Citation Nr: 22014159 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 15-44 848 DATE: March 11, 2022 REMANDED The claim of entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from December 1981 to June 1992. his case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in May 2019, March 2021, and September 2021, when it was remanded for additional development. The claim of entitlement to service connection for obstructive sleep apnea is remanded. Regrettably a remand is again required to obtain an adequate opinion. The Veteran has asserted several theories of entitlement for his claim. In his December 2012 claim, he asserted his sleep apnea was caused by his now service-connected depression. In an accompanying statement, the Veteran also asserted that his treating doctor had noted that his sleep apnea resulted from lack of post-service treatment for his depression and resulting alcohol abuse. The Veteran has also asserted his sleep apnea is secondarily related to his service-connected hearing loss and tinnitus. See December 2015 VA Form 9. More recently, the Veteran asserts his sleep apnea is caused by obesity, which in turn was caused by a service-connected condition, to include medications to treat a service-connected condition. See November 2021 statement. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). VA examiners have indicated that the Veteran's sleep apnea was caused and/or contributed to by his obesity. The Board notes that obesity is not a disease or disability for which service connection may be granted. See VAOPGCPREC 1-2017 (holding the "longstanding policy of [VA], that obesity per se is not a disease or injury for purposes of 38U.S.C. §§1110 and 1131, and therefore, may not be service-connected on a direct basis). However, service connection may be granted under 38C.F.R. §3.310 (a) if obesity was an "intermediate step" between a service-connected disability and the current disorder. See VAOPGCPREC 1-2017. In order for secondary service connection to be granted under this theory, the record must demonstrate that: (1) a service-connected disability caused the veteran to become obese or aggravated his obesity; (2) the obesity or the aggravation of obesity as a result of a 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 or aggravated by the service-connected disability. See Walsh v. Wilkie, 32 Vet. App. 300, 306-07 (2020). Therefore, as VA precedent in January 2017 and the February 2020 decision from the United States Court of Appeals for Veterans Claims (CAVC) note that obesity can be an "intermediate step" in a causal chain for secondary service connection, the Board remanded the case for consideration of whether the Veteran's obesity was caused or aggravated by a service-connected disability. Most theories of entitlement have been addressed by a VA opinion. However, the Veteran's predominant argument has yet to be adequately addressed. The Veteran asserts his sleep apnea is secondarily related to his now service-connected psychiatric disorder. Specifically, he asserts his obesity was caused by his service-connected disorder and that his sleep apnea is a result of this obesity. See November 2021 statement. Initially, the Board notes the Veteran's service treatment records do not document a diagnosis of sleep apnea. A treatment note does document decreased sleep in July 1991 when the Veteran reported a two-week history of insomnia when he was hospitalized for mental health. No other indication of sleep difficulty is present in his service treatment records. Several VA opinions are of record. See December 2013, January 2020, June 2021, and October 2021 opinions. The December 2013 VA examiner noted a diagnosis of sleep apnea of January 2007 and relayed the Veteran's report that he had reported during service that he had trouble sleeping. He had been informed his sleeping troubles were the result of exercise. The Veteran noted he still had problems sleeping years later and that he finally underwent a sleep study with the resulting sleep apnea diagnosis. The examiner opined that the Veteran's sleep apnea was less likely than not due to or the result of any mental condition, as the proximate cause of the Veteran's sleep apnea was a developmentally narrow oropharyngeal airway with a superimposed elevation of BMI. At a January 2020 VA examination, the examiner reviewed the record and noted that the Veteran was diagnosed with sleep apnea in 2007, 15 years after his service. Noting the major risk factors for obstructive sleep apnea were age, male gender, obesity, and craniofacial/upper airway abnormalities, the examiner opined it was less likely than not that the Veteran's obstructive sleep apnea was directly related to his military service. Rather, the examiner opined the Veteran's sleep apnea was related to obesity. The examiner next opined that it was less likely than not that the sleep apnea was proximately related to, or aggravated by, his service-connected tinnitus and hearing loss. The examiner again listed many risk factors for obstructive sleep apnea, hearing loss and tinnitus not included. In its March 2021 remand, the Board directed that an opinion be obtained that addressed whether the Veteran's obesity was an intermediate step between his current sleep apnea and any service-connected disability. The Board notes that a psychiatric disorder was not service-connected at that time. An examination was conducted in May 2021. The examiner provided a negative direct opinion and negative secondary opinions but did seemingly suggest that the Veteran's obesity was an intermediate step between current sleep apnea and service-connected disability. However, there was no explanation for this statement. Rather, the examiner provided a thorough history of the Veteran's weight gain with no reference to any service-connected disorder. Thereafter, service connection for major depressive disorder was granted, and the Board remanded this claim agin in September 2021. The resulting opinion obtained in October 2021 is inadequate to address the Veteran's arguments for secondary service connection. The VA examiner explained that sleep apnea is not caused or aggravated by depression or any related psychological comorbidities, including any medications used to treat a psychological disorder. Regarding obesity, the examiner noted that it was more likely than not that the Veteran would have developed obstructive sleep apnea even in the absence of obesity. The examiner further asserted that it is less likely than not that the Veteran's obesity is due ot or has been aggravated by service-connected condition, including the Veteran's depression. The examiner opined this despite acknowledging that obesity is a risk factor for obstructive sleep apnea. The Board is unable to accept the opinions of record addressing the Veteran's claim that his obesity is caused, in part, by a service-connected condition and that his obesity in turn caused his obstructive sleep apnea. The October 2021 opinion summarily dismisses obesity as a cause of the Veteran's sleep apnea, contradicting the December 2013, January 2020, and May 2021 examination findings that obesity was a cause of the Veteran's disorder. Next, the opinions of record regarding whether a service-connected disorder caused or worsened the Veteran's obesity are inadequate. The May 2021 VA examiner indicated that there could be a connection between the Veteran's obesity and a service-connected disorder but provided no additional insight. Further, the Veteran submitted a statement in November 2021 describing how his medication for his psychiatric disorder caused weight gain. This contention is not addressed in the October 2021 VA opinion. As such, the Board finds that remand is required to obtain an opinion that adequately addresses the Veteran's current contentions and reconciles the conflicting opinions of record. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to determine the etiology of the Veteran's obstructive sleep apnea. The entire claims file must be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided. The Veteran should be scheduled for another examination only if deemed necessary by the person providing the addendum report to address the following: Opine whether the Veteran's obstructive sleep apnea is at least as likely as not (50 percent or greater probability) proximately caused or aggravated by the Veteran's service-connected major depressive disorder. Opinions and rationale for both proximate causation and aggravation are required. The examiner should consider the Veteran's lay statements regarding the nature, onset, and chronicity of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that his reports must be considered in formulating the requested opinion. In addressing the rationale, the examiner must address whether the Veteran's obesity was an intermediate step between his current sleep apnea and his service-connected major depressive disorder, or any other service-connected disorder. a) In doing so, the examiner must opine whether it is at least as likely as not that the service-connected major depressive disorder caused the Veteran to become obese or gain weight and/or aggravated his obesity/weight gain. The examiner should address the Veteran's contentions that medications taken to treat his service-connected psychiatric disorder contributed to his obesity. b) If so, the examiner must opine whether the obesity was a substantial factor in causing the Veteran's sleep apnea and 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. The examiner should address the December 2013, January 2020, and May 2021 VA opinions that clearly link the Veteran's sleep apnea to his obesity and the May 2021 opinion that seemingly links obesity to the Veteran's service-connected disabilities. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Readjudicate the appeal. Steve Ginski Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shana Z. Siesser, 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.