Citation Nr: 21071765 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 12-16 610 DATE: December 1, 2021 REMANDED Entitlement to service connection for sleep obstructive sleep apnea, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran had active duty from May 1967 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In November 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding is associated with the record. The issues on appeal were most recently before the Board in June 2021, when it was remanded for additional evidentiary development. In accordance with the Board remand, addendum VA medical opinions were obtained. 1. Entitlement to service connection for sleep obstructive sleep apnea, to include as secondary to service-connected disabilities is remanded. While the Board sincerely regrets the additional delay, further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claims. Where the remand orders of the Board are not fully complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran asserts entitlement to service connection for obstructive sleep apnea, to include as secondary to his service-connected disabilities. Specifically, the Veteran contends that his service-connected shoulder and knee disabilities led him to become obese, causing his current obstructive sleep apnea. The Board notes that obesity is not a disability for purposes of VA benefits; hence, it cannot be service connected on a direct basis. Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, indirect secondary service connection can be granted with obesity acting as an "intermediate step." See VAOPGCPREC 1 2017 (Jan. 6, 2017). A grant is warranted (1) if the service-connected disability caused the Veteran to become obese; (2) if obesity was a substantial factor in causing a subsequent disability; and (3) if the subsequent disability would not have occurred but for obesity. See also Walsh v. Wilkie, No. 18-0495, slip op. at 4-5 (U.S. Vet. App. February 24, 2020) (precedential panel decision) (holding that obesity as an "intermediate step" in a causal chain for service connection can be established on either a causal or aggravation basis). In a September 2020 opinion, the VA examiner opined that it was less likely than not that there is a current OSA disability that was due to service-connected disabilities including the Veteran's knee and shoulder disabilities. The examiner explained that the Veteran was obese, and that medical literature shows that obesity is consistently the most important risk factor for OSA. The examiner also opined that it was at least as likely as not that the Veteran's OSA would have occurred without the presence of his service-connected disabilities including his knee and shoulder disabilities. The examiner explained that the Veteran has issues with lifestyle choices such as smoking and diet. Medical literature shows that the risk factors for obesity are multifactorial with lifestyle and diet being the most important and impactful. The examiner found no evidence that the Veteran's service-connected disabilities substantially contributed to obesity from records or literature. The June 2021 Board remand noted that the September 2020 examiner found that the obesity was a substantial factor in causing OSA, but determined that the examiner did not provide an opinion as to whether OSA would not have occurred but for obesity. Instead, the examiner opined that it was at least as likely as not that the Veteran's OSA would have occurred without the presence of his service-connected disabilities to include knee and shoulder conditions. Notably, the Board found the VA examiner's reasoning inadequate by not addressing whether the Veteran's service-connected disabilities of the knee and shoulder caused, in whole or in part, his obesity. See June 2021 Board Remand, emphasis included. In accordance with the June 2021 Board remand, an addendum opinion was obtained in July 2021. After a review of the Veteran's claims file, the VA examiner opined that the Veteran's obesity is less likely than not proximately due to or the result of the Veteran's service-connected knee and shoulder disabilities. Specifically, the VA examiner stated that it is not possible to determine why the Veteran gained weight. The VA examiner reasoned that the leading causes of obesity include diet, lack of activity/exercise, lifestyle, genetics, hormones, medication, etc. Thus, there is no way to predict why the Veteran gained weight without mere speculation and assuming the Veteran gained weight due to inactivity from the service-connected shoulder and knee disabilities or simply due to the service-connected shoulder and knee disabilities is entirely speculative. The Board notes that the June 2021 Board remand directed the VA examiner to opine whether the Veteran's service-connected knee and shoulder disabilities caused, in whole or in part, his obesity. See June 2021 Board Remand, emphasis included. However, in their reasoning, the VA examiner stated that determining whether the Veteran gained weight simply due to his service-connected knee and shoulder disabilities is entirely speculative. See July 2021 VA Examination Report, emphasis added. The Board finds that there was not substantial compliance with the June 2021 remand directives by the VA examiner. The VA examiner only addressed whether the Veteran's obesity was caused wholly by his service-connected knee and shoulder disabilities and did not address whether the Veteran's obesity could have been caused in part by the knee and shoulder disabilities. Therefore, remand is warranted for an addendum opinion that complies with the June 2021 remand directives. 2. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected disabilities is remanded. The Veteran asserts entitlement to service connection for a left ankle disability. Specifically, the Veteran contends that his service-connected bilateral knee disabilities cause an uneven gait, resulting in his left ankle disability. A May 2016 VA treatment record notes the Veteran's report of ankle pain following an injury three weeks prior. The Veteran reported injuring his shoulder, knee, and ankle after falling. The nurse noted a possible ankle fracture. The nurse did not specify which ankle the Veteran injured. A July 2016 VA treatment record notes a prior right ankle injury. The Veteran was afforded a VA examination in September 2019. The VA examiner noted a diagnosis of bilateral lateral collateral ligament sprain. The Veteran reported that his ankle disability began in 2005, with knee and lower leg problems, aggravating his ankles. The Veteran reported swelling, limiting ankle movement. After a physical examination and review of the Veteran's claims file, the VA examiner opined that the Veteran's left ankle disability is less likely than not related to his service. In support of this opinion, the VA examiner noted the Veteran's post-service ankle injury as the cause of the Veteran's current left ankle disability. In September 2020, a VA medical opinion was obtained. After a review of the Veteran's claims file, the VA examiner opined that, regardless of an inability to establish a baseline, the Veteran's left ankle strain was less likely than not proximately due to or the result of the Veteran's service-connected knee and shoulder disabilities. The VA examiner noted the Veteran's in-service right knee injury. The VA examiner further noted that there is no evidence of a left ankle disability until a 2016 VA treatment record showing an ankle injury unrelated to the Veteran's service-connected disabilities. The VA examiner further noted the September 2019 VA examination showing a diagnosis of lateral collateral ligament (LCL) sprain bilaterally, consistent with the 2016 injury. Thus, it is less likely than not that there is a current left ankle disability that is proximately due to the Veteran's service-connected disabilities, to include knee and shoulder conditions. The VA examiner did not provide an aggravation opinion. The Board remanded the Veteran's claim in June 2021 to obtain an aggravation opinion. In accordance with the Board remand, an addendum opinion was obtained in July 2021. After a review of the Veteran's claims file, the VA examiner opined that the Veteran's left ankle strain is less likely than not aggravated by his service-connected disabilities. In support of this opinion, the VA examiner noted multiple treatment records showing a normal gait. The VA examiner further reported that review of the Veteran's records do not show any indication of major displacement of the center of gravity of the body while walking, history of significant shortening of the injured limb, or abnormal gait pattern that would have aggravated the left ankle. The Board notes the July 2016 VA treatment record shows that the Veteran injured his right ankle. However, the September 2019 and September 2020 VA examiners based their negative nexus opinions on a non-existent left ankle injury. Therefore, the opinions are inadequate, and remand is warranted for an addendum opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's OSA. (a.) The examiner must opine as to whether the Veteran's service-connected knee and shoulder disabilities caused, in whole or in part, his obesity; and (b.) The examiner must opine as to whether his obesity was a substantial factor in causing OSA; and (c.) The examiner must opine as to whether OSA would only have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017). 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's left ankle disability is at least as likely as not aggravated beyond its natural progression by his service-connected disabilities. 3. Readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. C. Slaughter, 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.