Citation Nr: 21073225 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-41 070 DATE: December 7, 2021 REMANDED Entitlement to service connection for diabetes mellitus, including as secondary to service-connected major depressive disorder, is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to service-connected major depressive disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1971 to June 1973 and from November 1982 to October 1983. This matter comes before the Board of Veterans' Appeals (Board) from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board denied these claims in June 2018, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2019, the Court granted a Joint Motion for Partial Remand (JMR) in which the parties agreed to vacate the OSA and diabetes mellitus decisions and remand the matters to the Board. These issues were previously remanded by the Board in May 2021 and have since been returned for further adjudication. 1. Entitlement to service connection for diabetes mellitus, including as secondary to service-connected major depressive disorder 2. Entitlement to service connection for OSA, including as secondary to service-connected major depressive disorder Although the Board regrets additional delay, remand is necessary to obtain adequate VA opinions. In November 2020, a VA examiner stated that there is insufficient evidence to support that the Veteran's OSA and diabetes mellitus had their onset during service. In September 2021, a VA examiner opined that although psychiatric records do provide an insight into the sleeping patterns of the Veteran, there is no proven medical study suggesting a diagnosis of OSA or diabetes mellitus can be caused by a mental disorder. The Board finds these opinions to be cursory and did not comply with the Board's previous remand instructions. First, the November 2020 examiner did not provide an adequate rationale, relied of lack of evidence, and did not adequately consider the Veteran's lay statements. Second, the September 2021 examiner opined only on causation between the Veteran's psychiatric disability and his OSA and diabetes mellitus. The examiner did not opine if his psychiatric disability or any medications for his psychiatric disability aggravated his OSA or diabetes mellitus, including considering that the Veteran has stated he has not properly taken his medications due to his psychiatric disability. Finally, the medical records demonstrate that the Veteran suffers from excess weight. While obesity cannot be service-connected on a direct basis, and obesity cannot qualify as an in-service injury or disease for service connection purposes, obesity may serve as an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). Walsh v. Wilkie, 32 Vet. App. 300 (2020); see also VAOGCPREC 1-2017. In such a case, the evidence would need to reflect that (1) a service-connected disability or disabilities caused the Veteran to become obese or aggravated the Veteran's obesity, (2) the obesity or aggravation of obesity resulting from service-connected disability or disabilities was a substantial factor in causing another disability, and (3) the disability would not have occurred but for the obesity caused by the Veteran's service-connected disability or disabilities or the obesity aggravated by the service-connected disability or disabilities. Walsh, 32 Vet. App. at 306-7. The examiner should determine if the Veteran has suffered from weight gain due to his service-connected disabilities, and if so, if this weight gain has caused or aggravated his OSA or diabetes mellitus. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to treatment for OSA and diabetes mellitus. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current OSA and diabetes mellitus had their onset during service or are otherwise related to an in-service injury, event, or disease. The examiner should also address whether any current disability of the OSA and diabetes mellitus is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected major depressive disorder. In offering the opinion, the examiner is asked to consider whether any medications for his major depressive disorder could have caused or aggravated these disabilities, and that the Veteran has reported forgetting to take medications for his disabilities due to his psychiatric disorder. 3. The examiner should address (a) whether a service-connected disability or disabilities caused the Veteran to become obese or aggravated the Veteran's obesity, and if so, (b) whether the obesity or aggravation of obesity resulting from service-connected disability was a substantial factor in causing OSA and diabetes mellitus such that his OSA and diabetes mellitus would not have occurred but for the obesity caused or aggravated by service-connected disability. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. L. BARSTOW Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hofmeister 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.