Citation Nr: 21041706 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 13-03 252 DATE: July 10, 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 April 1984 to August 1990. The matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in August 2020 and February 2021. The Board regrets having to again delay adjudication of the Veteran's claim; however, remand is necessary to ensure compliance with the Board's prior remand instructions and to afford the Veteran all consideration due to her under the law. 1. Entitlement to service connection for sleep apnea, to include as secondary to hypertension, coronary artery disease, major depressive disorder is remanded. The Veteran contends that her sleep apnea syndrome has developed secondary to her hypertension arrhythmia and that when her heart begins to skip her breathing is affected; she further contends it happens more when she sleeps, and she wakes up gasping for air. In March 2021, a VA examiner opined that the Veteran's condition of sleep apnea was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner opined that sleep apnea is a separate entity entirely from the hypertension with arrhythmias and is not related. The examiner noted that a thorough review of medical literature failed to demonstrate a causal relationship and a nexus has not been established. The examiner further noted that although there is evidence of association with sleep apnea and hypertension, there is no sufficient evidence stating that hypertension with arrhythmias can cause sleep apnea. The examiner failed to address aggravation. As it pertains to the Veteran's sleep apnea claimed as secondary to the Veteran's major depressive disorder, the March 2021 examiner provided rationale supported by medical journal articles, and opined that the Veteran's conditions of sleep apnea and major depressive disorder are not medically related. The examiner noted that sleep apnea is a separate entity entirely from major depressive disorder and unrelated to it. The examiner noted that a thorough review of medical literature was conducted and that the medical literature did not demonstrate a causal relationship. However, the examiner failed to review the Veteran's medical history and the Veteran's lay statements as required in the February 2021 Remand instructions and failed to consider aggravation. The March 2021 opined that the Veteran's sleep apnea was less likely than not proximately due to or the result of the Veteran's coronary artery disease. The examiner did not discuss the Veteran's lay statements or medical history as required by the February 2021 Remand instructions. Furthermore, the examiner did not provide an opinion as to aggravation. The March 2021 examiner did not provide a specific opinion regarding the aggravation prong of secondary service connection as it related to any of the Veteran's service-connected disabilities: hypertension with arrhythmia, major depressive disorder, and coronary artery disease. An opinion to the effect that one disability "is not caused by or a result of" another disability does not answer the question of aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Thus, the Board finds that the examiner's opinion has resulted in a pre-decisional duty to assist error that must be corrected. The Board finds that the March 2021 examiner has did not fully address the Veteran's obesity as an intermediate step for establishing service connection on a secondary basis as requested in the February 2020 Remand instructions. See VAOPGCPREC 1-2017 (January 6, 2017). Such inquiry extends both to causation and to aggravation. See Walsh v. Wilkie, 32 Vet. App. 300 (Feb. 24, 2020). The March 2021 examiner noted that it is acknowledged that a greater incidence of obese individuals has sleep apnea; however, there is no evidence to indicate that sleep apnea has a greater than 50 percent probability of being exclusively due to obesity. The examiner never addressed aggravation. VAOPGCPREC 1-2017 concludes that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct or secondary basis. VAOPGCPREC 1-2017, however, also recognizes that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). Additionally, in Walsh, the Court held that aggravation must be addressed as well. Thus, the Board finds an addendum opinion is necessary that addresses the specific questions set forth in the General Counsel's opinion for determining if obesity is an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). The Board provided specific remand instructions in which the March 2021 VA examiner did not comply. The examiner failed to address the Veteran's entire medical history, the Veteran's lay statements, and failed to address the aggravation prong of secondary service connection. The examiner did not address the Veteran's medical history, family history, and other risk factors, to include obesity as an intermediate step to service-connected disabilities, when giving an opinion of whether sleep apnea is service connected. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, remand is necessary to consider the Veteran's medical history, family history and other risk factors. The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records associated with the Veteran's sleep apnea. 2. An addendum opinion, by a qualified examiner, other than the March 2021 VA examiner, should review the claims file. The need for a new examination is left to the discretion of the examiner. A note that a review of the Veteran's claims file, lay statements and prior Remand instructions including this Remand should be provided in the examiner's note. The examiner should offer comments and an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's sleep apnea is Caused or Aggravated (beyond a natural progression) by her service- connected hypertension, coronary artery disease and major depressive disorder. In so opining please address the following: a) Did the Veteran's hypertension, coronary artery disease and/or major depressive disorder cause the Veteran to become obese/gain weight or aggravated the Veteran's obesity/weight gain, to include as due to pain and functional impairment? b) If yes, was the obesity/weight gain as a result of the Veteran's hypertension, coronary artery disease and/or major depressive disorder a substantial factor in causing sleep apnea? c) Would the sleep apnea have not occurred but for the obesity/weight gain caused or aggravated by the hypertension, coronary artery disease, and/or major depressive disorder? 3. In providing these opinions, the examiner should consider any lay evidence of symptoms experienced over the years and specifically address the Veteran's statements describing her symptoms. 4. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.