Citation Nr: 21015692 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-11 459 DATE: March 18, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1981 to January 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2015 by a Department of Veterans Affairs (VA) Regional Office. While the Veteran requested a Board hearing in his March 2016 substantive appeal, he later withdrew such request in January 2019. 38 C.F.R. § 20.704(e). In March 2019, the Board remanded the appeal for additional development and it now returns for further appellate review. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities. The Veteran contends that his sleep apnea, which was diagnosed by sleep study in November 2012, had its onset in service, or is caused or aggravated by his service-connected disabilities, to include as a result of inactivity and weight gain. In March 2019, the Board found that opinions obtained in November 2014 and January 2016 addressing the secondary aspect of the Veteran’s claim to be inadequate. Thus, the claim was remanded in order to obtain an addendum opinion addressing whether the Veteran’s sleep apnea was caused or aggravated by his service-connected disabilities. Thereafter, an addendum opinion was obtained in June 2020. At such time, the examiner opined that it was not likely the Veteran’s service-connected disabilities individually caused his sleep apnea. In support thereof, he explained that the Veteran had a tremendous host of medical comorbidities that could cause his sleep apnea, and the more pressing risk factors would be morbid obesity, smoking, hypercoagulable state, and others. Thus, he concluded it was unlikely the Veteran’s service-connected disabilities would cause his sleep apnea as each one was not a specific risk factor that could affect upper airway architecture. The examiner also stated that, when all the service-connected disabilities were combined, it would be unknown if all of these disabilities, in combination, would cause his sleep apnea as he had a tremendous host of non-service-related risk factors and comorbidities that could cause his sleep apnea. Consequently, he opined that it was less likely the Veteran’s sleep apnea was aggravated beyond normal progression by his service-connected disabilities as a review of the record did not suggest any true worsening beyond normal progression/treatment for the same. However, the June 2020 VA examiner did not adequately address whether the Veteran’s service-connected disabilities resulted in obesity that caused or aggravated his sleep apnea. In this regard, obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). See VAOPGCPREC 1-2017. Specifically, in order to show secondary service connection is warranted under such a theory, a veteran must show (1) that his service-connected disability caused him to become obese; and, if so, (2) whether the obesity as a result of the service-connected disability was a substantial factor in causing his claimed condition; and (3) whether the claimed condition would not have occurred but for obesity caused by the service-connected disability. Id. Further, the Court recently confirmed that such extension of service connection through obesity as an intermediary step should be addressed on the basis of aggravation as well. See Walsh v. Wilkie, 32 Vet. App. 300 (2020). Thus, another remand is necessary in order to obtain an addendum opinion addressing such matter. The matter is REMANDED for the following action: Forward the record, to include a copy of this remand, to an appropriate VA clinician for an addendum opinion addressing the etiology of the Veteran’s sleep apnea. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that (1) the Veteran’s service-connected disability/ies caused him to become obese and, if so, (2) whether such resulting obesity was a substantial factor in causing or aggravating his sleep apnea and (3) whether his sleep apnea would not have occurred or worsened but for the obesity caused by his service-connected disabilities. The examiner is advised that the Veteran’s service-connected disabilities include: persistent depressive disorder (dysthymia) and unspecified neurocognitive disorder; soft tissue injury of the lumbar spine, compression fractures T6 and T11; right shoulder dislocation of the acromioclavicular joint; chronic fatigue syndrome; right ureteral calculus; bilateral ankle degenerative arthritis; right knee degenerative arthritis with meniscal tear; left knee tri-compartment degenerative joint disease; radiculopathy of the right and left lower extremities involving the sciatic/anterior tibial nerves; right hip degenerative arthritis with limited extension, flexion, abduction, and adduction; left hip degenerative arthritis with trochanteric pain syndrome and limited extension, flexion, abduction and adduction; bilateral ankle degenerative arthritis; median nerve neuropathy of the right and left upper extremities; right shoulder, limited motion of the arm above shoulder level; chronic diarrhea; external hemorrhoids, erectile dysfunction, Burkitt’s lymphoma; and nontender chest scar from port. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, 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.