Citation Nr: 21072924 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 16-30 066 DATE: December 6, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from September 1998 to September 2002, from March 2003 to June 2003, and had additional Reserve service. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2013 Department of Veterans Affairs (VA) rating decision, which confirmed and continued a March 2012 denial of service connection for OSA. In April 2019, a hearing was held before the undersigned; a transcript is in the record. In October 2019, July 2020, and August 2021, this matter was remanded for additional development. The Board is aware this matter was remanded three times before (and regrets the delay in final adjudication inherent with yet another remand). However, the development completed has not complied with previous remand directives, and corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The August 2021 Board remand asked for a medical advisory opinion regarding the etiology of the Veteran's sleep apnea, to include addressing direct and secondary service connection theories of entitlement. Specifically, the examiner was to address whether OSA would not have occurred but for obesity caused by the Veteran's service-connected PTSD with alcohol abuse disorder. The consulting provider was asked to include a discussion of the underlying medical principles specific to the facts of this case and not simply reference generic medical literature. In a September 2021 VA medical advisory opinion, the consulting provider opined that OSA is less likely than not related to service or a service-connected disability. The provider stated that although snoring and awakening gasping for air can often be associated with OSA, these symptoms lack the specificity for diagnosing OSA and opined (without rationale) are not causative for or aggravating of OSA. There is no explanation as to why the problems that the Veteran reported in service were not early manifestations of his OSA that was diagnosed in 2012. Additionally, the September 2021 VA provider opined that OSA is a structural disease that is directly caused by, and continues to be aggravated by, the Veteran's morbidly obese body habits. The provider stated that morbidly obese body habits are caused by excess caloric intake and are a direct result of dietary habits. The provider stated, "millions of people across the world have mental health conditions, including PTSD, yet they are not morbidly obese- because quite simply, they don't eat very much" and that PTSD has no bearing on one's ability to make healthy nutritional decisions. Significantly, the observation that people with PTSD do not eat much (implying that they could not have the excess caloric intake to cause obesity) is a generalization and does not address whether this Veteran's use of alcohol (which the Board observes would result in a caloric intake) to self-medicate PTSD (and acknowledged by VA to be part of the service-connected PYSD disability) caused or contributed to cause his obesity. Notably, the provider did not address the findings on May 2020 VA PTSD examination (that the Veteran uses alcohol to self-medicate PTSD and that alcohol use can exacerbate sleep disturbances) or the reports that he drinks more than most people and currently consumes half a gallon of whiskey per week. He also reported he slowed down his drinking and used to consume 3 to 4 half gallons weekly. Although obesity (of itself) is not a compensable disability, it may act as an "intermediate step" between an already service-connected disability and the disability for which secondary service-connection is sought under 38 C.F.R. § 3.310 (a). See VAOPGCPREC 1-2017; see also Marcelino v. Shulkin, No. 16-2149 (Vet. App. Jan. 23, 2018). Generally, the law prohibits service connection for disability due to misconduct (and specifically for disability due to drug or alcohol abuse). However, alcohol abuse that is a manifestation of a service-connected psychiatric disability may still be service connected. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). Considering the foregoing, development for another medical advisory opinion is necessary. See Stegall, 11 Vet. App. at 271. The matter is REMANDED for the following: Return the record to the September 2021 examiner for re-review and an addendum opinion regarding the likely etiology of his OSA. [If that provider is unavailable or unable to give the opinion sought, forward the record to another appropriate clinician for review and the opinion sought (and if in such circumstances further examination of the Veteran is deemed necessary, such should be arranged).] The consulting provider should: (a.) Identify the likely etiology for the Veteran's OSA. Specifically, is it at least as likely as not (a 50% or better probability) that it is related directly to his service (as due to disease or injury, or by onset, therein)? The examiner must address/ consider the lay statements the Veteran submitted in support of his claim (that symptoms noted in service reported were initial manifestations of an underlying OSA that was ultimately diagnosed later, and reflect onset of OSA in service). (b.) If the OSA is not directly related to service, opine further whether it at least as likely as not was caused or aggravated by (increased in severity due to) the Veteran's service-connected disabilities? [The opinion must address aggravation.] i. Did the Veteran's service-connected PTSD with alcohol abuse disorder at least as likely as not cause or aggravate his obesity? The rationale provide must address the findings on May 2020 VA PTSD examination. ii. If so, is it at least as likely as not that the obesity due to his service-connected PTSD with alcohol use disorder was a substantial factor in causing his OSA? Is it at least as likely as not that his OSA would not have occurred but for the obesity caused or aggravated by his service-connected PTSD? iii. If a service-connected disability did not cause, but aggravated, the OSA, specify, to the extent possible, the degree of disability (symptoms/ impairment) that has resulted from such aggravation. (c.) If OSA is determined to be unrelated to service and not caused or aggravated by obesity that is found to be secondary to a service-connected disability (specifically PTSD with alcohol use disorder), identify the etiology for the OSA that is considered to be more likely (and explain why that is so). The rationale must include a discussion of the underlying medical principles specific to the facts of this case and not simply reference generic medical literature. If an opinion sought cannot be provided without resort to mere speculation, there must be a complete explanation why this is so. Indicate whether the inability to provide a more definitive opinion (without mere speculation) is the result of a need for additional information (if so, identify what further information is needed) or due to limitations in the current state of medical knowledge. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.