Citation Nr: 21002552 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 10-19 377 DATE: January 14, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) in the United States Army Reserve from January 1978 to June 1978. She is in receipt of service connection for disabilities related to that period of service and thus that period is considered active military service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In May 2016, the Board remanded this matter for additional development. In May 2017, the Board requested a medical opinion from a physician employed by the Veterans Health Administration (VHA). In December 2017, after receiving the requested VHA opinion, the Board denied entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, as well as entitlement to service connection for hypertension, to include as secondary to service-connected disabilities. The Veteran appealed the December 2017 Board Decision to the United States Court of Appeals for Veterans Claims (CAVC). In February 2020, the CAVC issued a Panel Decision in which it vacated the December 2017 Board Decision and remanded the issues of entitlement to service connection for sleep apnea and entitlement to service connection for hypertension. See Walsh v. Wilkie, 32 Vet. App. 300 (2020). The CAVC explained that the Board erred in failing to secure a medical opinion that addressed whether the Veteran’s obesity was an intermediate step that warrants secondary service connection based on a theory of obesity aggravated by service-connected disabilities. See Walsh, 32 Vet. App. at 307. The CAVC directed the Board to obtain a new medical opinion that provides sufficient information on relevant medical issues so as to permit the Board to make a fully informed decision on the claims on appeal. See id. In August 2020, the Board remanded this matter to obtain an addendum opinion and comply with the CAVC directives. The August 2020 Board remand determined that the evidence showed the presence of a current sleep apnea disability and that the evidence showed that the Veteran’s obesity contributed to her sleep apnea and hypertension and that sleep apnea and hypertension would not have occurred “but for” the Veteran’s weight gain and obesity. Thus, the Board sought a medical opinion as to the remaining question relevant to secondary service connection based on aggravation by way of obesity, specifically whether the Veteran’s service-connected disabilities aggravated her obesity. 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. The Board sincerely regrets the delay, but additional development is necessary to secure an adequate medical opinion. The August 2020 VA examiner opined that it “is less likely as not [sic] that the Veteran’s service-connected disabilities, to include orthopedic disabilities and major depressive disorder, aggravated (permanently worsened beyond natural progression) the Veteran’s obesity leading to other claimed medical conditions” (emphasis added). See August 2020 Medical Opinion. The examiner’s rationale focused on the absence of permanent weight gain. See id. This opinion is inadequate, as secondary service connection based on aggravation does not require a permanent increase in disability. See 38 C.F.R. § 3.310(b). The CAVC has held that the term “aggravation” as used in § 3.310 contemplates any incremental increase in disability of a nonservice-connected condition, even if that increase is temporary. See Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). Thus, the examiner’s opinion addresses the wrong legal standard. Although the Ward decision did not address this question in the context of secondary service connection by way of obesity, the Board finds that the reasoning in Ward prohibits the Board from imposing the requirement that an increase in obesity must be permanent. In this regard, the CAVC explained that the VA “may not add restrictions to a regulation where they do not exist ‘because, in doing so, the Board imposes a greater burden on the claimant than the law does.’” Ward, 31 Vet. App. at 240 (citing English v. Wilkie, 30 Vet. App. 347, 353 (2018)). Here, the relevant General Counsel Opinion controlling secondary service connection based on obesity does not include a requirement for a permanent worsening. See VAOPGCPREC 01-2017 (Jan. 6, 2017). Thus, the Board may not impose such a requirement. The Board acknowledges that VA has proposed amending its regulations to require a permanent worsening for an award of secondary service connection based on aggravation. See 85 F.R. 56189 (Sep. 11, 2020). However, this proposed amendment is inapposite to the present matter, as the current regulations do not include such a requirement, and the proposed amendment does not indicate that the new requirement would be retroactive. Thus, on remand, the AOJ should secure an adequate medical opinion addressing the correct legal standard. The matters are REMANDED for the following action: Obtain an addendum opinion from an examiner other than the August 2020 examiner addressing the etiology of the Veteran’s sleep apnea and hypertension. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The claims file should be made available to and should be reviewed by the examiner. The examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected disabilities, to include orthopedic disabilities and major depressive disorder, aggravated (worsened beyond natural progression) the Veteran’s obesity. In addressing this question, please discuss whether the Veteran’s weight gain was aggravated by a decreased activity level as a result of her service-connected orthopedic disabilities, or by medication used to treat service-connected orthopedic and psychiatric disabilities. The examiner may also discuss any other evidence or principles that he or she believes to be relevant. The examiner is advised that in the present matter, there is no requirement for a permanent aggravation of obesity. Thus, if it is the examiner’s opinion that there was a temporary aggravation in obesity due to service-connected disability, the examiner should answer in the affirmative, even if that aggravation subsequently resolved. A complete rationale must be provided for all opinions rendered. If it is not possible to provide any of the requested opinion without resorting to speculation, please 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); in the record (additional facts are required); or in your own knowledge or training. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, Associate Counsel 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.