Citation Nr: 18147156 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-38 951 DATE: November 2, 2018 ORDER Service connection for an acquired psychiatric disability, to include anxiety, is granted. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, is remanded. FINDING OF FACT The Veteran’s current acquired psychiatric disability, to include anxiety, is related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include anxiety, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from December 2001 to July 2002, May 2005 to October 2005, June 2007 to September 2007, and December 2007 to July 2010, as well as periods in the Reserves. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 notification of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for an acquired psychiatric disability, to include anxiety. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57–58 (1990). The Veteran asserts service connection for an acquired psychiatric disability, claimed as anxiety. The question for the Board is whether the Veteran has an acquired psychiatric disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the evidence is at least in equipoise that the Veteran has a current diagnosis of unspecified anxiety disorder that began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records indicate that he had anxiety in June 2008 while he was in active service. The Veteran underwent a VA examination for his anxiety in May 2016. The examiner diagnosed the Veteran with unspecified anxiety disorder. The examiner then opined that it was less likely than not that the Veteran’s anxiety was secondary to his traumatic brain injury. In support, the examiner stated that his increased anxiety, marital separation, withdrawal, and irritability all seemed to onset upon returning from Iraq. The examiner noted that the Veteran was exposed to a combat situation in Iraq in 2007, and these anxiety symptoms coincide with his return. The Board finds this examination to have some probative value. The examiner reported that it appeared that the Veteran’s anxiety symptoms were related to combat in Iraq. However, the Board notes that the examiner did not provide an opinion as to whether the Veteran’s anxiety was directly related to his combat in Iraq. The Board also acknowledges that there are no negative competent and probative medical opinions that state the Veteran’s anxiety is not directly related to his combat in Iraq. After review of the competent and probative evidence, the Board finds that the evidence is at least in equipoise for service connection for anxiety. The Board notes that the Veteran has a current diagnosis of anxiety, and that his service treatment records document anxiety. While the VA examiner opined that it was less likely than not that the Veteran’s service-connected disabilities cause his anxiety, the examiner appeared to state that his anxiety was due to combat in Iraq. The examiner did not directly address whether the Veteran’s anxiety was directly related to his active service. Additionally, the Board notes no competent and probative medical evidence suggests that the Veteran’s anxiety is not related to his combat in Iraq. Therefore, when resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise that his anxiety is related to his combat in Iraq. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, is remanded. The Veteran has a current diagnosis of obstructive sleep apnea. The Board notes that the medical evidence of record, including the October 2014 VA examination, indicates that obesity is a risk factor, among others for his current diagnosis of OSA. The Board further notes the VA’s General Counsel (GC) recently issued a precedential opinion on how the issue of obesity is to be assessed. One of the primary holdings of the opinion is that obesity is not a disability for purposes of VA benefits; hence, it cannot be the subject of service connection. VAOPGCPREC No. 1-2017 (Jan. 6, 2017); see also Marcelino v. Shulkin, No. 16-2149, 2018 U.S. App. Vet. Claims LEXIS 64 (Vet. App. Jan. 23, 2018). The GC recognized further, however, that obesity may act 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). Hence, the Board will remand for additional medical assessment, to include under the criteria noted by the GC. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Then, schedule the Veteran for a VA examination for his diagnosed obstructive sleep apnea. The claims file should be made available to the examiner and reviewed in conjunction with the examination. The examiner is requested to provide an opinion as to the following questions: (a.) Whether the service-connected disabilities (residuals of TBI, asthma, migraines, tinnitus, high blood pressure) caused the Veteran to become obese/gain weight; (b.) If so, whether the obesity/weight gain as a result of the service-connected disabilities was a substantial factor in causing OSA; (c.) Whether OSA would not have occurred but for the obesity/weight gain caused by the service-connected disabilities. In arriving at the opinion on OSA and weight gain/obesity, inform the examiner that all lay evidence must be considered, including the articles submitted by the Veteran. Inform the examiner further that, under applicable legislation and VA requirements, obesity is not a disease or disability, but it may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis. To determine whether any weight gain or obesity is an “intermediate step” between either any or all of the Veteran’s service-connected disabilities and OSA, the examiner should fully answer the above questions. If no to the above questions, is it at least as likely as not (50 percent or greater) that the Veteran’s sleep disability was caused by a disease or injury in service? (d.) If no to the immediately above question, then is it at least as likely as not (50 percent or greater) that the Veteran’s sleep disability was either 1) proximately due to or 2) aggravated by any service-connected disability, to include his now service-connected anxiety disorder? The term “aggravated” refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Morales, Associate Counsel