Citation Nr: 1320175 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-49 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for obesity (claimed as weight gain), to include as secondary to service-connected disease or injury. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disease or injury. 3. Entitlement to service connection for hypertension, to include as secondary to service-connected disease or injury. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from March 1968 to November 1970. This matter initially came before the Board of Veterans' Appeals (Board) from a January 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Portland, Oregon. The case was remanded for further development in April 2011 and June 2012. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals a February 2013 rating decision, discussed below. The remaining documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran's appeal originally included the issue of service connection for obesity (claimed as weight gain), to include as secondary to service-connected disease or injury. During the pendency of the appeal, in a February 2013 rating decision, the Appeals Management Center (AMC) granted service connection for obesity as secondary to service-connected depressive disorder, and assigned a noncompensable evaluation effective on October 29, 2008. However, on the code sheet associated with the rating decision, the AMC included obesity as a claimed disorder that was determined to be not service connected and not subject to compensation, despite the notation that it warranted a noncompensable evaluation effective from October 29, 2008. Additionally, subsequent to the rating decision, the AMC included the issue in a March 2013 Supplemental Statement of the Case (SSOC). In the SSOC, the AMC denied service connection for obesity, to include as secondary to service-connected disease or injury. Therefore, it remains unclear to the Board whether the issue remains on appeal. The Veteran has asserted that his claimed sleep apnea and hypertension were caused, in part, by his obesity. Therefore, the claims are inextricably intertwined with the claim of service connection for obesity. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are 'inextricably intertwined' when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). With respect to the claim of service connection for hypertension, the Board notes that the Veteran was provided VA hypertension examinations in January 2010 and August 2012. The January 2010 VA examiner noted that the Veteran developed "fluid overload... most likely due to morbid obesity and diabetes with no known heart disease"; however, neither examiner provided opinions as to whether the Veteran's hypertension was caused or aggravated by his obesity. Therefore, on remand, an etiological opinion must be obtained that addresses the Veteran's contention that he developed hypertension secondary to obesity. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must take corrective action to resolve the discrepancy within the record between the February 2013 rating decision, in which the AMC seemingly granted service connection for obesity and assigned a noncompensable evaluation effective from October 29, 2008; the code sheet associated with the February 2013 rating decision that lists obesity as not service connected and not subject to compensation; and the March 2013 SSOC that included the claim of service connection for obesity which the AMC denied. 2. The RO/AMC must ascertain if the Veteran received any VA, non-VA, or other medical treatment that is not evidenced by the current record - to specifically include any VA treatment records not associated with the record. The RO/AMC must attempt to obtain these records, as well as any other pertinent records, and associate them with the claims folder. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform him and provide him an opportunity to submit copies of the outstanding medical records. 3. The RO/AMC should obtain a clarifying medical opinion from the VA examiner who conducted the August 2012 VA hypertension examination, or, if he is not available, an appropriate clinician, to obtain a clarifying medical opinion as to the directives set forth below. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should first identify whether the Veteran has hypertension. Then, as to any diagnosed disability, the examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the disability is related to the Veteran's military service. He or she should also state whether it is at least as likely as not that the disorder is either caused by or permanently aggravated by any service-connected disabilities or injuries, to include depression, bronchitis, and obesity (if the RO/AMC determines that it is service-connected). A complete rationale should accompany any opinion provided. 4. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a SSOC and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).