Citation Nr: 21076074 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 13-16 337 DATE: December 22, 2021 REMANDED Service connection for sleep apnea, to include as secondary to service-connected major depressive disorder with anxious distress, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1981 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, this matter was initially remanded for an additional VA examination and medical opinion. Service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. The Veteran contends that his sleep apnea was caused by or incurred during his active-duty service. See NOD received 12/21/2017 at page 4. Although the Veteran has not put forward a specific theory of entitlement, he did submit buddy statements from his spouse and his sister, J.S.K. His sister stated he did not exhibit any signs of sleep apnea prior to service. See VA 21-4138 Statement in Support of Claim received 5/17/2021 at page 1. It was only on leave, prior to deployment, that she observed him snoring loudly, having daytime sleepiness, and headaches. Id. His spouse stated that since January 1996, which is post-service, he had loud snoring, restless sleep, morning headaches, daytime sleepiness, and episodes of apnea. See VA 21-4138 Statement in Support of Claim received 5/17/2021 at page 1. In the Board's February 2020 remand, the Board found that an alternative theory of entitlement, namely secondary service connection due to the Veteran's service-connected major depressive disorder with anxious distress, was reasonably raised since a medication used to treat his depression was noted as causing "REM sleep behavior disorder." See BVA Decision received 2/28/2020 at page 8-9. The Veteran was provided a VA examination in May 2020. The VA examiner reviewed the available medical records as well as interviewed the Veteran via telephone. The Veteran was diagnosed with mixed sleep apnea, both obstructive and central, which was confirmed by a private sleep study in October 2010. The May 2020 VA examiner opined that his obstructive and central sleep apnea was less likely than not incurred from service and was instead due to the Veteran's obesity. The Veteran's BMI was >30. See C&P Exam received 5/19/2020 at page 4. The May 2020 VA examiner based his opinion on common medical knowledge that a BMI >30 increased the risk of obstructive sleep apnea and the Veteran's private treatment records wherein the steroids he was using to treat his non-service-connected heart condition was linked to his sleep apnea. Id. As for secondary service connection, May 2020 VA examiner opined that his mixed sleep apnea was less likely than not caused by or aggravated by his service-connected major depressive disorder with anxious distress because the Veteran's medical records linked the aggravation of the condition to his steroid medication. Id. The Veteran was provided another VA examination in July 2021. Again, the Veteran was interviewed, and his files were reviewed. The July 2021 VA examiner opined that the Veteran's mixed sleep apnea was less likely than not caused by an inservice activity, illness or event since his service treatment records were silent on treatment for sleep apnea during his active duty and medical literature, which was cited in the opinion, linked sleep apnea to upper airway obstruction such as allergies, tonsil/adenoid enlargement, and elevated BMI. See C&P Exam received 7/02/2021 at page 2. Additionally, the July 2021 VA examiner referenced that the lay statements were considered. Id. As to aggravation, the July 2021 examiner opined based on medical literature that sleep apnea is caused by upper airway obstruction, and therefore not aggravated by the Veteran's psychiatric disorder or medication for that condition. See C&P Exam received 7/02/2021 at page 3. The Board has reviewed the Veteran's private treatment records. The Veteran's mixed sleep apnea was diagnosed by his private physician in October 2010. In July 2010, prior to the diagnosis, the Veteran was placed on steroids to treat pericarditis. See Medical Treatment Record received 4/28/2021 at page 54. By October 2010, the Veteran gained 40 pounds and his physician noted symptoms of significant obstructive sleep apnea, which he stated was a "complication of steroid therapy". Id. at pages 19-20. In other areas of the Veteran's medical record, Dr. R.E.E. states that "steroids provoked significant weight gain and brought out decompensated sleep disordered breathing". See Medical Treatment Record received 4/28/2021 at page 141. The Veteran's service treatment records were also reviewed and void of complaints of, or treatment for any sleep disorder, rather the Veteran separated from service in excellent health. See STR-Medical received 7/29/1985 at pages 7 and 15. The Veteran has submitted lay statements. Specifically, the Veteran's spouse's observations of symptoms of sleep apnea were made in 1996, roughly twelve years after service. As for the Veteran's sister's statement, although she stated that the Veteran snoring, tiredness, and sore throat during his leave; she specifically stated that she witnessed apnea after service "on occasion, throughout the years". See VA 21-4138 Statement in Support of Claim received 5/17/2021 on page 1. The Board finds the Veteran's spouse and sister competent and credible to report their observations. However, neither the Veteran's spouse nor sister are medical professionals who are able to competently link those symptoms to sleep apnea. The issue is medically complex, as it requires a sleep study to diagnose. Therefore, it is outside the competence of the Veteran's spouse and sister because the record does not show that they have the medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As the examiners have reported that the Veteran's disabilities may be due to his BMI, the Board finds that service connection based on obesity as an intermediate step has been raised by the evidence of record. VA's General Counsel (GC) issued a precedential opinion on how the issue of obesity is to be assessed. One of the primary holdings of the opinion is that obesity is not a disability for purposes of VA benefits; hence, it cannot be the subject of service connection. VAOPGCPREC No. 1-2017 (Jan. 6, 2017); see also Marcelino v. Shulkin, 29 Vet. App. 155 (2018). The GC recognized further, however, that obesity may act 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). As such, VA may service connect the current disability on a secondary basis under 38 C.F.R. § 3.310(a) to include aggravation of a non-service-connected disability. See Walsh v. Wilkie, 32 Vet. App. 300, 303-04 (2020) (explaining service connection may be granted on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability). To determine whether obesity is an intermediate step between a service-connected disability and the development of a current disability that may be service connected on a secondary basis, the following criteria must all be satisfied: 1) the service-connected disability must have caused the Veteran to become obese; 2) the obesity, as a result of the service-connected disability must have been a substantial factor in causing the potential secondary disability; and 3) the potential secondary disability would not have occurred but for the obesity caused by the service-connected disability. His weight at his separation examination was 181 pounds. His weight in February 2021 was 352 pounds. The Veteran is service connected for major depressive disorder with anxious distress. In this regard, his VA treatment records show the effects the Veteran's service-connected acquired psychiatric disorder have on his health. He does not have energy to exercise because of his psychiatric disorder. See 3/9/2020, CAPRI Exercise, at p. Other records show that the Veteran overeats because of emotional reasons, and he has low energy due to his service-connected major depressive disorder, so he feels fatigued and does not exercise. See 11/27/2017, CAPRI Weight Gain, at p. 111. The Board acknowledges the medical records indicating that the Veteran's weight gain is due to prednisone which he takes for non-service-connected disabilities. However, the Board also finds these records are suggestive that the Veteran's weight gain is due, at least in part, to his service-connected acquired psychiatric disorder. As such, the Board finds that an addendum opinion is warranted to fully address the Veteran's obesity in relation to his claims for service connection. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All attempts to obtain any VA treatment records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. After completing #1, request an addendum or schedule the Veteran for an examination for his OSA if necessary. -- Then, the examiner is to respond to the following: (a.) Is it at least as likely as not (probability of approximately 50 percent) that the Veteran's OSA was caused by a disease or injury in service? (b.) If no to question (a), whether the obesity/weight gain as a result of the service-connected disabilities was a substantial factor in causing the OSA; (c.) Whether the OSA would not have occurred but for the obesity/weight gain caused by the service-connected disabilities. (d.) If no to the above questions (b)-(c), is it at least as likely as not (probability of approximately 50 percent) that his OSA were either 1) proximately due to OR 2) aggravated by any service-connected disability. In arriving at the opinion on OSA and weight gain/obesity, inform the examiner that all lay evidence must be considered, including any articles submitted by the Veteran and his statements. Inform the examiner further that, for VA purposes, obesity is not a disease or disability for which service connection may be granted, but it may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis. To determine whether any weight gain or obesity is an "intermediate step" between either any or all of the Veteran's service-connected disabilities and OSA, the examiner is to fully answer the above questions to assist the Board with adjudication of these matters. **In reaching an opinion on weight gain/obesity, the examiner must consider the following: the Veteran does not have energy to exercise because of his psychiatric disorder. See 3/9/2020, CAPRI Exercise, at p. Other records show that the Veteran overeats because of emotional reasons, and he has low energy due to his service-connected major depressive disorder, so he feels fatigued and does not exercise. See 11/27/2017, CAPRI Weight Gain, at p. 111.** The term "aggravated" refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. Inform the above examiner that a comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Garrett Morales Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Dixon, Associate 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.