Citation Nr: 21031091 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 10-20 037 DATE: May 20, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1966 to September 1969. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Agency of Original Jurisdiction (AOJ). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in December 2014. The transcript is of record. In July 2017, The Board of Veterans' Appeals (Board) denied the Veteran's claim for service connection for sleep apnea. The Veteran appealed that decision to the Court of Appeals for Veterans' Claims (Court). In April 2018, the Court granted a Joint Motion for Remand. The case was most recently before the Board in April 2020. The Board remanded the case to the Agency of Original Jurisdiction for additional development and adjudication. The case has since been returned to the Board for appellate review. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand orders. Where the remand orders of the Board were not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In accordance with the April 2020 remand, addendum opinions were obtained in July 2020. However, the Board finds the VA opinion as to obesity inadequate. Specifically, the VA examiner opined it was less likely than not that the Veteran's service-connected disabilities caused or aggravated the Veteran's obesity. The examiner reasoned that there was no objective medical record evidence for cause or permanent aggravation. The examiner explained that the examiner found no clinical visits and/or treatment records regarding the Veteran's service-connected disabilities as the cause of his obesity. Service connection may be granted under 38 C.F.R. § 3.310(a) if obesity was an "intermediate step" between a service-connected disability and a current disorder. See VAOPGCPREC 1-2017. In order for secondary service connection to be granted under theory, the record must demonstrate that: (1) the service-connected disability caused the veteran to become obese; (2) the obesity as a result of the service-connected disability was a substantial factor in causing the claimed disorder; and (3) the claimed disorder would not have occurred but for obesity caused by the service-connected disability. The Board notes that the Veteran is service connected for peripheral vascular disease of the bilateral lower extremities associated with his service-connected type II diabetes. At his December 2014 hearing, the Veteran testified that pain form his service-connected disabilities prevents him from exercising regularly. The July 2020 examiner failed to adequately consider relevant lay evidence of record. Thus, further remand is necessary to ensure compliance with the April 2020 remand directives. Id. The Board acknowledges that an August 2016 VA examiner opined as to the relationship between the Veteran's obesity and his sleep apnea. Nevertheless, an opinion as to whether his service-connected disabilities have caused or aggravated his obesity remains necessary. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, update the file with any VA or private treatment records relevant to the Veteran's claim. If any requested records are unavailable, the Veteran should be notified to that effect. 2. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's sleep disorder, to include as secondary to obesity. If examination is indicated, it should be scheduled in accordance with applicable procedures. The examiner should state whether it is at least as likely as not (50 percent probability or greater) that any of the above service-connected disabilities caused him to become obese or gain weight or aggravated his obesity. If so, the examiner should provide an opinion as to whether the obesity was a substantial factor in causing the Veteran's sleep apnea. He or she should also provide an opinion as to whether the Veteran's sleep apnea would not have occurred or worsened but for the weight gain caused or aggravated by his service-connected disability or disabilities. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between his service-connected disabilities and his obesity. Specifically, the examiner must address the Veteran's contention that he cannot exercise as a result of his service-connected disabilities. If there is a medical basis to support or doubt the Veteran's reports of symptomatology, the examiner should provide a fully reasoned explanation. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Review the opinion and any examination report to ensure that it is in complete compliance with the directives of this remand. If the opinion or report is deficient in any manner, the AOJ must implement corrective procedures. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman 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.