Citation Nr: 21077305 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-09 081 DATE: December 29, 2021 REMANDED Entitlement to service connection for a recurrent sleep disability, to include obstructive sleep apnea, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to an effective date prior to April 9, 2015, for the award of a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. Entitlement to an effective date earlier than April 9, 2015, for basic eligibility to Department of Veterans Affairs (VA) Dependents' Educational Assistance benefits under 38 U.S.C. Chapter 35, is remanded. REASONS FOR REMAND The Veteran had active service from August 1966 to August 1968. In November 2019, the Board of Veterans' Appeals (Board) denied service connection for sleep apnea and remanded the issues of service connection for hypertension and effective dates prior to April 9, 2015, for the award of a TDIU and basic eligibility to VA Dependents' Educational Assistance benefits under 38 U.S.C. Chapter 35. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted the Parties' Joint Motion for Partial Remand; vacated that portion of the November 2019 Board decision which denied service connection for sleep apnea; and remanded the issue for action consistent with the parties' Joint Motion for Partial Remand. 1. Entitlement to service connection for both a recurrent sleep disability, to include obstructive sleep apnea, and hypertension is remanded. An April 2021 Department of Veterans Affairs (VA) evaluation states that "the Veteran's obstructive sleep apnea is due to his weight gain, obesity and aging" and "hypertension in his case is likely related to his obesity and aging and is therefore less likely than not (less than 50% probability) that his hypertension was incurred in or related to his time in service." An August 2021 VA evaluation conveys that: "in other words, the Veteran's sleep apnea and hypertension may well have occurred or worsened regardless of weight gain/obesity;" "again neither his coronary artery disease nor his diabetes are felt to be causative of his obesity;" and "therefore, it is likely that the Veteran's OSA and hypertension would have occurred or worsened regardless of his obesity." Both the April 2021 and the August 2021 evaluations were prepared by the same VA physician. Given the conflicting findings as to the relationship between the onset of both obstructive sleep apnea and hypertension and the Veteran's obesity from the same VA physician, the Board finds that the evaluations are of essentially no probative value. Obesity is not a disease or disability for which service connection may be granted. VAOPGCPREC 1-2017 (the "longstanding policy of VA is that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis, is consistent with Title 38, United States Code" and "obesity per se is not a 'disability' for purposes of 38 C.F.R. § 3.310.") Service connection may be established under 38 C.F.R. § 3.310(a) if obesity was an "intermediate step" between a service connected disability and a current disorder. VAOPGCPREC 1 2017. In order for secondary service connection to be established, the record must demonstrate that: (1) the service connected disability caused a veteran to become obese or aggravated his obesity; (2) the obesity or the aggravation of obesity as a result of the service connected disability was a substantial factor in causing the claimed disability; and (3) the claimed disability would not have occurred but for obesity caused or aggravated by the service connected disability. Walsh v. Wilkie, 32 Vet. App. 300 (2020). VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that further VA sleep disability and hypertension evaluations are necessary. 2. Entitlement to effective dates prior to April 9, 2015, for the award of a TDIU and basic eligibility to VA Dependents' Educational Assistance benefits under 38 U.S.C. Chapter 35, is remanded. The issues of entitlement to effective dates prior to April 9, 2015, for the award of a TDIU and basic eligibility to VA Dependents' Educational Assistance benefits under 38 U.S.C. Chapter 35, are inextricably intertwined with the issues of being remanded and must also be remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA sleep disability examination conducted by a medical doctor, other than the VA physician who conducted the April 2021 and August 2021 evaluations, to assist in determining the etiology of the diagnosed sleep apnea and the relationship, if any, between the sleep apnea, the Veteran's obesity, and the service-connected disabilities. The examiner must review the record, including all submitted medical articles. A rationale for all opinions should be provided. The examiner should: (a) Opine whether it is at least as likely as not (50 percent probability or greater) that the diagnosed sleep apnea had its onset during active service or is related to any incident of service. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that the diagnosed sleep apnea is due to or the result of the service connected disabilities and any obesity associated with the service connected disabilities. (c) Opine whether it at least as likely as not (50 percent probability or greater) that the diagnosed sleep apnea has been aggravated (increased in severity beyond the natural progression of the disorder) by the service connected disabilities and any obesity associated with the service connected disabilities. 2. Schedule the Veteran for a VA hypertension examination conducted by a medical doctor, other than the VA physician who conducted the April 2021 and August 2021 evaluations, to assist in determining the etiology of the diagnosed hypertension and the relationship, if any, between the hypertension, the Veteran's obesity, and the service-connected disabilities. The examiner must review the record, including all submitted medical articles. A rationale for all opinions should be provided. The examiner should: (a) Opine whether it is at least as likely as not (50 percent probability or greater) that the diagnosed hypertension had its onset during active service or is related to any incident of service. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that the diagnosed hypertension is due to or the result of the service connected disabilities and any obesity associated with the service connected disabilities. (c) Opine whether it at least as likely as not (50 percent probability or greater) that the diagnosed hypertension has been aggravated (increased in severity beyond the natural progression of the disorder) by the service connected disabilities and any obesity associated with the service connected disabilities. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Casula 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.