Citation Nr: 21068313 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-48 160 DATE: November 10, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1987 to November 1990. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In November 2018, the Board remanded the Veteran's claims for further development. 1. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. 2. Entitlement to service connection for a right ankle disability is remanded. 3. Entitlement to service connection for a left ankle disability is remanded. The above three issues are being remanded for the same reason and thus will be addressed together in this opinion. In a May 2020 statement, the Veteran asserted that his weight gain was due to his service-connected PTSD and depression. The VA examinations as well as VA and private medical opinions associated with the record indicate that the Veteran's obesity and weight gain is the most likely cause or aggravating factor of the three claimed disabilities above. Obesity is not considered a disease for purposes of establishing entitlement to service connection under 38 U.S.C. § 1110 and 1131. Obesity per se is also not a disability for purposes of 38 C.F.R. § 3.310. However, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis. VAOPGCPREC 1-2017 (January 6, 2017). There is no medical opinion within the record addressing this specific contention. Therefore, a remand is required in order to obtain this necessary medical opinion. The matters are REMANDED for the following action: 1. The AOJ should arrange for a VA examination with medical opinion from a qualified medical professional to determine the nature and likely cause of his sleep apnea. The examiner should review the claims file (including this remand) and note such review was conducted. The examiner should conduct any additional testing, examination, or telehealth interview of the Veteran deemed necessary. Based on review of the record and any examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's sleep apnea is proximately due to, or the result of, or aggravated (permanently worsened beyond the natural progression of the illness) by the Veteran's service-connected disabilities (individually or collectively). In rendering this decision, the examiner MUST specifically state: i. Are the Veteran's service-connected disabilities at least as likely as not (50 percent or greater likelihood) the CAUSE of the Veteran becoming obese or overweight? ii. Did obesity or overweightness at least as likely as not (50 percent or greater likelihood) CAUSE or AGGRAVATE the sleep apnea? (aggravation is any increase in the disability not due to the natural progression of the illness) and iii. Would the sleep apnea not have occurred, BUT FOR the obesity? (b.) If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. The Board also notes for the examiner that, by law, obesity may establish a causal link between the claimed condition and a service-connected condition, despite the fact that obesity itself is not eligible for service connection. 2. The AOJ should arrange for a VA examination with medical opinion from a qualified medical professional to determine the nature and likely cause of his right and left ankle disabilities. The examiner should review the claims file (including this remand) and note such review was conducted. The examiner should conduct any additional testing, examination, or telehealth interview of the Veteran deemed necessary. Based on review of the record and any examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's right and left ankle disabilities are proximately due to, or the result of, or aggravated (permanently worsened beyond the natural progression of the illness) by the Veteran's service-connected disabilities (individually or collectively). In rendering this decision, the examiner MUST specifically state: i. Are the Veteran's service-connected disabilities at least as likely as not (50 percent or greater likelihood) the CAUSE of the Veteran becoming obese or overweight? ii. Did obesity or overweightness at least as likely as not (50 percent or greater likelihood) CAUSE or AGGRAVATE the right and left ankle disabilities? (aggravation is any increase in the disability not due to the natural progression of the illness) and iii. Would the right and left ankle disabilities not have occurred, BUT FOR the obesity? (b.) If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Williams, 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.