Citation Nr: 22015286 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 13-05 128 DATE: March 17, 2022 REMANDED Service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1964 to May 1967. This appeal was most recently before the Board in September 2020, which denied the Veteran's service connection claim for OSA. The Veteran disagreed with that decision and appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court), which granted a Joint Motion for Remand (JMR) in November 2021. In granting the motion, the Court remanded the matter back to the Board, for actions consistent with the JMR. In the JMR, the parties noted that a VA examiner provided a medical opinion in September 2019, which stated that the Veteran's weight gain was the most likely cause of his OSA, with obesity as a major risk factor. However, the JMR noted that the Board did not consider whether obesity was an intermediate step to secondary connection. The JMR pointed to a January 2016 statement, with an attached medical treatise; coupled with the Court's decision in Garner v. Tran, 33 Vet. App. 241 (2021), providing guidance in determining if the issue of obesity as an intermediate step to secondary service connection is reasonably raised by the record, suggests that remand for the Board to consider this issue in the first instance. Obesity, for purposes of service connection, is not considered a disease or disability for purposes of establishing entitlement to service connection under 38 U.S.C. § 1110 and 1131, or for purposes of establishing secondary service connection under 38 C.F.R. § 3.310. Obesity, however, may qualify as an "intermediate step" between a service-connected disability and a current disability where a claimant establishes that the obesity was caused by a service-connected disability and caused his or her the current disability. VAOPGCPREC 1-2017. Where obesity is asserted to be an intermediate step, the evidence must show that the service-connected disability "caused the Veteran to become obese," that the obesity caused by the service-connected disability "was a substantial factor in causing" the current disability, and that the current disability "would not have occurred but for" the obesity caused by the service-connected disability. Id. The Board finds that the September 2019 VA medical opinion is inadequate because although the examiner discussed whether weight gain could cause sleep apnea, the examiner did not consider whether obesity was an intermediate step between the service-connected PTSD and OSA. Since the November 2021 JMR, VA has not received any evidence that would otherwise show that service connection is warranted for OSA, to include both direct and secondary service connection. There is no competent medical opinion of record showing that PTSD has caused or aggravated the Veteran's OSA, or that obesity was an intermediate step between a service-connected disability (PTSD) and a current disability (OSA). See Garner, supra. Accordingly, service connection for OSA is remanded. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion regarding the Veteran's OSA. The examiner should provide the following opinions: a) Is it at least as likely as not (50 percent or greater) that the Veteran's OSA was caused by his service-connected PTSD? Why or why not? b) Is it at least as likely as not (50 percent or greater) that the Veteran's OSA was aggravated (made worse) by his service-connected PTSD? Why or why not? The examiner should address the Veteran's assertion and submitted medical treatise, showing that established medical science and literature has confirmed the causal link between OSA and mental health conditions. See Correspondence and Third Party Correspondence received January 11, 2016. c) In addressing whether the Veteran's service-connected PTSD has caused or aggravated the Veteran's OSA, is it at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected PTSD caused or aggravated (i.e., any worsening beyond its natural progression) the Veteran's obesity? (Continued on the next page) d) If the answer to (c) is yes, is it at least as likely as not (a 50 percent or greater probability) that the Veteran's obesity was a substantial factor in causing or aggravating his OSA? e) If the answer to (c) is yes, is it at least as likely as not (a 50 percent or greater probability) that the Veteran's OSA would not have occurred but for the Veteran's obesity? J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.