Citation Nr: 21023752 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-28 409 DATE: April 21, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1989 to October 1994. The Veteran appeals an August 2015 rating decision by the Agency of Original Jurisdiction (AOJ). Most recently, in May 2020, the Board of Veterans’ Appeals (Board) remanded the Veteran’s claim to the AOJ for further action consistent with the Board’s remand directives. As such, the case has returned to the Board for further appellate proceedings. However, as explained below, the Board finds that another remand is necessary in order to provide the Veteran with an adequate examination and/or opinion. The Veteran has OSA. See July 2015 VA examination report. The Veteran contends that his OSA is due to service, to include exposure to aircraft fuel and other chemicals he was exposed to while on active duty. See April 2020 Veteran statement. Additionally, the Veteran contends that his OSA is secondary to his service-connected psychiatric disorder and/or his left distal tibia and fibula fracture of the ankle with residual arthritis. Preliminarily, the Board notes that the Veteran’s OSA has been linked to his obesity. See September 2020 VA medical opinion. The September 2020 VA opinion concludes, “It is more than likely the Veteran’s OSA is due to his morbid obesity.” Id. However, the clinician did not discuss the relationship between the Veteran’s service-connected psychiatric disorder and obesity. Precedential VA General Counsel Opinion 1-2017 holds that obesity may be 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 (Jan. 6, 2017). As explained below, the record contains some evidence discussing a link between the Veteran’s psychiatric disorder and obesity. Here, the Veteran’s VA treatment records indicate that he takes an antidepressant for his service-connected psychiatric disorder. Notably, he has been counseled on various occasions that his antidepressant may cause weight gain. See, e.g., July 2019 VA treatment note; see also June 2018, December 2018, and May 2018 VA treatment notes. Thus, the Board finds that there is evidence of record to reasonably raise the theory of secondary service connection via obesity as an intermediate step. See Garner v. Tran, U.S. Vet. App. No. 18-5865 (Jan. 26, 2021) (providing a list of six non-exhaustive considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step, including obesity as a side effect of medication where the medication is prescribed for a service-connected disability). Therefore, remand is required because while the September 2020 VA opinion discussed the link between obesity and OSA, it did not explain whether the Veteran’s obesity could serve as an intermediate step between his service-connected psychiatric disorder and OSA. Further, the Veteran’s representative submitted an October 2020 statement that contends the most recent VA examination and opinion did not properly address the Veteran’s contention that his OSA is due to chemical exposure while in service. See October 2020 representative statement. The May 2020 Board remand directives specifically state that the examiner should address “in-service chemical exposure” as a possible cause of the Veteran’s OSA. See May 2020 Board remand directives. While the June 2020 VA examiner opined that the Veteran’s exposure to aircraft fuel did not cause his OSA, they did not address the other chemicals listed by the Veteran in his April 2020 statement wherein he lists multiple different chemicals he contends he was exposed to while on active duty. Specifically, he lists: toluene, benzines, trimethylbenzenes, xylenes, n-Hexane, electrical conductivity/static dissipator additives (SDAs), and corrosion inhibitor. See April 2020 Veteran statement. Thus, the Board finds remand is warranted in order to properly address the Veteran’s contention regarding chemicals he was exposed to and any potential link to his OSA. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his OSA that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Obtain an opinion from an appropriately qualified VA clinician to determine the nature and etiology of the Veteran’s OSA. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The opinion must include a notation that this record review took place. It is up to the discretion of the clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary by the clinician, the VA clinician should identify all sleep disabilities present. Then, the VA clinician is asked to respond to the following: (a.) Is it at least a likely as not that the Veteran’s OSA was incurred in or is otherwise related to active service, to include in-service chemical exposure, including but not limited to the chemicals listed on the Veteran’s April 2020 statement? (b.) Is it at least as likely as not that the Veteran’s obesity was proximately caused or aggravated by his service-connected psychiatric disorder, to include medications (including antidepressants) used to treat the psychiatric disorder? (c.) If so, is it at least as likely as not that the Veteran’s OSA was proximately caused or aggravated by his obesity? (d.) Is it at least as likely as not that the Veteran’s obesity was proximately caused or aggravated by his service-connected left distal tibia and fibula fracture of the ankle with residual arthritis? (e.) If so, is it at least as likely as not that the Veteran’s OSA was proximately caused or aggravated by his obesity? In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that question 3. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.