Citation Nr: 24001908 Decision Date: 01/11/24 Archive Date: 01/11/24 DOCKET NO. 18-34 635 DATE: January 11, 2024 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to various service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1994 to November 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). This issue was previously before the Board in June 2019 when it was remanded for further development, and in January 2023 when it was denied. The Veteran appealed that decision to the United States Court of Appeals for Veterans' Claims (Court). In an August 2023 Joint Motion for Remand (JMR), the parties agreed that the Board erred in not providing an adequate statement of reasons or bases. Specifically, the Board erred in relying on a medical opinion that limited its focus to providing a rationale regarding a lack of a secondary service connection to the service-connected adjustment disorder, and not addressing the numerous service-connected orthopedic conditions, or whether obesity was an intermediate step by these other disabilities. The case has since returned to the Board for appellate review. Entitlement to service connection for obstructive sleep apnea is remanded. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran underwent a VA examination in September 2020 where the examiner confirmed a diagnosis of obstructive sleep apnea but provided a negative nexus opinion. They explained that the Veteran did not receive a sleep apnea diagnosis until after leaving service, and that he gained weight between separation and his initial diagnosis in 2018. The examiner indicated that weight gain is a significant risk factor in the development of obstructive sleep apnea, as was the case here. Regarding secondary service connection, the examiner acknowledged that while there is some documentation to support that PTSD and depression can cause structure sleep apnea, adjustment disorder is not a condition associated with the development of obstructive sleep apnea. They reiterated that the Veteran's weight gain was the most likely cause of the sleep apnea as adjustment disorder had no pathophysiological connection to obstructive sleep apnea in which it would cause or aggravate sleep apnea. The examiner concluded that obstructive sleep apnea is caused by a collapse of the soft tissues of the throat while asleep, leading to apnea episodes. As suggested by the JMR, the September 2020 examiner neglected to address the Veteran's assertion that his various service-connected disabilities caused his obesity, which in turn lead to the sleep apnea. Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Further, the examiner did not utilize the appropriate standard for addressing whether disorders are related to obesity. While obesity cannot be service-connected on a direct basis, and obesity cannot qualify as an in-service injury or disease for service connection purposes, obesity may serve as an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). Walsh v. Wilkie, 32 Vet. App. 300 (2020); see also VAOGCPREC 1-2017. In such a case, the evidence would need to reflect that (1) a service-connected disability or disabilities caused the Veteran to become obese or aggravated the Veteran's obesity, (2) the obesity or aggravation of obesity resulting from service-connected disability or disabilities was a substantial factor in causing another disability, and (3) the disability would not have occurred but for the obesity caused by the Veteran's service-connected disability or disabilities or the obesity aggravated by the service-connected disability or disabilities. Walsh, 32 Vet. App. at 306-7. Accordingly, remand is required. By this remand the Board makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: Obtain an addendum opinion regarding the etiology of the obstructive sleep apnea from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): If any medical history is rejected, a complete explanation is required. (a) The examiner must provide an opinion regarding whether the likelihood is at least approximately balanced or nearly equal, if not higher, that the sleep apnea had onset in, or is otherwise related to, active service. (b) The examiner must also provide an opinion whether the likelihood is at least approximately balanced or nearly equal, if not higher, that the sleep apnea is caused by the service-connected adjustment disorder, bilateral pes planus, lumbar strain, right elbow limitation of pronation, right elbow strain, cervical spine degenerative disc disease, left knee osteoarthritis and shin splints, right knee osteoarthritis, right lower extremity shin splints, bilateral lower radiculopathy, and/or left ankle sprain residuals. (c) The examiner must also provide an opinion whether the likelihood is at least approximately balanced or nearly equal, if not higher, that the sleep apnea is aggravated by the service-connected adjustment disorder, bilateral pes planus, lumbar strain, right elbow limitation of pronation, right elbow strain, cervical spine degenerative disc disease, left knee osteoarthritis and shin splints, right knee osteoarthritis, right lower extremity shin splints, bilateral lower radiculopathy, and/or left ankle sprain residuals. (d) Fifth, for each diagnosed disorder, the examiner must also provide an opinion (i) whether a service-connected disability or disabilities caused the Veteran to become obese or aggravated the Veteran's obesity, and if so, (ii) whether the obesity or aggravation of obesity resulting from service-connected disability was a substantial factor in causing the obstructive sleep apnea such that the disability would not have occurred but for the obesity caused or aggravated by service-connected disability. Thomas English Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.