Citation Nr: 21075523 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 13-04 094 DATE: December 20, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to July 1970. This matter initially came to the Board from an April 2010 decision of the Agency of Original Jurisdiction (AOJ). In February 2015, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. The Board remanded this appeal for further development in March 2017, September 2018, and, most recently, in July 2020. On these occasions, a separate claim for service-connected compensation for diabetes was also part of this appeal. The Board denied the diabetes claim in September 2018 but, after further proceedings, the United States Court of Appeals for Veterans Claims (Court) vacated that ruling and returned the issue to the Board. In October 2021, the AOJ granted service connection for diabetes. Since that claim has been resolved in the Veteran's favor, the only remaining issue in this appeal is the sleep apnea claim. In a written argument, submitted by his representative in December 2021, the Veteran asked to have this case remanded again for a medical opinion to consider the effects of obesity on his sleep apnea. Although obesity is not considered a disability for which compensation may be granted, VA's General Counsel has concluded that, under certain circumstances, obesity may be 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. For example, according to the General Counsel, some veterans could potentially be eligible for service connection for hypertension on a secondary basis if a service-connected back disability causes obesity due to lack of exercise, which then leads to hypertension. VAOPGCPREC 1-2017, at 9. The Veteran has been awarded service connection for disabilities of his thoracolumbar spine, both knees, both hips, and both ankles. The AOJ obtained medical opinions on the likely causes of the Veteran's sleep apnea in June 2015 and in December 2017. Neither opinion indicates whether service-connected disabilities caused the Veteran's obesity, but the second opinion does include the following statement: "[a] Major risk factor for OSA [obstructive sleep apnea] is obesity. [The Veteran's] weight on separation from service was around 160 pounds. His weight in 2005 was 250 pounds." Because he was first diagnosed with sleep apnea in 2009, this sequence of events is consistent with the theory that obesity acted as an intermediate step for the purposes of secondary service connection. Under these circumstances, the request for a new medical opinion to consider this theory is reasonable. Thus, the Board will remand the claim for service connection for sleep apnea so that the AOJ can obtain an opinion addressing the theory that obesity acted as the kind of intermediate step leading to the Veteran's development of sleep apnea described in the General Counsel's opinion. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file copies of all of the Veteran's records of VA treatment since October 2021. 2. The AOJ should refer the claims file, to include a copy of this remand, to an appropriate medical professional to obtain a new opinion on the etiology of the Veteran's diagnosed sleep apnea. If the examiner believes that a new in-person examination is needed before he or she can provide the requested opinion, a new in-person examination should be arranged. After reviewing the claims file and, if necessary, completing a new in-person examination, the examiner should respond to the following questions: (a) Is it at least as likely as not (50 percent or greater probability) that a service-connected disability (including his service-connected disabilities of the thoracolumbar spine, both knees, both hips, and both ankles) caused the Veteran to become obese (for example, by preventing regular exercise)? (b) If so, is it at least as likely as not (50 percent or greater probability) that obesity was a substantial factor in causing the Veteran's sleep apnea? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea would not have occurred or would not have been aggravated beyond its natural progression without the obesity caused by a separate service-connected disability? The examiner should provide a complete rationale explaining the medical reasons for his or her answers to these questions. The examiner's report should discuss the following statement from the December 2017 examination report: "Major risk factor for OSA [obstructive sleep apnea] is obesity. [The Veteran's] weight on separation from service was around 160 pounds. His weight in 2005 was 250 pounds." 3. The AOJ must ensure that the requested examination report and opinion comply with the directives of this remand. If any of the requested reports is deficient in any manner, the AOJ must implement corrective procedures at once. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.