Citation Nr: 23024924 Decision Date: 04/28/23 Archive Date: 04/28/23 DOCKET NO. 18-26 552 DATE: April 28, 2023 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected schizophrenia, is remanded. REASONS FOR REMAND The Veteran had active military service from June 1971 to May 1972. In December 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In July 2021 and December 2021, the Board of Veterans Appeals (Board) remanded this matter for further development, specifically to obtain a VA medical opinion on whether the Veteran's sleep apnea was caused or aggravated by his service-connected schizophrenia, to include the theory of obesity as an intermediate step due to medication taken to treat the service-connected condition. In April 2022, the Board issued a decision denying the Veteran's claim for service connection for sleep apnea, to include as secondary to service-connected schizophrenia. The Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court). In a January 2023 Order, the Court vacated the Board's decision and remanded the appeal to the Board pursuant to a Joint Motion for Remand (Joint Motion). Remand is again warranted to obtain a VA medical opinion regarding whether the Veteran's sleep apnea was secondary to his service-connected disabilities, to include medication taken for those disabilities, and to consider obesity as an intermediate step. 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected schizophrenia, and obesity as an intermediate step, is remanded. The Veteran contends his obstructive sleep apnea is secondary to his service-connected schizophrenia, to include the effects of medication (risperidone) taken to treat that service-connected condition. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (worsened in severity beyond its natural progress) by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Obesity, although itself not a compensable disability, could constitute an intermediate step in demonstrating service connection on a secondary basis, to include direct causation or aggravation. See Walsh v. Wilkie, 32 Vet. App. 300 (2020). As discussed in the January 2023 Joint Motion and the Board's prior remands, the Veteran has argued that his sleep apnea may be caused or aggravated by obesity as an intermediate step between his service-connected schizophrenia and his sleep apnea, specifically citing the medication (risperidone) taken to treat his service-connected schizophrenia. The January 2022 VA examiner emphasized that dietary choices were the primary reason for the Veteran's obesity, but did not adequately address the theory of aggravation of obesity. The VA examiner's opinion was not sufficiently specific with respect to the Veteran's own medical history, but rather provided generalizations. In the Joint Motion, the Parties agreed that the examiner's rationale focusing on dietary choices was similar to that found inadequate to address aggravation in Walsh v. Wilkie, 32 Vet. App. 300 (2020). Notwithstanding that dietary choices affect obesity, the examiner failed to adequately address whether the Veteran's medication contributed to developing obesity, which in turn could be a substantial factor in causing his currently diagnosed sleep apnea. For these reasons, in accordance with the Court's Order, the Board finds that the January 2022 medical opinion was not substantially compliant with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, pursuant to the January 2023 Joint Motion and VA's duty to assist, the Board finds that remand for an addendum medical opinion is warranted on the question of whether the Veteran's medications for his service-connected schizophrenia, to specifically include risperidone, aggravated his obesity, and whether that in turn caused or aggravated his obstructive sleep apnea. The Board notes that the medical evidence reflects the Veteran is considered obese. A VA medical opinion as to whether there exists a link between his service-connected disability and such obesity (as an intermediate cause) should thus be obtained. The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Return the complete claims file to the VA examiner who provided the January 2022 VA opinions on the Veteran's obstructive sleep apnea, or to another qualified clinician. A copy of the Joint Motion and Order of the Court, and a copy of this Remand, must be made available to the examiner. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinions with rationale, then such examination should be scheduled. The examiner must provide opinions as to whether the Veteran's sleep apnea is at least as likely as not (meaning the likelihood is at least approximately balanced, if not higher) proximately due to his service-connected schizophrenia, or aggravated by his service-connected schizophrenia, specifically addressing obesity as an intermediate step as it relates to the medication taken to treat his service-connected schizophrenia. In doing so, the examiner should answer the following: (a) Is it at least as likely as not that the Veteran's obesity was CAUSED by risperidone or other medication taken to treat his service-connected schizophrenia? If more than one cause is identified, is it at least as likely as not that the Veteran's medication to treat schizophrenia was a substantial factor in causing his obesity, without which his obesity would not have manifested? (b) Is it at least as likely as not that the Veteran's obesity was AGGRAVATED by risperidone or other medication taken to treat his service-connected schizophrenia? If the answer to (a) or (b) is yes, then the examiner should address the following: (c) If the medications taken to treat service-connected schizophrenia are found to have caused or aggravated his obesity, then is it at least as likely as not that the Veteran's obesity was a substantial factor in causing sleep apnea? Is it at least as likely as not that his sleep apnea would not have occurred but for the obesity caused and/or aggravated by his service-connected schizophrenia? (d) If the medications taken to treat service-connected schizophrenia are found to have caused or aggravated his obesity, but the examiner opines the Veteran's obesity was not a substantial factor in causing his sleep apnea, then is it at least as likely as not that the Veteran's sleep apnea has been aggravated by the obesity? Aggravation of sleep apnea is defined as any worsening, and need not be permanent. The examiner should review any relevant sleep studies or data extracted from a CPAP machine, if applicable. A complete rationale for all requested opinions should be provided. Causation and aggravation are separate issues, and each requires its own opinion and rationale. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018). If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain in detail why this is so. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Medley 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.