be unable to exercise or to overeat, which led to his obesity, which caused/aggravated his sleep disability. The Board notes that while obesity in of itself is not a disability eligible for service connection (Marcelino v. Shulkin, 29 Vet. App. 155 (2018)), 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 the Veteran is service-connected for PTSD and physical disabilities, obesity could be an "intermediate step" between his service-connected disabilities and his sleep disorder. The examiner therefore must specifically address whether the Veteran's service-connected psychiatric and/or physical symptoms led to his current obesity, which then led to his current sleep disorder. The examiner must consider 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. Here, the examiners' opinions are not adequate as they do not provide reasoned opinions as to whether the Veteran's service-connected disabilities contributed to the Veteran's weight gain, and whether his sleep apnea would not have occurred but for the obesity. Unfortunately, although the Board regrets the delay occasioned by multiple remands, another remand is warranted. The Board sincerely appreciates the Veteran's patience and apologizes for the further delay as VA works to fulfill its statutory obligation to assist him in obtaining information necessary to substantiate his claims for benefits. The matter is REMANDED for the following action: 1. Return the claims file to the August 2021 VA examiner for an addendum opinion as to whether it is at least as likely as not (i.e., is it 50 percent or more probable) that the Veteran's obstructive sleep apnea was aggravated (i.e., worsened beyond normal progression) by his service-connected PTSD? A complete medical rationale for all opinions expressed must be provided. The examiner must note his or her review of the complete claims file and should review this remand for a discussion as to why the prior opinion was inadequate. 2. Request a medical opinion concerning the Veteran's obesity. The examiner must note his or her review of the complete claims file. Then, the examiner should opine as to the following, with full supporting rationales: (a.) Is it at least as likely as not that the service-connected PTSD caused the Veteran to become obese? (b.) Is it at least as likely as not that the service-connected neck and back disabilities with right upper extremity radiculopathy caused the Veteran to become obese? An opinion based on options and activities the Veteran could do or could have done for his weight gain/obesity is moot. Rather, please specifically address whether his service-connected PTSD caused him to overeat, which led to his weight gain and his current obesity or whether his activity being limited due to physical health (as noted in the August 2020 examination) led to his weight gain and his current obesity. Rationale must be provided for the opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. 3. The opinion requested above on obesity must be obtained prior to requesting the following opinion. If and only if the opinion obtained on the Veteran's obesity indicates it is at least as likely as not that any service-connected disability, to include his PTSD, caused the Veteran to become obese, then proceed with instruction #4; if the obesity opinion is negative, then there is no need to solicit any further opinion on the relationship between service-connected disabilities and sleep apnea. 4. Request an addendum medical opinion for the Veteran's sleep disability. The examiner must note his or her review of the complete claims file and should review this remand. Then, the examiner should opine as to the following, with full supporting rationales: (a.) If and only if the opinion obtained on the Veteran's obesity indicates it is at least as likely as not that the service-connected PTSD, neck disability, back disability and/or upper extremity radiculopathy caused the Veteran to become obese, then please opine as to whether that obesity was at least as likely as not a substantial factor in causing the sleep disability? (b.) If and only if the examiner concludes obesity related to the Veteran's service-connected PTSD, neck disability, back disability and/or upper extremity radiculopathy was a substantial factor in causing the sleep disability, then please also opine as to whether it is at least as likely as not that the sleep disability would NOT have occurred BUT FOR the obesity? It is not enough to state that a mental health condition or the physical conditions of neck and back and upper extremities cannot cause a sleep disability or obstructive sleep apnea. The examiner must consider 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 in the rationale. If any findings requested above are not possible without resort to mere speculation, then please explain why. If the VA examiner finds that he or she cannot provide the requested findings without another VA examination, then the RO must schedule one. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, Associate 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.