Citation Nr: 21023101 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-08 024 DATE: April 20, 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 February 1987 to February 1994. The matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision. This case was originally remanded by the Board in September 2015 and April 2016 for further development. The Board issued a decision in this case in April 2017 denying the Veteran’s claim for service connection for sleep apnea. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (CAVC), which vacated the April 2017 decision in an order granting a joint motion for remand (JMR). The matter was most recently before the Board in July 2019, when the Board remanded for further development, to include an adequate VA medical examination. Another remand is necessary to afford the Veteran all consideration due to him under the law. The Veteran seeks entitlement to service connection for obstructive sleep apnea. See June 2009 VA Form 21-4138. He contends that he has experienced sleep problems and has had symptoms since he was in active duty, including snoring, sleeplessness, and daytime sleepiness. He contends that his snoring was so bad that he and his wife had to sleep in separate rooms. See June 2009 VA Form 21-4138; see also September 2009 VA Form 21-4138. The Veteran contends that his sleep apnea is secondary to his allergy rhinitis and sinusitis. See September 2009 VA Form 21-4138. The Veteran has also contended that his sleep apnea could have been due to the air, food, and chemicals he was exposed to during service or related to his class III Mallampati score, a congenital defect. See January 2011 VA Form 21-4138; see also March 2013 VA Form 9. The AOJ obtained a November 2019 VA medical opinion pertaining to the issues of whether the Veteran’s sleep apnea is secondary to his service-connected disabilities, related to his exposure to the elements such as air, food, or chemicals during service, or an extension of a congenital defect. See November 2019 VA examination report. However, most recently, the Veteran has contended that his sleep apnea is secondary to, related to, and/or aggravated by his service-connected sinusitis and decreased activity, leading to weight gain and obesity. See October 2020 VA Form 21-4138. No VA medical examiner has opined on the issue of whether the Veteran’s weight gain that did occur was caused by his service-connected disabilities, such that obesity could serve as an “intermediate step” for establishing service connection on a secondary basis. See VAOPGCPREC 1-2017 (January 6, 2017). Such inquiry extends both to causation and to aggravation. See Walsh v. Wilkie, 32 Vet. App. 300 (Feb. 24, 2020). Accordingly, remand is necessary to obtain an opinion regarding this issue. The matter is REMANDED for the following action: 1. Obtain an addendum opinion addressing the etiology of the Veteran’s sleep apnea. Following a review of the entire record, including the Veteran’s lay statements, the reviewing clinician should address whether the Veteran’s obesity is secondary to his service-connected disabilities, and whether his obesity caused his obstructive sleep apnea. In providing a response, the examiner should answer each of the following in sequence: (i) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected disabilities (to specifically include allergic rhinitis and chronic sinusitis) caused him to become obese, or aggravated his obesity? (ii) If so, was the obesity that resulted from or was aggravated by the service-connected disabilities a substantial factor in causing sleep apnea? (iii) If the answer to question (ii) is “yes,” would the Veteran’s obstructive sleep apnea not have occurred but for his obesity caused or aggravated by his service-connected disabilities? In offering any opinion, the examiner must consider the full record, to include the Veteran’s lay statements, and the opinion should reflect such consideration. A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles involved must be provided. If it is the determination of the opinion provider than an in-person or telehealth examination or interview is required to provide responses to the questions above, such should be scheduled. 2. Thereafter, readjudicate the appeal. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case and an appropriate period of time should be allowed for response. Jenna Brant Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Fulmer, 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.