Citation Nr: 21070858 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 15-35 805 DATE: November 26, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from November 1989 to May 1994, with additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified before the undersigned Veterans Law Judge. The Board remanded the claim in November 2019. 1. Entitlement to service connection for OSA is remanded. Although the Board regrets the additional delay, but remand is necessary for additional development. In this regard, the February 2021 VA examiner's opinion regarding secondary service connection is inadequate, as she made no attempt to distinguish proximate cause from aggravation and provided the same rationale for both opinions. Also, the September 2021 VA examiner opined that the Veteran's OSA was most likely caused by his obesity and less likely than not due to service. While obesity is not a disability for VA compensation purposes, obesity may serve as an "intermediate step" between a service-connected disability and a current disability that may warrant secondary service connection. The September 2021 VA examiner's opinion establishes that it is at least as likely as not the Veteran's OSA is etiologically related to obesity and would not have occurred but for obesity. Therefore, on remand, an opinion should be obtained as to whether the Veteran's obesity is proximately due to or aggravated by his service-connected disabilities. The matter is REMANDED for the following action: Obtain an addendum opinion from a VA examiner addressing the etiology of the Veteran's OSA. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. After a review of the claims file, the examiner is requested to address the following: (a). The September 2021 VA examiner's opinion establishes that it is at least as likely as not the Veteran's OSA is etiologically related to obesity and would not have occurred but for obesity. Therefore your opinion is requested on the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities, to include orthopedic disabilities, hypertension, and asthma, caused or aggravated (worsened beyond natural progression) the Veteran's obesity? In addressing this question, please discuss whether the Veteran's weight gain was proximately due to or aggravated by a decreased activity level as a result of his service-connected disabilities, or by medication used to treat service-connected disabilities. The examiner may also discuss any other evidence or principles that he or she believes to be relevant. The examiner is advised that in the present matter, there is no requirement for a permanent aggravation of obesity. Thus, if it is the examiner's opinion that there was a temporary aggravation in obesity due to service-connected disability, the examiner should answer in the affirmative, even if that aggravation subsequently resolved. In addressing this question, please discuss the October 2014 VA treatment record noting that asthma may be contributing to increased breathing problems along with weight gain and the September 2016 VA treatment record noting obesity related to physical inactivity as evidenced by the Veteran's self-report of back and neck pain and overall decreased physical activity the past months from being sick and along with poor sleep, as well as decreased exercise due to a knee injury. (b) If the answer to questions (a) is no, then is it at least as likely as not (50 percent probability or greater) that OSA: (1) is proximately due to service-connected asthma, hypertension, and/or any medications used to treat the same; or (2) has been aggravated (worsened beyond natural progression) by service-connected asthma, hypertension, and/or any medications used to treat the same. In addressing these questions, the examiner must discuss the Veteran's report of Dr. Beach's statement that his asthma and hypertension medication masked symptoms of OSA (see Board Hearing Transcript at 6, 9, 12) as well as the medical articles, "Asthma Tied to Higher Risk of Sleep Apnea" and "Sleep Apnea Common in Adult Asthma," submitted by the Veteran in July 2019. In answering questions (b)(1) and (2), please note there is no temporal requirement that the primary condition (asthma/hypertension) be service-connected, or even diagnosed, at the time the secondary condition (OSA) is incurred. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a basis for that conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.