Citation Nr: 21024844 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 12-26 406 DATE: April 26, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) with alcohol abuse and dysthymic disorder is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from June 1968 to June 1972, to include service in the Republic of Vietnam. He received several decorations and awards for his service, including the Combat Action Ribbon, Purple Heart Medal, and the Cross of Gallantry with Palm. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). By way of history, this claim was previously remanded to the Agency of Original Jurisdiction (AOJ) by the Board in December 2014 for further evidentiary development. Following such development, the Board issued a decision in June 2018 denying entitlement to service connection for sleep apnea. The Veteran subsequently appealed the June 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). During the pendency of the appeal, both the Veteran and VA agreed to remand the claims back to the Board based on inadequate evidence and memorialized this effort in a Joint Motion for Remand (JMR). The Court also memorialized the JMR in an April 2019 Order. Following the Court’s remand, the Board then remanded the Veteran’s claim in August 2019 and October 2020. It has since been returned to the Board for further review. While the Board regrets the additional delay, another remand is warranted, as discussed in further detail below. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD with alcohol abuse and dysthymic disorder is remanded. The Veteran contends that his current sleep apnea is related to his service-connected PTSD, such that he is entitled to service connection on a secondary basis. Alternatively, the Veteran contends that his PTSD has caused or aggravated his obesity, which results in obesity serving as an intermediate step between his service-connected PTSD and his current sleep apnea, warranting service connection on a secondary basis. See e.g., March 2021 correspondence. Pursuant to the October 2020 Board decision, the AOJ obtained an addendum opinion from a VA examiner where he was asked to opine whether it was at least as likely as not that his obesity was proximately caused and/or aggravated by his service-connected PTSD with alcohol abuse and dysthymic disorder. If so, the examiner was also directed to opine whether it is at least as likely as not that the Veteran’s obstructive sleep apnea was then proximately caused or aggravated by his obesity. The AOJ obtained the addendum opinion from a VA examiner in January 2021. The January 2021 VA examiner did not adequately address the aggravation prong of secondary service connection in the opinion. The VA examiner concluded that addressing aggravation “is not warranted” because the Veteran’s obesity “is not caused by his service-connected PTSD.” However, this conclusion is premised on faulty logic and an incorrect legal standard. The question of secondary aggravation must be addressed separately from the question of secondary causation. VA defines proximate cause as "a cause that directly produces an event and without which the event would not have occurred." VAOPGCPREC 1-2017 (relying on past General Counsel precedential decisions and Black's Law Dictionary, 7th ed. 1999). VA further clarifies that "[w]hen there are multiple causes of a harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action." VAOPGCPREC1-2017 (citing Shyface v. Sec'y of Health & Human Svs., 165 F.3d 1344, 1352 (Fed. Cir. 1999)). VA has also determined that the question of proximate cause "is basically one of fact" for adjudication personnel to decide. VAOPGCPREC1-2017. This theory of entitlement based on an intermediary step has also been extended by the Court to claims based on aggravation. See Walsh v. Wilkie, 32 Vet. App. 300 (2020) (holding that VAOGCPREC 1-2017 does not prohibit inquiry into whether a service-connected disability aggravates the intermediate step under 38 C.F.R. § 3.310(b)). Thus, on remand, a supplemental medical opinion should be provided which adequately addresses the underlying questions pertaining to the theory of entitlement to service connection on a secondary basis: whether the Veteran’s sleep apnea was proximately caused or aggravated by service-connected disability and whether his obesity is an intermediate step between his sleep apnea and service-connected disability. The matters are REMANDED for the following action: Obtain a supplemental opinion from an appropriate clinician concerning the Veteran’s obstructive sleep apnea. The clinician must be provided with the entire claims file, to include a copy of this remand, and must note in the examination report that he/she has reviewed the file. If additional examination is found necessary to address the below inquiries, such should be scheduled, and the Veteran provided with appropriate notice. Following a review of the evidence of record, including but not limited to the Veteran's lay statements, and remarks and medical literature submitted by the Veteran’s attorney in March 2021, the clinician must address the following: a. Is it at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea is proximately due to one or more of his service-connected disabilities, including PTSD? b. Is it at least as likely as not that the Veteran’s sleep apnea is aggravated beyond its natural progression by one or more of the Veteran's service-connected disabilities, including PTSD? The clinician must also discuss the Veteran’s contention that his service-connected disabilities, to include PTSD, have caused or aggravated his obesity, which in turn caused or aggravated his sleep apnea. In so doing, the examiner must address the following: c. Is it at least as likely as not that the Veteran’s obesity was proximately caused by one or more of his service-connected disabilities? If the clinician finds that obesity was caused by one or more of the Veteran’s service-connected disabilities, an opinion should be offered for each of the following: i. Is it at least as likely as not that obesity was a substantial factor in causing or aggravating the Veteran’s sleep apnea; and ii. Is it at least as likely as not that the Veteran’s sleep apnea would not have occurred/ been aggravated but for the Veteran’s obesity? d. Is it at least as likely as not that the Veteran’s obesity was aggravated beyond its natural progression by one or more of his service-connected disabilities? If the clinician finds that obesity was aggravated by one or more of the Veteran’s service-connected disabilities, an opinion should be offered for each of the following: i. Is it at least as likely as not that the aggravation of obesity as a result of service-connected disability was a substantial factor in causing or aggravating the Veteran’s sleep apnea; and ii. Is it at least as likely as not that the sleep apnea would not have occurred/ been aggravated but for obesity aggravated by service-connected disability? The question of secondary aggravation must be addressed separately from the question of secondary causation. The clinician must note that a statement to the effect that there is no aggravation because sleep apnea or obesity is not "caused by," "a result of," or "secondary to" another disability will be considered inadequate, and will necessitate a further opinion. The clinician must provide a clear statement of the underlying reasons for all opinions and conclusions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A. SOLOMON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.