Citation Nr: 21071716 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-31 018 DATE: December 1, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as due to service-connected disease or injury, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1969 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for sleep apnea, to include as due to service-connected disease or injury is remanded. This matter was previously before the Board in June 2019 and May 2021, at which time the issue was remanded to the RO for additional development. Having reviewed the evidence of record, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law", the Board finds that additional development is required before the underlying claims can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). The Veteran contends that he is entitled to service connection for sleep apnea. He believes his service-connected posttraumatic stress disorder (PTSD) caused him to gain weight, which subsequently caused him to develop sleep apnea. To obtain a medical opinion on the matter, the Board last remanded the issue in August 2021. Shortly thereafter, an August 2021 addendum opinion was obtained. The examiner conformed a diagnosis of obstructive sleep apnea. The examiner first opined that it is less likely than not (less than 50 percent probability) that the Veteran's sleep apnea had its onset during or is caused by or related to his military service. The examiner rationalized that the in-service treatment records and examinations did not note nor are suggestive of sleep apnea as an ongoing issue. The examiner further concluded that there is no objective evidence that the condition had its onset in service or shortly after discharge, as it was reported twenty years after discharge. The examiner next opined that it is less likely than not (less than 50 percent probability) that the Veteran's sleep apnea is proximately due to, a result of, or aggravated by a service-connected disability, in particular PTSD. The examiner rationalized that PTSD is a psychiatric disorder and does not cause the anatomical or physiological changes associated with sleep apnea, namely the recurrent collapse of the pharyngeal airway during sleep. Then, the examiner opined that there is no objective evidence of aggravation of the condition and that PTSD did not cause the Veteran to become obese. The examiner found that the service treatment records (STRs) show that the Veteran lost 87 pounds in the military and PTSD did not cause him to become obese. The examiner further opined that obesity was not a substantial factor in causing sleep apnea as there is no objective data to support the contention. The examiner concluded that there is no objective data to support that the sleep apnea would not have occurred but for the obesity, as the sleep apnea condition has remained unchanged despite fluctuation on the Veteran's weight over the years. The examiner noted that the Veteran admitted that he saw no change in his sleep apnea and use of a CPAP machines with changes in his weight since his initial diagnosis. Finally, the examiner noted review of the conflicting medical evidence of record. The examiner disagreed with the November 2014 letter from the Veteran's private endocrinologist Dr. T.O. and private psychologist Dr. E.P.B., both weighing in favor of the claim. In discounting the private opinions, the VA examiner stated that there is no objective basis for the statements in the letter indicating in-service weight gain, as there is documented 87 pounds weight loss at the time of separation. In statements submitted subsequent to this examination, the Veteran, as well as his wife, said that it is inaccurate that he weighed 125 pounds at separation, as indicated on his January 1973 separation as it was a typo and provided photographs of the Veteran to support this contrary assertion. Here, the Board finds that based on the above rationale, and lay statements, the August 2021 opinion is inadequate to answer the question of whether obesity was an "intermediate step" between the service-connected PTSD and the Veteran's obstructive sleep apnea. Of note, as stated in the August 2021 Board remand, the VA's Office of General Counsel has held that obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis. See VAOPGCPREC 1-2017. In order to meet the criteria, the evidence must show that a previously service-connected disability caused a veteran to become obese; that obesity was a substantial factor in causing the secondary disability; and the secondary disability would not have occurred but for the obesity. Id. However, notwithstanding the Veteran's actual weight at the time of the January 1973 separation examination, the August 2021 examiner did not resolve the question as to whether the Veteran's PTSD caused him to become obese. Although the examiner indicated that the Veteran admitted that he saw no change in sleep apnea and use of CPAP with changes in his weight since the diagnosis and noted his weight since 2012, the examiner specifically addressed the Veteran's 87-pound weight loss, in service, as opposed to including rationale discussing his PTSD and weight after service. Essentially, the report reflects that the examiner only considered one period, as opposed to the entirety of the Veteran's medical history, and ultimately failed to consider the Veteran's PTSD symptoms in regard to his obesity since the January 1973 separation examination. Such rationale disconnects evaluation of the Veteran's service-connected PTSD in regard to obesity outside of the sole period of the January 1973 report of medical examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Hence, the opinion is inadequate, and remand is warranted. The matter is REMANDED for the following action: Forward the claims file to an appropriate clinician to obtain an addendum opinion in which the examiner determines the nature and etiology of the Veteran's sleep apnea. As there are private opinions provided by a physician and a psychologist, the Board requests that the examiner be a physician. The examiner must review the claims file, and is asked to opine on the following: (a) Is it at least as likely as not that the Veteran's sleep apnea is proximately due to, a result of, or aggravated by, a service-connected disability, in particular PTSD? In answering the question above, the examiner is asked to indicate whether it is at least as likely as not that: 1) a service-connected disability including PTSD caused the Veteran to become obese; (2) that obesity was a substantial factor in causing sleep apnea; and (3) whether sleep apnea would not have occurred but for the obesity. A complete rationale should be provided for all opinions. The examiner is asked to discuss all relevant evidence, including lay statements, service medical records, and private medical records, when rendering the report. The Veteran is competent to report symptoms capable of lay observation. Notably, the examiner must directly address the Veteran's post service weight and PTSD, and the Veteran's and his wife's lay statements indicating that he weighed more than 125 pounds at the time of the January 1973 separation examination. The examiner's attention is called to the previous VA opinions and to the letters from the Veteran's private endocrinologist, Dr. T.O. and private psychiatrist, Dr. E.B., posted in the file on November 28, 2014 including attached articles and photographs. The examiner must comment on agreement or disagreement with their findings. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.