Citation Nr: 21073913 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 12-26 406 DATE: December 13, 2021 REMANDED The issue of service connection for obstructive sleep apnea, to include as secondary to service-connected hypertension and posttraumatic stress disorder (PTSD) with alcohol abuse and dysthymic disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1968 to June 1972, to include service in the Republic of Vietnam. He received several decorations and awards for his service, including the Combat Action Ribbon, Purple Heart Medal, Bronze Star with Valor device, and the Cross of Gallantry with Palm. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Board denied service connection for obstructive sleep apnea. The Veteran appealed the June 2018 Board denial to the United States Court of Appeals for Veterans Claims (Court). In an April 2019 Order, the Court granted a March 2019 Joint Motion for Remand (Joint Motion), vacating the June 2018 Board decision and remanding it for action consistent with the terms of the Joint Motion. In August 2019, October 2020, April 2021, and August 2021 the Board remanded the Veteran's appeal for additional development. REASONS FOR REMAND The issue of service connection for obstructive sleep apnea, to include as secondary to hypertension and PTSD with alcohol abuse and dysthymic disorder, is remanded. Prior to the March 2019 Joint Motion, the Veteran contended that his obstructive sleep apnea was due to his military service and secondary to his service-connected PTSD. As indicated above, in June 2018 the Board denied the claim and in April 2019, the Court vacated the Board's June 2018 denial. Specifically, the parties to the Joint Motion found that in June 2018, when the Board denied service connection for obstructive sleep apnea, it erred when it did not address an internal inconsistency in a March 2017 VA opinion, in which the examiner found that there was no causal relationship between PTSD and sleep apnea, but also found that PTSD can disrupt sleep architecture. The parties to the Joint Motion directed the Board to consider obtaining clarification from the March 2017 examiner or obtain a new VA examination. The parties to the Joint Motion did not find error with the medical opinions pertaining to direct service connection. Accordingly, the adequacy of the medical opinion regarding whether the Veteran's service-connected PTSD caused or aggravated his obstructive sleep apnea became the central issue in this case. As indicated above, the appeal has been remanded several times. While the appeal has been pending, the Veteran has asserted additional theories on a secondary service connection basis, namely whether his obstructive sleep apnea is due to a service-connected disability with obesity as an intermediate step between the two and whether his hypertension caused or aggravated his obstructive sleep apnea. See correspondence (March 2021); appellate brief (August 2021). Obesity can be an "intermediate step" between a service-connected disability and a current disability and thus satisfy the causal link between the two. VAOGCPREC1-2017. In such cases where the issue is raised, the adjudicator should resolve three issues: (1) whether the service-connected disability caused the veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for the obesity caused by the service-connected disability. VAOGCPREC1-2017. Obesity may be an "intermediate step" in a secondary-service-connection analysis when the service-connected disability causes or aggravates obesity. Walsh v. Wilkie, 32 Vet. App. 300, 307 (2020). Incidental references to the Veteran's weight or weight gain, the evidence is insufficient to reasonably raise the theory of secondary service connection via obesity as an intermediate step pursuant to VA General Counsel Precedential Opinion 1-2017. Garner v. Tran, 33 Vet. App. 241, 249 (2021). There must be some evidence in the record which draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service-connected condition. Garner v. Tran, 33 Vet. App. 241, 249 (2021). In August 2021, the appeal was most recently remanded to obtain a VA opinion from an examiner, who provided a May 2021 opinion, that addresses whether the Veteran's obstructive sleep apnea was caused or aggravated by his service-connected PTSD and hypertension and whether his obesity was proximately caused or aggravated by one or more of his service-connected disabilities. In September 2021, a VA opinion was obtained, from the examiner who provided the May 2021 opinion. The September 2021 VA examiner provided negative nexus opinions between the Veteran's sleep apnea, PTSD, hypertension, and obesity. In the examiner's rationale, he cited to medical articles that do not support a relationship between PTSD and obesity. Notably, although the September 2021 examiner opined that the Veteran's hypertension was less likely than not proximately due to or the result of his hypertension, the examiner did not address the theory of aggravation in his rationale. Following the September 2021 opinion, in a November 2021 statement, the Veteran's attorney argued that the September 2021 opinion was flawed. The Veteran's attorney explained that the examiner did not address whether the Veteran's service-connected disabilities caused or aggravated his obesity. Furthermore, the Veteran's attorney stated the examiner did not consider the medical literature that supports that there is a relationship between PTSD and obesity. The Veteran's attorney, then, provided several medical articles, which had not been previously submitted, suggesting a relationship between PTSD and obesity. Therefore, as the September 2021 examiner did not adequately address the theory of aggravation in his rationale, and the Veteran's submitted articles in November 2021, which suggest a relationship between PTSD and obesity, have not been addressed by a VA examiner, the Board finds that a remand is necessary to obtain a VA medical opinion regarding the Veteran's claim of obstructive sleep apnea on a secondary basis. The matter is REMANDED for the following action: Obtain a medical opinion from a physician regarding the Veteran's claim of service connection for obstructive sleep apnea. The examiner should review the entire claims file, before answering the following: a. Is it at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities (including but not limited to hypertension or PTSD with alcohol use disorder and dysthymic disorder) caused his obstructive sleep apnea? b. Is it at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities (including but not limited to hypertension or PTSD with alcohol use disorder and dysthymic disorder) aggravated (worsened) his obstructive sleep apnea? c. Is it at least as likely as not (50 percent probability or greater) that the Veteran's obesity was caused by one or more of his service-connected disabilities, including but not limited to PTSD with alcohol use disorder and dysthymic disorder? d. Is it at least as likely as not (50 percent probability or greater) that the Veteran's obesity was aggravated by one or more of his service-connected disabilities, including but not limited to PTSD with alcohol use disorder and dysthymic disorder? If the clinician finds that the Veteran's obesity is caused or aggravated by one or more of the Veteran's service-connected disabilities, including but not limited to PTSD with alcohol use disorder and dysthymic disorder; an opinion should be offered for each of the following: a. Is it at least as likely as not (50 percent probability or greater) that the cause or aggravation of obesity as a result of a service-connected disability, including but not limited to PTSD with alcohol use disorder and dysthymic disorder, was a substantial factor in causing or aggravating the Veteran's obstructive sleep apnea; and b. Is it at least as likely as not that the sleep apnea would not have occurred or been aggravated but for the obesity? The physician must address the Veteran's submitted articles in November 2021 that suggest a relationship between PTSD and obesity. The physician must give a rationale for each opinion rendered. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Castillo, 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.