Citation Nr: 21006601 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-04 542 DATE: February 4, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for chronic fatigue syndrome is remanded. REASONS FOR REMAND The Veteran had active service from September 1967 to September 1991, to include tours of duty in Thailand and Southwest Asia. These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2009 and April 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In the February 2014 substantive appeal, the Veteran requested a Board hearing. A videoconference hearing was scheduled in April 2017. In April 2017, the Veteran requested to cancel the Board hearing. This case was previously before the Board in August 2020, at which time the issues currently before the Board were remanded for additional development. The case has now been returned to the Board for appellate review. 1. Service Connection — Sleep Apnea In the August 2020 remand, the Board directed that a VA medical opinion be obtained to determine whether obesity is related to the Veteran’s service-connected disabilities as an intermediate step. Obesity, for purposes of service connection, is not considered a disease or disability for purposes of establishing entitlement to service connection under 38 U.S.C. § 1110 and 1131, or for purposes of establishing secondary service connection under 38 C.F.R. § 3.310. Obesity, however, may qualify as an “intermediate step” between a service-connected disability and a current disability where a claimant establishes that the obesity was caused by a service-connected disability and caused his or her the current disability. VAOPGCPREC 1-2017. Where obesity is asserted to be an intermediate step, the evidence must show that the service-connected disability “caused the veteran to become obese,” that the obesity caused by the service-connected disability “was a substantial factor in causing” the current disability, and that the current disability “would not have occurred but for” the obesity caused by the service-connected disability. Id. In Walsh v. Wilkie, 32 Vet. App. 300 (2020), the Court further held that the Board needs to consider the obesity-intermediate step theorem predicated on 3.310 (aggravation) also where appropriate. In particular, the Court held that proper interpretation of G.C. Prec. Op. 1-2017 requires consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability (caused the veteran to become obese/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. If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. A VA addendum opinion was obtained in September 2020. The Board finds the opinion inadequate. In this respect, the VA examiner provided a negative opinion, but did not adequately determine whether obesity was related to the Veteran’s service-connected disabilities as an intermediate step as requested by the Board’s remand. Further, while the examiner noted that there was no direct “cause and effect” relationship between obesity and sleep apnea, the examiner simply stated that the cause for sleep apnea was not well known, but that a risk factor was obesity. The examiner reasoned that a segment of the population did not have obesity, but had sleep apnea and, therefore, there was no direct cause and effect relationship between the two. The Board finds this rationale troublesome as the examiner did not look to the Veteran’s own risk factors. Accordingly, a new opinion is required. 2. Service Connection — COPD In the August 2020 remand, the Board directed that a VA addendum opinion be obtained to determine if COPD was at least as likely as not related to active service, to include the Veteran’s exposures to Agent Orange and toxins from environmental hazards in the Persian Gulf. A VA addendum opinion was obtained in September 2020. The Board finds that the opinion is inadequate. The VA examiner opined that it was less likely as not that the Veteran’s COPD was caused by environmental exposures in Southwest Asia. However, the examiner simply reasoned that COPD was not related to environmental exposures because the Veteran did not have an undiagnosed illness. That reasoning is insufficient. In addition, the examiner did not determine whether COPD was directly related to Agent Orange exposure as requested by the Board’s remand. A new opinion is required. 3. Service Connection — Chronic Fatigue Syndrome In the August 2020 remand, the Board directed that a VA medical examination be obtained to determine whether it is at least as likely as not that the Veteran has chronic fatigue syndrome. The examiner was also instructed to identify any missing diagnostic criteria if he or she believed that the Veteran did not have chronic fatigue syndrome. In September 2020, the Veteran was provided a VA examination. The Board finds the opinion inadequate. In this regard, for the claimed chronic fatigue syndrome, the VA examiner determined that the Veteran did not have chronic fatigue syndrome. However, the examiner did not identify any missing diagnostic criteria after determining that the Veteran did not have chronic fatigue syndrome as requested by the Board’s remand. In addition, the examiner did not address whether the Veteran’s fatigue could itself be considered a disability. A new opinion is required. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file.  2. Obtain an addendum opinion concerning the Veteran’s sleep apnea from the September 2020 VA examiner; or, if unavailable, another appropriately qualified examiner. The claims file must be made available for review. The examiner must address the following: i. Express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected disabilities caused or aggravated the Veteran’s obesity? ii. If so, is it at least as likely as not (50 percent or greater probability) that such obesity/aggravation of obesity was a “substantial factor” in causing his sleep apnea? iii. If so, is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea would not have occurred but for the obesity caused or aggravated by his service-connected disabilities? The Veteran is currently service connected for: diabetes mellitus; anxiety disorder; left and right shoulder tendinopathy; lumbar strain; left sciatica; right lower extremity radiculopathy; tinnitus; scars of the neck and head; and bilateral hearing loss. A full and complete rationale must be provided for any opinion reached. 3. Obtain an addendum opinion concerning the Veteran’s COPD from the September 2020 VA examiner; or, if unavailable, another appropriately qualified examiner. The claims file must be made available for review. The examiner must offer an opinion as to whether COPD is at least as likely as not related to active service, including the Veteran’s exposures to Agent Orange and toxins from environmental hazards in the Persian Gulf. The examiner’s attention is directed to the Veteran’s October 2010 statement about his exposure to polluted air, burning oil fields, and smoke in Operation Desert Storm. A full and complete rationale must be provided for any opinion reached. 4. Obtain an addendum opinion concerning the Veteran’s chronic fatigue syndrome from the September 2020 VA examiner; or, if unavailable, another appropriately qualified examiner. If an examination is deemed necessary, then an examination should be scheduled. The claims file must be made available for review. The examiner must address the following: i. Opine whether the Veteran has a diagnosis of chronic fatigue syndrome. If not, the Veteran must explain the diagnostic criteria, if any, which are missing. ii. Even if the Veteran does not have a diagnosis of chronic fatigue syndrome, is the Veteran’s fatigue considered a disability? If so, express an opinion as to whether the Veteran’s fatigue is at least as likely as not related to active service, to include including the Veteran’s exposures to Agent Orange and toxins from environmental hazards in the Persian Gulf. A full and complete rationale must be provided for any opinion reached. 5. Confirm that the VA addendum medical opinions provided comport with this remand, and undertake any other development found to be warranted.  6. Then, readjudicate the appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board.  JESSICA SEAY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umez-Eronini, Associate 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.