Citation Nr: 21040645 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 14-01 066 DATE: July 6, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected left knee disability, hypertension, and/or posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1988 to November 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2016. A transcript of the hearing is associated with the electronic claims file. The Board issued three prior remands on this claim in April 2016, January 2018, and March 2020. Entitlement to service connection for sleep apnea. The Veteran seeks entitlement to service connection for sleep apnea and has asserted several theories of entitlement, to include both direct and secondary. Of note, in December 2016, the Veteran asserted that he was prescribed Lortab for his service-connected left knee disability, which caused him to have extreme weight gain, and therefore, his sleep apnea was due to his left knee disability. The Board notes that VA treatment records also document that he was unable to exercise due to his left knee disability and had gained weight. See, e.g., July 2019 VA treatment note. Although a VA medical opinion was obtained in May 2020 that discussed obesity, the examiner failed to offer or discuss aggravation. In Walsh v. Wilkie, 32 Vet. App. 300 (2020), the Court held that "the Board clearly erred in relying on a medical opinion that did not adequately address whether the secondary service connection was warranted based on a theory that the veteran's obesity was aggravated by her service-connected conditions since it focus[ed] on direct causation and was silent on the question of aggravation of obesity." The Court addressed "G.C. Precedent Opinion 1-2017" (VAOPGCPREC 1-2017), noting that it "does not mention the concept of aggravation in the portion that discusses obesity as an 'intermediate step' and references only subsection (a) of 38 C.F.R. § 3.310. Nevertheless, the principles contained in § 3.310 make any distinction in G.C. Opinion 1-2017 between causation and aggravation legally untenable." Walsh, 32 Vet. App. at 305. The Court maintained that "[d]espite the G.C. opinion's silence regarding aggravation, the Board, in accordance with § 3.310(b), must consider aggravation in this context when the theory is explicitly raised by the veteran or reasonably raised by the record." Id. at 307. On remand, an addendum opinion must be obtained. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Return the May 2020 VA examination report to the author of that opinion, or another qualified examiner, for an addendum opinion that addresses AGGRAVATION. In regard to the findings and conclusions set forth in the May 2020 opinion, does the same apply for aggravation? In other words, the examiner is asked to opine on the following: (a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's service-connected left knee disability, including medications for treatment (such as Lortab) and/or the inability to exercise, AGGRAVATED the Veteran's weight gain/obesity? (b) If so, is it at least as likely as not that the AGGRAVATION of weight gain/obesity as a result of service-connected left knee disability, including medications for treatment, was a substantial factor in causing the Veteran's sleep apnea? (c) If so, is it at least as likely as not that the sleep apnea would not have occurred but for weight gain/obesity AGGRAVATED by the service-connected left knee disability, including medications for treatment? *The examiner must consider and discuss the Veteran's asserted theory that he was prescribed Lortab for his left knee, which caused extreme weight gain, and that he was unable to exercise due to his left knee, thereby leading to increased weight gain and obesity, and causing/aggravating his sleep apnea. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved. If the examiner cannot provide any of the requested opinions without resort to speculation, that conclusion also should be explained. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.