Citation Nr: 21074084 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 15-32 515 DATE: December 14, 2021 REMANDED Entitlement to service connection for a cervical spine condition is remanded. Entitlement to service connection for an erectile dysfunction, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty, including from August 1979 to February 1980 and from June 1985 to June 1992. This matter comes before the Board of Veterans' Appeal (Board) on appeal from May 2013 (hypertension) and April 2016 (cervical spine, erectile dysfunction, sleep apnea) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the issues of service connection for a cervical spine condition and erectile dysfunction were previously decided by the Board in August 2020. In its decision, the Board denied entitlement to service connection for a cervical spine condition and erectile dysfunction. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), and, in July 2021, the Veteran and the Acting Secretary of Veterans Affairs (collectively, the Parties) filed a Joint Motion for Partial Remand (JMPR). In that JMPR, the Parties moved the Court to vacate and remand the part of the Board's August 2020 decision that denied entitlement to service connection for a cervical spine condition and erectile dysfunction. The Parties agreed this is the only issue from the August 2020 Board decision that is being challenged, as the two other issues in the Board decision (entitlement to service connection for hypertension and sleep apnea) were remanded for the further development. The Court granted that JMPR in July 2021. As such, these matters are again before the Board. In March 2019, the Board upheld severance of service connection for major depressive disorder (MDD) and denied entitlement to service connection for obstructive sleep apnea. The Veteran appealed this issue to the Court. In March 2020, the Court granted the Parties Joint Motion for Partial Remand (JMR) and vacated the Board's March 2019 decision. The Parties agreed that the Board erred by not providing an adequate statement of reasons or bases for its determination. The Parties further agreed that the claim of service connection for obstructive sleep apnea was inextricably intertwined with the claim of service connection for MDD. In addition, the Board restored entitlement to service connection for MDD in an August 2020 decision, and service connection for squamous cell carcinoma was granted in an April 2020 rating decision. As such, these matters are no longer before the Board. In August 2020 and May 2021, the Board remanded the claims of entitlement to service connection for hypertension and obstructive sleep apnea for further development. As such, these matters are again before the Board. 1. Entitlement to service connection for a cervical spine condition is remanded. In the JMPR, the Parties agreed the Board failed to comply with the duty to assist when it relied on inadequate examinations and opinions when denying the Veteran's claims. In addition, the Board failed to provide adequate reasons and bases when it failed to address a reasonably raised theory of entitlement. Regarding the Veteran's cervical spine condition, the April 2016 and November 2019 VA medical opinions failed to address the Veteran's contention that his cervical spine disability was related to the same in-service incident that caused his service-connected lumbar spine disability, which was a 500-pound trailer falling on him during service. In addition, the examiner did not address the Veteran's lay statements regarding the onset of his cervical spine condition nor the contention that the in-service incident predisposed the Veteran to further injury or greater severity of any later neck injury. As such, a remand is necessary in order to obtain a new opinion (and examination, if found necessary) to address the deficiencies noted above. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities, is remanded. Regarding the Veteran's erectile dysfunction, the November 2019 VA medical opinion regarding whether the Veteran's erectile dysfunction is related on a secondary basis to his service-connected disabilities, to include any medications taken, stated that there was "no medical basis" for the Veteran's service-connected disabilities, including medications taken, to cause or aggravate his erectile dysfunction. However, the examiner did not provide any supporting facts, analysis, or evidence for this conclusion, nor explain how or why this conclusion was reached. As such, a remand is necessary in order to obtain an opinion (and examination, if found necessary) that addresses the deficiency noted above. 3. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. Pursuant to the May 2021 Board remand, an opinion was requested to adequately address the Veteran's claim regarding service connection for hypertension on a secondary basis. In particular, the remand indicated that an adequate explanation or rationale was not provided in February 2021 and March 2021 VA opinions that addressed proximate cause and aggravation. In July 2021, a medical opinion was obtained that stated hypertension and MDD are unrelated, and no medical literature was found to support a causal relationship. In addition, the examiner stated that the Veteran's hypertension and MDD have no correlation and that his hypertension was not aggravated by his MDD. The Board finds this opinion regarding secondary service connection inadequate, as the examiner did not provide any additional supporting facts or rationale based on the Veteran's individual circumstances to support the conclusions reached. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Furthermore, in November 2021, the Veteran submitted additional supporting evidence regarding the link between hypertension and depression/anxiety disorders. As such, the Board finds that an addendum opinion (and examination, if found necessary) should be obtained that addresses the submitted articles regarding the relationship between hypertension and MDD/anxiety disorders, as well as the issue of secondary service connection. 4. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. Pursuant to the May 2021 Board remand, an opinion was requested to address the Veteran's claim regarding his obesity as an intermediate step between his service-connected disabilities and his development of sleep apnea. In a September 2021 opinion obtained pursuant to the remand, the examiner concluded that the Veteran's obesity was not linked to his service-connected conditions but acknowledged that being overweight or obese is a risk factor for sleep apnea. Regarding the Veteran's claim that his depression is linked to his weight gain, the September 2021 examiner stated that without a diagnosed eating disorder, the Veteran's weight gain "cannot be blamed" on his depression. However, in November 2021, the Veteran submitted arguments and supporting articles regarding depression and obesity having "shared biological mechanisms" and are conditions that co-occur or "the presence of one increases the risk of developing the other." The Board finds that an addendum opinion should be obtained that addresses the additional evidence regarding the biological links of depression and obesity and the Veteran's development of sleep apnea. The matters are REMANDED for the following action: 1. Arrange for an appropriate VA clinician to provide an opinion regarding the etiology of the Veteran's cervical spine condition. It is up to the discretion of the selected clinician as to whether an in-person examination of the Veteran is required to provide the opinion. The examiner is requested to provide an opinion regarding whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's cervical spine condition is related to an in-service event, injury, or disease, to include the incident during service when a 500 pound trailer fell on the Veteran, which caused his service-connected lumbar spine disability. The examiner should also address and consider the Veteran's lay statements regarding onset and symptomatology, as well as the contention that the in-service trailer incident predisposed the Veteran to further injury or greater severity of any later neck injury. The examiner must provide a detailed and medically-supported rationale for all opinions given. 2. Arrange for an appropriate VA clinician to provide an opinion regarding the etiology of the Veteran's erectile dysfunction. It is up to the discretion of the selected clinician as to whether an in-person examination of the Veteran is required to provide the opinion. The examiner is requested to provide opinions regarding: (a) whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's erectile dysfunction had its onset during active duty service, or is otherwise related to his active duty service. (b) whether it is at least as likely as not that the Veteran's erectile dysfunction is caused by his service-connected disabilities (listed in a July 2021 rating decision), to include medications taken. (c) whether it is at least as likely as not that the Veteran's erectile dysfunction is aggravated by his service-connected disabilities, to include medications taken. The examiner must address both causation and aggravation for the opinions to be deemed adequate. The examiner should be aware that Ward v. Wilkie, 31 Vet. App. 233 (2019) held that a "permanent worsening" of a nonservice-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). The examiner should provide a detailed and medically-supported rationale for all opinions given. 3. Arrange for an opinion (and examination, if necessary) from an appropriate medical professional that addresses whether the Veteran's hypertension was at least as likely as not (a 50 percent or greater probability) caused or aggravated beyond its natural progression by his service-connected conditions, including major depressive disorder, and medications taken. In providing a response, the examiner should review the entire claims file and address the research articles submitted in November 2021 regarding a possible relationship between hypertension and depression/anxiety disorders. The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), 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 must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise, established medical principles, and references to the evidence of record, as appropriate. 4. Request an addendum opinion from the September 2021 examiner, or an appropriate clinician that addresses the following: (a) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected major depressive disorder caused him to become obese; (2) if the examiner determines the Veteran's obesity is at least as likely as not the result of his service-connected major depressive disorder, he or she must provide an opinion as to whether or not the obesity was at least as likely as not a substantial factor in causing sleep apnea; (3) if the examiner determines both that obesity was at least as likely as not caused by the service-connected major depressive disorder and that sleep apnea was at least as likely as not caused by the obesity, he or she must provide an opinion as to whether it is at least as likely as not that sleep apnea was incurred or aggravated by the obesity caused by the service-connected major depressive disorder. The examiner should consider the medical literature submitted by the Veteran in November 2021. A complete and fully articulated rationale or explanation should be provided for any opinions reached. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ariasaif, Mary 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.