Citation Nr: 21077189 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-32 878 DATE: December 28, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from October 2007 to March 2010. The Veteran testified at a hearing before the undersigned in June 2019. A transcript of the hearing is associated with the claims file. The Veteran's claim was remanded by the Board of Veterans' Appeals (Board) in November 2019 and July 2021. 1. Entitlement to service connection for obstructive sleep apnea is remanded. Unfortunately, the Board finds that additional development must be undertaken prior to adjudication of the Veteran's claim for service connection. The Veteran's medical records report that he has a diagnosis of sleep apnea. He has contended that he suffers from this condition either directly due to his period of service or as secondary to his other service-connected conditions. A medical opinion was obtained regarding whether the Veteran's sleep apnea was caused, or aggravated, by his service-connected PTSD in August 2021. Subsequently, the Veteran's representative argued that the Veteran's obesity is an intermediate step between his service-connected PTSD and his current disability of OSA. See November 2021 Informal Hearing Presentation. VA's General Counsel has held 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). See VAOPGCPREC 1-2017 (Jan. 6, 2017). In order to establish service connection on this basis, three criteria must be met: (1) the service-connected disease or injury must have caused the veteran to become obese; (2) the obesity as a result of the service connected disability must be a substantial factor in causing the disability for which service connection is sought; and (3) whether the disability for which service connection is sought would not have occurred but for obesity caused by the service-connected disease or injury. The Veteran's medical records report that the Veteran had a Body Mass Index of 26.4 in March 2017. The Board finds that a medical opinion should be obtained to address this theory. The matters are REMANDED for the following action: 1. Undertake appropriate efforts to obtain a medical opinion from an appropriate clinician regarding the etiology of the Veteran's obstructive sleep apnea. The claims file must be made available for review. An examination of the Veteran is not required, unless deemed necessary by the examiner. The examiner should review the claims folder, and then respond to the following questions. a) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's sleep apnea was caused by any service-connected condition, to include asthma, TMJ, tinnitus, and sinusitis? b) Is it at least as likely as not (i.e., probability of 50 percent or greater) that Veteran's service-connected PTSD, including the medications taken for this condition, caused the Veteran to become obese? c) Is the Veteran's obesity at least as likely as not a substantial factor in causing the Veteran's obstructive sleep apnea? d) Is it at least as likely as not that the Veteran's obstructive sleep apnea would not have occurred but for obesity caused by the Veteran's service-connected PTSD, including the medications taken for this condition? The examiner should consider the arguments presented in the November 2021 Informal Hearing Presentation. A complete rationale should be included to support any opinions provided. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.M. Johnson, 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.