Citation Nr: 21030737 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 20-10 210 DATE: May 19, 2021 REMANDED Service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1968 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision by the Department of Veterans Affairs (VA). This case was remanded in February 2021 for further development; it has since been re-assigned to the undersigned. The Board most recently remanded this issue to obtain an addendum opinion regarding whether the Veteran's OSA was related to his service-connected diabetes mellitus. An addendum opinion was obtained in February 2021. The VA examiner found that the Veteran's OSA was less likely than not caused or aggravated by his diabetes mellitus. She stated that the Veteran's increased body weight, male gender, and advancing age were his most likely risk factors for developing OSA. She also noted that the shared risk factor of obesity contributes to the high incidence of OSA seen in diabetics. The Board notes that obesity is not a disability for purposes of VA benefits; hence, it cannot be service connected on a direct basis. See Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, indirect secondary service connection can be granted with obesity acting as an "intermediate step." See VAOPGCPREC 1-2017 (Jan. 6, 2017). Specifically, a grant is warranted (1) if the service-connected disability caused the Veteran to become obese, (2) if obesity was a substantial factor in causing a subsequent disability, and (3) if the subsequent disability would not have occurred but for obesity. Id. The November 2019 VA examination contains the examiner's conclusions that the Veteran's weight gain is likely a significant cause of his OSA. The February 2019 examiner stated obesity is a shared risk factor for OSA and diabetes which contributes to a high incidence of OSA seen in diabetics. A review of the Veteran's VA treatment records show that the Veteran has been diagnosed with obesity within the appeal period. Therefore, the Board finds that there is some evidence in the record which suggests a relationship between the Veteran's obesity and his service-connected diabetes mellitus. On remand, an addendum opinion is required to help inform the Board's decision on whether obesity is an intermediate step between the Veteran's service-connected diabetes mellitus and his currently diagnosed OSA. The matters are REMANDED for the following action: 1. The AOJ should obtain updated VA and non-VA treatment records. 2. The AOJ should obtain an addendum opinion, from an appropriate clinician, to determine the following: (a) Is the Veteran's obesity at least as likely as not due to his service-connected diabetes mellitus? (b) Is the Veteran's obesity at least as likely as not aggravated by his service-connected diabetes mellitus? (c) If, and only if, the Veteran's obesity is deemed to have been caused or aggravated by his service-connected diabetes mellitus, would the Veteran's OSA not have occurred but for obesity caused or aggravated by the Veteran's service-connected diabetes mellitus? The VA examiner should note that the Veteran's obesity is not a disease or disability for VA benefits purposes; however, it may act as an intermediate step between a service-connected disability and a current disability that may be service-connected on a secondary basis. To determine whether any weight gain or obesity is an intermediate step between the Veteran's service-connected diabetes mellitus and OSA, the examiner should fully answer the above questions. (Continued on the next page) The examiner is asked to provide a rationale to support the opinion(s) that is as detailed as is reasonably possible. The examiner is asked to consider and, as reasonable and appropriate, to discuss, the Veteran's lay statements. In addition, the examiner should address the findings in the medical articles as provided by the Veteran's representative in January 2021, as well as the February 2021 examiner's opinion. In rendering the requested opinions, the examiner must consider all relevant evidence of record. A complete and thorough rationale must be provided for all opinions. If the examiner is unable to offer the opinions requested, he or she must explain in detail why that is the case. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Kerner, 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.