Citation Nr: 21004557 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 13-16 252 DATE: January 27, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for narcolepsy is remanded. Entitlement to service connection for Chiari malformation is remanded. REASONS FOR REMAND The Veteran had active service from August 1982 to January 1993. These matters originate from a December 2010 rating decision that denied service connection for sleep apnea and narcolepsy, and denied a request to reopen a previously denied claim for service connection for Chiari malformation. These matters were previously before the Board of Veterans’ Appeals (Board) in February 2016, at which time the Board granted the Veteran’s request to reopen his Chiari malformation claim and remanded all three claims for development. The Veteran’s claims were remanded again by the Board in July 2017 and February 2020. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). As discussed further below, the Board finds that there has not been substantial compliance with its February 2020 remand directives. More fundamentally, the VA examinations currently of record are inadequate for adjudicative purposes. Once VA undertakes the effort to provide an examination when developing a claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, further remand is necessary in order to obtain VA medical opinions which are both compliant with the Board’s February 2020 remand directives, and which are substantively adequate for adjudicative purposes. 1. Entitlement to service connection for sleep apnea and narcolepsy is remanded. In February 2020, the Board noted that the Veteran’s VA medical records reflect entries of obesity. Obesity per se is not a “disease” or “injury” for purposes of 38 U.S.C. §§ 1110 and 1131. VAOPGCPREC 1-2017. However, where a service-connected disability causes a Veteran to become obese; the obesity as a result of the service-connected disability was a substantial factor in causing another disability; and when the other disability would not have occurred but for the obesity caused by the initial service-connected disability, the other disability may be service connected on a secondary basis. VAOPGCPREC 1-2017. In February 2020 the Board remanded the Veteran’s sleep apnea and narcolepsy claims to obtain a VA medical opinion that addressed whether it was at least as likely as not the Veteran’s service connected shoulder, bilateral knee, and/or low back disabilities caused the Veteran to become obese; and, if so, whether it was at least as likely as not that the obesity was a substantial factor in the development of the Veteran’s sleep apnea and/or narcolepsy; and whether it is at least as likely as not that but for the obesity caused by the service-connected shoulder, knee, and/or low back disabilities the Veteran would not have developed sleep apnea and/or narcolepsy. A VA medical opinion was obtained in September 2020. The September 2020 VA medical examiner stated as follows: “Unable to state with 50% or greater probability that obesity itself was caused by a lack of exercise secondary to service connected shoulder, bilateral knees, of low back disabilities or any other identifiable mechanism/pathology reason being the overwhelming cause of obesity is caloric intake. While exercise (or lack of) may also be a factor, by far, the major component (greater than 50%) of weight gain is caloric intake.” The Board finds the above rationale inconsistent with the applicable law. Under 38 C.F.R. § 3.310(a), where a service-connected disability causes a Veteran to become obese; the obesity as a result of the service-connected disability was a substantial factor in causing another disability; and when the other disability would not have occurred but for the obesity caused by the initial service-connected disability, the other disability may be service connected on a secondary basis. See VAOPGCPREC 1-2017. VA’s Acting General Counsel (VA ACG) acknowledged that “[o]besity is not itself a discrete incident or occurrence . . . [r]ather, obesity occurs over time and is based on various external and internal factors and processes, many of which cannot be considered discrete events.” VAOPGCPREC 1-2017 at 9. VAOPGCPREC 1-2017 cites to literature discussing, in pertinent part, the casual roles of behavioral processes, genes and epigenetic effects, energy intake, and energy expenditure in the development of obesity. Id. Under the analysis proposed by the September 2020 VA examiner, no Veteran could ever be granted service connection for a disability on the basis of the “intermediate step” theory outlined in by VA ACG in VAOPGCPREC 1-2017, inasmuch as any decrease in caloric expenditure attributable to service-connected disabilities could theoretically be offset by a corresponding decrease in caloric intake. This outcome is thus contrary to applicable law, including 38 C.F.R. § 3.310(a), which provides for obesity to serve as an “intermediate step” between a service-connected disability and another disability as outlined in VAOPGCPREC 1-2017, as well as VA’s statutory obligation under 38 U.S.C. § 5107 to resolve doubt in favor of the Veteran. Under 38 C.F.R. § 3.310(a), a disability which is proximately due to or the result of a service-connected disease or injury is service connected. “Proximate cause” is defined as a “’cause that directly produces an event and without which the event would not have occurred.’” VAOPGCPREC 6-2003 (quoting Black’s Law Dictionary 213 (7th ed. 1999)). When there are potentially multiple causes of a harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action. Thus, the question is whether the Veteran’s service-connected disabilities were a substantial contributing factor to the Veteran’s obesity, without which the obesity would not have manifested; and whether the Veteran’s obesity was a substantially contributing factor to the Veteran’s sleep apnea, without which the sleep apnea would not have manifested. Whether there were other contributing factors to the Veteran’s sleep apnea is not dispositive of the question being adjudicated. In light of the foregoing, the Board finds that the rationale underlying the September 2020 VA medical opinion is inadequate, in that it is not consistent with applicable law. Once VA undertakes the effort to provide an examination when developing a claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, there has not been substantially compliance with the Board’s February 2020 remand directives, in addition to the more fundamental lack of an opinion which is adequate for adjudicative purposes. On remand a new VA medical opinion should be obtained, that is consistent with the applicable legal standards and which addresses whether a causal relationship exists between the Veteran’s service-connected disabilities and his sleep apnea and/or narcolepsy. 2. Entitlement to service connection for Chiari malformation is remanded. An August 2018 VA examiner stated that the Veteran’s Chiari malformation is congenital and not caused by his service-connected migraines. Generally, congenital or developmental defects are not diseases or injuries for which service connection may be granted. 38 C.F.R. § 3.303(c). However, where a congenital condition was manifested or aggravated during military service, service connection may be warranted. VA O.G.C. Prec. Op. No. 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985). To date, no VA examiner has adequately addressed whether the Veteran’s congenital Chiari malformation was at least as likely as not aggravated by active service. A July 2017 VA examiner did state that the Veteran’s Chiari malformation was not aggravated beyond its natural progression by an in-service event, injury, or illness. However, the examiner did not identify any evidence or offer any rationale in support of this contention. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As noted above, the August 2018 VA examiner stated only that the Veteran’s Chiari malformation is not caused by his migraines. A September 2020 VA opinion also did not address the issue of aggravation. Thus, there is no probative VA examination of record which addresses the question of whether the Veteran’s Chiari malformation was aggravated beyond its natural progression by an in-service event, injury, or illness. On remand, a VA medical opinion should be obtained addressing whether it is at least as likely as not that the Veteran’s congenital Chiari malformation either first manifested in service or was aggravated beyond its natural progression by an in-service event, injury, or illness, to include migraine headaches. The matters are REMANDED for the following action: Forward the claims file, including this remand, to the examiner who provided the September 2020 opinions regarding the Veteran’s Chiari malformation, sleep apnea, and narcolepsy. If the September 2020 VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinions should be obtained from another appropriately qualified clinician. The examiner shall indicate in the addendum report that the claims file was reviewed. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. The examiner should provide an opinion that addresses the following: (a.) Whether there is at least a 50 percent probability that either the shoulder, bilateral knee, or low back disability, or all, caused the Veteran to become obese. If so, state whether there is at least a 50 percent probability that the obesity that has resulted from any of the Veteran’s service-connected musculoskeletal disabilities was a substantial factor in the development of the sleep apnea or narcolepsy, or both, and whether there is at least a 50 percent probability that either the sleep apnea or narcolepsy, or both, would not have occurred but for obesity caused by the service-connected disability or disabilities. (b.) Whether the Veteran’s Chiari malformation was at least as likely as not aggravated beyond its natural progression by the Veteran’s active service or a service-connected disability, to include migraine headaches. If the examiner finds that the Veteran’s Chiari malformation was aggravated by a service-connected disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the Chiari malformation prior to aggravation. If the examiner is unable to establish a baseline for the Chiari malformation prior to the aggravation, they should state as such and explain why a baseline cannot be determined. (Continued on the next page)   (c.) If the Veteran’s Chiari malformation was aggravated by either an event or injury during the Veteran’s active service, or by a service-connected disability, the examiner should further opine as to whether the Veteran’s sleep apnea or narcolepsy are the result of, or aggravated beyond their natural progression, by the Veteran’s Chiari malformation. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw 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.