Citation Nr: 21011563 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-34 713A DATE: March 2, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1989 to October 1989, from September 1996 to May 1999, and from July 2002 to March 2003. In December 2018, the Veteran appeared for a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In June 2019, the Board remanded this claim for additional development. The Board requested that a VA examination and medical opinion be arranged to determine the nature and etiology of the Veteran’s OSA. The Board specifically instructed that the examiner must determine whether the Veteran’s sleep apnea was caused or aggravated by his service-connected diabetes mellitus, type II and consider the Veteran’s statements and the May 2014, January 2017, and January 2019 private treatment provider letters. In November 2019, a VA examination was conducted with the examiner opining that the claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition. The examiner stated that the medical literature did not support a contention that diabetes mellitus caused OSA. The examiner also stated that although the Veteran’s private neurologist had stated that OSA might make diabetes mellitus harder to control, he did not provide any support for that cause and effect argument. The examiner went on to note that the Veteran had 3 out of the 4 highest risk factors associated with OSA, which included male gender, age over 40, and obesity. The Board finds, however, that the November 2019 VA medical opinion does not comply with the June 2019 remand instructions. Specifically, the VA examiner did not provide an aggravation opinion, did not address the Veteran’s statements that suggest his diabetes caused obesity, which in turn caused OSA, and did not address the January 2017 private medical opinion that suggests the Veteran’s weight gain is a result of dysmetabolic syndrome resulting from diabetes mellitus. See December 2018 Board Hearing Transcript. As the November 2019 VA examination does not comply with the previous remand instructions, the Board finds that remand is warranted for a new VA examination consistent with the directives herein. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board acknowledges that, while obesity is not a disability that qualifies for service connection and does not qualify as an in-service event to warrant service connection for another disability, it can act as an intermediate step to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. Here, obesity would be an intermediate step in establishing secondary service connection for OSA if: 1) the Veteran’s service-connected disabilities caused or aggravated his obesity; 2) obesity was a “substantial factor” in the development of OSA; and 3) OSA would not have occurred but for the obesity caused by the service-connected disabilities. On remand, the VA examiner must address these questions. The Veteran representative, by and on his behalf, has also asserted that the Veteran’s OSA is related to his other service-connected disabilities, to include his abdominal hernia with reflux. See February 2021 Appellate Brief. Accordingly, the VA examiner must also address whether the Veteran’s OSA is etiologically related to his other service-connected disabilities. The matter is REMANDED for the following action: Obtain a VA medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran's OSA and obesity. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. a) The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's sleep disorder, to include sleep apnea is caused or aggravated by his service-connected disabilities, to include diabetes mellitus, type II; peripheral neuropathy left/right lower extremities; thoracic spine disorder; abdominal hernia with reflux). Aggravation in this context is defined as any increase in disability. b) The examiner must also provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's service-connected disabilities (to include diabetes mellitus, type II; peripheral neuropathy left/right lower extremities; thoracic spine disorder; and abdominal hernia with reflux) have caused or aggravated his obesity and, if so, whether the Veteran's obesity is a substantial factor in the development of his OSA, such that OSA would not have occurred but for the obesity. In rendering the above opinion, the examiner must specifically consider and discuss the Veteran’s December 2018 hearing testimony that he thinks his diabetes mellitus medication and neuropathy caused his obesity, the January 2017 private physician statement that suggests the Veteran’s weight gain was the result of his diabetes mellitus, and the February 2021 brief that suggests Veteran’s OSA is related to his service-connected abdominal hernia with reflux. A rationale for all requested opinions shall be provided. The rationale must include a discussion of the underlying medical principles specific to the facts of this case and not simply reference generic medical literature. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 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 that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Metzner, Paul 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.