Citation Nr: 21010410 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-59 336 DATE: February 24, 2021 ORDER Service connection for obesity is denied. REMANDED Service connection for obstructive sleep apnea (OSA) is remanded. FINDING OF FACT The Veteran testified that he believes that his OSA is the cause of his obesity but does not claim that his obesity caused any additional disability. Accordingly, the Board cannot construe the Veteran’s claim for service connection for obesity as a claim for service connection for a disability for which obesity can be a link, therefore service connection can be granted. CONCLUSION OF LAW The criteria for service connection for obesity have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1976 to January 1977 and from February 1977 to September 1986. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran filed a Notice of Disagreement (NOD) with the March 2016 rating decision. In May 2019, a videoconference hearing was held before the undersigned Veterans Law Judge. A copy of the transcript is associated with the file. Service connection for obesity is denied. Legal Criteria Generally, direct service connection may be established for a disability resulting from a disease, injury, or event, incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). VA has established that obesity is not a disability for which service connection can be awarded directly. VA General Counsel Opinion VAOPGCPREC 1-2017 (Jan 6, 2017). Nonetheless, obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. To grant service connection, VA would have to resolve the following issues: (1) whether a service-connected disability caused a veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability for which a veteran is seeking service connection; and (3) whether the current disability for which a veteran is seeking service connection would not have occurred but for the obesity caused by the service-connected disability. Id. at 9-10. Factual Background A review of the Veteran’s service treatment records show that he had a diagnosis of obesity while he was in service, as noted in a September 1982 Chronological Record of Medical Care. See STR added in August 2013. In a June 1987 Risk Factor Screening/Physical Readiness Test form, the Veteran reported that he had been medically diagnosed with obesity. At that time, he was placed on a weight control program. See August 2013 STR. In a December 2015 VA medical treatment record, the physician treating the Veteran reported that she discussed with him the importance of losing weight to decrease the severity of his OSA. See CAPRI added March 2019. The Veteran testified at May 2019 Board hearing that he believes his obesity is the cause of his OSA because he would be tired in the afternoon after he got off duty and did not feel like doing anything besides nap. Analysis As noted above, the VA General Counsel opinion states that obesity per se is not a disease or injury for purposes of 38 U.S.C. § 1131 and that therefore service connection cannot be granted on a direct basis. VAOPGCPREC 1-2017 at 1. As for obesity being an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis, the Veteran has not identified a disability caused by weight gain. The Veteran testified that his OSA was the cause of his obesity but does not claim that his obesity caused an additional disability. Accordingly, the Board cannot construe the Veteran’s claim of entitlement to service connection for obesity as a claim of service connection for another disability for which service connection can be granted. As such, the appeal for service connection for obesity must be denied. REASONS FOR REMAND Service connection for OSA is remanded. In June 2014, the Veteran underwent a VA sleep study. The physician who provided the sleep study consult diagnosed the Veteran with severe obstructive sleep apnea syndrome with moderate desaturation with symptoms suggestive of sleep disordered breathing, obesity and excessive daytime somnolence. In February 2017, the Veteran was afforded a VA sleep apnea examination, but the examiner did not provide an opinion about the cause of the Veteran’s OSA. At the May 2019 Board hearing, the Veteran testified that during service he had sleep trouble symptoms which included waking up and gasping for air. He also testified that when he sought treatment for his snoring, he was diagnosed with sinus polyps and underwent surgery for that condition. The Veteran also testified that in 1988, after he left service, he was diagnosed with OSA. Finally, the Veteran testified that he was told by doctors that his OSA was related to his service-connected sinusitis. See May 2019 Hearing Transcript. The Board finds that this issue must be remanded for further development. The Veteran has a current diagnosis of OSA and has provided competent and credible testimony that he experienced symptoms of OSA during service as well as being told by a doctor that his OSA was related to his service-connected sinusitis. Although the Veteran has been provided a VA examination for his OSA, the February 2017 examiner did not provide an opinion as to its cause or whether the disability was related to the Veteran’s service. Accordingly, a remand is necessary in order to obtain an additional opinion because there is an indication of causality between the Veteran’s disability and his service-connected sinusitis. See Jandreau v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and cause of any OSA. Based on a review of the record, examination of the Veteran, and any tests or studies deemed necessary, the examiner must opine as to the following: (a.) Whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that the Veteran’s OSA is related to the Veteran’s military service. (b) Whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that the Veteran’s OSA is related to the Veteran’s service-connected sinusitis. All opinions must include a detailed explanation (rationale). By law, the Board may not rely on any conclusion that is unsupported by a thorough explanation. Providing an opinion without an explanation will delay processing of the claim and may require further clarification. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.