Citation Nr: 21074205 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-19 149A DATE: December 14, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1969 to August 1971. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for sleep apnea. In July 2018, the Board remanded the claim. In a September 2020 decision, the Board denied the Veteran's service connection claim for sleep apnea. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In August 2021, the Court granted a Joint Motion for Remand (JMR) filed by the parties which called for a vacatur and remand of the September 2020 decision. The Parties agreed that the Board failed to address whether the Veteran's obesity was an intermediate step between his service-connected disabilities and his sleep apnea. Additionally, the Parties agreed that Board failed to address whether a March 2019 VA examination, upon which it previously relied, was adequate to satisfy the duty to assist. In relevant part, the Parties noted that the record indicates that the March 2019 VA examiner did not consider all of the medications that the Veteran takes to treat his depressive symptoms and failed to address whether such medications other than Zolpidem and Buspirone may have contributed to the Veteran's sleep apnea condition. Here, the Board agrees that the evidence suggests alternate theories of entitlement which were not afforded adequate consideration. Specifically, as the Court explained in Walsh v. Wilkie, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis. 32 Vet. App. 300, 303 (2020). In this case, the record contains references to the Veteran's inactivity and his increased weight over time. The record also contains evidence of the Veteran's prescriptions for antidepressants which carry potential side effects of weight gain. Notably, a March 2019 VA examiner specifically attributed the Veteran's sleep apnea to his obesity, finding that it was due to his increased neck size. Although the Veteran was last afforded a Sleep Apnea DBQ in March 2019, the examiner did not provide an opinion as to the possibility of obesity as an intermediate step between his service-connected disabilities, to specifically include an acquired psychiatric disorder and/or diabetes mellitus, type II and the development of obstructive sleep apnea. Additionally, the record indicates that the Veteran was prescribed medications other than Zolpidem and Buspirone to treat his depressive symptoms. Specifically, the record shows that the Veteran takes a host of other anti-depressive medications, to include Lexapro, Risperdal, Cymbalta, and Ambien. As such, a VA examiner must consider whether these other medications may have contributed to the Veteran's sleep apnea condition. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See 38 U.S.C. § 5103(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, the Board must remand the claim for further development, in accordance with the JMR. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the March 2019 VA examiner, if available, or another appropriate examiner if unavailable. The entire claims file must be made available to the examiner in conjunction with the request. An examination should be scheduled if one is found necessary by the VA examiner. The examiner is asked to provide an opinion on the following questions: (a) The examiner should state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's acquired psychiatric disorder, to include his prescribed Lexapro, Risperdal, Cymbalta, and/or Ambien caused his sleep apnea or aggravated it beyond the normal progression. Here, the examiner is specifically asked to comment on the potential side effects of the above listed anti-depressants and the effect, if any, on sleep apnea. (b) Then, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that any of the Veteran's service-connected disabilities, to include his medication taken for his acquired psychiatric disorder caused him to become obese or gain weight or aggravated his obesity. (c) And, if so, the examiner should provide an opinion as to whether the obesity was a substantial factor in causing the Veteran's sleep apnea. The examiner must also provide an opinion as to whether the Veteran's sleep apnea would not have occurred or worsened but for the weight gain caused or aggravated by his service-connected disability or disabilities. In doing so, the opinion must reflect consideration of the following evidence: (i) an October 2007 Request for Medical Advice noting that the Veteran spends most of the time in bed or sitting; (ii) a March 2009 medical record noting that the Veteran had gained 19 pounds since September 2008 due to physical inactivity; (iii) a September 2009 medical record noting a BMI of 34; (iv) a July 2011 medical record noting a BMI of 34; (v) an August 2012 medical record noting a BMI of 35; (vi) potential side effects of the Veteran's prescribed anti-depressants, to specifically include Zolpidem, Buspirone, Lexapro, Risperdal, Cymbalta, and Ambien; and (vii) the May 2019 VA examination in which the examiner specifically attributed the Veteran's sleep apnea to his obesity, finding it was due to his increased neck size. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Review the opinion and any examination report to ensure that it is in complete compliance with the directives of this remand. If the opinion or report is deficient in any manner, the AOJ must implement corrective procedures. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.