Citation Nr: A24041237 Decision Date: 07/26/24 Archive Date: 07/26/24 DOCKET NO. 210601-163401 DATE: July 26, 2024 REMANDED Entitlement to service connection for sleep apnea, secondary to service-connected bilateral knee disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from October 1976, until his honorable discharge in October 1979. The rating decision on appeal was issued in May 2021, and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the June 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2021, agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim of entitlement to service connection for sleep apnea, secondary to service-connected bilateral knee disabilities, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to service connection for sleep apnea, secondary to service-connected bilateral knee disabilities, is remanded. The Veteran argues that his current sleep apnea disability is caused by his service-connected orthopedic disabilities, to include his bilateral knee disabilities. Under the AMA a remand is proper only when there is a duty to assist error occurring prior to the date of an agency of original jurisdiction (AOJ) decision on appeal, or if another error fails to satisfy a regulatory or statutory duty. See 38 C.F.R. § 20.802(a). Here, the AOJ denied the Veteran's claim of service connection for sleep apnea based on the May 2021, VA examination. However, remand is warranted to cure a pre-decisional duty to assist error, the failure to consider obesity as an intermediate step between the Veteran's service-connected disabilities and his current obstructive sleep apnea. In the Veteran's prior VA examinations, to include the most recent August 2020 examination, which was specifically related to his knee disabilities, the examiner noted that the Veteran has a limited ability to bear weight on his knees, abnormal range of motion in his knees, which affects the use of his lower extremities. In total, the Veteran is service connected for residuals of bilateral knee replacement, left knee instability, right femoral neuropathy, bilateral knee degenerative joint disease, left knee osteoarthritis with limitation of extension, right foot neuropathy, tinnitus, and bilateral knee scarring. The Board is without a medical opinion taking these disabilities into consideration regarding whether or not the Veteran's service-connected disabilities contribute to the Veteran's sleep apnea. The VA General Counsel states in an opinion that obesity is not a disease for service connection purposes. VAOPGCPREC 1-2017 (Jan 6, 2017). Nonetheless, obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. To grant service connection, the adjudicators would have to resolve the following issues: (1) whether a service-connected disability caused a veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability for which a veteran is seeking service connection; and (3) whether the current disability for which a veteran is seeking service connection would not have occurred but for the obesity caused by the service-connected disability. Id. at 9-10. In Walsh v. Wilkie, 32 Vet. App. 300 (2020), the Court of Appeals for Veterans Claims held VAOPGCPREC 1-2017 not only applies when a service-connected disability causes obesity, but also when a service-connected disability aggravates obesity. When raised by the record, the Board must consider whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310(b). Based on the evidence of record prior to the May 2021 rating decision, remand is warranted to determine whether obesity is an intermittent step between the Veteran's service-connected disabilities and his current obstructive sleep apnea. The matters are REMANDED for the following action: 1. Schedule an examination to determine the nature and likely etiology of the Veteran's obesity and OSA to include as due to his service-connected disabilities. The Veteran is service connected for residuals of bilateral knee replacement, left knee instability, right femoral neuropathy, bilateral knee degenerative joint disease, left knee osteoarthritis with limitation of extension, right foot neuropathy, tinnitus, and bilateral knee scarring. 2. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on claims file review and examination of the Veteran, the examiner should provide opinions responding to the following: (a) Opine as to whether it is at least as likely as not (50% or better probability) that a service-connected disability caused the Veteran to become obese, to include as due to any lack of exercise resulting from service-connected a disability. (b) If the answer to (a) is "no," opine as to whether it is at least as likely as not (50% or better probability) that a service-connected disability aggravated the Veteran's obesity, to include as due to any lack of exercise resulting from a service-connected disability. (c) Opine as to whether it is at least as likely as not (50% or better probability) that obesity (or the aggravation of obesity per question (b)) was a substantial factor in causing OSA. (d) Opine as to whether it is at least as likely as not (50% or better probability) that the Veteran would not have OSA if he were not obese per question (b). Clear rationales for the opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Liggitt, Ryan W. 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.