Citation Nr: 21007255 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 13-03 252 DATE: February 9, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1984 to August 1990. The matter is before the Board on appeal from an April 2015 rating decision by the agency of original jurisdiction (AOJ). The Veteran requested a hearing before the Board, and such was scheduled for March 2018; however, the Veteran cancelled the request. To date, neither the Veteran nor her representative have requested that the hearing be rescheduled. As such, the Board considers the request for hearing withdrawn. The matter was most recently before the Board in August 2020, when the Board remanded for further development. The Board regrets having to again delay adjudication of the Veteran’s claim. However, this remand is necessary to ensure compliance with the Board’s prior remand instructions, and to afford the Veteran all consideration due to her under the law. The Veteran seeks entitlement to service connection for obstructive sleep apnea. See December 2014 VA Form 21-526EZ. She contends that she has problems with sleeping, choking in her sleep, and being unable to breathe, and that she averages about 2 to 3 hours of sleep a night because she is afraid to go to sleep. See June 2015 Notice of Disagreement. She also contends that her sleep apnea syndrome has developed because of her hypertension and arrhythmia and that when her heart begins to skip her breathing is affected; it happens more when she sleeps, and she wakes up gasping for air. See September 2016 VA Form 9. The Veteran also contends that her sleep apnea is secondary to her service-connected major depressive disorder (MDD). See June 2019 Appellant’s Brief. The record indicates that the Veteran reported that not getting enough physical activity and feeling bad about herself were reasons for her obesity. See April 2006 VA treatment records. The Agency of Original Jurisdiction (AOJ) obtained a September 2020 medical opinion. However, this medical opinion does not provide an adequate rationale regarding whether the Veteran’s sleep apnea is caused or aggravated by her service-connected disabilities. Further, while the Board noted in its August 2020 remand that the Veteran is competent to report her symptoms and history and that such reports must be acknowledged and considered in formulating any opinion, the medical opinion does not address the Veteran’s lay statements. The September 2020 VA examiner concluded that the Veteran’s service-connected disabilities of hypertension, coronary artery disease, and MDD are not established primary etiologies of sleep apnea in the medical literature and that the Veteran’s sleep apnea is more likely secondary to her morbid obesity. The examiner further opined that, while MDD as well as associated treatments can lead to weight gain, weight gain is multifactorial and can be prevented by exercise and dietary discretion which would not be influenced by depression or associated medications. The examiner seemed to rely on the fact that the Veteran was able to voluntarily prevent weight gain; however, the question is not whether the Veteran has the ability to prevent weight gain through diet and exercise, but rather whether the weight gain that did occur was caused by her service-connected disabilities, such that obesity could serve as an “intermediate step” for establishing service connection on a secondary basis. See VAOPGCPREC 1-2017 (January 6, 2017). Such inquiry extends both to causation and to aggravation. See Walsh v. Wilkie, 32 Vet. App. 300 (Feb. 24, 2020). The matter is REMANDED for the following action: 1. Obtain and addendum opinion addressing the etiology of the Veteran’s sleep apnea. Following a review of the entire record, including the Veteran’s lay statements, the reviewing clinician should address the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was caused or aggravated beyond its natural progression by her service-connected disabilities, including hypertension, coronary artery disease, and major depressive disorder? In particular, the examiner should address whether the Veteran’s obesity is secondary to her service-connected disabilities, and whether her obesity caused her obstructive sleep apnea. In providing a response, the examiner should answer each of the following in sequence: (i) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected disabilities (to specifically include hypertension, coronary artery disease and/or major depressive disorder) caused her to become obese, or aggravated her obesity? (ii) If so, was the obesity that resulted from or was aggravated by the service-connected disabilities a substantial factor in causing sleep apnea? (iii) If the answer to question (ii) is “yes,” would the Veteran’s obstructive sleep apnea not have occurred but for her obesity caused or aggravated by her service-connected disabilities? In offering any opinion, the examiner must consider the full record, to include the Veteran’s lay statements, and the opinion should reflect such consideration. A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles involved must be provided. If it is the determination of the opinion provider than an in-person or telehealth examination or interview is required to provide responses to the questions above, such should be scheduled. 2. Thereafter, readjudicate the appeal. If the benefit sought remains denied, the Veteran and her representative should be issued a supplemental statement of the case and an appropriate period of time should be allowed for response. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Fulmer, 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.