Citation Nr: 21061899 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-23 192 DATE: October 5, 2021 REMANDED Entitlement to an initial disability rating in excess of 30 percent for benign paroxysmal positional vertigo, to include consideration of an extraschedular rating is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected other specified anxiety disorder is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected other specified anxiety disorder is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected other specified anxiety disorder is remanded. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty with the Navy from May 1989 to February 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims were previously remanded by the Board in a March 2019 decision for further development. The Board finds that its prior directives were not substantially complied with and as will be discussed further, an additional remand is necessary. A remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to substantial, but not strict, compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to decide on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 1. Entitlement to an initial disability rating in excess of 30 percent for benign paroxysmal positional vertigo, to include consideration of an extraschedular rating is remanded. The March 2019 Board remand found that the Veteran requested extraschedular consideration for his claim as he contended that his disability produces incapacitation, leaves him writhing on the floor, and dizziness and staggering that occur for up to a week. See VA Form 9 dated April 2017. The Board determined that the issues should be referred to the Director of the Compensation Service for consideration as to whether an extraschedular rating should be assigned for his benign paroxysmal position vertigo. 38 C.F.R. § 3.321 (b); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). However, the RO failed to refer the Veteran's claim to the Director before returning the issue to the Board. Accordingly, the Board finds that a remand is necessary. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected other specified anxiety disorder is remanded. 3. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected other specified anxiety disorder is remanded. 4. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected other specified anxiety disorder is remanded. The Veteran contends that his hypertension, obstructive sleep apnea, and type II diabetes mellitus are secondary to obesity, which the Veteran believes is attributed to his service-connected other specified anxiety disorder. In the March 2019 remand, the Board acknowledged that the VA's Office of General Counsel (OGC) found that obesity can constitute an "intermediate step" for service connection on a secondary basis under 38 C.F.R. § 3.310 (a). VAOPGCPREC 1-2017 (January 6, 2017). Specifically, a grant is warranted (1) if the service-connected disability caused the Veteran to become obese, (2) if obesity was a substantial factor in causing a subsequent disability, and (3) if this subsequent disability would not have occurred but for obesity. Id. The Veteran was afforded VA examinations for his claimed conditions in February 2020. The examiner opined that the Veteran's hypertension, diabetes, and sleep apnea are at least as likely as not proximately due to or the result of the Veteran's obesity. The examiner then opined that the Veteran's obesity is not the result of a specific condition, illness, or event while on active duty but rather the cessation of his active duty and regular physical training regime. However, the VA examiner did not offer an opinion as to whether the Veteran's service-connected anxiety disorder caused the Veteran to become obese. A September 2019 Mental Disorders VA examination diagnosed the Veteran with obsessive compulsive disorder and general anxiety disorder and noted that obsessions and compulsion in the areas of food and eating was a symptom of his service-connected mental health disorder. Based on this information, the Board finds that an addendum medical opinion is necessary to address whether the Veteran's service-connected other specified anxiety disorder caused his obesity. Accordingly, a remand is necessary. 5. Entitlement to a TDIU due to service-connected disabilities is remanded. As the issue of a TDIU is inextricably intertwined to the service connection issues decided above, a remand to the RO for further development is necessary. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Refer the issue of entitlement to an initial disability rating in excess of 30 percent for benign paroxysmal positional vertigo to the Under Secretary for Benefits, or to the Director, Compensation Service, for consideration of an extraschedular evaluation at any time during the appeal period. See 38 C.F.R. § 3.321 (b). 2. Obtain an addendum opinion from an appropriate clinician to opine as to whether it is at least as likely as not that the Veteran's service-connected anxiety disorder cause him to become obese. When rendering an opinion, the examiner is asked to consider the September 2019 VA examination which noted that obsessions and compulsion in the areas of food and eating was a symptom of his service-connected mental health disorder. Any opinion expressed should be accompanied by a complete rationale. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.