Citation Nr: 21075296 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 19-07 728 DATE: December 20, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to a compensable disability rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Air Force from November 2001 to September 2003, and again from November 2008 to August 2009. In July 2021, the Veteran testified before the undersigned at a Board hearing held via videoconference. A transcript of that hearing is of record. 1. Entitlement to service connection for obstructive sleep apnea The Veteran seeks service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD. To warrant entitlement to secondary service connection, the Veteran needs to establish that his current disability, obstructive sleep apnea, was caused or aggravated by the Veteran's service-connected PTSD. 38 C.F.R. § 3.310. A December 2018 medical opinion noted that the Veteran's current obstructive sleep apnea was potentially caused by excessive weight gain and obesity. Although service connection is not allowed for obesity on its own, obesity can act as an "intermediate step" to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. See VAOPGCPREC 1-2017. The VA General Counsel has indicated that establishing service connection in a case such as the Veteran's requires resolution of three issues: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity due to the service-connected disability was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity caused by the service-connected disability. Id. In a more recent decision, the Court modified the analysis set out in the General Counsel's opinion, holding that in considering whether obesity is an "intermediate step," consideration must be given to whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310. Walsh v. Wilkie, 32 Vet. App. 300 (2020). In Garner v. Tran, 33 Vet. App. 241 (2021), the Court held that to reasonably raise a theory of secondary service connection via obesity as an intermediate step, 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. The Court set forth a non-exhaustive list of considerations that could reasonably give rise to such a theory, including lay statements by a veteran attributing weight gain or obesity to the service-connected disability. The Court explained the critical commonality among its nonprecedential decisions was that "there is 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." The Board finds that an addendum medical opinion is necessary to determine if the Veteran's obesity was caused or aggravated by his service-connected PTSD; whether the obesity due to the service-connected PTSD was a substantial factor in causing the obstructive sleep apnea; and whether the obstructive sleep apnea would not have occurred but for obesity caused by the service-connected PTSD. In addition, an addendum medical opinion is necessary to address if the Veteran's PTSD aggravated his current obstructive sleep apnea. 2. Entitlement to a compensable disability rating for bilateral hearing loss. The Veteran's last VA examination regarding his service-connected hearing loss occurred in September 2017 and is now over four years old. The Veteran and his representative assert that the Veteran's hearing disability has worsened in severity. At his hearing, the Veteran testified that he had a hard time talking to people at work when there is more than one person in the room. He also had difficulty hearing women's voices. Additionally, the Veteran's wife, who is a medical professional, stated that his hearing has gotten worse. Where the evidence of record does not reflect the current state of a Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). An updated VA examination is necessary to assess the current severity of the service-connected bilateral hearing loss. Accordingly, the matters are REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who conducted the December 2018 VA medical opinion so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether: a. It is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected PTSD, or medication used to treat PTSD, caused him to become obese, or aggravated his obesity. b. It is at least as likely as not (50 percent or greater) that the Veteran's obesity was a substantial factor in causing the obstructive sleep apnea. c. It is at least as likely as not (50 percent or greater) obstructive sleep apnea would not have occurred but for obesity caused by the service-connected PTSD. d. It is at least as likely as not (50 percent or greater) that the Veteran's obstructive sleep apnea was aggravated beyond its natural progression by his service-connected PTSD. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his bilateral hearing loss. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide all findings, along with a complete rationale for any opinions provided. 3. After all completed development, the AOJ should then readjudicate the claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.