Citation Nr: 22014356 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 17-37 148 DATE: March 12, 2022 REMANDED The claim for service connection for an obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran honorably served on active duty from March 1970 to March 1974. In a November 2014 rating decision, the Regional Office (RO) reopened, reconsidered, and denied the previously decided claim for service connection for OSA, as well as denied service connection for erectile dysfunction (ED). The Veteran appealed. In July 2021, the Veteran testified at a Board hearing, a transcript of which is of record. In October 2021, the Board remanded the claim for further development. In a November 2021 rating decision, the RO granted service connection for ED, which is a full grant of the sought benefit and thus this issue is no longer on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). In December 2021, the RO affirmed its prior denial of service connection for OSA and returned the appeal to the Board. Upon reviewing the requested medical opinion as to the etiology of the Veteran's OSA, which the RO obtained in November and December 2021, the Board finds that an addendum opinion is necessary to decide the claim. In the remand order, the Board noted that the Veteran submitted a study published in Journal of Clinical Sleep Medicine, in which the authors explore an association between sleep apnea and PTSD, ultimately concluding that the risks for developing sleep apnea in the veterans with PTSD are at much higher rates than in general population. Of particular note, the authors observed that the risks for developing OSA are even more pronounced in the veterans with the more severe forms of PTSD. Viewed in light of the Veteran's PTSD evaluated at 70 percent for almost a decade preceding the OSA diagnosis, this medical treatise appeared highly relevant to his claim. As such, in the remand instructions, the Board specifically requested the examiner to expressly discuss this medical treatise, which the examiner did not do. Unfortunately, in the report, the examiner did not cite to a single authority, which precludes the Board from factually ascertaining whether or not the examiner actually reviewed the treatise, as requested. By implication, given that the Veteran is entitled to a substantial compliance with the Board's remand directives, remand is necessary. See Stegal v. West, 11 Vet. App. 268 (1998). The Board further notes that the November 2021 VA examination report reflects an examiner's opinion that the Veteran's OSA more likely than not is etiologically related to his morbid obesity but remaining silent as to the likely etiology of his obesity. This important because the evidence of record suggests that the Veteran's obesity may be etiologically related to his PTSD and/or heart disease. For example, the Veteran's VA treatment records reflect the May 2008 weight management counseling notes unequivocally stating: "Too much stressPost traumatic stress disorder (PTSD). Problems of an emotional nature often lead to weight gain." Moreover, given the Veteran's alcohol abuse having been determined as secondary to his PTSD, the notes further state: "Alcoholic beverages add empty calories which can make controlling your weight difficult." This medical evidence, at minimum suggesting that psychiatric symptomatology causes obesity viewed in light of the November 2021 medical opinion that the Veteran's OSA is etiologically related to his obesity, has triggered the VA's duty to obtain an addendum medical opinion to that end. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c)(4). While obesity does not qualify as a disease or disability, it can serve as an intermediate step to establish service connection for another condition. As such, it should also be considered whether the Veteran's obesity may be etiologically related to his service-connected heart disease evaluated as totally disabling for the period of over two years preceding the OSA diagnosis. This rating coupled with his PTSD rated at 70 percent effectively rendered him housebound, which reasonably is not conducive to maintaining the levels of physical activities of a normal person and keeping the weight off. The Board must understand whether, from medical perspective, a pathophysiological mechanism linking the Veteran's obesity to his PTSD and/or heart disease actually exists and, if so, what its probability is. Accordingly, the matters are REMANDED for the following action: 1. Obtain an addendum opinion as to the etiology of the Veteran's obstructive sleep apnea (OSA). If a physical examination is necessary to answer the Board's questions, one should be scheduled. The examiner is asked to answer the following questions: a) Is it at least as likely as not (meaning probability of 50 percent or greater) that the Veteran's sleep apnea was proximately caused by, resulted from, or otherwise is etiologically related to his service-connected PTSD, to include emotional eating and alcohol abuse? Why or why not? In answering the Board's questions, the examiner should consider and expressly discuss the medical treatise (marked "12/29/2017 Correspondence") and explain its relevance or lack thereof to the Veteran's circumstances. (Continued on next page) b) Is it at least as likely as not (meaning probability of 50 percent or greater) that the Veteran's morbid obesity was proximately caused by or is etiologically related to any of his service-connected disabilities, to include his service-connected PTSD and/or heart disease on its own rendering him totally disabled? Why or why not? MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alex Bardin, 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.