Citation Nr: 21021845 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 19-11 704 DATE: April 20, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) with CPAP, to include as secondary to obesity caused or aggravated by service-connected right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1980 to August 1982. This matter is before the Board of Veterans’ Appeal (Board) on appeal from an August 2017 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board denied the Veteran’s claim of entitlement to service connection for OSA in December 2019. The Veteran appealed the December 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court), and the Court vacated and remanded the issue due to inadequate reasons and bases put forth by the Board in denying the Veteran’s claim. The Veteran’s claim was remanded by the Board in October 2020 for additional evidentiary development. In accordance with the Board remand directives, the Veteran’s Social Security Administration (SSA) records were associated with his claims file and an addendum VA medical opinion was acquired. The issue has returned to the Board for appellate review. Entitlement to service connection for obstructive sleep apnea (OSA) with CPAP, to include as secondary to obesity caused or aggravated by service-connected right knee disability is remanded. The Board sincerely regrets the delay, but additional development is necessary to secure an adequate medical opinion. The Veteran asserts that his sleep apnea is causally related to his service-connected right knee disability. Specifically, the Veteran contends that chronic right knee pain has prevented him from exercising which has caused or aggravated his obesity which in turn caused his OSA. Obesity, for purposes of service connection, is not considered a disease or disability for purposes of establishing entitlement to service connection under 38 U.S.C. § 1110 and 1131, or for purposes of establishing secondary service connection under 38 C.F.R. § 3.310. Obesity, however, may qualify as an “intermediate step” between a service-connected disability and a current disability where a claimant establishes that the obesity was caused by a service-connected disability and caused his or her the current disability. VAOPGCPREC 1-2017. Where obesity is asserted to be an intermediate step, the evidence must show that the service-connected disability “caused the veteran to become obese,” that the obesity caused by the service-connected disability “was a substantial factor in causing” the current disability, and that the current disability “would not have occurred but for” the obesity caused by the service-connected disability. Id. In Walsh v. Wilkie, 32 Vet. App. 300 (2020), the Court further held that the Board needs to consider the obesity-intermediate step theorem predicated on 3.310 (aggravation) also where appropriate. In particular, the Court held that proper interpretation of G.C. Prec. Op. 1-2017 requires consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability (caused the veteran to become obese/aggravated the veteran’s obesity); (2) if so, whether the (obesity/aggravation of obesity) as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for (obesity caused/obesity aggravated) by the service-connected disability. If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. In accordance with the August 2020 JMR, the Board remanded the Veteran’s claim in October 2020 to obtain a VA medical opinion to determine whether obesity is related to the Veteran’s service-connected right knee disability as an intermediate step. An addendum opinion was obtained in December 2020. The VA examiner opined that there is no objective evidence to support that the Veteran’s right knee disability caused him to become obese, leading to OSA. In support of this opinion, the VA examiner cited to the Veteran’s 2006 workman’s compensation treatment records, noting that the Veteran denied prior trauma to his right leg and that he was already obese at the time. The VA examiner further reasoned that there is no objective evidence to support aggravation due to obesity. In support of this, the VA examiner stated that record review is silent for any right knee contribution to obesity and again noted that he was obese at the time of his workman’s compensation injury in 2006. The Board finds that this opinion is inadequate, and another opinion is warranted. Specifically, the Board notes that the Veteran has been service-connected for a right knee strain, status post knee injury, since August 1982. Yet, the December 2020 VA examiner seems to have based her entire opinion on the Veteran’s non service-connected right leg lymphedema and associated workman’s compensation treatment records in 2006. Furthermore, the VA examiner stated that there is no objective evidence to support that the Veteran’s right knee disability caused the Veteran to become obese and that obesity is primarily a condition of eating too many calories. However, the examiner failed to meaningfully address the Veteran’s lay contentions that his right knee disability prevented him from exercising and thus caused or aggravated his obesity, which in turn caused or aggravated his OSA. For these reasons, the Board finds another examination must be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Obtain an addendum VA opinion from a medical professional familiar with OSA. The examiner should review the Veteran’s claims file and provide a complete explanation for any decision reached. Based on a review of the record (and a new examination only if deemed necessary by the VA medical opinion provider), the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s OSA was caused or aggravated by his service-connected right knee disability; (b.) Whether it is at least as likely as not that the right knee disability (i) caused or (ii) aggravated the Veteran’s obesity; (c.) If the answer to (b.) is yes, then whether it is as least as likely as not that the Veteran’s obesity was a substantial factor in causing his OSA; and (d.) If the answer to (c.) is yes, then, whether it is at least as likely as not that the Veteran’s OSA would not have occurred but for obesity caused by the Veteran’s right knee disability. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. “Aggravation” means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. 2. Then, readjudicate the appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Slaughter, Associate 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.