Citation Nr: 21006378 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 10-23 899 DATE: February 4, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran had active service from January 1981 to September 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Central Office Board hearing in February 2016. In a February 2019 decision, the Board denied the appeal. The Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). A December 2019 order vacated the Board’s decision and adopted a Joint Motion for Partial Remand (JMPR) for reconsideration of the Veteran’s claim of service connection for sleep apnea, not disturbing the other issues adjudicated by the Board. The Board remanded the matter to obtain additional records and afford the Veteran a medical examination to determine if her sleep apnea was at least as likely as not incurred during her period of active service, whether her sleep apnea was caused or aggravated by the side effects of the muscle relaxant medication prescribed to treat her service-connected disabilities or otherwise caused by or aggravated by any service-connected disability. Additionally, the Board requested that the examiner discuss the Veteran’s contention that weight gain caused by her service-connected disabilities has played a role in the development and progress of her sleep apnea. The Board also requested that the examiner clarify whether the Veteran experienced central apneic episodes, and if so, the significance of the central apneic episodes as it relates to the Veteran’s sleep apnea. Relevant to this appeal, on February 24, 2020, the United States Court of Appeals for Veterans Claims (CAVC) issued a panel decision in Walsh v. Wilkie, No. 18-0495, holding that 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. As General Counsel Precedent Opinion 1-2017 determined that obesity can constitute an “intermediate step” between a service-connected disability and a disability that may be service connected on a secondary basis, it not only applies when a service-connected disability causes obesity, but also when a service-connected disability aggravates obesity. When raised by the record, the Board must consider whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310. While the June 2020 examiner opined that each of the Veteran’s service-connected disabilities did not cause or aggravate her sleep apnea, the examiner did not discuss the Veteran’s weight gain or the central apneic episodes. The examiner noted that definite risk factors for sleep apnea include obesity, and that obesity is the best documented risk factor for sleep apnea, but failed to discuss if the Veteran’s sleep apnea would not have occurred but for obesity caused or aggravated by the Veteran’s service-connected disabilities, to include medication to treat those disabilities. The examiner noted that muscle relaxants do not cause sleep apnea but failed to discuss whether muscle relaxants can aggravate sleep apnea. Remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Thus, a remand is necessary in order to obtain an opinion regarding those matters. The matter is REMANDED for the following action: 1. Provide the Veteran’s entire claims file to an appropriate person and obtain an addendum opinion that addresses the following: a.) Whether the Veteran’s service connected left knee disability and/or her service connected lumbar spine disability and/or the medications used to treat these disabilities caused the Veteran to become obese; and if so, whether obesity as a result of the service connected disability/ies and/or the medications used to treat them was a substantial factor in causing obstructive sleep apnea, and whether obstructive sleep apnea would not have occurred but for the obesity caused by the service connected left knee and/or lumbar spine disability and/or the medications used to treat them. b.) Whether the Veteran’s service connected left knee disability and/or her service connected lumbar spine disability and/or the medications used to treat them caused the Veteran’s obesity to be worse than it otherwise would have been; and if so, whether this increase in severity of the obesity as a result of the service connected disability/ies and/or the medications used to treat them was a substantial factor in causing the obstructive sleep apnea, and whether obstructive sleep apnea would not have occurred but for the aggravation of obesity caused by service connected disability/ies and/or the medications used to treat them. c.) The examiner should clarify whether the Veteran experienced central apneic episodes, and if so, the significance of the central apneic episodes as it relates to the Veteran’s sleep apnea. d.)The examiner should state if the Veteran’s medications, to include muscle relaxants prescribed for her service-connected disabilities, have aggravated the Veteran’s sleep apnea beyond its natural progression. A complete rationale must be provided for all opinions presented. The examiner should connect all opinions made to the evidence of record and any medical literature referenced. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation stating why that is the case. The examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or whether the examiner has exhausted the limits of current medical knowledge. 2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Geer, 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.