Citation Nr: 22017401 Decision Date: 03/25/22 Archive Date: 03/24/22 DOCKET NO. 15-26 030 DATE: March 25, 2022 REMANDED Service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1966 to November 1967. These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Oakland, California. The Board previously remanded this claim in November 2018, July 2020, May 2021, and most recently in September 2021. Unfortunately, as will be discussed in more detail below, remand is again necessary to ensure substantial compliance with the Board's September 2021 remand directives and that the Veteran is afforded an adequate VA examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes the Veteran initially appealed multiple claims stemming from the January 2014 rating decision; however, service connection for OSA is the only remaining issue for adjudication. Service connection for OSA, to include as secondary to service-connected disabilities, is remanded. The Veteran contends his OSA is related to service, or in the alternative, is secondary to his service-connected disabilities. The Board finds the evidence of record is insufficient to resolve his claim. At the outset, the Board acknowledges the Veteran has been afforded multiple VA examinations to determine the nature and etiology of his OSA including in February 2021, July 2021, and December 2021. None of these examinations, however, have been adequate to resolve the Veteran's claim. While the Board regrets additional delay caused by further remand, it is necessary to ensure the Veteran receives any and all benefits to which he may be entitled. The December 2021 VA examiner opined that it is less likely than not the Veteran's OSA was aggravated by any of his service-connected disabilities. The examiner, however, provided a rationale in support thereof that only pertained to causation. The Board notes the Veteran's treatment records and other VA examinations indicate he suffers from chronic sleep impairment as a symptom of service-connected posttraumatic stress disorder (PTSD) and sleep disturbance as a symptom of service-connected gastroesophageal reflux disease (GERD). These symptoms have not been addressed in the context of aggravation. Further, the record contains numerous medical articles including discussions of PTSD and sleep problems, tinnitus and sleep problems, and GERD and sleep disturbances, all of which remain unaddressed. Accordingly, upon remand, an addendum opinion is necessary regarding aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The Veteran has also contended that his OSA can be attributed, at least in-part, to obesity which is caused by his service-connected disabilities or medications taken for treatment thereof. The Board notes that obesity is not a disability for purposes of VA benefits; hence, it cannot be service connected on a direct basis. See Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, indirect secondary service connection can be granted with obesity acting as an "intermediate step." See VAOPGCPREC 1 2017 (Jan. 6, 2017). Specifically, benefits are warranted (1) if the service-connected disability caused the Veteran to become obese, (2) if obesity was a substantial factor in causing a subsequent disability, and (3) if the subsequent disability would not have occurred but for obesity. Id. In response to the Board's September 2021 remand, the examiner opined that the Veteran's obesity was less likely than not caused by service-connected PTSD, hypothyroidism, migraines, tinnitus, GERD, and / or bilateral hearing loss. The examiner reasoned that obesity is caused by eating too much and moving too little and none of the Veteran's service-connected disabilities cause a person to become obese. The examiner, however, failed to address or consider whether the Veteran's medications taken for treatment of both PTSD and hypothyroidism caused his obesity. Indeed, the record contains unaddressed medical articles discussing obesity and weight gain in relation to medications taken to treat both conditions. While the examiner stated that the medication for hypothyroidism does not cause obesity, the examiner failed to reconcile this with the medical articles of record as well as the Veteran's lay statements that his weight gain continued after diagnosis of and treatment for hypothyroidism. The Veteran also stated that his weight gain ultimately led to a diagnosis of hypothyroidism, which remains unaddressed. The examiner failed to consider or address the Veteran's medication for PTSD. The Veteran also submitted multiple medical articles discussing an association between OSA and obesity related to hypothyroidism as well as weight gain and obesity in relation to psychiatric conditions, including PTSD and depression. These articles remain unaddressed. Accordingly, remand is necessary to obtain an addendum opinion addressing obesity. The December 2021 VA examiner opined that it is less likely than not any of the Veteran's service-connected disabilities caused his OSA. The examiner's rationale for each opinion, however, was merely conclusory and fails to provide sufficient detail for the Board to resolve the Veteran's claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Horn v. Shinseki, 25 Vet. App. 231, 240-42 (2012). Additionally, the examiner failed to address or consider the numerous medical articles of record discussing associations between OSA and psychiatric conditions, including PTSD and depression, tinnitus, and GERD. While these articles are not specific to the Veteran's facts and medical history and, therefore, cannot support a nexus, they reference possible associations between OSA and the Veteran's service-connected disabilities, which need to be addressed or considered. See Sacks v. West, 11 Vet. App. 314, 317 (1998). Accordingly, this claim is remanded to obtain an addendum opinion. The matters are REMANDED for the following action: 1. Return the entire claims file and this remand to the December 2021 VA examiner, if available, or to another appropriate examiner for review. The examiner should render an opinion, including rationale, addressing the following: (a.) Whether it is at least as likely as not the Veteran's OSA was caused by each service-connected condition including PTSD, hypothyroidism, migraine headaches, tinnitus, gastroesophageal reflux disease, and / or bilateral hearing loss. In so opining, the examiner is directed to address and consider the numerous medical articles of record discussing associations between OSA and psychiatric conditions, including PTSD and depression, as well as the articles discussing an association between OSA and symptoms of GERD and tinnitus, including sleep disturbances. (b.) Whether it is at least as likely as not the Veteran's OSA was aggravated by each service-connected condition including PTSD, hypothyroidism, migraine headaches, tinnitus, gastroesophageal reflux disease, and / or bilateral hearing loss. In so opining, the examiner is directed to address and consider the Veteran's treatment records and other VA examinations indicating he suffers from chronic sleep impairment as a symptom of service-connected PTSD and sleep disturbance as a symptom of service-connected GERD as well as the numerous medical articles including discussions of PTSD and sleep problems, tinnitus and sleep problems, and GERD and sleep disturbances. The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). (c.) Whether it is at least as likely as not that the Veteran's service-connected PTSD or medications taken for treatment thereof or hypothyroidism or medications taken for treatment thereof caused the Veteran to become obese, (2) if yes, was the obesity a substantial factor in causing or aggravating the Veteran's OSA, and (3) if yes, would the OSA not have occurred but for the obesity caused by the Veteran's service-connected disability or medication taken for treatment thereof? In so opining, the examiner is directed to address and consider the Veteran's statements that his weight gain led to a diagnosis of hypothyroidism and continued thereafter. The examiner is also directed to address the numerous medical articles of record discussing weight gain as a side-effect of medication taken for both treatment of psychiatric conditions, including PTSD and depression, as well as hypothyroidism in addition to the medical articles discussing weight gain and obesity in relation to psychiatric conditions including PTSD and hypothyroidism. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner 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. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.