Citation Nr: 22017186 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-11 284A DATE: March 24, 2022 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 March 1987 to January 1992. Entitlement to service connection for sleep apnea is remanded. By way of background, the Veteran's claim for entitlement to service connection for sleep apnea was most recently remanded by the Board on November 3, 2021. Meanwhile, the Veteran was first granted service connection for an acquired psychiatric disorder in a July 2021 rating decision. Pursuant to the November 2021 remand directives, updated etiological opinions were obtained by the Agency of Original Jurisdiction, and the examiner ultimately concluded that "His obesity is the cause of his OSA." See December 7, 2021 C&P Exam at Question No. 3B-C. VA's Office of General Counsel (OGC) issued a precedential opinion finding that obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis. In order to meet these criteria, the veteran must demonstrate that a previously service-connected disability caused him to become obese; obesity was a substantial factor in causing secondary disability; and the secondary disability would only have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017). While the December 2021 examiner concluded that the Veteran's sleep apnea is caused by obesity, there is no opinion as to whether obesity is an intermediate step by which it may be secondary to another service-connected disorder. A recent VA examination detailed that a typical day of the Veteran is largely spent playing mobile telephone games, browsing the internet, and watching television. See January 25, 2022 C&P Exam at Question No. 2B. Given this sedentary lifestyle that was relevant in adjudicating unemployability due to a psychiatric disorder rated as 70 percent disabling, the Board determines that a remand is warranted to consider whether the obesity is due to any other service-connected disorder, and if so, whether sleep apnea is secondary to same with obesity as an intermediate step. Without such a remand, a denial of service connection would be predicated upon a bare and conclusory opinion. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis the Board can consider and weigh against contrary opinion"); Barr v. Nicholson, 21 Vet. App. 3030 (2009); Buchanan v. Nicholson, 451 F.3d 1331 (2006); Jandreau v. Nicholson, 492 F.3d 1372 (2007). The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his attorney and afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, return the Veteran's claims fil, if possible, to the December 2021 VA examiner of record for an addendum opinion as to service connection for the claimed sleep apnea disorder. The need for further in-person examination is left to the discretion of the VA examiner. The examiner should provide 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 disorder was caused or aggravated by the weight gain/obesity resulting from his service-connected disabilities, including but not limited to service-connected psychiatric and migraine disorders? If the examiner finds that the Veteran's sleep apnea disorder is a result of weight gain/obesity, he or she should address whether it at least as likely as not (i.e., a 50 percent or greater probability) that (1) the Veteran's service-connected disabilities caused him to become obese and, if so, (2) whether such resulting obesity was a substantial factor in causing or aggravating his disabilities, and (3) whether his sleep disorder would not have occurred or worsened but for the obesity caused by his service-connected disabilities. By way of additional background as to secondary aggravation, a November 9, 2016 private etiological opinion stated that sleep apnea is secondarily aggravated by a psychiatric disorder, but the opinion was afforded discounted probative weight in a May 2021 Board decision for citing to medical studies relying on co-morbidity instead of proximate causation. A statement indicating consideration of relevant medical literature as to proximate causation between sleep apnea and psychiatric disorders would be of considerable assistance to the Board. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate 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. Christopher J. O'Donnell Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.