Citation Nr: 21013767 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-00 740 DATE: March 10, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected back disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1994 to July 1997. His decorations include the National Defense Service Medal and the Overseas Service Ribbon. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. This case was previously before the Board in June 2018, November 2019, and November 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. On each occasion, after taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim and to afford him every possible consideration. Entitlement to service connection for sleep apnea, to include as secondary to service-connected back disability, is remanded. The Veteran seeks to establish service connection for sleep apnea. He asserts that his sleep apnea symptoms, to include trouble sleeping, chest pain, and waking up at night gasping for air, began during service. See October 2011 Statement in Support of Claim. Alternatively, the Veteran contends that his sleep apnea is secondary to his service-connected back disability. Multiple VA medical opinions have been obtained in an effort to assess the etiology of the Veteran’s sleep apnea. Most recently, a November 2020 VA examiner opined that the Veteran’s sleep apnea was less likely than not related to his service-connected back disability. In support of that opinion, the examiner noted that sleep apnea and the Veteran’s back disability are “two separate and distinct entit[ie]s” and that “back pain does not cause sleep apnea or weight gain.” Although service connection is not allowed for obesity on its own, obesity can act as an “intermediate step” to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. See VAOPGCPREC 1-2017. The VA General Counsel has indicated that establishing service connection in a case such as the Veteran’s requires resolution of three issues: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity due to the service-connected disability was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity caused by the service-connected disability. Id. In a recent decision, the United States Court of Appeals for Veterans Claims (Court) modified the analysis set out in the General Counsel’s opinion, holding that in considering whether obesity is an “intermediate step,” consideration must be given to whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310. Walsh v. Wilkie, 32 Vet. App. 300 (2020). Here, the November 2020 examiner was not asked to address, and did not explicitly address, the question of whether the Veteran’s obesity had been aggravated by his service-connected back disability. In addition, in arriving at his conclusions, the examiner did not account for the Veteran’s lay assertions with respect to onset and recurrence of symptomatology since service, specifically the Veteran’s contention that he would wake up gasping for air while in service. As such, an addendum opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed, make arrangements to provide the record on appeal to the VA examiner who previously offered opinions with respect to the etiology of the Veteran’s sleep apnea in November 2020. The examiner should be asked to review the expanded record and prepare a supplemental report offering an opinion as to each of the following questions: a. Is it at least as likely as not (i.e., is it 50 percent or more probable) that the Veteran’s sleep apnea began during service or is otherwise causally or etiologically related to service? b. Is it at least as likely as not that the Veteran’s service-connected back disability caused the Veteran to become obese, or aggravated his obesity, whether by interfering with his ability to exercise or otherwise? c. If so, is it at least as likely as not that the obesity due to service-connected back disability was a substantial factor in causing the Veteran’s sleep apnea? d. Is it at least as likely as not that the Veteran’s sleep apnea would not have occurred but for the obesity caused or aggravated by his service-connected back disability? In so doing, the examiner must address the Veteran’s lay assertions with respect to onset and recurrence of symptomatology since service. Specifically, the examiner must address the Veteran’s contention that he would wake up at night gasping for air while in service. If the prior examiner is no longer employed by VA, or is otherwise unable to provide the opinions requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinions. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph T. Leonard, Law Clerk 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.