Citation Nr: 21067854 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 15-13 075 DATE: November 5, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for xerosis (skin rash), to include as secondary to PTSD, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1987 to May 1991. The Veteran testified before a Veterans Law Judge in an April 2018 hearing. A transcript is of record. In January 2021, the Board notified the Veteran that the Veterans Law Judge who presided over his April 2018 hearing had retired and offered the Veteran the opportunity to appear at another Board hearing. VA rules require that a Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38U.S.C. §7107 (c); 38C.F.R. §20.717. The January 2021 correspondence requested that the Veteran return his response within 30 days from the date of the letter, and if he did not respond, then the Board would assume that he did not want another hearing and would proceed accordingly. No response was received from the Veteran, and the Board will proceed with adjudication of these claims. These issues were previously before the Board in September 2018, September 2020, and April 2021, at which time they were remanded for further development. 1. Obstructive sleep apnea is remanded. 2. Xerosis (skin rash) is remanded. The Veteran has asserted that his PTSD has caused or aggravated his excessive weight, which then led to sleep apnea. The Veteran also asserts that his obesity has been caused and/or aggravated by his PTSD, which has then led to a xerosis disability. The April 2021 Board decision remanded the issue and directed that a VA examiner provide an opinion as to whether it was at least as likely as not that the Veteran's current excessive weight was proximately due to, the result of, or aggravated by his PTSD. The examiner was directed to consider and discuss the Veteran's lay statements and relevant medical evidence, including an August 1999 VA mental health treatment record indicating that the Veteran reported variable appetite from no appetite to binging; a June 2011 VA treatment record in which he reported to being an "emotional eater;" and the Veteran's statement in his March 2015VA Form 9 that his PTSD causes him to eat and drink. The Board notes that, although obesity itself is not considered a disability for VA purposes, when obesity has been caused by a service-connected condition, and subsequently causes another disability, obesity may be considered an "intermediate step" for establishing service connection on a secondary basis. See VAOPGCPREC 1-2017(January 6, 2017). A VA opinion was obtained in June 2021. The examiner opined that the Medical opinion dated October 21, 2020 was reviewed. From a medical standpoint, the prior opinion rendered on October 21, 2020 was consistent with the medical literature and Veteran's cause of weight gain was multifactorial. Regarding the Veteran's assertion that their PTSD has led to them binge eating and being an emotional eater, the examiner stated that a Behavioral Health specialist should be consulted as to whether the Veteran's PTSD solely caused the Veteran to become obese. The RO obtained another addendum opinion in August 2021. Here, the examiner stated that the previous opinion should be disregarded and that they have rendered a new opinion. The examiner stated that it is less likely than not the Veteran's current obesity is proximately due to or the result of the Veteran's PTSD. Obesity causes are multifactorial, but ultimately in absence of a severe immobility, occurs based upon dietary and exercise choices. Though some studies may indicate a correlation between the two conditions, correlation does not equal causation. Veteran specific facts show he is able to lose weight despite his service-connected disabilities (11/09/11 369lbs then 9/9/14 341.8lbs). The conditions of weight gain and service-connected disabilities are not medically related. The weight gain is a separate entity entirely from the service-connected disabilities and unrelated to it. Obesity is primarily due to consuming more calories than the body burns off which is a choice. From the weights in treatment notes, the Veteran is clearly able to lose weight despite the service-connected disabilities which indicates a choice. No nexus for cause or aggravation is plausible. Obesity would have occurred regardless of service-connected disabilities as the obesity was due to a choice to consume more calories than the body needs. The June 2021 medical opinion also noted that it was not possible to state beyond mere speculation if the Veteran's xerosis would have developed in the absence of their obesity. There are many factors for which can result in xerosis including medications, over cleansing the skin, exposure to the cold, drying products, sun exposure, etc. The examiner additionally cited to the rationale above addressing the Veteran's weight and his service-connection PTSD. The Board finds that the examiner's rationale is inadequate as she did not discuss any of the Veteran's lay statements or relevant medical evidence of record indicating that the Veteran had a variable appetite from no appetite to binging, he had reported being an emotional eater, and his PTSD caused him to eat and drink. This also does not comport to the requirements of the April 2021 remand directives that the Veteran's assertion be specifically addressed in the examiner's rationale. The Board errs when it fails to ensure substantial compliance with a Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. Accordingly, the Board finds it necessary to remand these issues for the RO to complete its development. The Board also remanded service connection for a skin disability in April 2021, for an opinion to be obtained that addressed the Veteran's assertion that his obesity has been caused and/or aggravated by his PTSD, which has then led to a xerosis disability. The June 2021 medical opinion noted that it was not possible to state beyond mere speculation if the Veteran's xerosis would have developed in the absence of their obesity. There are many factors for which can result in xerosis including medications, over cleansing the skin, exposure to the cold, drying products, sun exposure, etc. The examiner additionally cited to the rationale above addressing the Veteran's weight and his service-connection PTSD. The matters are REMANDED for the following action: 1. Forward the entire claims file, including a copy of this remand, to an appropriately qualified VA examiner (previous examiner recommended a Behavioral Health Specialist) for an addendum opinion to address the nature and etiology of the Veteran's sleep apnea disability. If an addendum would be insufficient to provide an adequate opinion, afford the Veteran a new VA examination. The examiner must address obesity as an intermediate step between the Veteran's service-connected PTSD and his sleep apnea. (a) The examiner should state whether it is at least as likely as not that the Veteran's service-connected PTSD caused him to become obese or aggravated his obesity? The examiner must render opinions on both causation and aggravation. (b) If the answer to (a) is yes, then state whether it is as least as likely as not that the Veteran's obesity was a substantial factor in causing his sleep apnea; and (c) If the answer to (b) 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 PTSD. 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. If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. 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. Specifically, the examiner should comment on the August 1999 VA mental health treatment record indicating that the Veteran reported variable appetite from no appetite to binging; the June 2011 VA treatment record in which he reported to being an "emotional eater;" and the Veteran's statement in his March 2015 VA Form 9 that his PTSD causes him to eat and drink. 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). 2. Forward the entire claims file, including a copy of this remand, to an appropriately qualified VA examiner (previous examiner recommended a Behavioral Health Specialist) for an addendum opinion to address the nature and etiology of the Veteran's skin disability. If an addendum would be insufficient to provide an adequate opinion, afford the Veteran a new VA examination. The examiner must address obesity as an intermediate step between the Veteran's service-connected PTSD and his xerosis (skin rash). (a) The examiner should state whether it is at least as likely as not that the Veteran's service-connected PTSD, caused him to become obese or aggravated his obesity? The examiner must render opinions on both causation and aggravation. (b) If the answer to (a) is yes, then state whether it is as least as likely as not that the Veteran's obesity was a substantial factor in causing his xerosis (skin rash); and (c) If the answer to (b) is yes, then, whether it is at least as likely as not that the Veteran's xerosis (skin rash) would not have occurred but for obesity caused by the Veteran's service-connected PTSD. 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. If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. 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). A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lent, Edward 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.