Citation Nr: 21077122 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-12 777 DATE: December 28, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities that induced obesity, is remanded. REASONS FOR REMAND The Veteran had active service in the U.S. Marine Corps from June 1976 to August 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities that induced obesity, is remanded. The Veteran maintains that his obstructive sleep apnea was caused by his service-connected bilateral knee disability and depression. Specifically, the Veteran reported that his knee disability has significantly affected his mobility and caused him to gain excessive amounts of weight. He further reported that he developed depression due to his limited mobility, which has compounded his difficulty with managing his weight. In this regard, it is noteworthy that the Veteran complained of difficulty regulating his food intake due to depression, and mental health records note that the Veteran overeats to numb and distract himself from his pain. The Board notes that obesity is not a disease or disability for which service connection may be granted. See VAOPGCPREC 1-2017 (holding the "longstanding policy of [VA], that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis, is consistent with title 38, United States Code" and "[o]besity per se is not a 'disability' for purposes of 38 C.F.R. § 3.310 "). However, service connection may be granted under 38 C.F.R. § 3.310 (a) if obesity was an "intermediate step" between a service-connected disability and a current disorder. See VAOPGCPREC 1-2017. In order for secondary service connection to be granted under theory, the record must demonstrate that: (1) the service-connected disability caused the veteran to become obese; (2) the obesity as a result of the service-connected disability was a substantial factor in causing the claimed disorder; and (3) the claimed disorder would not have occurred but for obesity caused by the service-connected disability. In order for secondary service connection to be granted under theory, the record must demonstrate that: (1) the service-connected disability caused the veteran to become obese; (2) the obesity as a result of the service-connected disability was a substantial factor in causing the claimed disorder; and (3) the claimed disorder would not have occurred but for obesity caused by the service-connected disability. In September 2017, the Veteran was provided a VA examination to assess the nature and etiology of his obstructive sleep apnea. At this time, the examiner concluded that the Veteran's obstructive sleep apnea was less likely than not due to or the result of his service-connected bilateral knee disability. In support of this conclusion, the examiner reasoned that there is no evidence of a nexus between osteoarthritis of the knees and the development of obstructive sleep apnea in the medical literature. The Board finds that this opinion is inadequate as it does not address whether the Veteran's obesity served as an intermediate step between his service-connected disability and his current obstructive sleep apnea. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Accordingly, remand is warranted in order to obtain an addendum opinion to determine the nature and etiology of the Veteran's obstructive sleep apnea. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any outstanding VA treatment records. 2. Obtain an addendum opinion from an appropriate VA examiner to assess the nature and etiology of the Veteran's obstructive sleep apnea, to include as secondary to his service-connected disabilities. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. (a) Initially, the examiner is asked to provide an opinion as to whether the Veteran's service-connected bilateral knee disability and/or depression caused him to become obese. * The examiner must address the Veteran's reports during a mental health visit in August 2017 that he tends to overeat in order to numb and distract himself from his pain. (b) If this opinion is positive, the examiner is asked to provide a response to the following: (i) Whether obesity was a substantial factor in causing the Veteran's sleep apnea. (ii) Whether the Veteran's sleep apnea would not have occurred but for his obesity. 3. After ensuring that the opinions comply with the terms of this remand, the AOJ should re-adjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.