Citation Nr: 21009731 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-14 119 DATE: February 23, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities and/or obesity, is remanded. Entitlement to service connection for skin rash of the elbows, to include as secondary to in-service herbicide exposure, is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran had active duty from March 1967 to June 1970. Service personnel records reflected that the Veteran served aboard the USS Iredell County in the official waters of Vietnam during active duty. All vessels with the designation LST (Landing Ship, Tank) were operating primarily or exclusively on Vietnam’s inland waterways. See http://www.publichealth.va.gov/exposures/agentorange/shiplist/index.asp. Thus, the Board concedes the Veteran’s exposure to herbicides while serving in Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2014. A transcript of the hearing is of record. The Board remanded this matter in November 2015. In an April 2018 decision, the Board denied the Veteran’s claims for service connection. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The Board notes this case was subject to an October 2018 Joint Motion for Remand of the Board’s April 2018 denial. In September 2019 and July 2020, the Board remanded these matters for additional development. 1. Entitlement to service connection for OSA, to include as secondary to service-connected disabilities and/or obesity, is remanded. Obesity is not a disease or disability for which service connection may be granted. Nonetheless, the Board finds that an additional opinion is needed to clarify whether obesity was an “intermediate step” between the Veteran’s service-connected disabilities (peripheral neuropathy and PTSD) and his claimed OSA. See VAOPGCPREC 1-2017. The analysis involves addressing the following questions: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether obesity, as a result of the service-connected disability, was a substantial factor in causing the claimed secondary disability; and (3) whether the claimed secondary disability would not have occurred but for obesity caused by the service-connected disability. See also Walsh v. Wilkie, 32 Vet. App. 300 (2020) (holding that obesity as an “intermediate step” in a causal chain for service connection can be established on either a causal or aggravation basis). In December 2020 VA medical opinions, the examiner did discuss the relationship between the Veteran’s service-connected peripheral neuropathy and obesity as well as the relationship between obesity and OSA. However, the examiner did not adequately address the questions posed above concerning whether obesity was an “intermediate step” between the Veteran’s service-connected disabilities (peripheral neuropathy and PTSD) and his claimed OSA. The Veteran has also recently asserted that his service-connected PTSD symptomatology, such as impaired impulse control, has contributed to his obesity. Due to the incomplete findings rendered in the December 2020 VA medical opinions and the Veteran’s recent assertions, the AOJ should obtain an additional VA medical opinion to clarify the etiology of the Veteran’s claimed OSA. 2. Entitlement to service connection for skin rash of the elbows, to include as secondary to in-service herbicide exposure, is remanded. Based on the divergent findings of record concerning whether the Veteran has a current skin disorder as well as the inadequate December 2020 VA medical opinion that lacked any detailed rationale or discussion concerning herbicide exposure, the Veteran should be afforded a VA medical examination to clarify whether he has a present skin disorder that is causally related to his presumed in-service herbicide exposure. As evidence of record reflects that the Veteran received VA medical treatment for skin disorders from Temple VAMC, updated copies of all pertinent VA treatment records should be obtained and properly associated with the record. 3. Entitlement to a TDIU due to service-connected disabilities is remanded. As a decision on the remanded service connection issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined and a remand of the claim for entitlement to a TDIU is required. The matters are REMANDED for the following actions: 1. Obtain updated treatment records pertaining to the Veteran’s claimed skin and sleep disorders from Temple VAMC for the time period from December 2020 to the present and associate them with the record. 2. Obtain a VA medical opinion to clarify the etiology of the Veteran’s claimed OSA from an appropriate examiner. If an opinion cannot be provided without an examination, one should be provided. The electronic claims file must be made available to the examiner, and the examiner must specify in the report that the file has been reviewed. Based on a review of the electronic claims file and the Veteran’s lay assertions, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was caused or aggravated (worsened) by the service-connected PTSD. Also, regarding obesity as an “intermediate step,” the examiner is asked to discuss the following: 1) whether the service-connected disabilities of peripheral neuropathy or PTSD caused the Veteran to become obese; (2) if so, whether obesity, as a result of the service-connected peripheral neuropathy or PTSD disabilities, was a substantial factor in causing the claimed secondary disability of OSA; and (3) whether the claimed secondary disability of OSA would not have occurred but for obesity caused by the service-connected peripheral neuropathy or PTSD disabilities. The opinion must reflect consideration of the Veteran’s contentions that his service-connected peripheral neuropathy and/or PTSD caused his obesity. The examiner should discuss the Veteran’s assertions that his service-connected PTSD (as impaired impulse control) contributes to his inability to control food portions and the types of food consumed as well as assertions that his service-connected peripheral neuropathy limited his ability to exercise. The examiner should also acknowledge and discuss the findings in the February 2016, September 2016, December 2019, and December 2020 VA examination reports/medical opinions as well as the multiple treatise articles of record addressing links between obesity, PTSD, and OSA (associated with the record in January 2020, July 2020, and January 2021). Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655 (2020). 3. Obtain a VA medical examination to clarify the nature and etiology of the Veteran’s claimed skin disorder from an appropriate examiner. The electronic claims file must be made available to the examiner, and the examiner must specify in the report that the file has been reviewed. Based on a review of the electronic claims file and the Veteran’s lay assertions, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any previously or currently diagnosed skin disorder was causally related to the Veteran’s military service, to include presumed in-service herbicide exposure. In so doing, the examiner must discuss and acknowledge the findings in the post-service VA treatment records (particularly the June 2015 treatment for a rash and 2019 treatment for dermatitis and xerosis), Agent Orange treatise evidence associated with the record in October 2016, and VA examination reports/medical opinions dated in February 2016, September 2016, December 2019, and December 2020. For purposes of the requested opinion, the examiner should assume that the Veteran is a reliable historian - a veteran whose statements concerning the description of a skin rash that began while in service are considered competent in this instance. The examiner is also reminded that the absence of in-service documentation of the claimed disorder alone is not considered adequate rationale concerning etiology of the claimed skin disorder. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655 (2020). (Continued on the next page)   4. After completing the above actions and any other necessary development, the claims on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the record since the December 2020 SSOC. If any benefit on appeal remains denied, an SSOC must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. D. Deane, 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.