Citation Nr: 22016296 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-55 191 DATE: March 21, 2022 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected diabetes mellitus is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1969 to April 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in November 2021. A copy of the hearing transcript is associated with the claims file. 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected diabetes mellitus is remanded. The Board is unable to make a fully informed decision on the issue of entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities. The Board finds that a medical opinion is necessary to address the theory of entitlement reasonably raised by the record of secondary service connection with obesity as an intermediate step and remand is warranted. The agency of original jurisdiction (AOJ) narrowly developed the claim of service connection for sleep apnea on the basis of secondary service connection as due to diabetes mellitus alone. In Garner v. Tran, the United States Court of Appeals for Veterans Claims (Court) set forth a non-exhaustive list of considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step: (1) mobility limitations or reduced physical activity as a result of a service-connected physical disability; (2) reduced physical activity or inability to follow a course of exercise or diet as a result of service-connected mental disability; (3) side effects of medication where the medication is prescribed for a service-connected disability; (4) treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; (5) lay statements by a veteran attributing weight gain or obesity to the service-connected disability; and (6) statements by treating physicians or medical examiners attributing weight gain or obesity to the service-connected disability. Garner v. Tran, 33 Vet. App. 241, 247-48 (2021). In a February 2017 Statement in Support of Claim, the Veteran contends that diabetes mellitus caused him to gain weight and his weight gain caused him to develop obstructive sleep apnea. A January 2017 Sleep Apnea Disability Benefits Questionnaire (DBQ) indicates the Veteran's weight gain over the years is the most likely cause of his obstructive sleep apnea. During his November 2021 hearing, the Veteran testified that his lower extremity neuropathy and coronary artery disease associated with diabetes mellitus prevent him from walking too much or doing any strenuous work or exercise. The Veteran's contentions and testimony regarding weight gain and the January 2017 sleep apnea DBQ remarks identifying weight gain as the most likely cause of the Veteran's sleep apnea reasonably raise the theory of secondary service connection with obesity as an intermediate step. Remand for a medical opinion is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with the appropriate clinician to determine the nature and etiology of sleep apnea. The examiner should review the claims file and address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected diabetes mellitus and associated complications caused or aggravated (i.e., worsened beyond the normal progression) the Veteran's obesity. (b.) If so, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obesity was a substantial factor in causing or aggravating non-service-connected sleep apnea (c.) Whether it is at least as likely as not (50 percent or greater probability) that non-service-connected sleep apnea would not have occurred but for obesity caused by service-connected diabetes mellitus and associated complications. The examiner should specifically address the January 2017 Sleep Apnea Disability Benefits Questionnaire in formulating his opinions. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ball Jackson, 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.