Citation Nr: 21006164 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-40 021 DATE: February 3, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for major depressive disorder is granted. New and material evidence having not been received, the claim for entitlement to service connection for obesity is not reopened. New and material evidence having been received, the claim for entitlement to service connection for sleep apnea is reopened; to this extent only, the claim is granted. REMANDED Entitlement to service connection for sleep apnea is remanded.   FINDINGS OF FACT 1. The Veteran has a current diagnosis of PTSD in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) that is the result of an in-service stressor event confirmed by credible supporting evidence. 2. The Veteran’s major depressive disorder is proximately due to his service-connected type 2 diabetes mellitus. 3. The Veteran’s claims for service connection for obesity and for sleep apnea were previously denied by a July 2016 rating decision; the Veteran did not perfect a timely appeal of that decision after a statement of the case (SOC) was issued in August 2017. 4. Regarding obesity, additional evidence received since the July 2016 rating decision is cumulative or redundant of the evidence of record at the time of that decision, does not relate to an unestablished fact necessary to substantiate the claim for service connection for obesity, and does not raise a reasonable possibility of substantiating the claim. 5. Regarding sleep apnea, additional evidence received since the July 2016 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f), 4.125(a). 2. The criteria for service connection for major depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 3. The July 2016 rating decision denying service connection for obesity and for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. 4. New and material evidence has not been received to reopen the Veteran’s claim for entitlement to service connection for obesity. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. New and material evidence has been received to reopen the Veteran’s claim for entitlement to service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to September 1992. In September 2020, a hearing was held before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the record. The Veteran had also initiated an appeal of the denial of a higher rating for his right lower extremity sciatica. However, following an August 2017 SOC addressing this issue, the Veteran did not file a timely substantive appeal. Consequently, this matter is not before the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the current disability was either caused or aggravated by the already service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). 1. Service connection for PTSD. 2. Service connection for major depressive disorder. As an initial matter, the Board notes that a final January 2004 rating decision had denied entitlement to service connection for a psychiatric disability (characterized as intermittent explosive disorder and dysthymia) based on a finding that there was no evidence to show that the Veteran’s current psychiatric disability was related either to his military service or to his service-connected hepatitis C. Subsequent to that determination, additional relevant service records (including records from the Veteran’s service personnel file) were received in 2012 and 2014. Therefore, in accordance with 38 C.F.R. § 3.156(c)(1), the current claim for service connection for a psychiatric disability (to include PTSD and major depressive disorder) is being reviewed de novo. Pursuant to his current claim for service connection for a psychiatric disability, the Veteran contends that he currently has PTSD due to stressful events that occurred during his military service and that he currently has major depressive disorder due to his service-connected disabilities (including type 2 diabetes mellitus). The medical evidence of record, including the report of a January 2020 VA psychiatric examination, shows that the Veteran has a current DSM-5 diagnosis of PTSD as well as a current diagnosis of major depressive disorder. The Veteran’s service treatment records (STRs) show that he tested positive for hepatitis C antibodies in September 1991 during his service. His service personnel records (SPRs) document a history of behavior-related incidents during his service as well as his completion of an alcohol abuse program in February 1992. Post-service, at a January 2004 VA psychiatric examination, the Veteran was diagnosed with intermittent explosive disorder and dysthymia. The VA examiner opined that this disability was not related to the Veteran’s service-connected hepatitis C or to his post-service interferon treatment for such, with the rationale being that the anger and irritability he presented during his interferon treatment in 2001 and 2002 were ongoing problems that started getting worse in 1998. At an August 2013 VA psychiatric examination, the Veteran was diagnosed with mood disorder not otherwise specified, and it was noted that his symptoms did not meet the criteria for PTSD under the DSM-IV [which was the diagnostic manual being used at that time]. At the examination, he described an in-service stressor of allegedly having to clean up the aftermath of a plane crash. The VA examiner noted that the Veteran was treated in mental health and for alcohol abuse during his service. However, the VA examiner opined that the Veteran’s claimed PTSD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, with the rationale being that the Veteran did not have a diagnosis of PTSD. The VA examiner did not provide an opinion regarding the etiology of the Veteran’s diagnosed mood disorder. At a January 2020 VA psychiatric examination, the Veteran was diagnosed with PTSD in accordance with the DSM-5 and was also diagnosed with major depressive disorder. At the examination, he described four in-service stressors: being exposed to hepatitis C during his service and being diagnosed with such therein; allegedly being subjected to ongoing threats after a car was blown up while he was stationed in Germany; allegedly being “locked in a room waiting to get called up to be mobilized” during the Iran hostage crisis; and allegedly having to clean up the aftermath of a plane crash. The VA examiner opined that all four of the Veteran’s alleged in-service stressors contributed to his PTSD diagnosis, with the rationale being that each stressor met Criterion A for being adequate to support the diagnosis of PTSD. In a January 2020 addendum, the VA examiner opined that the Veteran’s major depressive disorder is at least as likely as not proximately due to or the result of his service-connected type 2 diabetes mellitus, with the rationale being that research on chronic illness such as diabetes shows that major depressive disorder is a comorbid condition. Regarding the Veteran’s four alleged in-service stressors, the Board finds that the stressor of being exposed to hepatitis C during his service and being diagnosed with such therein is confirmed by his STRs, as noted above. In light of this one confirmed stressor, the Board finds that no further development is necessary to verify the other alleged in-service stressor events. As the evidence of record documents that the Veteran has a current DSM-5 diagnosis of PTSD that began during his active service as a result of an in-service stressor event confirmed by credible supporting evidence, the Board concludes that service connection for PTSD is warranted. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304(f), 4.125(a). In addition, the Board finds that the favorable medical opinion provided by the January 2020 VA examiner, indicating that the Veteran’s major depressive disorder is proximately due to his service-connected type 2 diabetes mellitus, is supported by an adequate rationale for the conclusion reached, as this rationale took into account the pertinent medical evidence of record as well as evidence from pertinent research. Therefore, the Board affords the opinion substantial weight of probative value. In light of the foregoing, and after resolving all doubt in the Veteran’s favor, the Board concludes that service connection for major depressive disorder is warranted on a secondary basis. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303(a), 3.310(a); see Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (noting that different psychiatric diagnoses may have symptoms that are not overlapping). [The Board finds that the instant decision applies to – and resolves – all pending claims of service connection for a psychiatric disability, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009).]   Reopening Claims for Service Connection Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513.   3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for obesity. “Obesity” is defined as an increase in body weight beyond the limitation of skeletal and physical requirements, as the result of an excessive accumulation of fat in the body. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (32nd ed. 2012). Particularities of body type, such as being overweight or underweight, do not of themselves constitute disease or disability subject to service connection. See 38 U.S.C. §§ 1110, 1131; see also Marcelino v. Shulkin, 29 Vet. App. 155 (2018). A claim for service connection for “fatigue and obesity” was initially denied in a December 2015 rating decision on the basis that obesity is not a condition which may be service connected. [Since 2002, the Veteran has been service-connected for fatigue as part of his service-connected hepatitis C disability, characterized as “hepatitis C with periportal fibrosis, with symptoms including fatigue.”] The Agency of Original Jurisdiction (AOJ) notified the Veteran of its decision, and of his appellate rights. Thereafter, a July 2016 rating decision again denied service connection for “fatigue and obesity” on the basis that obesity is a symptom and not a confirmed diagnosis. The AOJ again notified the Veteran of its decision, and of his appellate rights. Following a September 2016 notice of disagreement to the denial of service connection for obesity in the July 2016 rating decision, the July 2016 rating decision became final when he did not perfect a timely appeal of that decision after an SOC was issued in August 2017. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. The pertinent evidence of record at the time of the July 2016 rating decision consisted of VA treatment records which noted as recently as June 2015 that the Veteran had been assessed with obesity, as well as the Veteran’s statements that his obesity was caused by fatigue due to his service-connected hepatitis C disability. The evidence received since the July 2016 rating decision consists of VA treatment records which noted as recently as August 2017 that the Veteran had been assessed with obesity, a January 2020 VA psychiatric examination report noting the Veteran’s obesity, and the Veteran’s statements that his obesity was caused by inactivity due to his service-connected disabilities. As the claim for service connection for obesity was previously denied on the basis that obesity is a symptom and not a diagnosis or condition which may be service-connected, for evidence to be new and material in the matter, it would have to be evidence that is not cumulative or redundant of the evidence of record at the time of the July 2016 rating decision that relates to a finding of the Veteran having a valid disease or disability manifested by obesity which is subject to service connection [and not already service-connected] while raising a reasonable possibility of substantiating the claim. While the aforementioned evidence received since the July 2016 rating decision is new (to the extent that it was not previously associated with the record), it is not material, as such evidence does not show that the Veteran has a valid disease or disability manifested by obesity which can now be the subject of a new award for service connection. To the extent that the Veteran’s newly submitted statements (including the testimony at his September 2020 hearing) allege that his obesity was caused by inactivity due to his service-connected disabilities (including type 2 diabetes mellitus, back injury with lumbosacral disc change, hepatitis C with periportal fibrosis with symptoms including fatigue, tinnitus, left and right lower extremity sciatica, residuals of left wrist tendon laceration, and residuals of right middle finger extensor tendon laceration), the Board finds that because the Veteran is already service-connected for the disabilities which he claims were responsible for causing the inactivity which led to his obesity, he has not presented any new and material evidence to show that he has a valid disease or disability manifested by obesity which can now be the subject of a new award for service connection. Based on the foregoing, the Board finds that the evidence received since the July 2016 rating decision is cumulative or redundant of the evidence of record at the time of that decision, does not relate to an unestablished fact necessary to substantiate the claim for service connection for obesity, and does not raise a reasonable possibility of substantiating the claim. Therefore, such evidence is not new and material, and the claim may not be reopened. 38 U.S.C. § 5108.   4. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for sleep apnea. A claim for service connection for sleep apnea was initially denied in a December 2015 rating decision on the basis that there was no evidence of a nexus between the Veteran’s sleep apnea and either his military service or a service-connected disability. The AOJ notified the Veteran of its decision, and of his appellate rights. Thereafter, a July 2016 rating decision again denied service connection for sleep apnea on the basis that there was no evidence of a nexus between the Veteran’s sleep apnea and either his military service or a service-connected disability. The AOJ again notified the Veteran of its decision, and of his appellate rights. Following a September 2016 notice of disagreement to the denial of service connection for sleep apnea in the July 2016 rating decision, the July 2016 rating decision became final when he did not perfect a timely appeal of that decision after an SOC was issued in August 2017. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. The evidence received since the July 2016 rating decision includes the Veteran’s September 2020 hearing testimony, wherein he alleged that his service-connected disabilities (including type 2 diabetes mellitus, back injury with lumbosacral disc change, hepatitis C with periportal fibrosis with symptoms including fatigue, tinnitus, left and right lower extremity sciatica, residuals of left wrist tendon laceration, and residuals of right middle finger extensor tendon laceration) resulted in inactivity which caused obesity, which in turn caused him to develop sleep apnea. This evidence was not before adjudicators when the Veteran’s claim was last denied by the AOJ in July 2016, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened.   REASONS FOR REMAND Entitlement to service connection for sleep apnea. As an initial matter, the Board notes that obesity may be an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis. In order to meet such criteria, the Veteran must demonstrate that a previously service-connected disability caused the Veteran to become obese; that obesity was a substantial factor in causing secondary disability; and that the secondary disability would only have occurred but for the obesity. VAOPGCPREC 1-2017 (Jan. 6, 2017). The Veteran contends that his service-connected disabilities (including type 2 diabetes mellitus, back injury with lumbosacral disc change, hepatitis C with periportal fibrosis with symptoms including fatigue, tinnitus, left and right lower extremity sciatica, residuals of left wrist tendon laceration, and residuals of right middle finger extensor tendon laceration) resulted in inactivity which caused obesity, which in turn caused him to develop sleep apnea. The Veteran’s STRs did not note any reports, findings, diagnosis, or treatment of sleep apnea. Post-service, a July 2005 VA treatment record noted that the Veteran had undergone a sleep study in July 2004 which revealed a diagnosis of moderate obstructive sleep apnea. At a May 2016 VA sleep apnea examination, the Veteran was diagnosed with obstructive sleep apnea. It was noted that this was diagnosed in 2004 through a private sleep study conducted at Las Vegas Sleep Center. In a May 2016 addendum, the VA examiner opined that the Veteran’s obstructive sleep apnea was less likely than not proximately due to or the result of his service-connected hepatitis C, with the rationale being that he was diagnosed with obstructive sleep apnea in 2004 (i.e., two years after his interferon treatment for hepatitis C) and that a review of the literature did not show that obstructive sleep apnea is due to or a side effect of treatment with interferon or due to hepatitis C. However, the VA examiner did not provide an opinion addressing whether the Veteran’s obstructive sleep apnea was aggravated beyond its natural progression (i.e., any increase in severity beyond the natural progression of the condition) by his service-connected hepatitis C. In addition, while the VA examiner noted that the Veteran was diagnosed with obesity and that obstructive sleep apnea occurs in persons that are obese (due to the throat having fat folds that obstruct the airways), the VA examiner did not provide an opinion addressing whether the Veteran’s obesity was due to any of his service-connected disabilities. At a January 2020 VA sleep apnea examination, the Veteran was diagnosed with obstructive sleep apnea. In a January 2020 addendum, the VA examiner opined that it was less likely as not that the Veteran’s obstructive sleep apnea was incurred in or caused by his military service, with the rationale being that the Veteran was not diagnosed with sleep apnea until 2004 and he had no records of having symptoms of sleep apnea from 1980 to 1992 (i.e., during his service years). In April 2020, a different VA physician opined that the Veteran’s obstructive sleep apnea was less likely than not proximately due to or the result of his service-connected type 2 diabetes mellitus, with the rationale being that while diabetes can cause central apnea, the Veteran’s apnea is obstructive and not central, and there was no objective evidence of record to correlate his sleep apnea to his diabetes. However, the VA physician did not provide an opinion addressing whether the Veteran’s obstructive sleep apnea was aggravated beyond its natural progression (i.e., any increase in severity beyond the natural progression of the condition) by his service-connected type 2 diabetes mellitus. The VA physician went on to note that the Mayo Clinic says that the leading risk factor for obstructive sleep apnea is excess weight (obesity) and indicated that the Veteran’s weight was the obstructing cause of his apnea, but opined that there was no evidence that the Veteran’s obesity was somehow due to or secondary to his service-connected type 2 diabetes mellitus, as the “leading causes of obesity include diet, lack of activity/exercise, lifestyle, genetic, hormonal, medication[,] etc.” The VA physician did not provide an opinion addressing whether the Veteran’s obesity was due to any of his other service-connected disabilities. On remand, after all outstanding treatment records have been associated with the claims file (to include the report of the above-noted July 2004 private sleep study, as well as the records of all pertinent treatment authorized through the Veterans Choice Program, as VA treatment records dating from June 2017 through June 2019 indicated that the Veteran had received Choice-authorized primary care treatment), an addendum medical opinion should be obtained in order to adequately address all secondary service connection theories raised. The matter is REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his claimed sleep apnea disability on appeal at any time, including the report of a July 2004 sleep study conducted at Las Vegas Sleep Center as well as the records of all pertinent treatment authorized through the Veterans Choice Program. Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from December 2019 to the present from all VA medical facilities where he has received treatment since that time (including in the states of Nevada, California, and/or Washington). 3. After all requested records have been associated with the claims file, obtain an addendum opinion from an appropriate clinician, after review of the electronic claims file, as to each of the following questions: (a.) Whether it is at least as likely as not that the Veteran’s sleep apnea was caused or is aggravated beyond its natural progression (i.e., any increase in severity beyond the natural progression of the condition) by any of his service-connected disabilities (including type 2 diabetes mellitus, back injury with lumbosacral disc change, hepatitis C with periportal fibrosis with symptoms including fatigue, tinnitus, left and right lower extremity sciatica, residuals of left wrist tendon laceration, residuals of right middle finger extensor tendon laceration, and his now-service connected PTSD and major depressive disorder); and (b.) Whether it is at least as likely as not that (i) any of the Veteran’s service-connected disabilities (including type 2 diabetes mellitus, back injury with lumbosacral disc change, hepatitis C with periportal fibrosis with symptoms including fatigue, tinnitus, left and right lower extremity sciatica, residuals of left wrist tendon laceration, residuals of right middle finger extensor tendon laceration, and his now-service connected PTSD and major depressive disorder) caused him to become obese or aggravated (i.e., any increase in severity beyond natural progression) obesity; (ii) such obesity was a substantial factor in causing his sleep apnea; and (iii) his current sleep apnea would not have occurred but for obesity caused or aggravated by a service-connected disability. If the clinician determines that an examination is necessary to respond to the above questions, then the Veteran should be scheduled for such (or a telehealth interview if an in-person examination is not feasible). A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate   whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. B. Yantz, Counsel The Board’s decision in this case is binding only with respect to the instant matters decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.