Citation Nr: A21020207 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 200226-66915 DATE: December 17, 2021 REMANDED Entitlement to service connection for sleep apnea as secondary to service-connected disability of adjustment disorder with mixed anxiety and depressed mood is remanded. REASONS FOR REMAND The Veteran has active service from July 1985 to July 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2020 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This decision conducted a higher-level review (HLR) of a prior July 2019 rating decision. In the February 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected to appeal the issue listed above and requested a direct review of the evidence considered by the RO. This restricts the Board's review to the evidence of record at the time of the July 2019 rating decision. 38 C.F.R. § 20.301 (2020). The Board notes that evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is remanding the above issue for further development, this additional evidence will be considered by the RO in the adjudication of the claim. Upon review, the Board finds that the claim must be remanded to correct a duty to assist error that occurred prior to the rating decision on appeal. Prior to the July 2019 rating decision, the Veteran had alleged that his service-connected adjustment disorder with mixed anxiety and depressed mood led to weight gain which caused him to develop sleep apnea. He reported that he gained weight due to emotional and psychological stress and lack of motivation to exercise. See May 2019 statements. The Veteran was afforded a VA examination in connection with the claim in June 2019. The examiner noted the diagnosis of obstructive sleep apnea in March 2019 following a sleep study and the Veteran's allegation that his sleep apnea was caused by anxiety and depression. The examiner opined that his sleep apnea is less likely than not caused by his service-connected psychiatric disability, explaining that obstructive sleep apnea is a physical obstruction that happens during sleep when a patient quits breathing and snores. The examiner stated that this can lead to a number of issues to include daytime hypersomnolence and fatigue. However, given that it is a physical obstruction, it is not related in any way to anxiety or depression. See June 2019 VA examination report. However, the examiner did not specifically address the Veteran's allegations regarding weight gain caused by anxiety and depression which in turn led to sleep apnea. The Board notes that VA has held that obesity is not a disability for service connection or secondary service connection compensation purposes, but that obesity may act as an "intermediate step" between a service-connected disability and a current disability for which secondary service connection may be established. See VAOPGCPREC 1-2017 (Jan. 6, 2017) (obesity may be an intermediate step where a service-connected disability caused obesity, which in turn was a substantial factor in developing a second disability). As this theory had been raised prior to the initial rating decision and the Veteran had submitted evidence of record highlighting his weight and body mass index (BMI), the Board finds that an opinion addressing this theory should have been obtained. On remand, the examiner should opine whether the Veteran's service-connected adjustment disorder with mixed anxiety and depressed mood caused him to become obese, and also whether his obstructive sleep apnea would not have occurred but for his obesity. Thus, a remand is necessary to obtain an additional examination and medical opinion which addresses the nature and etiology of the Veteran's obstructive sleep apnea. The matter is REMANDED for the following action: Arrange for an appropriate health care provider to review the Veteran's claims file and provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the diagnosed obstructive sleep apnea was A) caused or (B) aggravated beyond its normal progression by the service-connected acquired psychiatric disorder. In rendering the requested opinion, the examiner should address whether any obesity was an intermediate step between the Veteran's service-connected acquired psychiatric disorder and sleep apnea. In so doing, the examiner should state whether it is at least as likely as not that the Veteran's service-connected psychiatric disability caused or aggravated the Veteran's obesity; (ii) if so, whether the obesity or the aggravation of obesity as a result of service-connected disability was a substantial factor in causing obstructive sleep apnea; and, if so, (iii) whether the obstructive sleep apnea would not have occurred but for the obesity caused by service-connected disability or the obesity aggravated by service-connected disability. The Board appreciates the examiner's patience in addressing this multistep question. Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.