Citation Nr: 21064675 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-50 173A DATE: October 21, 2021 ORDER The appeal regarding entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities, is dismissed. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities is remanded. FINDING OF FACT On September 09, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the service connection claim for erectile dysfunction was requested. CONCLUSION OF LAW The criteria for withdrawal of the appeal by the Veteran (or his authorized representative) regarding entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities are met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55, 20.205 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from July 1972 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran's claim for entitlement to service connection for a gastrointestinal condition, to include irritable bowel syndrome (IBS), was granted in a November 2020 rating decision. Thus, this claim is no longer on appeal and the Board does not have jurisdiction at this time. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.205. In a written statement received by VA on September 09, 2020, prior to the promulgation of a decision in the appeal, the Veteran, through his representative, indicated that he wanted to withdraw his appeal regarding entitlement to service connection for erectile dysfunction. Accordingly, the Board does not have jurisdiction to review the appeal and the issue is dismissed. REASONS FOR REMAND The Veteran contends that his sleep apnea was caused or aggravated by obesity that resulted from his service-connected disabilities. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.310 (a). 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 (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. While obesity is not a disability for VA compensation purposes, it can be an "intermediate step" between a current disability and a service-connected disability for purposes of secondary service connection if it is found that "(1) the service-connected disability caused the veteran to become obese; (2) the obesity was a substantial factor in causing the claimed secondary disability; and (3) the claimed secondary disability would not have occurred but for obesity caused by the service-connected disability." Marcelino v. Shulkin, 29 Vet. App. 155 (2018); VAOPGCPREC 1-2017 (Jan. 6, 2017). In a more recent decision, the United States Court of Appeals for Veterans' Appeals (the Court) found that the proper interpretation of VAOPGCPREC 1-2017 required consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability caused or aggravated the veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for the obesity caused or aggravated by the service-connected disability. Walsh v. Wilkie, 32 Vet. App. 300 (2020). If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Id. The Board notes that this matter was remanded for additional development in June 2020. Specifically, the Board remanded for a VA examination that addressed whether the Veteran's sleep apnea (1) was caused or aggravated by his PTSD or (2) was merely a symptom of his PTSD. The VA examination was conducted in October 2020. The Veteran was diagnosed with obstructive sleep apnea. However, the examiner gave a negative opinion that the sleep apnea was caused or aggravated by PTSD. The examiner found that the Veteran was diagnosed with sleep apnea two months ago and that he had a history of obesity which was consistently the most important risk factor for sleep apnea. The examiner further noted that while studies do show a correlation between PTSD and sleep apnea, attributing sleep apnea to another condition other than obesity would be speculation. No other opinions or rationale were provided. The Veteran's representative has argued that the examiner failed to render an opinion on the etiology of the Veteran's obesity. An opinion is needed on whether (1) the service-connected PTSD and IBS caused or aggravated the Veteran to become obese; (2) whether the obesity as a result of the service-connected disabilities was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for the obesity caused or aggravated by the service-connected disability. Furthermore, an opinion is needed on whether the sleep apnea was caused or aggravated by his now service-connected IBS. The VA has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination is inadequate based on the examiner's failure to render an opinion regarding the Veteran's obesity. As such, the Board remands this matter for the issuance of an addendum VA medical opinion. The matter is REMANDED for the following action: 1. Obtain updated VA and/or identified pertinent private treatment records to the extent possible. If any such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Once the above has been completed to the extent possible, obtain an addendum opinion from a medical professional with appropriate expertise regarding the etiology of the Veteran's sleep apnea. The examiner should review the Veteran's claims file and note in the examination report that the claims file was reviewed. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one (or telehealth interview, if an in-person examination is not feasible). Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Whether it is at least as likely as not (a balance of positive and negative evidence) that the Veteran's sleep apnea was caused or aggravated by any of his service-connected disabilities, including but not limited to, his PTSD and IBS? The examiner must render opinions on both causation and aggravation. (b.) Whether it is at least as likely as not that any of the Veteran's service-connected disabilities or all of them caused or aggravated the Veteran to become obese? The examiner must render opinions on both causation and aggravation (c.) If the answer to (b.) is yes, then whether it is as least as likely as not that the Veteran's obesity was a substantial factor in causing his sleep apnea; and (d.) If the answer to (c.) is yes, then, whether it is at least as likely as not that the Veteran's sleep apnea would not have occurred but for obesity caused by the Veteran's service connected disabilities. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. "Aggravation" means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. The examiner is not to improperly discount the Veteran's lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.