Citation Nr: 1340261 Decision Date: 12/05/13 Archive Date: 12/20/13 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 G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to April 1968. This matter initially came before the Board of Veterans' Appeals (Board) from a January 2009 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, June 2012, and June 2013. This appeal was processed using the Virtual VA and VBMS paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Obesity is aggravated by the Veteran's service-connected depressive disorder. 2. Sleep apnea is proximately due to or the result of the Veteran's service-connected obesity. CONCLUSION OF LAW 1. Obesity is aggravated by a service-connected disease or injury. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2012). 2. Sleep apnea is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Given the favorable disposition of the claims for service connection for obesity and sleep apnea, the Board finds that a full discussion of VCAA is not required at this time. II. Analysis As an initial matter, the Board notes that the Veteran does not claim that his obesity or sleep apnea are due to combat. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.310, service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). In this case, the Veteran contends that he is entitled to service connection for obesity, claimed as weight gain, and sleep apnea, as he believes that these disabilities are related to his service-connected disabilities including bronchitis and depression. The Veteran has also alleged that his bronchitis and depression have led to weight gain and obesity, which have in turn caused his sleep apnea. At the outset, the Board notes that the Veteran does not contend, nor do the Veteran's service treatment records reflect, that he complained of, was treated for, or was diagnosed with any disability related to obesity/weight gain or sleep apnea during service. Post-service VA outpatient treatment records as early as 1998 reflect that Veteran reported weight gain and was treated for obesity. An impression of obesity was noted in April 2001. On VA examination in September 2002, the Veteran reported a recent gain from 270 to 302 pounds, which he felt was due to decreased activity stemming from respiratory problems related to his service-connected bronchitis. VA outpatient treatment records also include an October 2004 VA report with the results of a polysomnogram study indicating diagnosis of mild obstructive sleep apnea. On VA examination in March 2008, the Veteran reported that he reduced his weight to 300 pounds, but when his VA disability benefits were recently reduced, he went into a deep depression and was back at 334 pounds. After physical examination, the examiner diagnosed sleep apnea and morbid obesity. As to whether it is at least as likely as not that the Veteran's current sleep apnea is caused or aggravated by his service connected bronchitis with bronchiectasis, the examiner indicated that neither bronchitis nor bronchiectasis are known to be direct causes of sleep apnea. However, he found that they definitely contributed to the Veteran' s sleep apnea, as his inability to exercise has contributed to his obesity which is the major cause of sleep apnea. The examiner also indicated that the Veteran's sleep apnea was severely aggravated by his service connected bronchitis and bronchiectasis. A September 2008 VA opinion report notes the examiner's opinion that the Veteran's sleep apnea is less likely than not related to his service connected bronchitis. In so finding, the examiner noted that there was no medical evidence whatsoever to indicate that bronchitis results in or even significantly contributed to obstructive sleep apnea. Rather, he found that the primary cause of the Veteran s sleep apnea is his morbid obesity. The examiner noted that the Veteran was 5 feet 10 inches tall and that he weighed approximately 340 pounds. On VA examination in August 2012, the VA examiner determined that the Veteran's obesity is as likely as not aggravated by his service connected disorder, given that overeating is a well established medical symptom/complication of depressive disorders. On January 2013 VA opinion report, the examiner indicated, after review of the treatment records, that the Veteran had advanced extreme morbid obesity about five and one half years before the diagnosis of depression was made by a VA screening exam in 2004. The examiner also noted that the Veteran's weight measurements were consistent with extreme morbid obesity beginning in 1998. The Board notes that, in a February 2013 rating decision, the AMC, citing the opinion of the August 2012 VA examiner, granted service connection for obesity as secondary to the Veteran's service-connected depressive disorder. 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. A subsequent March 2013 Supplemental Statement of the Case also included a denial of the claim for service connection for obesity. Given these discrepancies, in the June 2013 remand, the Board asked the RO/AMC to clarify whether service connection had been granted and to take corrective action to resolve the discrepancy. However, the AMC only issued a Supplemental Statement of the Case in September 2013 noting a continued denial of the claim for service connection for obesity. Given that the clarification or revision sought on remand was not accomplished, the Board concludes that the body of the February 2013 rating decision, which took thought and required analysis, takes precedence over the code sheet. Accordingly, we agree with the February 2013 rating decision, and find that service connection for obesity, as secondary to service-connected depression, is warranted. We again note that the AOJ had an opportunity to resolve one error or the other, but nothing was done. As regards the claim for service connection for sleep apnea, the Board notes that the Veteran's obstructive sleep apnea has been related to the Veteran's now-service connected obesity. The March 2008 and September 2008 VA examiners found that the primary cause of the Veteran sleep apnea is his morbid obesity. The Board finds these opinions, which were based upon reviews of the Veteran's claims file and the examiners' medical expertise, highly probative. The Board also points out that VA is not free to ignore a medical opinion (see Owens v. Brown, 7 Vet. App. 429, 433 (1995)), or to reject a medical opinion based on its own medical judgment (see Obert v. Brown, Vet. App. 30 (1993) and Colvin v. Derwinski, 1 Vet. App. 171 (1991)). In this case, the March and September 2008 VA examiners' opinions are not contradicted by the other competent and probative evidence of record and VA adjudicators are not permitted to substitute their own judgment on a medical matter. For these reasons, the Board finds that the weight of the evidence supports the conclusion that the Veteran's sleep apnea is related to the service-connected obesity and that service connection must be granted. ORDER Entitlement to service connection for obesity (claimed as weight gain), as secondary to service connected disease or injury, is granted. Entitlement to service connection for sleep apnea, as secondary to service connected disease or injury, is granted. REMAND In light of the Board's decision granting service connection for obesity, the Board believes that further development on the claim for service connection for hypertension is warranted. The Veteran has asserted that his hypertension is caused by or otherwise related to his obesity. While opinions have previously been obtained regarding the relationship between the Veteran's hypertension and his then service-connected disabilities, the Veteran was not service connected for obesity at that time and the relationship between the Veteran's hypertension and his obesity, if any, was not discussed. On VA hypertension examination in August 2012, the examiner, under "other pertinent physical findings, complications, conditions, signs or symptoms related to the condition" noted that the Veteran was obese and that obesity aggravates hypertension. However, the examiner subsequently only provided an opinion as to whether hypertension was caused or aggravated by the service-connected depressive disorder. Moreover, the August 2013 VA examiner opined that the Veteran's hypertension is less likely than not proximately due to or the result of the Veteran's service connected conditions, noting that it is a well-established medical fact that the conditions for which the Veteran is service-connected-chronic bronchitis, hearing loss, tinnitus, and mood disorder-do not cause hypertension. In addition, the August 2013 VA examiner did not provide an opinion as to whether any of the Veteran's service-connected disabilities permanently aggravated the claimed hypertension. Given the foregoing the Board must remand the matter of service connection for hypertension for addendum opinion addressing the relationship, if any, between the claimed hypertension and the Veteran's service-connected disabilities, to specifically include obesity. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who provided the August 2013 opinion, or if he is unavailable, refer the file to an appropriate medical professional. The entire claims file must be made available to the designated examiner. If an examination is necessary, one should be provided. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is proximately due to, caused by, or aggravated (permanently increased in severity beyond the natural progress of the condition) by his service-connected disabilities, to include bronchitis, depression, sleep apnea and obesity. If aggravation is found, the examiner should identify the baseline level of severity of the nonservice-connected disability to the extent possible. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should clearly so state, and the reasons and bases for the inability to provide the opinion must be included in the examination report. 2. Then, the RO/AMC should readjudicate the Veteran's claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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 Department of Veterans Affairs