Citation Nr: 21006693 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-56 624 DATE: February 4, 2021 REMANDED Entitlement to service connection for a sleep disorder, diagnosed as obstructive sleep apnea, claimed as secondary to a service-connected disability, to include resulting obesity, is remanded. REASONS FOR REMAND The Veteran had active service from September 1964 to September 1967 and from November 1967 to August 1973. This matter comes to the Board of Veterans' Appeals (Board) from a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. This appealed issue was previously before the Board in November 2019, when it was determined that a remand was necessary to ensure that VA fulfilled its duty to assist the Veteran. The Board’s prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran’s appeal has been returned to the Board for further appellate consideration. The Board’s November 2019 remand also included the issue of entitlement to service connection for hypertension; however, in an August 2020 rating decision, the AOJ established service connection for this disability; a noncompensable (zero percent) evaluation was assigned from February 18, 2014. Although the appeal period remains pending with regard to this determination, the Veteran has not expressed disagreement with the assigned initial evaluation or effective date of this award, and thus, the issue is no longer in appellate status. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). 1. Entitlement to service connection for a sleep disorder, diagnosed as obstructive sleep apnea, claimed as secondary to a service-connected disability, to include resulting obesity, is remanded. The Veteran has been diagnosed with obstructive sleep apnea, and he asserts that this disability was caused or aggravated by his service-connected coronary artery disease and/or hypertension. As the first two elements to establish secondary service connection are unquestionably met, the crux of the Veteran's appeal is whether the medical evidence supports his asserted causal relationship between his obstructive sleep apnea and his service-connected disabilities. As a result of the Board’s November 2019 remand, the Veteran was provided a VA examination to obtain medical opinions concerning the etiology of the Veteran’s obstructive sleep apnea in January 2020. Unfortunately, the January 2020 VA opinions are inadequate for the purpose of readjudicating the Veteran’s appeal, as the examiner did not address whether the Veteran’s obesity, noted throughout his VA and private treatment records, may serve as an intermediary step between the claimed secondary disability and the service-connected primary disability. VA’s Office of General Counsel has noted that such opinions are necessary in such as the present. Accordingly, the Veteran’s appeal must be remanded in order to obtain medial nexus opinions that adequately address the etiology of the Veteran’s claimed disability under all theories of entitlement raised by the record. The matters are REMANDED for the following actions: 1. The AOJ must transfer the Veteran's electronic file to an appropriate VA clinician to determine the etiology of his obstructive sleep apnea. After a review of the complete record, the VA clinician is asked to address the following: a. Provide an opinion considering whether it is at least as likely as not that the Veteran's obesity is caused by or related to any of the Veteran's service-connected disabilities and/or medications prescribed for such. * In addressing the above, the examiner is asked to fully discuss whether any of the Veteran’s service-connected disabilities may limit his physical activities, and if so, whether such has contributed to his elevated BMI and obesity. b. If the response to part (a) is affirmative, provide an opinion regarding whether the Veteran's obstructive sleep apnea is caused or aggravated by the obesity stemming from his service-connected disabilities and/or medications prescribed for such. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 2. Thereafter, the AOJ must readjudicate the Veteran's appeal in light of any additional evidence added to the record. If the benefit sought on appeal remains denied, the Veteran should be furnished with a copy of the readjudication and be afforded the applicable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.