Citation Nr: 21069245 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-23 758 DATE: November 17, 2021 ORDER Service connection for degenerative arthritis of the thoracolumbar spine is granted. REMANDED Service connection for obstructive sleep apnea, to include as due to herbicide exposure, including as secondary to the service-connected disabilities, is remanded. Service connection for hypertension, to include as due to herbicide exposure, including as secondary to the service-connected disabilities, is remanded. Service connection for impotence, to include as due to herbicide exposure, including as secondary to the service-connected disabilities, is remanded. FINDINGS OF FACT 1. The Veteran is currently diagnosed with degenerative arthritis of the thoracolumbar spine. 2. During service the Veteran injured the back in a motor vehicle accident. 3. Symptoms of arthritis of the thoracolumbar spine have been continuous since service separation. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for presumptive service connection for arthritis of the thoracolumbar spine have been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Navy from August 1967 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia (Agency of Original Jurisdiction (AOJ)). These matters were previously before the Board in November 2018. The Board remanded the issues for new VA medical opinions related to the theory of direct service connection. A review of the file reflects that new VA opinions were obtained. As such, the Board finds that the AOJ substantially complied with the remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998). For the reasons listed below, the Board finds that remanding the issues of service connection for sleep apnea, hypertension, and impotence is necessary as the representative has recently advanced that these disorders may be secondary to obesity caused the service-connected disabilities, to include the service-connected cervical spine disorder. 1. Service Connection for a Back Disability is Granted. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. The Veteran is currently diagnosed with arthritis of the thoracolumbar spine, which is a "chronic" disease under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran asserts having a currently diagnosed back disability that first manifested during service after a motor vehicle accident and back injury. See various lay statement. The evidence shows a current diagnosis of arthritis of thoracolumbar spine. See VA treatment records. During service the Veteran's back was injured in a motor vehicle accident. March 1977 service treatment records reflect a motor vehicle accident resulting in back pain. The Board also finds the Veteran's statements regarding this accident to be credible. Specifically, the Veteran has reported various injuries sustained during the in-service motor vehicle accident, to include back pain. Additionally, the same in-service injury caused the already service-connected neck and bilateral shoulder disabilities. See April 2020, August 2018 rating decisions. Having reviewed all the evidence of record, lay and medical, the Board finds that the weight of the evidence is at least in equipoise on the question of whether the Veteran experienced "continuous" symptoms since service separation of arthritis of the thoracolumbar spine to meet the requirements for presumptive service connection for the chronic disease of arthritis. See 38 C.F.R. § 3.303(b). As discussed above, the service treatment records reflect a March 1977 motor vehicle accident resulting in various injuries and the other credible evidence supports a finding that the Veteran sustained a back injury from the in-service motor vehicle accident. The Veteran has also consistently contended that there have been back problems since service separation. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds presumptive service connection for the chronic disease of arthritis of the thoracolumbar spine arthritis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Service Connection for Sleep Apnea is Remanded. 3. Service Connection for Hypertension is Remanded. 4. Service Connection for Impotence is Remanded. The representative has recently advanced that sleep apnea, hypertension, and impotence may be due to obesity caused by the service-connected disabilities. An October 2021 statement reflects the representative wrote that the service-connected cervical spine, asthma, and bilateral shoulder disabilities prohibited the Veteran from exercising. The instant decision also grants service connection for a back disability. As such, remand to obtain a VA opinion is necessary. VA has determined that obesity is not a disability for service connection or secondary service connection compensation purposes, although obesity may act as an "intermediate step" between a service-connected disability and a current disability for which secondary service connection may be established. See VAOPGCPREC 1-2017. It was noted that, 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 and that "proximate cause" had been defined by Black's Law Dictionary, 213 (7th ed. 1999), as a "cause that directly produces an event and without which the event would not have occurred." As such, VA must resolve: (1) whether a service-connected disability caused a 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 claimed disability; and (3) whether the claimed disability would not have occurred but for obesity caused by the service-connected disability. See also Walsh v. Wilkie, 32 Vet. App. 300 (2020) (holding that, where obesity is found to be the cause of a nonservice-connected disability, secondary service connection of that disability using the "intermediate step" theory requires VA to consider whether a service-connected disability caused or aggravated the obesity). The matters are REMANDED for the following action: Request that a VA medical professional review the electronic file and provide the VA medical opinions requested below. If the VA examiner determines that additional examination(s) of the Veteran is necessary to provide reliable opinions, such examination(s) should be scheduled. The VA examiner should provide the following opinions with supporting rationale: A. The examiner should opine as to whether it is at least as likely as not (50 percent or higher degree of probability) that the Veteran's obesity is due to a lack of activity? If so, is the lack of activity caused by the service-connected disabilities, namely, of the cervical spine, asthma, and both shoulders? In rendering this opinion, the examiner should address whether the symptoms of the service-connected disabilities preclude all forms of exercise, including low-impact activities, or whether it is feasible for the Veteran to participate in some forms of exercise or activities to maintain health and proper weight. If the Veteran is capable of performing some type of exercise in light of the service-connected cervical spine, asthma, and bilateral shoulder disabilities, identify the types of exercise the Veteran would be capable of performing (for example, swimming, water aerobics, rowing, and/or yoga). Please also specifically address the Veteran's weight gain in general, the role of the Veteran's dietary intake, whether obesity could be prevented by proper diet and exercise, and whether there are any other non-service-related factors contributing to the present obesity. B. Did obesity cause the currently diagnosed sleep apnea, hypertension, and impotence? C. Did obesity aggravate (worsen in severity) the currently diagnosed sleep apnea, hypertension, and impotence? (Continued on the next page) If the examiner opines that sleep apnea, hypertension, and/or impotence was worsened by obesity, the examiner should indicate the degree of disability before aggravation and the degree of disability afterwards (now). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tenney, 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.