Citation Nr: 21027294 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-31 018 DATE: May 5, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as due to service-connected disease or injury is remanded. REASONS FOR REMAND The Veteran had active duty in the U.S. Army from June 1969 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Board remanded this issue to the RO for additional development. As explained in further detail below, additional development is needed prior to adjudication. Entitlement to service connection for sleep apnea, to include as due to service-connected disease or injury The Veteran contends that he is entitled to service connection for sleep apnea. He believes his service-connected posttraumatic stress disorder (PTSD) caused him to gain weight, which subsequently caused him to develop sleep apnea. The Veteran attended a VA examination in December 2014. Following an examination and review of the claims file, the examiner determined that the Veteran's sleep apnea was less likely than not caused by his service or his PTSD. A VA opinion regarding whether the Veteran's PTSD aggravated his sleep apnea was obtained in December 2019. Further development is required before a decision may be made on the merits of the remaining claims. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA provides a medical opinion, it must be adequate for decisional purposes). A VA examiner has not addressed the Veteran's contentions that his PTSD caused obesity which in turn led to the development of sleep apnea. The Board notes that VA's Office of General Counsel has held that obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis. See VAOPGCPREC 1-2017. In order to meet such criteria, the evidence must show that a previously service-connected disability caused a veteran to become obese; that obesity was a substantial factor in causing the secondary disability; and the secondary disability would not have occurred but for the obesity. Id. In May 2012 correspondence, the Veteran submitted lay statements indicating that he gained significant weight because of his PTSD. In contradiction to his statement, he submitted a letter from a private doctor in May 2012 which stated that it was sleep apnea that caused weight gain. He also submitted a November 2014 letter from his private endocrinologist who noted that PTSD causes an increased in stress hormones that raise insulin levels and can cause substantial weight gain. In another letter the same month, a private psychiatrist cited a study in the Journal of Clinical Psychiatry 2006 for the finding that PSTD leads to weight gain. Medical Treatment Record- Non-Government Facility, posted November 28, 2014. Therefore, a VA opinion is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his sleep apnea. As there are private theories provided by a physician and a psychologist, the Board requests that the examiner be a physician. The examiner must review the claims file, and is asked to opine on the following: (a.) Is it at least as likely as not that the Veteran's sleep apnea had its onset during or is caused by related to military service? (b.) Is it at least as likely as not that the Veteran's sleep apnea is proximately due to, a result of, or aggravated by, a service-connected disability, in particular PTSD? In answering question (b) above, the examiner is asked to indicate whether it is at least as likely as not that: 1) a service-connected disability including PTSD caused the Veteran to become obese; (2) that obesity was a substantial factor in causing sleep apnea; and (3) whether sleep apnea would not have occurred but for the obesity. The examiner is reminded that the term "at least 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 it is to find against. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a "permanent worsening" of a nonservice-connected disability is not required to establish secondary service connection on the basis of aggravation. The examiner's attention is called to the previous VA opinions and to the letters from the Veteran's private endocrinologist, Dr. T.O. and private psychiatrist, Dr. E.B., posted in the file on November 28, 2014 including attached articles and photographs. The examiner must comment on agreement or disagreement with their findings. A complete rationale should be provided for all opinions. The examiner is asked to discuss all relevant evidence, including lay statements, service medical records, and private medical records, when rendering his or her report. The Veteran is competent to report symptoms capable of lay observation. 2. After completing the development requested above, and any other development deemed necessary, readjudicate the Veteran's claim. If any of the benefits sought are not granted in full, the AOJ should furnish the Veteran with an SSOC and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.