Citation Nr: 21069841 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-36 334A DATE: November 19, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected adjustment disorder, right ankle instability, right shoulder dislocation, and lumbosacral strain, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected adjustment disorder, right ankle instability, right shoulder dislocation, lumbosacral strain is remanded. REASONS FOR REMAND The Veteran served honorably in the U.S. Army from January 1994 to March 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2016 and March 2017 rating decisions issued by a VA Regional Office (RO). By way of background, the Veteran had previously testified before the Board by one of the undersigned Veterans Law Judges (VLJs) in a January 2020 hearing and, thereafter, the OSA claim was denied in a March 2020 Board decision. In the same decision, the Board remanded the hypertension claim for further development. The Veteran then appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC or "the Court") where, in an October 2020 Court Order, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacating and remanding the Board's March 2020 decision regarding the denial of entitlement to service connection for obstructive sleep apnea and remanded the appeal to the Board for readjudication consistent with the JMPR. During development of the claims, the Veteran testified in another Board hearing in July 2021, before a different VLJ, whom is also one of the undersigned. Transcripts of both hearings are of record and have been reviewed in preparation of this decision. Usually when a veteran has been afforded two different Board hearings with two different VLJs, a panel decision is appropriate with three VLJs as well as affording the Veteran the opportunity to present testimony before the third assigned VLJ who will ultimately decide the appeal. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). In this case, however, the Veteran and his representative waived their right to a third hearing before the third assigned VLJ and, therefore, no further hearing is required. See July 2021 Board hearing P. 2. 1. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected adjustment disorder, right ankle instability, right shoulder dislocation, and lumbosacral strain, is remanded. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected adjustment disorder, right ankle instability, right shoulder dislocation, lumbosacral strain, is remanded. The Veteran believes that due to in-service injury, which resulted in service-connected musculoskeletal conditions, he was precluded from exercise leading to substantial weight gain, leading to obesity, and thereby causing his OSA and hypertension. See July 2021 Board hearing P. 7 and 11. Indeed, during his July 2021 Board hearing he contends his weight problems began during service and so, in a way, his OSA and hypertension are directly related to service. Alternatively, the Veteran contends that his OSA and hypertension are secondarily related to his recently service-connected adjustment disorder. Further, during his July 2021 hearing, the Veteran indicated that during service his roommates would complain about him snoring at night. He testified he also did complain of elevated blood pressure readings during active duty but essentially ignored advise to be put on medication at that time because he was young, and thought did not think it was necessary. Based on this testimony, the Board construes that a direct theory of service-connection has also been reasonably raised for both OSA and hypertension. The Veteran also testified that he struggled with his weight before he entered service and indeed entered service on the heavier side. He said he did manage to lose the weight requested by the military until the in-service musculoskeletal injuries, which made it difficult for him to exercise and maintain the physical fitness and weight requirements of his military service. Service treatment records (STRs) confirm the Veteran entered service overweight. His November 1993 entrance examination reflects a weight of 205 pounds, when the maximum allowed for service was 194 pounds. At the time of separation, however, after the well-documented musculoskeletal injuries, his weight had increased from his entrance examination, noted at 222 pounds. STRs do not confirm any time where the Veteran complained of elevated blood pressure readings or that he was advised to be put on medication. The Board does note various isolated blood pressure readings in his records suggestive of elevated blood pressure, such as a 136/90 reading in June 1997 and a 148/90 in August 1997, but no diagnosis of hypertension or any indication that any physician was concerned of his blood pressure during his military service. Similarly, his STRs are silent as to any complaints, treatment, or diagnoses related to OSA, snoring, or sleep disturbances. The Veteran does not dispute that he was not diagnosed with hypertension until 2010 and OSA in 2014, both conditions diagnosed years after service. Rather, he believes the conditions are related to service, either directly incurred therein, but diagnosed later or secondarily to his service-connected disabilities. As an initial matter it is important to emphasize that obesity itself cannot be considered a disability under the rating schedule nor may it be considered an "in-service event or injury." See VA Off. Gen. Counsel Prec. Op. 1-2017 at 2-3. Accordingly, whether his weight problems "began" during service, were aggravated by service, or directly caused his hypertension and OSA cannot in and of itself establish service connection on a direct basis. Id. Obesity, however, may qualify as an "intermediate step" between a service-connected disability and a current disability under a secondary basis under 38 C.F.R. § 3.310. Id.; see also Walsh v. Wilkie, 32 Vet. App. 300 (2020). In particular, service connection may be warranted if the following questions are answered in the affirmative: (1) whether the service-connected disability caused the Veteran to become obese or aggravated the Veteran's obesity; (2) if so, whether the obesity/aggravation of 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 (obesity caused/obesity aggravated) by the service-connected disability. Walsh v. Wilkie, 32 Vet. App. 300 (2020). Over the course of the Veteran's appeal, he has been afforded several VA examinations for his claimed OSA and hypertension and has submitted his own private medical opinion in September 2018. The Board finds these opinions inadequate to base a decision on either of the claims on appeal and, therefore a remand is, regrettably, necessary. With regard to the private opinion submitted in September 2018, by Dr. M.S., which only addresses OSA, the Board finds the opinion to be inadequate for a few reasons. Dr. M.S. opines, in relevant part, that the Veteran's sleep apnea is causally related to his right ankle instability and shoulder dislocation finding these in-service injuries "caused his sedentary lifestyle" which caused his obesity which, in turn, contributed to his obstructive sleep apnea. The opinion, for one, does not consider all relevant facts lending doubt to whether the examiner reviewed all relevant records. Most importantly, the examiner does not acknowledge that prior to service, the Veteran admittedly struggled with his weight and, in fact, on his service entrance examination is noted to have entered service nearly 10 pounds above the weight limit for military standards. This is relevant because the private examiner's opinion in its entirety concludes that the Veteran only struggled with weight gain after he injured his shoulder and ankle in the military. This is inaccurate. The private opinion, moreover, appears to contradict itself sometimes relating the Veteran's OSA directly to the Veteran's right shoulder and ankle injuries, sometimes directly relating the Veteran's OSA to his sedentary lifestyle, sometimes relating OSA directly to "weight fluctuations," and sometimes indicating that obesity "contributed" to his OSA. While the crux of the opinion is that the Veteran's sleep apnea is causally related to his right ankle instability and shoulder dislocation, the examiner's rationale is unclear as to how or why this association is being found. As outlined in the October 2020 JMPR, the April 2018 VA examination and February 2019 VA addendum opinion of record are also inadequate to decide the OSA claim on appeal as the examiner failed to provide an adequate rationale for the opinions offered, failed to consider all reasonably raised theories of entitlement to service connection, and failed to consider whether any of the Veteran's service-connected disabilities either alone or in combination aggravated the Veteran's obesity. See Walsh, 32 Vet. App. at 306. While the April 2018 VA examiner conceded the Veteran's OSA was due to his obesity, the examiner opined that obesity is not caused by "lack of exercise alone." The February 2019 addendum opinion largely opined in the same finding that obesity was not aggravated by service-connected disabilities because obesity does not have just one cause. The opinions are inadequate in determining whether the Veteran's service-connected disabilities caused or aggravated the Veteran's obesity (versus being the "sole cause" of the Veteran's obesity). With regard to hypertension, a July 2016 VA examiner opined that isolated elevated blood pressure readings in the Veteran's service treatment records are not likely indicative of in-service incurrence of hypertension but are more likely associated with the pain or anxiety at those times. A January 2021 VA examiner opined that there is no record of in-service hypertension and instead found "post service weight gain" as the most probable cause. In an addendum opinion, the January 2021 VA examiner further added that "morbid obesity" is the major cause of the elevated pressure, "which is unrelated to anything except excessive caloric intake" and therefore "less likely than not" related to lumbosacral strain. In February 2021, the examiner further elaborated that hypertension is not likely aggravated by the lumbar spine disease. These opinions separate or in combination are inadequate to adequately address all reasonably raised theories of entitlement to service connection for hypertension in this case. The Board observes that these opinions were largely offered with no supporting rationale giving the Board information as to the medical examiner's judgment on the medical question or essential basis for the opinion. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012); see also Horn v. Shinseki, 25 Vet. App. 231, 240-42 (2012) (stating that under caselaw "an unexplained conclusory opinion is entitled to no weight in a service-connection context"). Further, the examiner did not address all reasonably raised theories of service connection, to include whether the Veteran's service-connected disabilities, such as an adjustment disorder, right ankle instability, or right shoulder disability could have caused the Veteran to become obese or aggravated the Veteran's obesity and, if so, whether the obesity was a substantial factor in the Veteran's hypertension. See Walsh, 32 Vet. App. 306. In fact, the examiners concede that the Veteran's obesity is a substantial factor in his hypertension but did not address any of the Veteran's other service-connected disabilities other than the lumbar spine disability. While the examiner found that the Veteran's obesity was unrelated to anything other than excessive caloric intake, the examiner did not address whether any of the Veteran's service-connected disabilities alone or in combination aggravated the Veteran's obesity in light of his testimony of his inability to exercise. For these reasons, additional clarification is required. As a final matter, the Board notes that the Veteran's representative has requested very specific "qualification information" regarding the February 2019 and January 2021 VA examiners, to include not only curriculum vitae, but full job performance reviews and evaluations, investigations, medical certifications, training histories, and other sensitive information. Neither the Veteran nor the representative have provided any cause to warrant such a thorough investigation into any particular examiner in this case. Thus, the Board notes that VA only has a duty to provide basic qualification information, such as a curriculum vitae, but nothing more, in response to the request. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). If after such information is provided the Veteran wishes to pursue a more specific competency challenge and provide cause at that time, a subsequent request can be made. As a side note, during the July 2021 Board hearing, the representative raised concerns with the examiners' collective knowledge of the law, and it appeared that was the basis of wanting to obtain training history. As explained at the hearing, the Veteran's representative is confusing the duties of a medical examiner with those duties of an adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (noting that it is the duty of the VA adjudicators, not medical examiners, to apply appropriate legal standards). Nonetheless, the RO is directed to provide the curriculum vitae of the February 2019 and January 2021 VA examiners in this case in response to the Veteran's representative's concerns. See Francway, 940 F.3d 1304. The matters are REMANDED for the following action: 1. Provide the Veteran and his representative with the curriculum vitae of both the VA examiner who conducted the February 2019 VA examination and the VA examiner who conducted the January 2021 VA examination pursuant to Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). 2. Thereafter, obtain an addendum medical opinion from an appropriate clinician regarding the Veteran's claim seeking service connection for obstructive sleep apnea. The examiner is directed to review the claims folder and consider all lay statements and contentions. Whether a physical examination is necessary is left to the discretion of the examiner. After a thorough review of the claims file and examination (to the extent necessary), the examiner is asked to address the following: (a) Whether the Veteran's obstructive sleep apnea was at least as likely as not directly incurred in service in light of the Veteran's testimony describing roommates complaining of his snoring and symptoms since service? (b) If not, whether the Veteran's obstructive sleep apnea is at least as likely as not caused or aggravated by service-connected (i) adjustment disorder with mixed anxiety and depressed mood, (ii) right ankle instability, (iii) right shoulder dislocation, and/or (iv) lumbar strain. (c) If not, whether it is at least as likely as not that the service-connected adjustment disorder with mixed anxiety and depressed mood, right ankle instability, right shoulder dislocation, and/or lumbar strain caused or aggravated the Veteran's obesity; and if so, whether that resulting obesity is a substantial factor in causing the current obstructive sleep apnea disability; and whether the Veteran's obstructive sleep apnea would not have occurred but for the obesity caused or aggravated by the Veteran's service-connected depressed mood, right ankle instability, right shoulder dislocation, and/or lumbar strain. With regard to the term "aggravated," as used in 38 C.F.R. § 3.310 (b), the examiner is cautioned that this term does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner should address the Veteran's history of pre-service obesity and ongoing fluctuations with weight gain and loss. A complete rationale should be provided for any opinions reached. 3. Obtain an addendum medical opinion from an appropriate clinician regarding the Veteran's claim seeking service connection for hypertension. The examiner is directed to review the claims folder and consider all lay statements and contentions. Whether a physical examination is necessary is left to the discretion of the examiner. After a thorough review of the claims file and examination (to the extent necessary), the examiner is asked to address the following: (a) Whether the Veteran's hypertension was at least as likely as not manifested in service or within a year of service in light of in-service elevated blood pressure readings and the Veteran's testimony that medication was recommended during his active duty? (b) If not, whether the Veteran's hypertension is at least as likely as not caused or aggravated by the Veteran's service-connected (i) adjustment disorder with mixed anxiety and depressed mood, (ii) right ankle instability, (iii) right shoulder dislocation, and/or (iv) lumbar strain. (c) If not, whether it is at least as likely as not that the service-connected adjustment disorder with mixed anxiety and depressed mood, right ankle instability, right shoulder dislocation, and/or lumbar strain caused or aggravated the Veteran's obesity; and if so, whether that resulting obesity is a substantial factor in causing the current obstructive sleep apnea disability; and, if so, whether the Veteran's hypertension would not have occurred but for the obesity caused or aggravated by the Veteran's service-connected depressed mood, right ankle instability, right shoulder dislocation, and/or lumbar strain. With regard to the term "aggravated," as used in 38 C.F.R. § 3.310 (b), the examiner is cautioned that this term does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner should address the Veteran's history of pre-service obesity and ongoing fluctuations with weight gain and loss. A complete rationale should be provided for any opinions reached. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.