Citation Nr: 21021794 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-23 211 DATE: April 14, 2021 REMANDED Service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1969 to September 1971 and from October 1990 to August 1991. The Veteran asserts that he has sleep apnea due to service or, alternatively, due to a service-connected disability, to include posttraumatic stress disorder (PTSD) (70% 10/17/2014) and diabetes mellitus, type II (20% 02/08/2011). In February 2020, the Board of Veterans’ Appeals (Board) denied service connection for sleep apnea. The Veteran filed a timely appeal with the United States Court of Appeals for Veterans Claims (Court). Pursuant to a November 2020 Joint Motion for Remand (JMR) and Court Order, the Board’s decision was vacated and remanded for further action consistent with the JMR. Further opinions must be sought as to the etiology of his sleep apnea, to include on a direct and secondary basis. Specifically, in formulating a direct opinion the examiner must address the Veteran’s lay assertions that he has had problems sleeping since service in the Republic of Vietnam, and he is restless when he goes to sleep. See 04/27/2017 Hearing Transcript at 7. The Veteran’s spouse testified that his sleep problems and symptoms had been going on for 5 to 10 years. Id. at 9. The Veteran testified that he had problems sleeping “as the years went by.” He testified that during his service in the National Guard he would try to sleep, and fellow soldiers would wake him up and tell him that he was snoring loud. Id. In formulating a secondary opinion, the examiner must address a September 2018 VA mental health treatment record which reflects the Veteran’s report that he was “not sleeping” and “seeing as little as 1-2 hours” based on his Fitbit. He reported that on a good night he does not sleep more than 2 hours and he naps during the day in an upright chair. He does not use his CPAP, as he feels it makes him worse. The examiner diagnosed PTSD and sleep apnea and noted that his PTSD limits his use of the CPAP, but then sleep deprivation increases irritability and internal sense of fragility. 11/19/2019 CAPRI at 144, 147. Also, the Veteran asserts that due to his medication taken for diabetes mellitus, he has gained weight, which caused him to develop sleep apnea. 02/25/2011 VA 21-4138 Statement in Support of Claim. In January 2017, VA’s Office of General Counsel (OGC) issued a precedential opinion regarding whether obesity may be considered a “disease” for the purposes of service connection. In general, OGC concluded that obesity is not a disease or injury for purposes of service connection; however, obesity may act as an “intermediate step” between a service-connected disability and a current disability in a secondary service-connection analysis under 38 C.F.R. § 3.310(a). In effect, OGC concluded that if obesity is the result of a service-connected disability and was a substantial factor in the development of the current disability, entitlement to service connection for the current disability may be warranted. See VAOPGCPREC 1-2017. In order to determine if obesity is an “intermediate step,” an adjudicator must resolve the following issues: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity. If these questions are answered in the affirmative, the claimed disability may be service connected on a secondary basis. Id. Given the above, an opinion must be sought as to whether obesity was an intermediate step between his diabetes mellitus and sleep apnea. On Remand, associate updated VA treatment records with the claims folder. The matter is REMANDED for the following actions: 1. Associate updated VA treatment records with the claims folder for the period from November 7, 2019. 2. Request that a qualified clinician with appropriate expertise review the claims folder and opine as to the following: a) Is sleep apnea at least as likely as not due to active service? Consideration should be given to the Veteran’s lay assertions, to include his April 2017 testimony. See 04/27/2017 Hearing Transcript at 7-9. b) Is sleep apnea at least as likely as not caused by service-connected PTSD? c) If not, has sleep apnea at least as likely as not been aggravated beyond its natural progression by service-connected PTSD? If aggravation is found, the examiner should identify baseline level of disability prior to such aggravation. Consideration should be given to the September 2018 VA mental health treatment record. See 11/19/2019 CAPRI at 144, 147. d) Is sleep apnea at least as likely as not caused by service-connected diabetes mellitus, type II? e) If not, has sleep apnea at least as likely as not been aggravated beyond its natural progression by service-connected diabetes mellitus, type II? If aggravation is found, the examiner should identify the baseline level of disability prior to such aggravation. In rendering an opinion, the examiner must consider whether obesity is an “intermediate step” between sleep apnea and the Veteran’s service-connected diabetes mellitus, type II, and medication taken thereto. The examiner must address the following questions: i) whether it is at least as likely as not that service-connected diabetes mellitus, or medication taken thereto, contributed to the Veteran’s obesity; ii) if so, whether it is at least as likely as not that the obesity was a substantial factor in causing sleep apnea; and iii) whether sleep apnea would not have occurred but for obesity. A comprehensive discussion of how the requested opinions were reached would be of assistance to the Board in adjudicating this claim, to include citation to evidence in the record, known medical principles, and medical treatise evidence, where applicable. (Continued on the next page)   An examination should be scheduled only if deemed necessary by the examiner. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.