Citation Nr: 23050737 Decision Date: 09/13/23 Archive Date: 09/13/23 DOCKET NO. 17-03 407 DATE: September 13, 2023 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to/and or aggravated by post-traumatic stress disorder (PTSD) and/or sinusitis and/or any service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from October 1987 to November 1991, January 1995 to July 1995, August 1998 to April 1999, and July 2002 to March 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veteran's Affairs (VA) Regional Office (RO), which is also the Agency of Original Jurisdiction (AOJ). In June 2023, the Veteran testified at a virtual videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Entitlement to service connection for OSA, to include as secondary to/and or aggravated by PTSD and/or sinusitis and/or any service-connected disability. The Veteran testified at the June 2023 Board hearing that OSA manifested during active service. In particular, she asserted that she developed loud snoring, as well as intermittent cessation of breathing during sleep. However, she further asserted her weight was not excessive at that time, as it was nowhere near her weight at the time of a January 2014 polysomnogram, on which the diagnosis of OSA has been based. The Veteran also contended at the hearing that the theory of direct service connection has not yet been addressed properly in VA opinions. She further contended that medications prescribed for some of her conditions, to include some which are service-connected, have induced weight-gain. The Board remanded this claim in November 2018 for opinions addressing direct service connection, aggravation of sleep apnea by the Veteran's PTSD and as secondary to service-connected sinusitis. The Board briefly notes that service connection may be granted on a secondary basis for a disability which would not have resulted, if it were not for (due to or caused by) a service-connected disease or injury. See 38 C.F.R. § 3.310 (a). Additionally, service connection of a nonservice-connected disease or injury will be established if an increase in the severity of the that disability or injury would not have resulted if it were not for (aggravated by) a service-connected disease or injury. See 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). However, in Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), the Court of Appeals for the Federal Circuit ruled that the phrase "proximately due to" under 38 C.F.R. § 3.310 (b) was inconsistent with 38 U.S.C. § 1110 and, therefore "unlawful." For "aggravation of non-service-connected disabilities," it is enough to show that "but for" the service-connected disability the incremental increase in severity of a nonservice-connected disease or injury would not have occurred. The VA negative opinions produced in November 2019 are not adequate for purposes of VA adjudication, as the rationales for the opinions are conclusory. The direct service connection opinion makes a passing reference to weight-gain since active service, but there is no further discussion of weight-gain as a possible intermediate step as caused by a separate service-connected disability. VA's Office of General Counsel (OGC) issued a precedential opinion addressing questions regarding whether obesity may be considered a "disease" for the purposes of service connection under 38 U.S.C. §§ 1110 and 1131 and whether obesity may be considered a disability for purposes of secondary service connection. In general, the opinion concludes that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and, therefore, may not be service connected on a direct or secondary basis. VAOPGCPREC 1-2017 (January 6, 2017). However, the OGC opinion found that obesity can constitute an "intermediate step" for service connection on a secondary basis under 38 C.F.R. § 3.310 (a). Id. In Walsh v. Wilkie, the United States Court of Appeals for Veterans Claims (the Court) held the Board must consider the obesity-intermediate-step theorem, that is to say, the proper interpretation of General Counsel's Precedent Opinion 1-2017 requires consideration of proximate causation: (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 this subsequent disability would not have occurred but for obesity. VAOPGCPREC 1-2017 (January 6, 2017); Walsh v. Wilkie, 32 Vet. App. 300, 304 (2020). Thus, there would be a viable theory of entitlement to service connection for OSA as secondary to the Veteran's service-connected disabilities. The Veteran submitted an opinion from Dr. G.E.T. in July 2023. He reviewed her medical records since separation and stated: It is my medical opinion, within a reasonable degree of medical certainty that [the Veteran's] disability of Obstructive Sleep Apnea is as most likely caused by or a result of (51% probability or great) her medical treatment for myasthenia gravis (long-term steroid treatment) as well as medication used for her insomnia/PTSD (trazodone and similar medications used in the past) which causes significant weight gain eventually causing her to exhibit signs and symptoms of obstructive sleep apnea as early as 1995. It is well known that certain medications, especially the use of oral steroids and certain psychiatric medications will cause weight gain. It is also well known that weight gain can, in turn, lead to obstructive sleep apnea. However, the Veteran is not service-connected for myasthenia gravis. The Veteran sent photos in June 2023 showing she was within Army height and weight standards from 1995 to 2003. And the substantial factor question or considerations of the intermediate step per Walsh remain outstanding. See 38 C.F.R. § 3.310 (a); November 2019 VA medical opinion noting obesity. Therefore, an opinion is needed as to whether the Veteran's OSA was caused or aggravated by his service-connected disabilities through the intermediate step of obesity. See VAOPGPREC 1-2017; Walsh, 32 Vet. App. at 304; see also El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Remand therefore is necessary for VA opinions addressing these bases of service connection. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The matters are REMANDED for the following action: 1. Arrange for the review of the claims file by a VA examiner. The file should be made available to the examiner. If the examiner deems an examination to be necessary, arrange for that examination. The examiner is requested to produce opinions addressing the following: (a) Whether OSA was incurred during active service or is caused by an event, injury or disease occurring in active service. (b) Whether the Veteran's OSA was caused by (secondary to) service-connected PTSD and/or sinusitis. (c) Whether an increase in the severity of OSA would not have resulted but for (aggravated by) service-connected PTSD and/or sinusitis. (d) Whether service-connected PTSD and/or sinusitis or any of the of the Veteran's other service-connected disabilities caused obesity. The examiner's attention is directed to the medications prescribed for those disabilities and is requested to discuss the possibility that specific medications have induced pronounced weight gain. (e) If so, whether the obesity which resulted from the service-connected disabilities and their medications was a substantial factor as an intermediate step in the Veteran developing OSA. (f) Whether OSA would not have occurred but for the obesity caused by the Veteran's service-connected disabilities and their medications. Each opinion rendered by the examiner must be accompanied by a rationale, by which conclusions are supported by references to and discussion of findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is requested to comment on any relevant opinions found in the record. (Continued on the next page) ? The Board urges the examiner to note that opinions rendered without discussing such lay evidence as it pertains to the above claim will be deemed inadequate for VA purposes of adjudication. 2. After the above development and any other development indicated is completed, adjudicate the claim. If the benefit sought is not granted in full, send the Veteran and her representative a Supplemental Statement of the Case and afford them a reasonable opportunity to respond before the record is returned to the Board. EMILY TAMLYN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.